JUDGMENT Hari Shankar Prasad, J. 1. This appeal is directed against the judgment of conviction dated 30.6.1998 and order of sentence dated 1.7.1998 passed in Sessions Trial No. 4 of 1997 whereby and where under the learned 2nd Additional Sessions Judge. Giridih held the sole appellant guilty under Section 304, Part I of the Indian Penal Code (IPC) and convicted and sentenced him to undergo R.I. for seven years and also to pay fine of Rs. 500/- and in default to pay the fine, to further undergo simple imprisonment for two months. 2. Prosecution case in brief is that Krishna Prasad Rai, informant, gave a fardbeyan before Srikant Singh of Deori P.S. in the male ward of public health centre at Deori on 2.7.1996 at 10.00 p.m. to the effect that the same day at about 3.00 p.m. in the evening he was constructing a brick wall east of his house of which partition of the land had already taken place about forty years ago with his uncle Kishori Rai and he was constructing on his own share of land on which he was cultivating for last several years. Wall had already been raised upto height of 12-13 brick and work was continuing when Sudhir Rai, Kishori Rai and Sahdeo Rai who are his relatives came there and asked him to stop construction of the house. On this the informant replied as to why he should stop construction work as the land falls in his share of land and after measuring the land, he has been constructing the house on his share of land, whereupon Kishori Rai disputed the fact and stated that he has been constructing house on his land. After this, there was some scuffle between both of them whereupon Sudhir Rai, Sahdeo Rai brought lathi and appellant Kishori Rai gave a brick blow on the left temporal region of his father, as a result of which he fell down. Thereafter three more blows of lathi were given and when he went to rescue his father, then wife of Sudhir Rai bite middle finger of his left hand and both of them got injured. Thereafter Kedar Rai, Dhanraj Rai, Laxmi Rai, Jamadar Rai and Kunju Rai came there and intervened in the matter and saved them from being killed. Thereafter three more blows of lathi were given and when he went to rescue his father, then wife of Sudhir Rai bite middle finger of his left hand and both of them got injured. Thereafter Kedar Rai, Dhanraj Rai, Laxmi Rai, Jamadar Rai and Kunju Rai came there and intervened in the matter and saved them from being killed. From there he along with his father went to Deori hospital for treatment where his father was in critical condition. On this piece of statement of Krishna Prasad Rai (informant) a case being Deori P.S. Case No. 55 of 1996 of 1996 dated 2.7.1996 under Sections 341, 323, 307, 447/34, IPC was registered and I.O. after investigation submitted charge sheet. Cognizance in the case was taken and the case was committed to the Court of Sessions where 2nd Additional Sessions Judge, Giridih after recording evidence of witnesses both oral and documentary and came to a finding and held the appellant guilty and convicted and sentenced him as aforesaid. 3. Prosecution has examined altogether twelve witnesses in this case. PW 1 is Dr. Bhupendra Prasad Singh who conducted the post-mortem examination on the dead body of Dhapru Rai. PW 2 is Dr. Manjooral Hassan, who examined Dhapru Rai and Krishna Prasad Rai. PW 3 is Sidheshwar Dwivedi. He is S.I. of police who submitted charge sheet. PW 4 is Beni Rai. PWs 5, 7, 8 and 9 have been declared hostile. PW 6 is Kunjo Rai. PW 10 is Bipin Kumar Rai. He is witness to the inquest report. PW 11 is Krishna Prasad Rai. He is informant of the case and PW 12 is Srikant Singh. He is I.O. of the case. 4. PW 1 is doctor who conducted post-mortem examination on the dead body of Dhapru Rai and found the following ante mortem injuries :-- (i) Lacerated wound on left side skull 1" x 1/4" muscle deep on dissection subcutaneous tissues in Neck-NAD Larynx and trachea-NAD Hyoid bone intact. There was fracture of partial bone left side of skull. Skull constused. Inraconial cavity contains blood and clot. Lungs-congested. Heart contain blood both sides liver, spleen and kidney- NAD Stomach-empty and its mucous membrane normal. No peculiar smell. Urinary bladder contains urine. (ii) Injected ulcer found on left forearm near wrist joint and left leg near ankle joint. There was fracture of partial bone left side of skull. Skull constused. Inraconial cavity contains blood and clot. Lungs-congested. Heart contain blood both sides liver, spleen and kidney- NAD Stomach-empty and its mucous membrane normal. No peculiar smell. Urinary bladder contains urine. (ii) Injected ulcer found on left forearm near wrist joint and left leg near ankle joint. (iii) Injuries mentioned above were ante mortem in nature caused by hard- blunt substance such as brick. Cause of death head injury. According to the doctor, a bandage was found over the left forearm near the wrist joint and the left leg near the ankle joint but no bandage was found on the head injury. 5. PW 2 is another doctor whop examined Dhapru Rai before his death and also examined Krishna Rai. On 2.7.1996 at about 8.30 p.m. he examined Dhapru Rai and found the following injuries on his person : (i) Lacerated wound on left parietal bone of head near left ear 1" x 1/4" x 1/4" bone deep. (ii) Bleeding from left ear, impanic membrane ruptured. Age of injury within six hours. Opinion :-All the above injuries caused by hard and blunt substance. He further examined Krishna Prasad Rai at 8.45 p.m. on the same day and found the following injuries on his person, (1) Lacerated wound 1/4" x 1/4" x skin deep in the middle of left ring finger. (2) Old heilled scar mark on the back in the middle of spinal code. Age of injury within six hours. Opinion :-Simple in nature caused by hard and rough substance. 6. PW 3 is a witness who submitted charge sheet but he did not take part in recording of statement of witnesses nor he inspected the P.O. 7. PW 4 is Beni Rai. He is brother-in-law (sala) of Dhapru Rai. On the date of occurrence he came to know that his brother-in-law has been done to death and after receiving information he went to Deori hospital where he met his sister Kunti Devi and Bhagna Krishna Prasad Rai and learnt from them that Dhapru and Kunjo Rai were constructing a wall adjacent to their house. In the meantime, the appellant along with Sahdeo Rai and Sudhir Rai came there and thereafter some altercation took place between them and Kishori Rai gave a blow by means of brick on the temporal region of Dhapru Rai causing injury. In the meantime, the appellant along with Sahdeo Rai and Sudhir Rai came there and thereafter some altercation took place between them and Kishori Rai gave a blow by means of brick on the temporal region of Dhapru Rai causing injury. He is not an eye- witness. 8. PW 5 who has been declared hostile, has stated that when occurrence took place at about 3.00 p.m. he was in his house at the relevant time. But on alarm he went to the house of Krishna Rai and saw Dhapru Rai lying on the ground. He was informed that Kishori Rai had assaulted Dhapru Rai by means of brick. 9. PW 6 is Kunjo Rai. He is brother of the deceased Dhapru Rai, He has also supported the prosecution case and has stated that he along with his brother Dhapru were constructing brick wall adjacent to the house and in the meantime, Kishori Rai came there and protested the construction of the said wall. There was some scuffle and Kishori Rai took out a brick from wall and gave blow on the temporal region of the deceased Dhapru Rai, due to which Dhapru Rai sustained injuries and he fell down. According to this witness, Dhapru Rai died in the way when he was being taken to the hospital. 10. PW 7 is Laxmi Rai. This witness has come to say that on hulla he went to the house of Dhapru Rai lying on the ground and persons were sprinkling water on him and he heard rumour that Sudhir Rai has killed Dhapru Rai. 11. PW 8 is Avinash Rai. According to this witness, he was taking out straw from his house when he saw some altercation near house of Krishna Rai and, Sudhir Rai was running and he was being chased by Krishna Prasad Rai and thereafter Sudhir Rai pulled down informant Krishna Prasad Rai and gave bite on Krishna Prasad Rai and he went to the house of Dhapru Rai and saw him lying dead. 12. PW 9 is Pradeep Kumar Rai. He has simply stated that on hulla he went to the house of Dhapru Rai and found him lying dead. He is witness to the inquest report. 13. PW 10 is a witness to the inquest report. 14. 12. PW 9 is Pradeep Kumar Rai. He has simply stated that on hulla he went to the house of Dhapru Rai and found him lying dead. He is witness to the inquest report. 13. PW 10 is a witness to the inquest report. 14. PW 11 is Krishna Prasad Rai, he is informant of the case and he has supported the prosecution case in toto. According to this witness, on 2.7.1996 at about 3.00 p.m. he along with his father Dhapru Rai and uncle Kunjo Rai was constructing a brick wall with the help of mud when Sudhir Rai, Sahdeo Rai and Kishori Rai came there and asked them to stop the work, then Dhapru Rai replied that land belongs to him and they are constructing the wall on their own land as the construction work started two days prior to the date of occurrence. Thereafter altercation took place between them and someone gave blow by means of brick which caused injuries on the left temporal region of Dhapru Rai and he fell down and when he tried to save his father, Sudhir Rai resisted and there was some scuffle between him and Sudhir Rai. 15. PW 12 is Srikant Singh. He is I.O. of the case. According to this witness, he took up investigation and recorded statement of witnesses and visited the place of occurrence. He was posted on 2.7.1996 at Deori P.S. when he received, O.D. slip at 9.30 p.m. from Deori hospital and after entering the said O.D. slip in the station diary, he went to Deori hospital where he recorded fardbeyan of PW 11 and registered as case and started investigation and recorded statements of several witnesses and submitted charge-sheet in the case. 16. Learned counsel for the appellant, while assailing the judgment, submitted that along with this appellant, two other co-accused, namely, Sudhir Rai and Sahdeo Rai, were charged but they have been acquitted. It was further pointed out that there was specific evidence against Sudhir Rai but he has been acquitted whereas there is contradictory evidence of witnesses, so far as this appellant is concerned, he has been convicted. It was further pointed out that there was specific evidence against Sudhir Rai but he has been acquitted whereas there is contradictory evidence of witnesses, so far as this appellant is concerned, he has been convicted. Learned counsel further pointed out that PW 4 is a hearsay witness and he has given statement on the basis of what he heard from his Bhagina and sister, whereas PW 11 who is Bhagina of this witness, has categorically stated that he did not see appellant Kishori Rai throwing a brick on his father, but surprisingly enough PW 4 says that his Bhagina informed him that Kishori Rai had thrown a brick which hit temporal region of his father and he fell down. It was further pointed out that PW 5 is also a hearsay witness as he learnt that Kishori Rai injured Dhapru Rai but he has been declared hostile. It was further pointed out that PW 6 is also not an eyewitness as per fardbeyan because he came to P.O. only after occurrence but he has stated that this Kishori Rai threw stone on his brother-in-law which caused injury on temporal region of his brother-in-law. On the other hand, Laxmi Rai (PW 7) has come to say that he heard that Sudhir Rai and killed Dhapru Rai. On the other hand, PW 8 has given a different evidence to the effect that he saw Sudhir Rai was coming and he was being chased by PW 11 and Sudhir Rai threw PW 11 on the ground and bite PW 11 with teeth and this witness intervened in the matter and separated both of them. PW 9 simply saw Dhapru Rai was lying on the ground. He too has been declared hostile. It was further pointed out that PW 11 is the informant of the case and he is the most important witness. He has not stated a word about assaulting of Dhapru Rai by brick by this appellant, so there is contradiction in the statement of eye-witness. PW 11 is only eye- witness and he has not named this appellant but those who are hearsay witnesses have named this appellant. 17. He has not stated a word about assaulting of Dhapru Rai by brick by this appellant, so there is contradiction in the statement of eye-witness. PW 11 is only eye- witness and he has not named this appellant but those who are hearsay witnesses have named this appellant. 17. It is true that Sudhir Rai and Sahdei Rai were put on trial along with this appellant and some witnesses have specifically named Sudhir Rai that he also participated in the assault on Dhapru Rai and also on Krishna Rai (PW 11), but learned Court below having so much of evidence against Sudhir Rai, acquitted him. On the other hand, there was contradiction in the evidence of eye-witness like PWs 6, 7, 8 and 11 and. PW 11 who is the informant of the case, did not support assault on his father by this appellant and moreover, when on the same piece of evidence one person has been acquitted, although he was also charged along with this appellant, then in view of so much contradictory evidence of eye-witness against the appellant, it is fit case for acquittal of this appellant. 18. In that view of the matter, this appeal is allowed and the appellant is acquitted of the charges levelled against him. Since he is on bail, he is discharged from the liability of the bail bonds.