The main legal point established in the judgment is the interpretation of the provisions of Section 108 and 109 of the Evidence Act, 1872, in cases involving absconding defendants and the impact of non-examination of the Investigating Officer on the prosecution's case.

JUDGMENT :

1. The appellant-Lampat Bauri has assailed his conviction under Section 307 and 324 of the Indian Penal Code, 1860, (hereinafter referred to as ‘Penal Code’ for brevity) for attempting to commit murder of Suchand Mahto by inflicting knife blow in his abdomen causing bleeding injury and also injuring Santosh Kumar Mahto with knife causing bleeding in his hand in S.T. No. 673 of 1994 as per judgment dated 28.01.2003 of the learned Additional District and Sessions Judge, Fast Track Court-4, Bokaro. The appellant has been sentenced to undergo rigorous imprisonment for seven years for the offence under Section 307 of the Penal Code and also rigorous imprisonment for one year under Section 324 of the Penal Code. Both the sentences were directed to run concurrently.

2. The appellant was on bail. The appellant is missing for about 12 years. He was not found as per execution report dated 20.03.2019.

3. The case of the prosecution in short is that on 26.03.1994 at about 12:30 hours Anjana Kumari, daughter of Trilochan Bouri of village Kumardaga, Tola Simultard, P.S. Pindrajora was watching her wheat crops. In the meantime, the appellant came there and started quarrelling with her. Informant Santosh Kumar Mahto and Suchand Mahto intervened and asked him not to quarrel with the girl at which accused started abusing them. The appellant immediately rushed to his house and came with a knife and he assaulted the informant Santosh Kumar Mahto in his right hand and also assaulted Suchand Mahto in his chest by inflicting knife blow. The informant received injury in his right arm and Suchand Mahto received injury on left side of the chest. The villagers reached there and took the injured to Police Station where F.I.R. was lodged by the informant Santosh Kumar Mahto.

The case was registered under Sections 326/307 of Penal Code against the appellant-Lampat Bauri bearing Pindrajora P.S. Case No. 26/94 dated 26.03.1994. The injured were taken to hospital for treatment. The doctor found incised would in the left forearm of Santosh Kumar Mahto and incised wound by sharp cutting weapon in the right lateral chest wall of Suchand Mahto, which are grievous in nature. After investigation chargesheet was submitted against the appellant under Sections 307/326 of the Penal Code and cognizance was taken by the learned Chief Judicial Magistrate, Bokaro accordingly. After compliance of provision of Section 207 Cr.P.C. the case was committed to the court of Sessions. On 11.11.1997, the case was opened and charge under Sections 324/326/307 of the Penal Code was framed against the appellant.

4. The appellant pleaded not guilty and claimed to be tried. In defence he denied the allegations and claimed himself to be innocent.

5. In order to prove the case, the prosecution has examined altogether nine witnesses. P.W.-4-Santosh Kumar Mahto is injured and also the informant of the case, P.W.-7-Suchand Mahto is the victim and eye witness. It is his life the appellant made an attempt to murder, P.W.-6 is Anjana Kumari and eye witness, P.W.1 is Shiv Charan Mahto, P.W.-2 is Trilochan Mahto, P.W.-3 is Phanibhushar Mahto, P.W.-5 is Ramanath Mahto, P.W.-8 is Dr. Avanish Kumar Singh and P.W.-9 is Kisto Mahto.

6. Learned Amicus, Mr. Lukesh Kumar, would submit that since the record reveals that the appellant is absconding for more than seven years and has not been heard of he has been suffered a civil death and the appeal should abate.

7. It is not disputed that as per the report dated 20.03.2019 submitted by the concerned police that the appellant is missing for about 12 years. The question that arises now is whether in a criminal appeal such a finding can be given about civil death of the appellant. The Hon’ble Supreme Court examined similar question in cases under Workmen’s Compensation Act, 1923, in the case of Oriental Insurance Company Limited Vs Sorumai Gogoi and others, (2008) 4 SCC 572 and at paragraph 18 has held that Sections 108 and 109 of the Evidence Act, 1872 are