The main legal point established in the judgment is the sufficiency of evidence to establish guilt, the non-fatal nature of non-examination of investigating officer or doctor, and the consideration of absence of independent witness in the prosecution story.

Ghanshyam Prasad, J.

1. This appeal has been preferred against the judgment and order dated 29.5.1992 passed by the 9th Additional Sessions Judge, Gaya in Sessions Trial No. 54/89/189/89 thereby and thereunder all the appellants have been convicted and sentenced to undergo rigorous imprisonment for seven years each under Sections 326/149 of the Indian Penal Code (hereinafter referred to as the Code)

2. All the eight appellants faced trial under Secs. 307/149 of the Indian Penal Code for assaulting one Ratneshwar Sharma by means of Pasuli. However, the learned lower Court after consideration of evidence has convicted all the appellants u/s. 326/149 of the Code.

3. The prosecution case, as revealed in fardbeyan (Ext. 1), is as follows; On 17th May, 1988 at 6-7 a.m., the informant, Suresh Sharma, (PW 1) along with injured Ratneshwar Sharma (PW 2), who is his nephew, was going to Jehanabad for his own treatment. On the way near brick-kiln the informant stopped to urinate. In the meantime, all the appellants armed with Pasuli (sharp cutting weapon) came out of Toddy shop situated near the brick-klin, surrounded Ratneshwar Sharma and assaulted him with Pasuli on various parts of his body including neck, forehead etc. The informant witnessed the entire occurrence from behind the brick-klin.

4. It has further been alleged that on Hullah Satyendra and Mungeshwar Sharma came at the spot and then all the accused- appellants fled away. Thereafter, the victim, Ratneshwar Sharma, in unconscious state was removed to Sadar Hospital for treatment. The police came in the hospital and recorded the fardbeyan of PW 1, Suresh Sharma.

5. On the basis of fardbeyan the police registered a case u/s. 307/149 of the Code against all the eight accused-appellants. After investigation the police submitted charge-sheet against all the accused. After cognizance and commitment the accused-appellants were put on trial before the learned lower Court.

6. In course of the trial the prosecution examined altogether six witnesses including the informant, Suresh Sharma (PW 1) and injured Ratneshwar Sharma (PW 2). Other witnesses are Awadhesh Sharma (PW 3), who has been tendered, Birendra Sharma (PW 4), a formal witness who has formally proved formal first information report as Ext. 2, Md. Sadruddin (PW 5), also a formal witness, who has formally proved the injury report as Ext. 3 and Narendra Sharma (PW 6), also a formal witness who has formally proved the case diary as Ext. 4.

7. The defence is mere denial of the occurrence. It has been alleged that the prosecution case is totally false and baseless and the appellants have been falsely implicated in this case due to previous dispute.

8. Learned counsel for the appellants has challenged the judgment under appeal in law as well as on facts. It has been submitted that the learned lower Court has not properly appreciated the oral evidence adduced on behalf of the appellants. He ought to have drawn adverse inference for non- examination of any independent witness or the doctor and investigating officer of the case.

9. It is a rare case where both the investigating officer and the doctor are dead, as a result of which they could not be examined in course of the trial. However, the injury report and the case diary have been brought on record as Exts. 3 and 4.

10. It is a settled principle of law that non-examination of investigating officer or the doctor is not fatal for prosecution in each and every case. It depends upon the facts and circumstances of the case. In order to take advantage of non-examination, the defence has to show that it has caused serious prejudice to them. In support of the above principle learned A.P.P. appearing on behalf of the State has relied on the case of Raj Kumar Rajwar V/s. State of Bihar, reported in 1993(3) PLJR 831 and Om Prakash Sohar V/s. State of Bihar, reported in 1986 PLJR 827.

11. In Paragraph 14 of case reported in 1993(3) PLJR 831 it has been held; that non-examination of in