This appeal, apart from other disturbing feature, also involves a consideration of the conduct of the prosecution in not examining the investigating officer despite summons issued by the Court, Appellant no. 1 has been convicted under section 302/149 and appellant no. 2 has been convicted under section 302 of the Indian Penal Code and both of them have been sentenced to undergo rigorous imprisonment for life.

2. On 17th June, 1977 Prayag Singh (p.w. 7), according to the information lodged by him with the police, went too see his land in Baluediara along with his father Ram Nagina Singh and co-villagers Lallan Singh (P.W.4) Babban Singh (P.W.6) and Kamal Singh (P.W. 5). They reached at the filed at about A.M. At that place they saw the appellants and other accused persons harvesting the paddy. They protested and the harvesters left the filed and went towards north. The informant and others however proceeded towards west in the diary, but the appellants and others forming unlawful assembly came with the respective arms and fell upon them. Appellant Mannan Mian assaulted the informants father Ram Nagina Singh with bhala. Ram Nagina Singh fell down but Amsad Mian gave a garasa blow on his face and Tahir Mian started assaulting him with bhala and Rashid Mian with lathi. The informant and others raised alarm and tried to rescue Ram Nagina Singh. At the stage, appellant Rashid Mian assaulted Lallan Singh with lathi and the miscreants threatened other people also. The informant run away to some distance out of fear and saw his father Ram Nagina Singh being assaulted by the accused persons. After the assault the miscreants filed away. The informant and others then found Ram Nagina Singh lying injured with several injuries on his person. Accompanied by Lallan Singh Ram Deo Singh, Kamal Singh, Babban Singh, Ramdhari Singh, Ram Lakhan Singh and Bhaiya Ram Singh and carrying the dead-body of Ram Nagina Singh and informant went to the Sahebganj police station where he lodged the case at 4 P.M. Since, however, the bordering diara was the place of occurrence Sahebganj police forwarded the report to Amdabad police-station. The case was thus investigated by the Amdabad police and eventually the accused persons were committed and put on trial in the court of the 1st Additional Sessions Judge, Katihar.

3. In the trail although several witnesses were produced, expect the informant none supported the prosecution case. Even Lallan Singh (P.W. 4), Kamal Singh (P.W. 5) and Babban Singh (P.W.6), who according to the informant, were accompanying the informant and the victim and were present when Ram Nagina Singh was assaulted, have not supported the prosecution case P.W. 4 has said that on the date of occurrence he remained in his house and did not go out at all. According to the prosecution case, he was one who had also received injuries, but there is nothing on the record to show that any injuries were caused to him P.W. 5 has stated that he was in Sahebganj Bazar on the date of occurrence and he did not accompany the informant and others, P.W. 6 Babban Singh has also deposed in the like manner. Several other witnesses including P.Ws. 1, 2 and 3, who had accompanied the informant and carried two dead-body to the police-station, have not sated a word about either to have seen the occurrence or to have heard who had assaulted Ram Nagina Singh except saying that they learnt that there was an incident of rioting.

4. P.W. 8 Dr. Ashima Pal, who had held the postmortem examination on the dead body of Ram Nagina Singh on 18.6.1977 and found seven incised injuries and five other injuries caused by hard and blunt substance and noticed the fracture of two ribs on the left side and rupture of the lungs and spleen, has, however proved that in her opinion Ram Nagina Singh’s death was caused due to the effect of ante mortem injuries caused to him and thus he met a violent death resulting in homicide. Her opinion conforms with the time of the occurrence and read