JUDGEMENT Shyam Kishore Sharma and Rajendra Kumar Mishra JJ. 1. Above named Appellants have preferred this appeal against the judgment of conviction and order of sentence dated 12th May, 1988 passed in Sessions Trial No. 94 of 1984 by the learned 3rd Additional Sessions Judge, Muzaffarpur whereby they have been found guilty for committing offence under Sections 302/149 and 380 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life under Sections 302/149 IPC and six months under Section 380 IPC with a direction that sentences would run concurrently. 2. The prosecution case relates to an assault made at 6.00 P.M. on 24.9.1983 in which Ram Darash Rai sustained injury. The written report (Ext. 1) of Binod Kumar Rai (PW 4) leading to registration of formal report (Ext. 5) is the basis of prosecution case. The written report addressed to the Officer Incharge, Aurai Police Station of the district Muzaffarpur alleging that informants brother Ram Japu Rai (PW 1) was returning after grazing the she buffalo through a passage which belongs to Bihar Government. When the she buffalo was passing through the passage, Sukuldeo Panjiyar and his family members started abusing against carrying away of the she buffalo through that way. The informants brother protested claiming the land to be of Government of Bihar and the altercation ensued. In the mean while the informants brother Ram Japu Rai (PW 1) came running and informed to his uncle Ram Darash Rai (deceased). Ram Darash Rai asked the accused Sukuldeo Panjiyar to keep restrain but Sukuldeo Panjiyar incited others namely, Bhuneshwar Panjiyar, Sitaram Panjiyar, Yugal Panjiyar, Ram Pratap Panjiyar, Ram Kalewar Panjiyar, Ram Sunder Panjiyar, Ramdev Panjiyar, Arjun Panjiyar, Ram Narayan Panjiyar. Sukuldeo Panjiyar and Bhuneshwar Panjiyar were having Bhala and others were having lathi and they went to the house of the informant (PW 4) where Ram Darash Rai was indiscriminately assaulted by Bhala and lathi. Ram Darash Rai received injury and thereafter, accused persons taken away fire wood and utensils from the house of the informant. The occurrence was witnessed by Ram Sugandh Rai (PW 2), Upadhya Rai (not examined), Shivjee Rai (PW 3) and Shiv Chandra Rai (PW 5). The written report resulted into registration of Aurai P.S. Case No. 61 dated 24.9.1983 under Sections 147, 148, 448, 324, 323 and 380 of the Indian Penal Code. The occurrence was witnessed by Ram Sugandh Rai (PW 2), Upadhya Rai (not examined), Shivjee Rai (PW 3) and Shiv Chandra Rai (PW 5). The written report resulted into registration of Aurai P.S. Case No. 61 dated 24.9.1983 under Sections 147, 148, 448, 324, 323 and 380 of the Indian Penal Code. The injured was taken for treatment but he died in course of treatment and in the FIR Section 302 IPC was added. The case was investigated into and finding the allegation to be true chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions where charges under Sections 302/149 and 380 of the Indian Penal Code were framed and explained against the accused (Appellants). They pleaded their innocence so the trial proceeded. 3. Defence of the Appellants is that the prosecution sides were the aggressors and they have assaulted which caused injury among the persons of the defence side. They have been treated by DW 3 Dr. Vijay Kumar Chaudhary on 25.9.1983 between 9 to 9.30 PM and in support of their claim they have exhibited injury reports given by DW 3. Their further defence was that the deceased Ram Daras Rai was a person of 75 years and after his death accused persons were implicated so that they could be taught a lesson. The manner of occurrence was also challenged and it was submitted that no blood was found by the Investigating Officer and he tried to cover it and tried to fabricate the story of rain but no such evidence has been brought on record. 4. In order to prove its case, the prosecution has examined Ram Japu Rai (PW 1), Ram Sugandh Rai (PW 2), Sheoji Rai (PW 3), Binod Kumar Rai (PW 4), Sheo Chandra Rai (PW 5), Dr. Ganesh Mahto (PW 6), Dr. Manoranjan Kumar Shrivastava (PW 7), Shyam Nandan Jha (PW 8) and Mahendra Tahkur the Investigating Officer (PW 9). PW 6 has treated the deceased (Ram Daras Rai) initially and thereafter, he was sent for further treatment to Muzaffarpur and after his death post mortem examination was conducted by PW 7 Dr. Manoranjan Kumar Shrivastava who prepared the post mortem examination report (Ext. 3). Injury report (Ext. 2) has been proved by the doctor. 5. PW 6 has treated the deceased (Ram Daras Rai) initially and thereafter, he was sent for further treatment to Muzaffarpur and after his death post mortem examination was conducted by PW 7 Dr. Manoranjan Kumar Shrivastava who prepared the post mortem examination report (Ext. 3). Injury report (Ext. 2) has been proved by the doctor. 5. Out of the witnesses relied upon by the prosecution, PW 7 Shyam Nandan Jha was a witness to the occurrence. According to the fard-beyan, PW 5 Shiv Chandra Rai was also the witness to the occurrence but both of them have been declared hostile and they have not supported the allegation of assault. 6. The informant PW 4 has stated that at about 6.00 P.M. on 24.9.1983 he was taking high tea at his house. Just north of his door there was a passage which belongs to the State of Bihar. At the time of occurrence north of that passage house of the accused Sukuldeo Panjiyar was situated and that house was not in existence at the time of deposition. About the occurrence, this witness has stated that his brother Ram Japu Rai was returning after grazing his she buffalo and when he reached near the passage accused Sukuldeo Panjiyar started abusing and restrained him to carry she buffalo through that passage which was objected by the informants brother and verbal altercation followed. Informants brother PW 1 came back to his house and informed his uncle Ram Daras Rai (deceased). Ram Daras Rai thereafter, asked Sukuldeo Panjiyar not to abuse but Sukuldeo Panjiyar ordered to assault. About allegation this witness has stated that Sukuldeo Panjiyar, Bhuneshwar Panjiyar assaulted by Bhala whereas Jugal Panjiyar, Sitaram Panjiyar, Arjun Panjiyar, Ramdeo Panjiyar, Ram Narayan Panjiyar, Ram Sundar Panjiyar, Ram Kalewar Panjiyar and Ram Ram Pratap assaulted by means of lathi and as a result of combined assault Ram Daras Rai received injury. Accused persons took away some articles. Informant brought his injured uncle to the police station and lodged the case. The informants uncle was injured so he was initially treated at Aurahi hospital. Seeing the condition of the informants uncle precarious, he was referred to Sadar Hospital, Muzaffarpur. In course of treatment at Sadar hospital on 25.9.1983 the informants uncle died. Accused persons took away some articles. Informant brought his injured uncle to the police station and lodged the case. The informants uncle was injured so he was initially treated at Aurahi hospital. Seeing the condition of the informants uncle precarious, he was referred to Sadar Hospital, Muzaffarpur. In course of treatment at Sadar hospital on 25.9.1983 the informants uncle died. Though PW 4 has stated about the assault but his attention was drawn towards the nature of weapon used by the accused persons then he has pleaded his ignorance and expressed his inability to tell about the weapons by which the assault was made by the accused persons and also who assaulted on which portion of the injured. Other relevant witnesses to the occurrence are P Ws 1 and 3. They have also supported the factum of assault by the accused persons. 7. PW 6 has examined Ram Daras Rai on 25.9.1983 at 7.30 A.M. and has found following injuries on his person: (i) (a) lacerated injury on left side of scalp parietal region 21/2" x 1/2" x scalp deep (b)lacerated injury above the injury No. (a) The injury was of the size 4" x 1/2"x scalp deep (ii) swelling on left eye brow 1/2" x 1/4" (iii) swelling both upper and lower lip." All the injuries were simple in nature except injury Nos. 1 (a) and 1 (b) and the opinion with regard to these two injuries were reserved till the X-ray report. The X-ray report did not come on the record so the final opinion has not come but the evidence of the doctor is clear that all the injuries were caused by hard and blunt substance such as lathi. Though this witness has stated that injury No. 1 (a) and 1 (b) may be caused by Bhala also but in the present case no such injury has been described by the doctor and the doctor has stated that Bhala is a piercing weapon and it causes punctured wound. There was no punctured wound in the present case so it can be said that Bhala, which was a sharp point weapon, has not been used in committing the offence. 8 PW 7 has conducted post mortem examination on the person of Ram Daras Rai at 10.00 AM on 26.9.1983. Ram Daras Rai has been noted to be 75 years. Two injuries were found on his person. 8 PW 7 has conducted post mortem examination on the person of Ram Daras Rai at 10.00 AM on 26.9.1983. Ram Daras Rai has been noted to be 75 years. Two injuries were found on his person. Both injuries were stitched wound and he has not expressed any opinion regarding the nature of injuries because both were stitched wound. 9. The specific case of the prosecution is that Ram Daras Rai was injured then he was brought to Aurai Police Station and at the behest of the police officials initial treatment was given by the doctor there. His condition was serious so he was referred to Muzaffarpur Hospital. 10. In the present case the prosecution has examined PW 6 to support the factum of treatment provided to Ram Daras Rai and that treatment shows that the examination of Ram Daras Rai was made at 7.30 AM on 25.9.1983 meaning thereby that Ram Daras Rai has not received any treatment in the night of 24.9.1983 despite the fact that his injury was found to be serious. There is no evidence at all that Ram Daras Rai had received any treatment at Aurai on 24.9.1983. The Investigating Officer, PW 9, in paragraph 2, has stated that in the same evening of the date of occurrence he himself had sent the patient to Sadar Hospital, Muzaffarpur but evidence of PW 6 is specific that the treatment to the injured was given on the day following the occurrence and there is no explanation either of the informant or the Investigating Officer as to what prevented them for making proper treatment available to the injured who was a man of 75 years age at the time of occurrence. If injury report is considered then it becomes very difficult to reconcile the injury report/the version given by the informant or eye witnesses regarding the manner of assault. The manner of assault given by P Ws 4, 1 and 2 is that Bhala was pierced upon Ram Daras Rai. The definite case of eye witnesses is that initial blow was by piercing Bhala. The injury report and the opinion of the doctor is specific that no such injury at all was found upon Ram Daras Rai. Therefore, the evidence of the doctor and the evidence of the eye witnesses are not reconcilable rather both depict different version of the occurrence. The injury report and the opinion of the doctor is specific that no such injury at all was found upon Ram Daras Rai. Therefore, the evidence of the doctor and the evidence of the eye witnesses are not reconcilable rather both depict different version of the occurrence. No doubt, minor contradictions can be ignored but if the contradictions are of vital nature and it becomes difficult to reconcile when the eye witnesses are specific regarding manner of assault. Not only the injuries were caused by penetrating weapon rather the victim has received indiscriminate assault by means of hard and blunt substance also. But the injury report belies the manner of assault as described by the eye witnesses. 11. The defence has come with another version of the occurrence and they have stated that persons of both sides have received injuries and they have been treated by DW 3 who has found injuries upon Sukuldeo Panjiyar, Bhuneshwar Panjiyar, Arjun Panjiyar and Ramdev Panjiyar. Their injury reports (Ext. C to C/3) have been brought on record and they have also been examined on 25.9.1983 by DW 3. The defence has tried to explain that the matter was reported to Sarpanch and later on a complaint case was filed. The complaint case was filed on 3.10.1983 i.e. after about 9 days of the occurrence. The trial court has rightly disbelieved the filing of the complaint case. It appears that the complaint case was filed only with a view to save their skin from the present case and it has not been supported by the medical evidence. 12. It has come in evidence that many houses were situated near the place of occurrence but not even one independent witness has been examined. All the witnesses examined are family members of the informant though the occurrence is just of the evening and presence of many persons at the time of occurrence in the village is just possible. Non-examination of independent witness itself does not fatal but the versions of the eye witnesses are not supported by the doctor either who treated the injured or who conducted post mortem examination. Non-examination of independent witness itself does not fatal but the versions of the eye witnesses are not supported by the doctor either who treated the injured or who conducted post mortem examination. The first version of the treatment of the injured has come on the record and it has also not been explained as to why the injured was not taken to Muzaffarpur in the night itself despite the advice of the doctor for carrying him to provide better treatment. The manner of assault explained by the eye witnesses has been contradicted by the doctor which has not been clarified by the prosecution when such two versions have come. Considering the facts and evidence on record, it appears that the prosecution has not come with clean version and there is no explanation as to why the injured was not given proper treatment on the date of occurrence despite the specific advice of doctor and no injury as alleged by the witnesses have been found by the doctor. It is apparent that the prosecution has not been able to prove the charge of assault against the Appellants beyond the shadow of all reasonable doubts. Regarding theft also no clinching evidence has come on the record. 13. Considering the nature of evidences and contradictions between the oral and documentary evidences, we are of the view that the prosecution has not been able to prove its charge against the Appellants. Accordingly, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. The Appellants are on bail. They are discharged from the liabilities of their bail bonds.