Judgment S.B.SINHA, J. 1. The appellants, who are seven in numbers have preferred this appeal against the judgment of conviction and sentence passed by Sri S. K. P. Verma, 7th Additional Sessions Judge, Dhanbad in Sessions Trial No. 112/83. 2. The appellants aforementioned stood their trial with one Govind Munshi and Dubey Hazra. Govind Munshi had been acquitted by the learned Court below whereas Dubey Hazra died during the pendency of the case. 3. By reason of the impugned judgment, the learned Court below has found all the appellants guilty of commission of an offence under Sections 302/149 of the Indian Penal Code for causing the death of one Kalu Hazra. 4. Appellant No. 1, Sitaram Hazra, appellant No. 2, Thakur Hazra alongwith the aforementioned Dubev Hazra (since deceased) were found guilty of an offence under Section 302, I.P.C. for causing the death of aforementioned Kalu Hazra. All the anpellants were further found guilty for commission of an offence under Section 326 of the Indian Penal Code for causing grievous hart to Chini Hazra (P.W. 8). Durjodhan Hazra (P.W. 2), Brihaspat Hazra (P.W. 7), Puran Hazra (P.W. 6) and Kanthi Hazra (P.W. 1). 5. The occurrence took place on 20th August, 1982 at about 6.30 AM. at village Buriasher. P.S. Govindpur in the district of Dhanbad Chini Hazra (P.W. 8) made a fardbayan before the Offlcer-in-charge of Govindpur Police Station at about 10 A.M. on 20-8-1982 alleging inter alia, therein that about 6.30 A.M., on that date to the effect that he alongwith his other family members had gone to plough the field which was situated towards the east of the village. According to the informant, when they had started ploughing the land, the appellants and two others arrived at the field and obstructed them from ploughing the land saying that they were the owners thereof and thereafter, assaulted them with the weapons which they had been carrying, as a result whereof Kalu Hazra died and the informant and his companions were injured. 6. The prosecution in support of its case examined 10 witnesses. P.Ws. 9 and 10 are formal witnesses. Other witnesses, namely P.W. 1, Kanthi Hazra, P.W. 2. Durjodhan Hazra, P.W. 4, Gour Hazra, P.W. 6, Puran Hazra, P.W. 7, Brihaspat Hazra and P.W. 8, Chini Hazra, informant are injured persons. 7. 6. The prosecution in support of its case examined 10 witnesses. P.Ws. 9 and 10 are formal witnesses. Other witnesses, namely P.W. 1, Kanthi Hazra, P.W. 2. Durjodhan Hazra, P.W. 4, Gour Hazra, P.W. 6, Puran Hazra, P.W. 7, Brihaspat Hazra and P.W. 8, Chini Hazra, informant are injured persons. 7. In this case, neither the Investigating Officer was examined nor the doctors, who conducted autopsy on the dead body of the deceased Kalu Hazra and who examined the injured witnesses have been examined. 8. The post mortem report and the injury reports however have been brought on record and marked exhibits. 9. The learned Court below, on the basis of the evidences brought on record came to the conclusion that the prosecution has proved its case beyond all reasonable doubt, and as indicated hereinbefore, passed the judgment of conviction and sentence as against the appellants. 10. Miss Indrani Choudhary, the learned counsel appearing on behalf of the appellant raised the following contentions : (A) The Investigating Officer having not been examined, the prosecution case must be held to have not been able to prove its case. (B) The learned counsel next contended that as the doctors were not examined to prove either the post mortem report (Ext. 2) or the injury reports (Exts. 3 to 3/2), the prosecution cannot be said to have proved the injuries allegedly received by the prosecution witnesses and thus the prosecution cannot be said to have proved its case in relation thereto. (C) It was next contended that in the instant ease, all the witnesses are interested witnesses and the prosecution having not examined any independent witness, no reliance can be placed upon the testimonies of the prosecution witnesses. (D) The learned counsel further submitted that the informant and his co-sharers have not produced any document whatsoever to prove their title or possession in respect of the land in dispute being plot No. 249 measuring an area of 79 decimals. According to the learned counsel, an adverse inference should be drawn as against the prosecuton, to the effect that had the documents which the witnesses admitted to be in their possession been produced, the same would have gone against them. According to the learned counsel, an adverse inference should be drawn as against the prosecuton, to the effect that had the documents which the witnesses admitted to be in their possession been produced, the same would have gone against them. (E) It was next contended that the place of occurrence has also not been proved as P.W. 4 allegedly stated that the dead body had been lying near the house of Ganesh Hazra which is about 500 yards away from the field in question where the occurrence took place. 11. P.W. 8 is the informant. He, in his deposition stated that on the date of occurrence, he alongwith Puran Hazra, Kalu Hazra (deceased) Durjodhan Hazra, Kanthi Hazra, Brihaspat Hazra had gone to plough the land and while they had been ploughing the same, the accused persons alongwith Dubey Hazra came there armed with sword and farsa. They surrounded them and started assaulting. 12. Accordng to this witness, appellant No. 1 assaulted him with sword and appellant Nos. 2 and 3 also assaulted him. The deceased was also assaulted by the appellant Nos. 1 and 2 and the aforementioned Dubey Hazra with sword and farsa. This witness further stated that the other witnesses also received injuries. He further stated that the accused persons intended to dispossess them forcibly from the land. This witness specifically stated that other injured witnesses are his cousin. 13. In his cross-examination, he further stated that he saw the accused persons coming from a distance of 150 yards, but they did not have the fear of being assaulted. He denied a suggestion that there was no apprehension in their mind of being assaulted as the prosecution party was also armed with bows and arrows. This witness further specifically admitted that in relation to the self same incident, a counter case has been lodged by the accused persons in which he and the other prosecution witnesses were made accused of causing injuries to the appellants by shooting arrows on their persons. 14. This witness further stated that a day prior to the date of occurrence, dispute arose at the Registration Office as they intended to lease out the land in question to a Company, but the appellants prevented them from doing so saying that they are the owners of the land. 14. This witness further stated that a day prior to the date of occurrence, dispute arose at the Registration Office as they intended to lease out the land in question to a Company, but the appellants prevented them from doing so saying that they are the owners of the land. This witness, in cross-examination denied a suggestion that he was not in possession of the lands in dispute. 15. P.W. 7, Brihaspat Hazra is also one of the injured persons. He narrated the occurrence in great details. He not only stated about the specific role played by each of the accused person in causing death of the deceased, Kalu Hazra but also stated as how grievous injuries to him and other prosecution witnesses were caused by the appellants. 16. He also stated that on receipt of injuries, he became senseless and he regained his sense after four or five hours. He denied a suggestion given to him on behalf of the appellants that he had gone to the field being armed with bows and arrows. He further denied a suggestion that there had been injuries on the persons of the appellants which were caused injuries by bows and arrows. He further denied a suggestion that he and others had gone to the field for taking forcible possession. 17. P.W. 6, Puran Hazra is also an eye witness. This witness also suffered injury in the incident in question. He also stated in details about the occurrence. He stated that the deceased died at the spot upon receipt of the injuries and thereafter, the appellants fled away. 18. In para 3 of his disposition, he categorically stated that the appellants intended to dispossess them forcibly and therefore, they were assaulted by them. This witness however stated that he did not become conscious even after this assault but four other injured persons namely P.W. 8, P.W. 1, P.W. 8 and P.W. 7 become unconscious. 19. This witness also denied a suggestion given to him that the appellants also sustained any injuries on their person. 20. P.W. 5, Dinbandhu Hazra is an another eye witness. He stated that the appellants were armed with farsa and sword. According to this witness, the informant was assaulted with sword and farsa by the appellant Nos. 1 and 2 as a result whereof, he fell down and then Kalu Hazra was also assaulted by appellant Nos. 20. P.W. 5, Dinbandhu Hazra is an another eye witness. He stated that the appellants were armed with farsa and sword. According to this witness, the informant was assaulted with sword and farsa by the appellant Nos. 1 and 2 as a result whereof, he fell down and then Kalu Hazra was also assaulted by appellant Nos. 1 and 2 and Dubey Hazra and others, as a result whereof, he died at the spot. This witness stated that Chotu Hazra was the order giver. According to him, he witnessed the occurrence. He stated that he was washing his mouth in the river, which was situated at about 150 yards from the place of occurrence. He further stated that he had been protesting about the occurrence from a distance. According to this witness, after the occurrence took place, he ran to the village and informed the ladies about the incidence. 21. This witness denied that Dasrath Hazra amalgamated a portion of the disputed land with his land. 22. P.W. 4, Gour Hazra also stated about the occurrence. This witness stated about the death as a result of the injuries received by deceased Kalu Hazra as also by him and other prosecution witness. He further stated that Abdul wanted to purchase the land in question, but the appellants created trouble in the Registration office on the day proceeding the date of occurrence and as such the registration could not be completed. He admitted that Sahadeo Hazra is his uncle and Chini Hazra (Informant), Kalu Hazra (deceased) and Kanthi Hazra (P.W. 1) are his cousin brothers. 23. He further admitted that Puran Hazra and Brihaspat Hazra, P.W. 6 and P.W. 7 respectively are his brothers. He further gave details of the disputed lands which according to him, bears plot No. 249. According to this witness, the entire assault took place for about 15 to 20 minutes and the villagers came after assault. This witness has also denied a suggestion that the appellants received injuries caused by the prosecution party by shooting arrows on them. This witness has also proved the seizure list, which was marked as Ext. 1. This witness also stated in details about the lands in dispute. He also proved the possession of the prosecution party and denied that Dubey Hazra amalgamated the said plots on his land and had been in possession thereof for about 50 years. This witness has also proved the seizure list, which was marked as Ext. 1. This witness also stated in details about the lands in dispute. He also proved the possession of the prosecution party and denied that Dubey Hazra amalgamated the said plots on his land and had been in possession thereof for about 50 years. He further denied that the lands in question was recorded as Gair Mazurua and not as Raiyati land. 24. P.W. 2, Durjodhan Hazra is also an injured person. This witness had also made statements to the effect that a day prior to the date of occurrence, they had gone to Registration Office for executing the deed of lease in favour of Abdul, but the registration could not be completed as two of the appellants started troubles there. He further denied a suggestion given to him by the appellants that the disputed lands did not belong to them. 25. P.W. 1, Kanthi Hazra is also one of the injured witness. He also supported the prosecution case in its entirety. He stated that the accused persons came to the spot being armed with sword and farsa and assaulted Kalu Hazra, who died at the spot. He further stated that the clothes of the injured were smeared with blood. He had also given the details of the disputed plot, which according to him, bears plot No. 249 measuring 79 decimals. He admitted his relationship with the other prosecution witnesses. 26. P.W. 3 is a seizure list witness. P.W. 9 is Abdul Halim. He has supported the prosecution case to the extent that he had gone to the Dhanbad Registration Office, as he intended to purchase the lands, but the registration could not be completed as some persons created trouble. 27. P.W. 10 an Advocates clerk. He proved the post mortem report being in the handwriting of and bear the signature of Dr. B. P. Chourasia. He further proved the injury reports, which according to this witness bear the signature of Dr. S. K. Pandit. This witness further stated that Dr. S. K. Pandit is dead and the whereabouts of Dr. B. P. Chourasia is not known to him. 28. In his cross-examination, he admitted that he does not have any medical knowledge. He further stated that Dr. Chourasia is in service. S. K. Pandit. This witness further stated that Dr. S. K. Pandit is dead and the whereabouts of Dr. B. P. Chourasia is not known to him. 28. In his cross-examination, he admitted that he does not have any medical knowledge. He further stated that Dr. Chourasia is in service. However, in his cross-examination, the contentions of the post mortem report or the injury reports were not challenged. 29. From the post mortem examination report (Ext. 2), it appears that the deceased Kalu had received the following injuries : (i) Incised wound 3" X 2" x cutting the bone, Muscle and vessels, only skin is attached in left wrist and palm. (ii) Incised wound 6" x 2" X bone deep over Rt. shoulder joint cutting the hand of Rt. humerous and elavicts. (iii) Incised wound 11/2" x 1/2" x muscle deep below the Rt. elavicle. (iv) Incised wound 1/2" X 1/2" x bone deep cutting the Nerve, vessels in Rt. cubital fossa. From Exhibit 3 series, it appears that the injured persons were examined by Dr. S. K. Pandit, Assistant Professor of Orthopeadic, Patliputra Medical College, Dhanbad. 30 From a perusal of the said injury reports, it appears that the following injuries were received by the prosecution witnesses : Injuries on the person of Kanthi Hazra (i) Compound fracture left maxilla with incised wound about 6" X 1" x 1" extending from left side eye upto upper upper lipgrievous, sharp. (ii) Compound fracture lower thigh of left humerous X-ray confusion grievous sharp weapon. (iii) Lacerated would left shoulder 3" x 2" x 1" simple-Blunt. Injuries on the person of Srinibas Hazra (i) Incised wound on vault of scalp with compound fracture RL peristal bone 6" X 2" x 1". (ii) Incised wound left side of fact-4" x 2" x 1" with compound fracture of left Zy-gona. (iii) Traumatic amputation of left index and thumb only hanging by skin log at IP level. (iv) Lacerated injury on Med. aspect of RL leg with division of Tendo. Achitis 4" X 2" x 1" A. I. Injuries on the person of Brthaspat Hazra (i) Incised wound RL chest wall-3" x 1/2" X 1" sharp weapon-grievous. (ii) Two lacerated injuries RL fore-arm. 2" X 1" x 1/2" at mid forearm (R)- Blunt-Simple. (iii) Compound fracture RL Humerous (mid) with incised wound 3" X 1" x 1" Transverse-grievous-X-ray confusion diagnosis & sharp. (ii) Two lacerated injuries RL fore-arm. 2" X 1" x 1/2" at mid forearm (R)- Blunt-Simple. (iii) Compound fracture RL Humerous (mid) with incised wound 3" X 1" x 1" Transverse-grievous-X-ray confusion diagnosis & sharp. (iv) Incised wound 3" x 2" X 1" (Transen) at mid arm-Sharp- Grievous Lacerated. (v) Incised wound on Ulna border of left writ- 3" x 2" x 1" simple sharp. (vi) Injuries 2" x 1" X 1" a base of little finger Simple-Blunt. Injuries on the person of Durjodnan Hazra (i) Incised wound on left Super-orbital region 2" x 1" X 1" simple sharp. (ii) Incised wound over vertebral border of left scapula 6" X 2" x 1" grievous-sharp. (iii) Lacerated injuries base of RL little ginger 1" x 1/2" x 1/2" semicircul-Simple-Blunt. 31. Prom the evidences brought on record, it is evident that Kalu Hazra died out of some injuries received by him. It is further evident that some of the prosecution witnesses, as indicated hereinbefore, received injuries on their persons. 32. It has further been brought on record that the occurrent took place as there had been a land dispute by and between the prosecution party and the appellants. 33. The appellants have specifically claimed ownership of the land where the occurrence took place. According to them, Dubey Hazra (since deceased) purported to have amalgamated the land m question, which as noticed hereinbefore, bears plot No. 249 measuring 79 decimals with his own lands and had been in possession thereof. 34. The appellants did not dispute the evidence brought on record to the effect that the prosecution party intended to transfer the said land in favour of son of P.W. 9 for the purpose of construction of a brick kiln. 35. It is further evident that the prosecution has been able to show that on the day prior to the date of occurrence, because of the disturbances created by two of the appellants, the intended registration by the prosecution party in favour of the son of P.W. 9 could not be completed as apparently the ownership and possession in respect thereof was claimed on behalf of the appellants. 36. In the aforementioned background, it appears that all the male members of the family of the informant had gone to the land in question for the purpose of ploughing the same, so that there possession therein may be established. 37. 36. In the aforementioned background, it appears that all the male members of the family of the informant had gone to the land in question for the purpose of ploughing the same, so that there possession therein may be established. 37. As noticed hereinbefore, the appellants in their cross-examination definitely made out a case that prosecution party had gone there to dispossess the appellants from the said land forcibly being armed with bows and arrows and in the fight which took place, some of the appellants were also injured. 38. In this connection, it is pertinent to note that a suggestion was given to P.W. 8, to the effect that even when he saw the prosecution party from a distance of about 150 yards from the land in question, no apprehension raised in his mind to the effect that the prosecution party may be assaulted as they were also armed with bows and arrows. This suggestion coupled with the suggestions given to various prosecution witnesses on behalf of the appellants to the effect that there was a counter case, wherein the informant and the prosecution witnesses were made accused for the alleged offence of injuring some of the appellants go to show that the factum of occurrence in question is not disputed. 39. It is further pertinent to note that the suggestion given to P.W. 8 and the other prosecution witnesses is to the effect that some of the appellants received arrow shot injuries caused by the informant and his men in connection with the incidente in question. 40. A case has to be judged on the broad conspectus of events and upon taking into consideration the defence raised by the accused. 41. On the aforementioned back drop, the submission of Miss Choudhary may be considered. 42. It is true that the Investigating Officer should normally be examined by the prosecution, but non-examination of the investigating Officer becomes vital only when the prosecution is prejudiced thereby and not otherwise. 43. Miss Choudhary has not been able to point out so us any contradictions in the evidence of prosecution witnesses contradictory statements made in the Court and the statement before the police which may be said to relevant for the purpose of determination of the guilt of the appellants. 44. 43. Miss Choudhary has not been able to point out so us any contradictions in the evidence of prosecution witnesses contradictory statements made in the Court and the statement before the police which may be said to relevant for the purpose of determination of the guilt of the appellants. 44. In Damodar Dubey V/s. The State of Bihar, 1984 PLJR page 441, upon which reliance has been placed by Miss Choudhary, it has been held by a learned Single Judge of this Court that an accused may become entitled to acquittal, if contradictory statements are made by the prosecution witnesses before the police and before the Court. 45. In Brahmdeo Hazra and others V/s. The State of Bihar, 1987 BBCJ 340 , a Division Bench of this Court, in the facts of that case held that some important contradictions elucidated in the statements of the witnesses made earlier before the police under Section 161 of the Code of Criminal Procedure were brought on the record by the deposition of those witnesses without clarification which causing great prejudice to the accused. In this situation, it was held that non-examination of the Investigating Officer was a serious lapse on the part of the prosecution agency. 46. No exception can be taken to the aforementioned proposition that if it is brought on record that there had been contradictions in the statement of the prosecution witnesses in the statement of the prosecution witnesses in material particulars before the police and before the Court and if in such a situation because of non-examination of the Investigating Officer, such contradictions cannot be brought on record to the prejudice of the accused person, the accused is entitled to get benefit thereby. 47. However, another Division Bench of this Court in Sheikh Rasid V/s. The State of Bihar, 1987 BBCJ 151 , after taking into consideration various earlier discussion on the point came to the conclusion that the non-examination of Investigating Officer is not necessary fatal to the prosecution. 47. However, another Division Bench of this Court in Sheikh Rasid V/s. The State of Bihar, 1987 BBCJ 151 , after taking into consideration various earlier discussion on the point came to the conclusion that the non-examination of Investigating Officer is not necessary fatal to the prosecution. It has been pointed out that a Court is required to see as to whether the evidence of the Investigating Officer is essential for the case of the prosecution to succeed or not and to see at the same time that the accused is not unnecessarily harrassed unless it sees that for unavoidable reasons, the prosecution fails to produce the Investigating Officer, it may pronounce the judgment without the evidence of the Investigating Officer. Proceeding further, the Division Bench held that only in the event, the Court finds that the evidence of the Investigating Officer is essential, it should take coercive measures to compel his attendance as a witness. 48. The Court however, noticed that difficulty as, which the Courts in Bihar face, are that even for executing the process of the Court, help of police hierarchy is necessary. It observed : (Sic) them and without they desiring to implement the summons and warrants of the Courts, all efforts of the Courts for securing the attendance of the witnesses fail. What has alarmed us, however, is the recessive tendency of the police personnel they are taking the processes of the Courts as lazily and ascasually as they can, as they have no priorities for the proceedings in the Courts one before attending to the other works for which they have their reasons of preference. As in this case in many of cases Courts have to face a predicaments which the prosecution alone can solve, where it does however, but to tell the Court that it has no other witnesses to examine and to take summons only to inform the Court that it has heard nothing from the police about the service thereof. 49. From the records of some of the case, it appears that, sometimes the apathy on the part of the Investigating agency procure the attendance of the prosecution witnesses comes to such a pass that the Courts can only deprecate their conduct but can do no more about the same. It is indeed reprehensible. that for the negligence of the State to produce the material witnesses, many cases end in acquittal. It is indeed reprehensible. that for the negligence of the State to produce the material witnesses, many cases end in acquittal. 50. It appears from the records that on 28-11-1986, summons were issued; for service upon the Investigation Officer and the doctors. However, neither the Investigating Officer nor the doctors were examined by the Prosecution on the date fixed i.e., 9-12-1986, although summons were received by the said prosecution witnesses on 6-12-1986 itself. Fresh summons were directed to be issued by the learned trial Court, upon the P.Ws. which must be including the Investigating Officer and the doctors and from the margin of the order-sheet, it appears that the summons were issued on 12-1-1987. However, it appears that the records were put up only on 3-2-1987 instead of on 5-2-1987 because of strike of non-gazetted employees. 51. It appears that the Presiding Officer of the Court was himself thereafter transferred as is evident from the order-sheet, dated 24-8-1987. Thereafter, the case was adjourned to 14-4-1987, 1-5-1987, 21-5-1987, 22-64987 and 4-7-1987 on the ground that an application had been filed that Dubey Hazra died and the Court called for a report about the same. On 4-7-1987 again a D.O. letter was directed to be issued fixing 5-8-1987 for evidence. 52. On 5-8-1987, P.W. 9 was examined and again the case was adjourned to 9-9-1987. On 9-9-1987, P.W. 10, Ajay Kumar was examined, who proved the post mortem report and injury report and on that date the Additional Public Prosecutor closed the prosecution case. It may be mentioned that the Court itself in its order, dated 5-8-1987 recorded that in the event, the remaining prosecution witnesses were not examined on the next date, the case may be closed. 53. Taking thus all facts and circumstances into consideration, and particularly, in view of the fact, that it has not been pointed out as to how and in what manner, the appellants can be said to have been gravely prejudiced by reason of non-examination of the Investigating Officer, the same cannot be held to be fatal. 54. It is true that in this case, neither the doctor, who conducted autopsy on the dead-body of Kalu Hazra was not examined nor the Dr.S. K. Pandit, who examined the injured witnesses was examined. 55. However, P.W. 10 stated that Dr. S. K. Pandit is dead. He further stated that the whereabouts of Dr. 54. It is true that in this case, neither the doctor, who conducted autopsy on the dead-body of Kalu Hazra was not examined nor the Dr.S. K. Pandit, who examined the injured witnesses was examined. 55. However, P.W. 10 stated that Dr. S. K. Pandit is dead. He further stated that the whereabouts of Dr. B. P. Chourasia was not known. 56. Under Section 32(2) of the Evidence Act, statement in writing on the relevant facts, inter alia, made by a person, who is dead or who cannot be found or who has become inescapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court to be unreasonable, are themselves relevant facts that when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of his professional duties. 57. In this case, the prosecution has brought on record that Dr.S. K. Pandit is dead. Ext. 3 series, therefore, would be admissible in the evidence under Section 32(2) of the Evidence Act and must be held to have been legally brought on record. 58. So far as Dr. B. P. Chaurasia is concerned, in view of evidence of P.W. 10, his whereabouts was not known to the prosecution and thus he was also a person who could not have been found and/or his attendance could not be procured without unreasonable delay. 59. The learned Court below also, in para 4 of his judgment observed : "The prosecution examined in all ten witnesses in support of the case. P.W. 10 Ajay Kumar an Advocate Clerk is formal witness. P.W. 2 is another formal witness. P.W. 8 is the informant while the rest are other injured. It may be stated that neither the I.O. nor the doctors were examined in this case. Though every effort was made by this Court as well as by the learned A.P.P. to procure their attendance. The accused persons declined to enter into defence. However, two memorandum of arguments were filed on their behalf." 60. It may be stated that neither the I.O. nor the doctors were examined in this case. Though every effort was made by this Court as well as by the learned A.P.P. to procure their attendance. The accused persons declined to enter into defence. However, two memorandum of arguments were filed on their behalf." 60. In Sheo Govind V/s. the State, upon which the reliance has been placed by Miss Choudhary, the appellants thereof were chargesheeted both under Section 302 read with 149 of the Penal Code. In that case, no evidence was brought on record that the Medical Officer was not easily available. According to this Court, that the word "easily not available" does not mean that if a summon is issued once but the Medical Officer does not turn up for evidence. The Court held : "the report prepared by him may be admissible but at the same time two conditions must be fulfilled for the same. The first being that the Medical Officer is not easily available. "Easily not available" will not mean that if a summon is issued and when the Medical Officer does not turn up for evidence. The term "not easily available" is synonyms to the word "quite not available." It may be illustrated that if the Medical Officer has gone abroad and there is no likelihood of attending the Court within a reasonable time, it would be said that the Medical Officer is "not easily available." Even if there is likelihood of return of the doctor within a reasonable period without affecting the trial on the ground of delay, in my opinion, it will not safely satisfy the condition of "not easily available" as there is every likelihood of his being available eliminating the condition of "easily not available"" 61. In the instant case, it is evident that summons were sent to the witnesses more than once. 62. In Kapil Dev Baitha V/s. The State of Bihar, 1986 BBCJ page 73, a learned Single Judge of this Court held that in absence of the injury report, the conviction under Section 307 of the Indian Penal Code cannot be proved and in that case, the appellant was convicted under Section 324 of the Indian Penal Code. 63. 62. In Kapil Dev Baitha V/s. The State of Bihar, 1986 BBCJ page 73, a learned Single Judge of this Court held that in absence of the injury report, the conviction under Section 307 of the Indian Penal Code cannot be proved and in that case, the appellant was convicted under Section 324 of the Indian Penal Code. 63. However, in this case, in the ordersheet dated 11-1-1988, it was recorded : "On going through the record, I find that formal F. I. R. and fardbayan of the informant has not been exhibited. It appears that the learned A.P.P. has missed the point. It may be stated that Chinni Hazra (the informant) has been examined and he has proved his fardbayan but unfortunately the fardbayan has not been marked. For the ends of justice, in my opinion, the fardbayan should be taken into evidence. I further find that the two doctors who held P.M. and examined the injured were also not examined and their reports was formally proved. It is true that some steps were taken to procure their attendance but in absence of their correct address effort proved fruitless. The learned A.P.P. has undertaken to furnish their address and also to get formal F.I.R. and fardbayan proved by the next date. For the ends of justice and fair play it is necessary that the A.P.P. be given one more chance to get those documents proved by 1-2-1988." 64. On 1-2-1988, a dusti summon was issued for the Investigating Officer, on the ground that he has come to Dhanbad at his quarter, but the same could not be served and again on 2-2-1988, the Additional Public Prosecutor prayed for issuance of dusti summons upon the Investigating Officer through S.P. Daltonganj. He further prayed that doctor may be summoned through the Director, Public and Health Services, Bihar, Patna and accordingly, the summons were issued by the Court. Despite all the aforementioned steps taken by the Court for procuring the attendance of Investigating Officer, he did not appear before the Court. 65. However, it appears that the contents of the post mortem as also the injury reports were not disputed. 66. In this view of the matter, in our opinion, the said documents were admissible under Section 32 of the Indian Evidence Act. 67. 65. However, it appears that the contents of the post mortem as also the injury reports were not disputed. 66. In this view of the matter, in our opinion, the said documents were admissible under Section 32 of the Indian Evidence Act. 67. Further, it may be noticed that if a direct evidence is available to prove the charges as against an accused person, non-examination of the doctor may not be fatal as expert opinion is not required for the purpose of proving the offences. 68. It is also correct that no independent witness has been examined, but it is well-known that non-examination of the independent witnesses by itself is not fatal to the prosecution case. 69. Reference, in this connection may be made in Appabhai and another V/s. State of Gujarat, 1988 Cr. L. J. page 848 : 1988 East Cr C 288, wherein, it has been held that "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any suggested by the accused." 70. In State of Gujarat V/s. Naginbhai Dhulabhai Patel and others, 1983 (3) S.C.C. 316 , it was held "Shorn of embellishments here and there or a few discrepancies of minor nature the evidence of the aforesaid witnesses, which has been placed before us in extenso, appears to be consistent and bears a ring of truth. In State of Gujarat V/s. Naginbhai Dhulabhai Patel and others, 1983 (3) S.C.C. 316 , it was held "Shorn of embellishments here and there or a few discrepancies of minor nature the evidence of the aforesaid witnesses, which has been placed before us in extenso, appears to be consistent and bears a ring of truth. The reason given by the High Court for disbelieving the eye-witnesses particularly those who had been injured are, in our opinion, unintelligible and unsupportable." It was further observed that : "the mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. However, unfortunately, the High Court has not appreciated the intrinsic merits of the evidence of these witnesses from this point of view and has relied only on a discrepency here and there or on omissions in the statements made in Court and those made before the police while rejecting the evidence of the said witnesses in toto." 71. Similarly, in Gurnek Singh and another V/s. The State of Punjab, 1989 S.C.C. (Cri.), page 70, it was held as follows : "The fact that they are related to the deceased victim does not detract from the value of their evidence having regard to the fact that their presence at the scene of offence is natural and their presence near the deceased has been established beyond a shadow of doubt by reason of the fact that they themselves have sustained injuries attributable to firearms at the same time and on the same spot." 72. In State of U. P. V/s. Anil Singh, 1988 East Cr C 681 : 1989 S.C.C. (Cri.), 48, also the Supreme Court observed : "Of late this Court has been receiving a large number of appeals Against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigations of crimes. The public are generally reluctant to come forward to depose before the Court. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigations of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to relate the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embelishments added by the prosecution witnesses, it is well then to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Bihari Moiti V/s. Metangmi Dasi, the Privy Council had this to say. That in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is, on some occasions, a tendency amongst litigants. ... to back up a good case by false or exaggerated evidence." The Supreme Court further held : "It is our experience that invariagly the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cult out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform." 73. As noticed hereinbefore, in this case, except P.W. 5, all other prosecution witnesses are injured witnesses. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform." 73. As noticed hereinbefore, in this case, except P.W. 5, all other prosecution witnesses are injured witnesses. So far as actual occurrence is concerned, it is evident that P.W. 1 stated that he was assaulted on his face by sword. This was proved by Ext. 3. 74. P.W. 2 also stated that all the accused persons started assaulting on the deceased Kalachand Hazra, informant and others. P.W. 4 has also stated that Chhutu assaulted Chini with Farsa, Faguli also assaulted Chini with sword and Farsa. Sitaram, Faguli, Dina and Dasrath assaulted with sword and Thakur with Farsa. According to this witness, he ran about 150 yards and shouted. 75. P.W. 5 similarly stated that Sitaram and Thakur assaulted Chini with sword and Farsa. Sitaram, Faguli, Dina and Dasrath assaulted Kalachand who died. He further stated that Chhuto was order giver and Sitaram, Thakur, Faguli Dasrath and Dina also assaulted Kanthi (P.W. 1) with sword and farsa, and then they assaulted Purvan and father of Rampad. 76. P.W. 6 is another injured person and he stated that accused persons assaulted Kalachand, Chini, Duryodhan, Brihaspati, and Kanthi and myself. 77. P.W. 7 is also an assaulted witness. According to this witness, Faguli and Dina assaulted him and Dina assaulted him on his chest and legs. Faguli on his both hands. This witness has also stated that the appellants had also assaulted Chini, Duryodhan, Kanthi and Kalachand. 78. P.W. 8 stated that Sitaram assaulted the deceased and informant with sword. Dubey and Thakur had also taken part in the assault. He further stated that the appellants also assaulted Duryodhan. Brihaspati and Kanthi. 79. From their evidences, it is event that all the witnesses are consistent on the point that Sitaram Hazra was holding sword. Thakur was holding Farm, Pholi Hazra holding Farsa, Chhotu Hazra holding Farsa, Dina Hazra holding Farsa and Dasrath Hazra was also holding Farsa. 80. There is no doubt that there are some contradictions her and there, but the contradictions, as pointed out by the learned counsel are trivial in nature and have got nothing to do with the proof or disproof of the actual occurrence. 81. 80. There is no doubt that there are some contradictions her and there, but the contradictions, as pointed out by the learned counsel are trivial in nature and have got nothing to do with the proof or disproof of the actual occurrence. 81. So far as the non-production of the documents of title and possession of the land is concerned, the same were not the relevant. The prosecution witnesses categorically stated that they were the owner and had been in possession of the land in question. 82. As noticed hereinbefore, the accused persons took up the plea of right of private defence. However, they suggested that there had been a free fight. It is well-known that in a case of free fight, the right of private defence is not available. 83. Further, as according to the appellants, Dubey Hazra had been in possession of the lands in question for about 50 years by amalgamating the same with his own land. It was, therefore, for the appellant to prove that they had been in settled possession of the land in question. 84. In absence of any evidence to show that the appellants were in settled possession of the disputed land, they cannot raise the right of private defence relating to property in terms of Section 97 of the Indian Penal Code. 85. The appellants have also not brought on record any evidence to show that they received any injury on their persons so as to entitle them to exercise their right of private defence. 86. The burden of proof to prove the plea of exercise of right of private defence was upon the accused. 87. In this situation, in our opinion, it was not necessary for the accused person to produce the documents in respect of the lands in question as the same were not very material. 88. So far as the statement of P.W. 4, to the effect that he saw the dead body lying near the house of Ganesh Hazra, in my opinion, is of not Such consequence, which would prove fatal to the entire prosecution case. 89. As noticed hereinbefore, in view of the evidence adduced on behalf of the prosecution as also in view of the medical evidence, which has been brought on record, neither the death of Kalu Hazra nor the injury received by prosecution witnesses can not be doubted. 90. 89. As noticed hereinbefore, in view of the evidence adduced on behalf of the prosecution as also in view of the medical evidence, which has been brought on record, neither the death of Kalu Hazra nor the injury received by prosecution witnesses can not be doubted. 90. From the evidence on record, it is absolutely clear that the appellant formed an unlawful assembly and came at the place of occurrence with a view to commit the offence in question. 91. In this case, the prosecution has proved its case beyond all reasonable doubts. 92. In Gurbachan Singh V/s. Sotpal Singh and others, 1990 (1) S.C.C., age 445 : 1990 East Cr C 12, where it has been held : "There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Eater V/s. Bater, (1950) 2 All ER 458 at page 459, but the doubt must be a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts of lingering suspicions and thereby destroy social defence Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. The conscience of the Court can be bound by any rule but that is coming itself dictates the conciousness and produent exercise of the judgment. Reasonable doubt is simply the degree of doubt which would permit a reasonable and fust man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. 93. In this case, therefore, as the occurrence is not disputed and the appellants raised the plea of private defence, which they have failed to prove, they must be held to be guilty, in view of the fact that the prosecution has proved the death of Kalu Hazra and the injury on the persons of other prosecution witnesses, which is supported by the Medical evidence also. 94. 94. Taking thus all facts and circumstances into consideration, we are of the view that there is no merit in this appeal, which is accordingly dismissed. R.N.Sahay, J. 95 I agree.