P. K. Musahary, J.;- Heard Mr. S. Saha, learned counsel ap­pearing for the petitioner. Also heard Mr. A. Ghosh, learned Addl. Public Prosecutor ap­pearing for the State-respondent. 2. This revision application has been filed under Section 401 of Cr.P.C. read with Sec­tion 397 of Cr.P.C. challenging the impugned judgment and order dated 02.01.2003 passed by the learned Addl. Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 5 (1)/2002 affirming the judgment dated 13.12.2001 passed by the learned Judicial Magistrate, 1 st Class in Case No.GR 176 of 1999 convicting the petitioner under Section 326 of IPC and sentencing him to suffer RI for 6 (six) months and also to pay fine of Rs.5,000/-, in default to suffer SI for a term of two months. 3. Briefly, the story projected by the pros­ecution is that, on 28.02.1999 one Smti. Jyotsna Dey lodged FIR in the West Agartala P.S. to the effect that on the same day at about 5 p.m. her neighbours namely Shri Pranab Roy and Partha Roy @ Partha Sarathi Roy as­saulted her son Shri Dilip Dey causing seri­ous injury and he was admitted in hospital for treatment. On the basis of the aforesaid FIR, a crime being West Agartala P.S. Case No. 34 of 1999 was registered under Sections 326/34, IPC against the aforesaid named accused persons. On completion of the in­vestigation, the police laid charge-sheet against them under Sections 447/326/34, IPC. After completion of the trial, learned Judicial Magistrate, 1st Class, Agartala, West Tripura convicted the accused Partha Sarathi Roy under Section 326 of IPC and sentenced him to suffer RI for a term of six months and also to pay fine of Rs.5,000/-. 4. Being dissatisfied and aggrieved by the aforesaid conviction and sentence, the ac­cused Shri Partha Sarathi Roy preferred an appeal being Criminal Appeal No. 5(1) of 2002 before the learned Additional Sessions Judge, West Tripura, Agartala. The aforesaid appeal was heard and disposed of by the judgment dated 02.01.2003 upholding the conviction and sentence passed by the learned trial Court. The aforesaid appeal was accord­ingly dismissed. 5. The accused, above named, being fur­ther aggrieved and dissatisfied with the im­pugned judgment of the learned appellate Court has filed the present revision petition. 6. The aforesaid appeal was heard and disposed of by the judgment dated 02.01.2003 upholding the conviction and sentence passed by the learned trial Court. The aforesaid appeal was accord­ingly dismissed. 5. The accused, above named, being fur­ther aggrieved and dissatisfied with the im­pugned judgment of the learned appellate Court has filed the present revision petition. 6. The main ground taken by the accused petitioner is that PWs 1,4,6,9 and 10 stated that the injured Dilip Dey was assaulted by one Shri Pranab Roy, father of the petitioner and some of them being eye witnesses did not utter any single word that the accused pe­titioner assaulted the said Dilip Dey and in any way abetted the offence as there was no charge of abetment of offence and as such the learned trial Court should have acquitted the petitioner from the charge levelled against him. 7. I Have carefully gone through the evi­dence on record. There are four eye witnesses according to the prosecution. They are P. Ws. 1, 2, 3 and 9. As per the evidence of these eye witnesses, the present petitioner's father struck a blow by a lathi on the head of the victim and when he fell down, the present accused petitioner struck blows by a lathi. This ocular evidence of eye witnesses are not sup­ported by the medical evidence (Exbt.6) and the evidence of P.W. 14 (Doctor) who ex­amined the victim while he was produced before him. In the remark of the medical report, it is recorded as under. "One lacerated injury measuring 5 c.m. x 4 c.m. x 2 c.m. over front of parietal area of scalp, the injury was grievous in nature. The CITI scan of the brain reveals: 1. Intra cerebral haemmorage, contution at left temporal lobe and right frontal lobe, 2. Occipital haematoma at right fronto parietal reason, the nature of injury was grievous, and H. of injury was fresh." 8. From this medical report, it is clearly found that there are no multiple injuries on the person of the victim. As per the evidence of the medical officer, P.W. 14, he examined the patient Dilip Dey (Victim) and found the aforementioned injuries and the nature of the injury is grievous. The patient was referred to Kolkata on 02.03.1999 for 'better manage­ment'. 9. As per the evidence of the medical officer, P.W. 14, he examined the patient Dilip Dey (Victim) and found the aforementioned injuries and the nature of the injury is grievous. The patient was referred to Kolkata on 02.03.1999 for 'better manage­ment'. 9. In the cross examination, the said medi­cal officer stated that the patient was con­scious and his blood pressure and pulse rate was normal. The medical report and the evi­dence of Doctor, PW 14, does not confirm that the victim received several lathi blows, one from the main accused person, Pranab Roy and the other from the present accused petitioner who was present at the place of occurrence. 10. Mr. S. Saha, learned counsel for the accused petitioner submits that the evidence of the so called eye witnesses cannot be ac­cepted in view of the clear medical evidence that the victim received only one injury as described above. There is no other evidence to the effect that the victim person, although referred for 'better management', he was treated further in Kolkata. No document has been produced by the prosecution to prove the fact that the victim was under further treat­ment at Kolkata. 11. On the basis of this clear medical evi­dence, the Court cannot take any view that the victim received injury more than one from the lathi blow given by the main accused per­son, Pranab Roy, because the eye witness may not depose the correct things or fact but the medical report cannot tell any lie. 12. I Have perused the charge framed by the learned trial Court. It is correct that no charge was framed under Section 34, IPC. It is also an admitted position that the accused petitioner was present at the place of occur­rence and it was possible on his part to take part in the act of assault on the victim along with his father, who admittedly gave lathi blow. Had there been any charge under Section 34 of IPC, the present accused petitioner could have been convicted along with the main ac­cused person although he was present at the place of occurrence and no active role was played by him on the ground that there was a plan and common intention to assault the vic­tim. The prosecution cannot claim such privi­lege of convicting the present accused peti­tioner for want of any charge under Section 34 of IPC. 13. The prosecution cannot claim such privi­lege of convicting the present accused peti­tioner for want of any charge under Section 34 of IPC. 13. As discussed earlier, although some eye witnesses have deposed that the accused petitioner struck some blows by lathi on the victim, the prosecution is not successful in proving the case against the present accused petitioner beyond reasonable doubt inasmuch as the medical evidence could not be im­peached. It is, therefore, found that doubt has remained and the same could not be removed by the prosecution for the purpose of con­victing the present accused petitioner. The petitioner, in my considered view, should get the benefit of doubt and get the order of ac­quittal. 14. For the above reasons and observa­tions, in my considered view, I find merit in the present petition and the same stands allowed. Consequently, the accused petitioner Shri Partha Roy @ Partha Sarathi Roy stands acquitted on benefit of doubt. 15. The bail bond stands discharged. 16. Send down the Lower Court Records.