ORAL JUDGMENT

Date: 05-11-2018

As the learned counsel for the appellant failed to appear on account thereof, Mr. Pratik Mishra, learned advocate has been requested to assist the court as an Amicus Curiae .

2. Appellant, Chandeshwar Singh has been found guilty for an offence punishable under Section 307 of the IPC and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs.3000/- in default thereof to undergo S.I. for three months, additionally vide judgment of conviction dated 20.12.2008 and order of sentence dated 22.12.2008 passed by Additional Sessions Judge, Fast Track Court No.III, Vaishali at Hajipur in Sessions Trial No.427/2000.

3. Ram Sewak Singh (PW.2) gave his fardbeyan on 25.11.2000 while he was admitted at Sadar Hospital, Hajipur disclosing therein that on 24.11.2000 at about 09:30 PM while he was sitting at his Ausara (Varandah), his pattidar, Chandeshwar Singh, son of Late Sukhdeo Singh armed with sickle came and began to abuse. He also questioned why you are not withdrawing a case pending since before whereupon, he resisted as a result of which, Chandeshwar Singh inflicted sickle blow with an intention to kill. He tried to prevent the same on account thereof, he sustained injury over fingers of both hands. He again inflicted sickle blow over his neck which, he anyhow escaped as a result of which, he sustained injury over his forehead as well as left side of temporal region. Then he fell down. Thereafter, he again inflicted the blow causing injury over his left intercostal region. He raised hue and cry attracting his father Radhe Singh and brother Ram Bali Patel who tried to intervene. Chandeshwar Singh attacked upon them too whereupon they both ran away in order to save themselves. Chandeshwar Singh took out Rs.5275/- from cash box of his shop. On hue and cry so many persons came who lifted him to hospital. Because of the fact that there was profuse bleeding on account thereof, he became unconscious. He has regained sense today and then, recorded his fardbeyan.

4. The aforesaid fardbeyan was transmitted to Officer- in-charge of Ganga Bridge P.S. on the basis of which Hajipur Sadar P.S. Case No.427/2000 was registered following with an investigation as well as submission of charge sheet facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

5. Defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been pleaded that in the background of persisting land dispute and further, the appellant is being prosecuted falsely at the instance of the prosecution party who, after taking police, the doctor in his collusion got this case filed with false and frivolous allegation. Though, no ocular evidence has been examined, the certified copy of judgment of earlier instituted case at the instance of father of the informant has been made an exhibit.

6. In order to substantiate its case, prosecution has examined altogether four PWs who are PW.1-Ram Kali Devi, mother, PW.2-Ram Sewak Singh, informant/injured himself, PW.3-Gopal Singh, Investigating Officer and PW.4-Dr. Syed Golam Mohiuddin Asarfi who had examined the informant. Side by side has also exhibited, Ext.1-Signature of informant over fardbeyan, Ext.1/1-Signature of Radhe Singh over fardbeyan, Ext.1/2- Singnature of Subhash Chandra Singh over fardbeyan, Ext.2- Formal FIR and Ext.3-Injury Report. As stated above, defence had exhibited Ext.A-certificate copy of judgment of 23.09.2009 relating to Complaint Case No.404/96.

7. The learned Amicus Curiae while assailing the judgment impugned has submitted that on account of suffering from inherent defect, the same is fit to be set aside. In order to justify the same, it has been submitted that what to talk about an independent witness, the brother of the victim who came in rescue along with his father (since deceased) has not been examined without any explanation at