JUDGMENT M. L. Visa, J 1. This appeal by the State of Bihar has been filed against the judgment dated 05.01.1988 passed by 2nd Additional Sessions Judge, Madhepura in Sessions Trial No. 42 of 1984 acquitting the respondents of the charges under Sections 302, 323, 149 of Indian Penal Code (In short "IPC"). 2. Brief facts of the case are that on the night between 16.10.1980 and 17.10.1980 at about 2 O'clock, Fard-e-bayan of informant Musharu Mistri (since dead) was recorded by Assistant Sub Inspector Indradeo Pathak (not examined) at Alam Nagar Hospital. In the Fard-e-bayan, the informant stated that at about 8-9 PM on 16.10.1980, he had gone to the house of one Shiv Prasad Paswan (not examined) for attending a feast and, thereafter, he alongwith his son Dinanath Mistri (deceased) was returning to his house when he, in the way, saw that both respondents Jata Shankar Thakur and Subh Shankar Thakur alongwith Gauri Shankar Thakur were standing near his Darwaza and respondent Jata Shankar Thakur was armed with a bhala and Gauri Shankar Thakur was armed with a roll. When he reached there, all the aforesaid three told him that his daughter was a witch and had practised witchcraft on their brother and asked him to tell his daughter to remove the effect of her witchcraft and in this way they, talking with informant, came to his Darwaza. When informant and his son said that daughter of informant was not a witch, respondent Subh Shankar Thakur ordered to kill them on which respondent Jata Shankar Thakur gave a blow by the lathi portion of bhala on the head of Dinanath Mistri who, after being injured, fell down. When informant went to lift him, respondent Subh Shankar Thakur gave a lathi blow on his buttock and when Rukma Devi (PW 1), daughter of informant came to their rescue, she was also assaulted by respondent Jatashankar Thakur by fists, kicks and slaps and, thereafter, respondents fled away. The occurrence was seen by Maheshwar Sah (PW 6), Narayan Mistri (PW 7), Mahendra Sao (PW 4) and Parmeshwar Das (PW 5). On the basis of Fard-e-bayan of informant, a case under Sections 307, 323, 325, 447/34 of IPC was registered. Subsequently, Dinanath Mistri, son of informant died of the injury which he had received at the hands of respondents. The occurrence was seen by Maheshwar Sah (PW 6), Narayan Mistri (PW 7), Mahendra Sao (PW 4) and Parmeshwar Das (PW 5). On the basis of Fard-e-bayan of informant, a case under Sections 307, 323, 325, 447/34 of IPC was registered. Subsequently, Dinanath Mistri, son of informant died of the injury which he had received at the hands of respondents. The police, after investigation, submitted chargesheet against both the respondents under Sections 302/149, 323 of IPC. Gauri Shankar Thakur was not sent up for trial. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Sections 302 and 323 of IPC against respondent Jatashankar Thakur for causing the death of Dinanath Mistri and voluntarily causing hurt to Rukma Devi were framed and charges under Sections 302/149 (perhaps by error so written in place of 109) and 323 of IPC against respondent Subh Shankar Thakur for abetting Jatashankar Thakur in committing murder of Dinanath Mistri and for voluntarily causing hurt to informant Mushari Mistri were framed. After trial, both the respondents were not held guilty and were acquitted. Being aggrieved by the order of acquittal of respondents of the charges, the State of Bihar has preferred this appeal on the grounds that judgment of acquittal is unjustified, unwarraned and misconceived and the Court below has failed to properly appreciate the evidence of Rukma Devi (PW 1) who, inspite of her lengthy cross-examination, fully supported the case of prosecution and the defence failed to take out anything from her evidence to disbelieve her. The further case of State is that the evidence of PW 1 is not uncorroborated considering the evidence of other prosecution witnesses and medical evidence which fully supports the case of prosecution and corroborates the evidence of PW. 1 and non-examination of Investigating Officer has not caused any prejudice to respondents. 3. During trial, prosecution examined ten witnesses. The informant could not be examined because he died during the trial. Rukma Devi (PW 1) is the daughter of informant and is said to be an eye witness to the occurrence as well as injured. Ambika Devi (PW 2), wife of deceased has not supported the case of prosecution and she has been declared hostile. Similarly, Mahendra Sao (PW 4), Parmeshwar Das (PW 5), Maheshwar Sah (PW 6) have been declared hostile because they have not supported the case of prosecution. Ambika Devi (PW 2), wife of deceased has not supported the case of prosecution and she has been declared hostile. Similarly, Mahendra Sao (PW 4), Parmeshwar Das (PW 5), Maheshwar Sah (PW 6) have been declared hostile because they have not supported the case of prosecution. Narayan Mistri (PW 7) is a tendered witness. Md. Nizam (PW 9) and Bankeshwar Yadav (PW 10) are formal witnesses who have proved formal first information report (Exhibit-2) and Fard-e-bayan (Exhibit-3). Dr. B. N. Mishra (PW 8) is the doctor who had held autopsy on the dead body of Dinanath Mistri and has said that on 19.10.1980 when he was posted as Civil Assistant Surgeon at Sadar Hospital, Madhepura, he examined the dead body of Dinanath Mistri and found stitched wound with four stitches with blood clot 3" long anterio posteriorly on left side of the scalp anteriorly and on removing the skin, a linear fracture of the left parietal bone of the scalp 2" long transverse under and to the left of the wound. Technically, the fracture was at right angle to the wound of left part and on opening the skull and cutting the meneges of the brain haemorrhage due to ante mortem blood clot 4" x 3" x 2" over the left hemisphere cerebral and it was compressing the brain. According to him, death had been caused by coma due to head injury which was sufficient in the ordinary course of nature to cause death and time elapsed since death was within thirty six to forty eight hours. He has further said that injuries were caused possibly by lathi. He has proved his post mortem examination report which is marked Exhibit-1. His evidence establishes that deceased died of head injuries which were possible by a lathi. 4. Rukma Devi (PW 1), daughter of Informant is the only eye witness to the occurrence in this case. He has further said that injuries were caused possibly by lathi. He has proved his post mortem examination report which is marked Exhibit-1. His evidence establishes that deceased died of head injuries which were possible by a lathi. 4. Rukma Devi (PW 1), daughter of Informant is the only eye witness to the occurrence in this case. In her evidence, she has said that informant was her father and deceased was her brother and on the day of occurrence at about 8-9 PM, she was returning from the house of one Ramsharan Yadav after attending a feast alongwith her aunt Bathaiya (since dead) and when she reached near the house of Jata Shankar Thakur, she saw him standing on the road with a bhala who, on seeing her told her that she was a witch and had practised witchcraft on his brother and further told her to remove the effect of witchcraft. She replied that she was not a witch but respondent Jatashankar, following her, came up to her house and respondent Subh Shankar was also with him. At her house, respondent Jata Shankar started abusing her and at that time, her father and brother, after attending a feast at the house of Shiv Shankar Prasad returned and respondent Jatashankar told her father that his. daughter was a witch and then Gauri Shankar also came there with a lathi and altercation took place between her father and brother on one side and respondents on other side and Gauri Shankar gave order for killing on which respondent Jatashankar, with the lathi portion of his bhala, gave a blow on the head of her brother who, after receiving injury, fell down and become unconscious. When her father went to rescue her brother, respondent Subh Shankar gave a lathi blow on the buttocks of her father and when she went to their rescue, she was also assaulted by Jatashankar with fists, slaps and kicks. She has said that at the time of occurrence, Maheshwar Sah (PW 6), Mahendra Sao (PW 4), Narayan Mistri (PW 7), Parmeshwar Das (PW 5) and other persons were present and the respondents, on seeing them, fled away by leaving their bhala which was picked up by her family said that her brother was taken to Alam Nagar Hospital where he died. About her and her father's injury, she has said that they were also examined by doctors. About her and her father's injury, she has said that they were also examined by doctors. About her father, she has said that he is dead now. 5. The Court below, in its judgment, has observed that PW 1 has supported the prosecution case in material particulars and there is absolutely nothing in her evidence which can be said to be contradictory in any manner of the Fard-e-bayan. It has further been observed that this witness has fully supported the prosecution case. The Court below has contradicted the aforesaid finding by subsequently observing that the prosecution case suffers from some serious defects. According to it, there is discrepancy on the point of place of occurrence. It has explained the discrepancy by stating that in the Fard-e-bayan, it is stated that occurrence had taken place at the Darwaza of the informant whereas PW 1 has said that it took place in the Angan. The Court below has observed that Angan and Darwaza are not the same things. So, I find that, after observing that PW 1 has supported the case of prosecution and there is nothing in her evidence which can be said to be contradictory in any manner of the Fard-e-bayan, it has contradicted it. I further find that the Court below has observed that PW 1, in her evidence, has stated that her Angan was barricaded by tatti. This is an error of record because PW 1 has said that her Angan was not barricaded with tatti. 6. Adverting to the merit of the case, as stated earlier, PW 1 is the only eye witness in this case. Her evidence that when she was returning from the house of Ramsharan Yadav alongwith her aunt Bathaiya, she found Jatashankar Thakur standing near his house on the road with bhala and he followed her from there and came to her house is against the case, as stated in Fard-e-bayan where informant stated that when he and his deceased son on the day of occurrence at about 10-11 PM were returning from the house of one Shiv Prasad Paswan, they saw respondent Jatashankar armed with bhala and respondent Subh Shankar empty handed with Gauri Shankar armed with a roll. Besides this, in Fard-e-bayan, it is stated that it was respondent Subh Shankar Thakur who ordered for killing whereas PW 1 has said that it was Gauri Shankar Thakur who gave this order and she has further made it clear by deposing that no body else gave such order. About the arms which the respondents were carrying, PW 1 has clearly stated that respondent Jatashankar was armed with a bhala and Gauri Shankar also came there with danda. About respondent Subh Shankar, she has not said that he was also carrying any arm or any lathi or danda. In Fard-e-bayan also, it is mentioned that respondent Subh Shankar was empty handed. PW 1, in her evidence, has said that when her father went to rescue her brother, appellant Subh Shankar gave a danda blow on the buttocks of her father. It is not clear that when Subh Shankar was not carrying any arm how he could have assaulted the informant with a danda. About respondent Jatashankar, PW 1 has said that he assaulted her with kicks, fists and slaps whereas, according to her evidence, he was armed with a bhala. It does not come to reason that when respondent Jata Shankar was armed with a bhala why he, instead of using the bhala portion in assaulting the deceased, used its lathi portion and while assaulting PW 1, he did not use even lathi portion of this bhala and assaulted her with kicks, fists and slaps. Apart from the contradiction in the manner of occurrence, as given in the Fard-e-bayan and in the evidence of PW 1, I find that attention of PW 1 was drawn that she had not stated before police that at the order of respondent Subh Shankar Thakur for killing, respondent Jatashankar assaulted her brother, she has said that she had given such statement before police. The prosecution has not examined the Investigating officer in this case. Since this contradiction was in respect of assault by Jata Shankar, who is the main assailant of deceased, I find that non-examination of Investigating Officer has caused prejudice to respondents. In such circumstances, the uncorroborated testimony of PW 1 which suffers from a number of material contradictions and does not inspire confidence cannot be the basis of conviction of respondents. Since this contradiction was in respect of assault by Jata Shankar, who is the main assailant of deceased, I find that non-examination of Investigating Officer has caused prejudice to respondents. In such circumstances, the uncorroborated testimony of PW 1 which suffers from a number of material contradictions and does not inspire confidence cannot be the basis of conviction of respondents. I, therefore, find that the evidence on record is not sufficient to hold the respondents guilty in this case and the judgment and order of Court below acquitting the respondents does not require any interference by this Court notwithstanding some contradictory observations on the evidence of PW 1. The judgment and order of Court below is hereby confirmed. 7. In the result, this appeal fails and, accordingly, it is dismissed. I agree.