Prashant Kumar, J.@mdashThis appeal is directed against the judgment of conviction and order of sentence dated 26.10.2002 passed by 5th
Additional Sessions Judge, F.T.G-II, Godda in Sessions Case No. 56 of 2002, whereby and whereunder appellants were convicted under
Sections 342, 324 read with Section 34 of the I.P.C and sentenced to undergo rigorous imprisonment for two years for the offence under Sections
324/ 34 of the I.P.C. and rigorous imprisonment for one year for an offence under Sections 324/ 34 of the I.P.C.
2. The case of prosecution, in short, as per the F.I.R. lodged by one Suban Hembrum, is that on 25.01.1988 while he was returning home from
market and reached near Amuak Teli Tola, appellants surrounded him. Thereafter, Masuda Kisku (appellant No. 3) assaulted him with tangi, due
to that he received injury on his head and fell down. It is further alleged that all the accused persons took away Rs. 700/ - from his pocket. It is
also stated that other appellants assaulted him with slap and fist.
3. On the basis of aforesaid information, Podaiyahat P.S. Case No. 007 of 1988 under Sections 342, 324, 379, 307/ 34 of the I.P.C. instituted
and police took up investigation. It appears that after investigation, police submitted charge-sheet against the appellants under Sections 342, 324,
379, 307/ 34 of the I.P.C. It further appears that after cognizance, the case committed to the court of Sessions as the offence u/s 307 of the I.P.C.
is exclusively triable by the court of Sessions.
4. After commitment, learned Assistant Sessions Judge, Godda vide his order dated 20.08.1996 framed and explained the charges to the
appellants under Sections 342, 324, 379, 307/ 34 of the I.P.C. to which the appellants pleaded not guilty and claimed to be tried. Thereafter
prosecution examined altogether three witnesses in support of its case. The court below, after considering the evidence available on record
convicted and sentenced the appellants as aforesaid. Against that the present appeal filed.
5. While assailing the aforesaid judgment of learned court below, Sri. Jai Prakash Jha, learned senior counsel, appearing for the appellants, submits
that there is absolutely no evidence to show that the informant was assaulted by the appellants. It is submitted that two witnesses of fact i.e. P.W.2
and P.W.3 were declared hostile by the prosecution, as they have not supported its case. P.W.-l is the doctor, who has not stated anything about
the facts of the case. It is submitted that the learned court below observed that it is for the prosecution to prove the case beyond the shadow of all
reasonable doubt, but inspite of that it convicted the appellants without any evidence. It is submitted that learned court below knowingly passed the
present illegal order, thus, the same cannot be sustained.
6. Sri. Tapas Roy, learned Additional P.P., after going through the record of the case, had fairly stated that in the instant case there is absolutely no
evidence against the appellants.
7. Having heard the submission, I have gone through the record of the case. As noticed above in the instant case, three witnesses examined by the
prosecution. P.W.-l Dr. Bindeswar Panjiyara deposed that on 26.01.88, he medically examined Suban Hembrum and found one incised wound on
his skull. According to him, the said injury is simple in nature, caused by sharp cutting weapon. This witness has not stated as to how Suban
Hembrum received injury. He has not taken the names of appellants as a assailant of Suban Hembrum.
8. P.W.2 and 3 Munsi Murmu and Bitia Marandi have been declared hostile by the prosecution. They stated that they have no knowledge about
the occurrence. Thus, their evidence have of no help to the prosecution. No other witnesses examined by the prosecution. Thus, 1 find that there is
absolutely no evidence to show that informant was assaulted by the appellants. From perusal of impugned judgment, I find that learned court below
convicted the appellants on the basis of facts stated in the First Information Report. It is worth mentioning that content of First Information Report
has not been proved in this case because the I.O. and informant were not examined by the prosecution. It is well settled that the First Information
Report is not a substantive piece of evidence and it cannot become the basis of conviction. Thus, I find that the learned court below has committed
serious illegality in using the contents of First Information Report for convicting the appellants.
9. As noticed above since there is no evidence to show that informant was surrounded and assaulted by the appellants, I conclude that the
conviction of the appellants under Sections 342, 324 read with Section 34 of the I.P.C. is illegal, therefore cannot be sustained.
10. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted from
the charges levelled against them. They are also discharged from the liabilities of the bail bonds furnished by them.
