This appeal has been preferred by the appellants, namely, Bharat Mahato, Hukumlal Mahato, Gulab Chand Mahato and Rajendra Mahato, they stood convicted under Sections 307 I.P.C and were ordered to go rigorous imprisonment for five years vide judgment dated 09.11.2002 passed in S. T. Case No. 609 of 1993 by Sri R.K. Srivastava, learned Additional Sessions Judge, F.T.C.3rd, Bokaro.

2. The case of the prosecution, as has been recorded in the fardbeyan of Hublal Rajwar by S.I., R.B. Mahto of Chas (M) Police station on 28.09.1988 at 10:45 Hrs. in Referal Hospital, Chas alleging that in the morning the cousin of the informant, Bhola Rajwar (P.W.4) along with his nephew had gone to field in order to harvest Sinduwar. In the meanwhile, Bharat Mahto, Hukum Lal Mahto, Gulab Chand Mahto and Rajendra Mahto came and asked why he is harvesting Sinduwar, thereafter hot exchange of words took place. It is alleged that Bharat Mahto was armed with Farsa and Rajendra Mahto was armed with Chota Rangeela. Gulab Chand Mahto assaulted Bhola Rajwar with farsa on the head, consequent thereupon he fell on the ground thereafter, Gulab Chand Mahto and Rajendra Mahto also assaulted with Chota Rangeela on the head of Bhola Rajwar, who received injury. In the meanwhile the informant who was nearby field came there whereupon the accused persons fled away.

3. On the basis of these allegations Chas(M) P.S. Case No. 68 of 1988 dated 28.09.1988 was instituted under Sections 323, 324, 307/34 IPC. The police after investigation submitted chargesheet and thereafter charges were framed under Section 307/34 of the I.P.C on 14.03.2000 thereafter, trial proceeded and during course of trial, the prosecution has examined six witnesses namely, P.W.1 Keshav Chandra Rajwar, who is not an eye witness after occurrence he reached at the place of occurrence. P.W.2 Hemant Lal Rajwar, son of the injured Bhola Rajwar, who is also not an eye witness . P.W.3 Naushad Ansari who is not eye witness and after occurrence he reached at the place of occurrence. P.W.4, Bhola Rajwar, who was injured witness. P.W.5, Haradhan Rajwar, who was declared hostile and P.W.6, Ali Ahmed Ansari who was advocate clerk, has proved the injury report issued by Dr. M. Prasad, Deputy Superintendent, Referal Hospital, Chas, which is marked as Ext.3 (with objection). Ext.1 is the written report, Ext.2 is the signature of Naushad Ansari on affidavit dated 10.10.1988, Ext.2/A is the signature of Paltu Ram Mahto on affidavit dated 10.10.1988, Ext.3 is the medical report of Hemant Lal Rajwar, Ext.3/A is the medical report of Bhola Rajwar, Ext. 3/B is the medical report of Hublal Rajwar (with mark an objection by defence) and Ext.4 is the formal F.I.R.

4. Learned counsel for the appellants while assailing the impugned judgment submitted that neither the Investigating Officer has been examined nor the fardbeyan has been proved by the competent witness. Further the injury report has been proved by P.W.6, Ali Ahmed Ansari, who is an advocate clerk, Ext.3/B which is marked with objection. It is submitted that in absence of nonexamination of Investigating Officer, the injury report cannot said to be proved by prosecution. Hence the prosecution has failed to prove its case beyond reasonable doubt, therefore the appellant cannot be held guilty under Section 307 of the I.P.C and judgment and order deserves to be set aside.

5. Learned counsel for the State on the other hand submitted that P.W.4 Bhola Rajwar, who is an injured witness, named these appellants in para 1 and stated that the appellants have assaulted him and he received injury. These facts have been supported by P.W.2, Hemant Lal Rajwar who soon after reached the place of occurrence. It is further submitted that this vital aspect has been taken into consideration by the Trial Court.

6. The evidence of Investigating Officer could not be produced and the injury report has been proved by the P.W.6 formal witness which is marked with objection.

7. The question to de