JUDGMENT :

NAVNEET KUMAR, J.

1. This appeal is directed against the Judgment of Conviction dated 20.04.2005 passed by learned 1st Additional Sessions Judge, Dumka in Sessions Case No. 263 of 1995, arising out of Saraiyahat P.S. Case No. 68 of 1993, corresponding to G.R. Case No. 590 of 1993, whereby and where under the accused appellant has been convicted for the offence punishable under Section 324 of IPC, and has been directed to be released under the provisions of section 4(1) of Probation of Offenders Act, 1958 read with section 360 of Cr.P.C. on entering in to a bond of Rs. 5000/- (Rs. Five thousands) with two sureties of the like amount each for a period of two years.

2. The prosecution case arose on the beyan of informant Bishwnath Mandal (PW-4) on 17.07.1993 at 12:45 p.m. The prosecution case, in brief, is that on 17.07.1993 at about 9.30 AM, the informant Bishwnath Mandal (PW-4) of village Kordiha, P.S. Saraiyahat, District-Dumka along with his family members came to the P.O. land with their Bullocks etc. for ploughing the land and was planting the seedlings there meanwhile all the accused persons, (Manohar Mandal, Raju Mandal, Biru Mandal, fuldhar Rout, Saru Mandal, Karu Mandal, Surendra Mandal, Bhopal Mandal, Raju Mandal, Sundar Mandal,) forming an unlawful assembly armed with deadly weapons along with one accused Sokhi Mandal and Sokhi Mahto (since dead) arrived there and surrounded the informant with a motive to kill him. It was stated the accused Manohar Mandal gave a Tagari blow upon the head of the informant causing injuries to him and the rest accused persons assaulted the informant and his father Antu Mandal and to his brother Kailash Mandal. The witnesses of the village namely Jay Prakash Mahto, Nishiwar Ram and Jyotish Layak and others witnessed the occurrence. It was disclosed that the reason behind the alleged occurrence was that there was chronic land dispute between the accused Manohar Mandal and the informant since last five years and the P.O. land at Aswari, P.S. Saraiyahat, District-Dumka was settled in his favour last year by the Settlement Officer.

3. On the aforementioned statement of the informant Bishwnath Mandal (PW-4), a case was registered by the Police as Saraiyahat P.S. Case No. 8/93 dated 17.7.1993 against the accused persons u/s 147, 148, 149, 447, 323, 324 and 307 I.P.C. The Police took up investigation and submitted charge-sheet against the accused persons and thereafter the cognizance was taken by the learned CJM on 13.9.1993 in this case u/s 147, 323/307 of I.P.C. and subsequently on 30.08.95, the case was committed to the Court of Sessions. The 3rd Additional Sessions Judge, Dumka had framed charge under sections 147 and 307 of IPC and the learned trial court after conducting the full fledged trial, passed the impugned judgment of conviction and order of release on probation.

4. Heard Mr. Durga Charan Mishra, the learned defence Counsel appearing on behalf of the appellant and Mr. Tarun Kumar APP appearing on behalf of the State.

Arguments advanced on behalf of the appellant

5. Learned defence counsel appearing on behalf of the appellant submitted that the learned trial court committed gross error in the appreciation of the evidence because of the fact that neither the doctor nor the I.O. in this case has been examined and therefore the offence under Section 324 of IPC has not been substantiated and as such non-examination of the doctor and the I.O. has caused serious prejudice to the defence of the appellant. It has further been submitted that the learned trial court has failed to appreciate the right of private defence of the appellant and no independent witness was examined to support the case of prosecution and only the family members, who are highly interested witnesses, have been examined on behalf of the prosecution. It has also been submitted on behalf of the appellant that even the co-villagers, who are said to be the eyewitnesses and named in the FIR in beyan have not been examine