JUDGMENT :

Sanjay K. Agrawal, J.

1. The appellant has preferred this appeal calling in question legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 29-12-2021 by which he has been convicted and sentenced as under: -

2. The appellant herein and eight other accused persons were tried for the offences punishable under the aforesaid offences on the allegation that on 27-6-2018 between Village Kalepal & Chikpal in dense forest, the appellant along with eight other accused (acquitted) and other absconded accused persons being members of banned Naxalite organization, armed with deadly weapons constituted unlawful assembly and used force and assaulted Ganiram (injured) – Constable DRG and thereby committed the aforesaid offences. All the accused persons were tried for the aforesaid offences and ultimately, the trial Court has convicted the present appellant in the aforesaid manner and acquitted eight accused persons against which this appeal has been preferred.

3. Mr. Suresh Kumar Verma, learned counsel appearing for the appellant, would submit that injured Ganiram himself has not been examined and it has not been proved beyond reasonable doubt as to whether he suffered injuries and furthermore, no memorandum statement has been recorded and seizure vide Exs.P-3, P-4 & P-5 has been made from the spot, as such, in absence of disclosure statement, the appellant cannot be connected with the aforesaid seizure. Axe has been seized vide Ex.P-20, but it has neither been sent to FSL for forensic examination nor blood has been found on the same and even according to the doctor Dr. P. Venugopal (PWCr. 13), injuries were fresh and serious in nature, no X-ray report has been found except report Ex.P-7 and the doctor himself has stated the injuries to be simple in nature. The appellant has already been in jail since 4 years 4 months and maximum jail sentence of five years has been awarded to the appellant. In that view of the matter, the appeal deserves to be allowed.

4. Learned State counsel would support the impugned judgment.

5. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

6. In order to prove the injury to Ganiram and to prove injury report Ex.P-7, Dr. P. Venugopal (PW-13) has been examined, though in paragraph 3, he has stated that the injuries were fresh and serious in nature, but in the cross-examination, he has also admitted that the injuries were simple in nature and thereafter, he said that the injuries were not simple in nature.

7. A careful perusal of the report Ex.P-7 would show that though the injuries have been proved vide Ex.P-7 by Dr. P. Venugopal (PW- 13), but for the reasons well known to the prosecution, injured Ganiram has not been examined by the prosecution to prove his injuries. The prosecution was obliged to examine Ganiram to prove whether he was assaulted by the appellant and whether he has suffered injuries which were sufficient to cause death in terms of Section 307 of the IPC. In that case, the appellant could have an opportunity to cross-examine injured Ganiram qua his presence and his injuries which were sufficient to cause death.

8. Now, the question is, whether the trial Court is justified in convicting the appellant for offence under Section 307 of the