JUDGMENT: D.K Sinha, J.-The sole appellant Geta Gorai @ Geeta Gorai has preferred this Criminal Appeal against the judgment of conviction for the offence in Part-II of Section 304 I.P.C. by which he was sentenced to undergo rigorous imprisonment for 5 years on 12.6.2000 in Sessions Trial NO.9 of 1992 arising out of Nimdih P.S. Case No. 52 of 1991 corresponding to G.A. No. 671 of 1991 by the Addl. Sessions Judge-II, Seraikella. 2. The prosecution story as it stands narrated in the written report of the informant P.W. 4 Lilmani Gorai before the police was that on 19.10.1991 when her elder son Shibottar Gorai (since deceased) returned back his home in the noon with his own cattle as well as the cattle of his younger brother Shankar Gorai, his son Geta Gorai (appellant) and his maternal uncle Mohit Gorai enquired as to why he had taken away the cattle of Shankar Gorai also for grazing and further questioned as to why he was looking after his cultivation when Shankar Gorai was living separately. Their interaction resulted into altercation and it was alleged that in the same sequence and transaction the appellant Geta Gorai and the another Mohit Gorai assaulted Shibottar Gorai with sticks. When the informant-mother of the deceased intervened to rescue, she was also assaulted. She further narrated that Shibottar Gorai sustained injuries on various parts of his bodies. The witnesses arrived on hearing alarm and the injured was removed to the police station where the informant mother presented the written report giving rise to Nimdih P.S. Case No. 52 of 1991 for the offence under Sections 341/323/ 325 I.P.C. against the appellant Geta Gorai @ Geeta Gorai and another Mohit Gorai. The police after investigation submitted charge-sheet under Sections 341/323/325 & 304 I.P.C. only against the appellant Geta Gorai @ Geeta Gorai and the co-accused Mohit Gorai was not sent up for trial. It was stated that the victim Shibottar Gorai had succumbed his injuries in course of treatment at Tata Main Hospital, Jamshedpur. 3. The charge against the appellant was framed only under Section 304 I.P.C. and he was put on trial. Six witnesses were produced and examined on behalf of the prosecution. It was stated that the victim Shibottar Gorai had succumbed his injuries in course of treatment at Tata Main Hospital, Jamshedpur. 3. The charge against the appellant was framed only under Section 304 I.P.C. and he was put on trial. Six witnesses were produced and examined on behalf of the prosecution. P.W. 1 Kalipad Gorai testified that he witnessed the occurrence from his roof while the appellant Geta Gorai @ Geeta Gorai had been assaulting his father Shibottar Gorai from his behind with the help of stick and inflicted about 4 blows and that when the informant Lilmani Gorai rushed to rescue her son, she was also assaulted by him. No sooner did the witnesses arrived at the scene and attempted to administer water to the injured, the assailant had already escaped. Shibottar Gorai was removed to police station where the informant Lilmani Gorai delivered her statement and the injured was sent to Nimdih Hospital and from there to Tata Main Hospital, Jamshedpur for better management of injuries but after two days, the witnesses learnt that Shibottar Gorai died. The witness admitted that the altercation arose on the issue of grazing of the cattle. 4. In the cross-examination, the witnesses testified that though there were several neighbours but they all arrived after the occurrence had already taken place. The witnesses denied having stated before the police u/s 161 Code of Criminal Procedure that when he arrived at the scene, he found Shibottar Gorai lying under "Neem tree" sustaining injuries and in this manner, learned Counsel for the appellant submitted that substantial development was made by this witness before the Trial Court beyond what he had stated before the police in course of investigation and therefore, his testimony was not liable to be relied upon for upholding the conviction of the appellant. P.W. 2 Balram Gorai testified that some three years ago, on Saturday at about 3 p.m., while he was returning from his field by collecting grass, he witnessed the appellant assaulting his father Shibottar Gorai with sticks and when the old woman Lilmani Gorai rushed there to rescue, she was also assaulted at his hands. Shibottar Goral became unconscious sustaining injuries and from there he was removed to Nimdih Police Station and from there to Hospital. He was finally removed to Tata Main Hospital where he succumbed his injuries. Shibottar Goral became unconscious sustaining injuries and from there he was removed to Nimdih Police Station and from there to Hospital. He was finally removed to Tata Main Hospital where he succumbed his injuries. In the cross-examination, the witness admitted that the occurrence 'took place in the courtyard of the deceased which was surrounded by the house of the informant. The witness was the full brother of the deceased having admitted that the deceased was his elder brother and Shankar (P.W. 6) was his younger brother and all the three brothers were living separately in mess but their mother used to live with Shankar. P.W. 3 Sabi Gorai is the widow of the deceased Shibottar GoraL Upon being tendered for cross-examination, she testified that there was a big "Neem tree" in her courtyard and that when her husband climbed over the said tree to pluck the thin branch for using it in cleaning his teeth (as tooth brush), he fell down from the tree and succumbed his injuries after sometime. 5. P.W. 4 Lilmani Gorai is the informant as well as the mother of the deceased who supported her earlier version by admitting and testifying that the occurrence took place some three years ago, it was Saturday of the month of 'Kartik' at about 1 p.m. while she was in the courtyard, her eldest son Shibottar Gorai came there with the cattle. Her grandson Geta Gorai @ Geeta Gorai enquired from his father Shibottar Gorai as to why he had taken away the catties of Shankar also and in the same sequence there held altercation. In the meantime the appellant Geta Gorai @ Geeta Gorai took out a stick and assaulted his father Shibottar Gorai on his head and belly. When she rushed to rescue her son, she was also assaulted by him. Her written statement was recorded by P.W. 1 Kalipad' Gorai which was read over and explained and after finding it correct she had put her thumb impression. Her written statement was made over to the police at the police station. Her, son Shibottar Gorai was treated at Nimdih Hospital and from there he was referred to Tata Main Hospital where he succumbed his injuries. 6. P.W. 5 Anand Gorai supported the statement of the other witnesses by testifying that the occurrence took place in the month of Kartik some three years ago. Her, son Shibottar Gorai was treated at Nimdih Hospital and from there he was referred to Tata Main Hospital where he succumbed his injuries. 6. P.W. 5 Anand Gorai supported the statement of the other witnesses by testifying that the occurrence took place in the month of Kartik some three years ago. It was Saturday at about 9 a.m. When he saw the appellant Geta Gorai @ Geeta Gorai assaulting his father Shibottar Gorai with stick and when the mother of Shibottar approached him to rescue, she was also assaulted. The genesis of the occurrence was that Shibottar used to serve fodders to the cattle of Shankar also. Both the injured of the occurrence were removed to Nimdih Police Station where the written statement of the informant was produced. Shibottar Gorai was sent to Nimdih and from there he was referred to Tata Main Hospital where he succumbed his injuries. In the cross-examination, he admitted to be the full brother of Kalipad Gorai and that the houses of all the three full brothers Shibottar (deceased), Balram Gorai and Shankar Gorai were commonly fenced with brick walls, and the court was shared by them equally. He denied that all the three brothers have separate houses and that as he had altercation with Shibottar a few days prior to the alleged occurrence and that in the said altercation Shibottar had broken 5 teeth of his brother Kalipad Gorai (P.W. 1), he was nursing grudge with Shibottar and the members of his family including the appellant on account of such enmity and for such reason he implicated the accused (appellant). P.W. 6 Shankar Gorai was the fu11 and younger brother of the deceased. He was tendered for cross-examination but nothing material could be elicited from his testimony in support of the prosecution case. 7. Mr. Das, learned Counsel for the appellant submitted that the cause of death of Shibottar Gorai could not be established as neither injury report nor his post mortem report was proved in this case. The prosecution failed to establish that the victim died only because of the injuries sustained by him on his various parts of his body caused by stick. Das, learned Counsel for the appellant submitted that the cause of death of Shibottar Gorai could not be established as neither injury report nor his post mortem report was proved in this case. The prosecution failed to establish that the victim died only because of the injuries sustained by him on his various parts of his body caused by stick. On the other hand, the statement of the widow who was tendered for cross-examination could not be demolished by prosecution when she testified in clear words that her husband Shibottar died by falling from the "Neem tree" in the courtyard sustaining injuries and therefore, the prosecution miserably failed to prove that Shibottar died of sustaining injuries caused by assault with stick and not by falling from a tree. 8. Learned Counsel pointed out that non-examination of the Investigating Officer in the given situation has highly prejudiced the defence of the appellant in the manner that his objective finding after visiting the alleged place of occurrence could not be brought on the record as to whether at all there was a "Neem tree" in the courtyard of the deceased and that he died after sometime sustaining injuries from such fall or otherwise. Even no bed head ticket either of Nimdih Hospital or of Tata Main Hospital, Jamshedpur was produced in support of the prosecution case. The widow of the .deceased was specific in her statement that Shibottar Gorai died of falling from the "Neem tree,i and in course of his treatment at Tata Main Hospital, Jamshedpur. The defence was further prejudiced for being denied the opportunity to draw the attention of the Investigating Officer as the prosecution witnesses made sufficient development in their substantive evidence before the trial Court beyond what they had stated before the Investigating Officer at the first instance u/s 161 Cr.P.C. and therefore, the statements of P.W. 1 Kalipad Gorai and P.W. 5 Anand Gorai being the full brothers and neighbours having grudge with the deceased and the members of his family cannot be relied upon for upholding conviction. The informant P.W. 4 Ulmani Gorai is admittedly the mother of the deceased Shibottar Gorai, P.W. 2 Salram Gorai and P.W. 6 Shankar Gorai but as she was living with her youngest son Shankar Gorai, her all interest was attached with the interest of her youngest son Shankar Gorai and she did not take it in good taste the objection raised by the appellant Geta Gorai @ Geeta Gorai which he asked his father (deceased) as to why he had carried the cattles of his brother Shankar Gorai also when he was separate to him. 9. The learned Counsel exhorted that there is no conclusive pro()f on the record that it was none other than the appellant Geta Gorai @ Geeta Gorai who assaulted his father Shibottar Gorai with a stick on trifling matter causing injuries on the various parts of his body and succumbed in course of treatment after few days. The testimony of the widow of the deceased P.W. 3 Sabi Gorai that her husband died of sustaining injuries by falling from the "Neem tree" after few days in course of treatment could not be demolished. The Trial Court on erroneous consideration held the appellant guilty for the charge under Part-II of Section 304 I.P.C. and Sentenced him to undergo rigorous imprisonment for 5 years which needs intervention of this Court in appeal by recording the order of acquittal of the appellant on the grounds elucidated. 10. Learned A.P.P. opposed the contention as raised on behalf of the appellant by submitting that P.W. 1 Kalipad Gorai, P.W. 2 Salram Gorai & P.W. 4 Ulmani Gorai & P.W. 5 Anand Gorai are consistent in their statements in relation to specific attribution of the appellant who assaulted his father Shibottar Gorai with stick on the different parts of his body including on head as a result of which he succumbed injuries in course of treatment but the learned A.P.P. failed to satisfy that non-examination of the Doctor as well as the Investigating Officer in the given facts and circumstances has not prejudiced the defence of the appellant in any manner. 11. 11. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the appellant has been highly prejudiced for non-examination of the Doctor who had examined the injuries of the victim Shibottar Gorai at the first instance at Nimdih Primary Health Centre and another Doctor who had examined the injury when Shibottar Gorain was brought to the Tata Main Hospital, Jamshedpur and lastly the Doctor concerned who had held post mortem examination on the body of the deceased if at all. I find substance that the cause of the death could not be established in this case as to whether Shibottar died of falling from a tree on the earth sustaining injuries or on account of the injuries sustained and caused by the stick. In my opinion, the evidence of the Doctors who had examined the victim was of a great relevance and their absence from the witness box had adversely affected the merit of the prosecution case which caused prejudice to the appellant in the situation when two different events, contradictory to each other appear on the record as to the cause of injuries sustained by the appellant. 12. I further observe that non-examination of the Investigating Officer has also prejudiced the defence of the appellant for being denied of the opportunity to put certain questions in relation to his objective finding when he visited the place of occurrence as to whether there was a "Neem tree" in the courtyard? Whether he fell down from the "Neem tree" and sustained injuries? and whether the house of P.W. 1 Kalipad Gorain who has claimed to be the eye-witness of the occurrence was situated at a considerable distance so as he could be able to witness the occurrence from the roof of his house which took place in the courtyard of the deceased, surrounded by the houses of other two brothers of the deceased. Similarly the fact could not be established that P.W. 5 Anand Gorai could be able to witness the occurrence while he was on the lane returning with buffalos across the fencing 'of brick walls. Similarly the fact could not be established that P.W. 5 Anand Gorai could be able to witness the occurrence while he was on the lane returning with buffalos across the fencing 'of brick walls. I further find certain development made in the statements of the witnesses referred to above from their earlier statement recorded under Section 161 Cr.P.C. by the Investigating Officer giving rise to suspicion and cumulative effect that the prosecution failed to prove the alleged charge against the appellant. 13. In the facts and circumstances, I find and hold that the materials on the record are not sufficient to sustain the guilt of the appellant for the charge under Part-II of Section 304 I.P.C. On the other hand, learned Trial Court ignored the vital issue that the appellant was denied the opportunity to cross-examine the Doctor and the Investigating Officer which caused prejudice to him. 14. In view of that the conviction of the appellant is unsustainable, accordingly he is acquitted from the charge of Section Part-II, 304 I.P.C. His bail bond stands discharged. This Cr. Appeal is allowed.