JUDGMENT C.R. Sarma, J. 1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. F.U. Barbhuiya, learned Counsel appearing for the accused/Petitioners and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 2. The challenge in this revision petition is the impugned judgment and order dated 27.05.04, passed by the learned Ad-hoc Additional Sessions Judge, Karimganj in Criminal Appeal No. 13(1)2004. By the impugned judgment and order passed in G.R. Case No. 310/95 the learned Chief Judicial Magistrate, Karimganj sentenced the Petitioners to suffer rigorous imprisonment for one month for their conviction under Section 323 IPC. 3. Aggrieved by the said judgment and order, the convicted persons/Petitioners as Appellants preferred an appeal before the learned Sessions Judge, Karimganj and the learned Sessions Judge, Karimganj, while dismissing the appeal up held and affirmed the conviction and sentence recorded by the learned Chief Judicial Magistrate, Karimganj. Hence, this revision petition. 4. Md. Abdul Haque, PW-1, lodged an FIR, on 22.03.95, with the Ratabari PS. alleging therein that at about 9 a.m. that the Petitioners along with two others forming an unlawful assembly trespassed into the land of Sayeb Ali-PW-3 and stared construction of a path by cutting earth from the land of the said Sayeb Ali. Resistance being given by the PW-3, Petitioners assaulted him causing injuries to his person. As a result of the said injuries sustained by him, he was taken to hospital wherein he had undergone medical treatment as an indoor patient. On receipt of the FIR, police registered a case under Sections 147/447/325/326 of IPC and investigated into the matter. Upon conclusion of the investigation, police submitted charge sheet against the accused/Petitioners and two others under Sections 147/447/323 IPC. The learned Chief Judicial Magistrate, Karimganj explained and read over the particulars of the offences under the said sections, to which the accused/Petitioners pleaded not guilty and claimed to be tried. 5. In order to prove its case, prosecution examined four witnesses including the informant as well as the victim. The accused/Petitioners were examined under Section 313 Code of Criminal Procedure, they denied the allegations brought against them and claimed to be tried. 6. The learned Chief Judicial Magistrate, Karimganj considering the evidence on record, convicted the accused/Petitioners under Section 323 IPC and sentenced them to suffer R.I. for one month each. The other two accused were acquitted for want of evidence. 6. The learned Chief Judicial Magistrate, Karimganj considering the evidence on record, convicted the accused/Petitioners under Section 323 IPC and sentenced them to suffer R.I. for one month each. The other two accused were acquitted for want of evidence. The said conviction and sentence was challenged by the accused/Petitioners by filing an appeal before the learned Sessions Judge, Karimganj. The learned Sessions Judge, Karimganj dismissed the appeal and upheld the conviction and sentence. Hence this revision. 7. Mr. H.R.A. Choudhury, learned senior counsel appearing on behalf of the accused/Petitioners, has submitted that the learned Courts below committed error by convicting the Petitioners without any substantive evidence on record. He also submitted that though there is allegation that the PW-3 had sustained injuries requiring him to undergo medical treatment, no medical evidence has been adduced to substantiate the said claim. The learned senior counsel also submitted that the accused/Petitioners did not trespass into the land of the PW 3, Sayeb Ali and that they did not assault the PW 3 as alleged by the prosecution. It is further submitted that though there are many contradictions, is the evidence of PW 2 and PW 3, the defence could not prove the said contradictions for non-examination of the investigating officer by the prosecution. In view of the above, it is submitted that the accused/Petitioners are entitled to be acquitted. 8. Mr. K. Munir, learned Additional Public Prosecutor, Assam, supporting the impugned judgment and order has submitted that the evidence of PW 2 and PW 3 are sufficient to base the conviction and sentence and that the learned Courts below committed no error in passing the impugned judgment and orders. 9. In order to appreciate the arguments advanced by the learned Counsel for the parties, I feel it proper to briefly state the evidence on record. 10. PW-1 is the first informant. He did not see the occurrence himself. He stated that hearing hue and cry he rushed to the place of occurrence and saw that PW -3 i.e. Md. Sayeb Ali was lying in the place of occurrence in injured condition. According to this witness, he had carried the injured person to the hospital for treatment. As the PW 1 did not see the occurrence himself, I find no substantial evidence to believe that the accused/Petitioners had assaulted the PW 3. 11. Musst. Sayeb Ali was lying in the place of occurrence in injured condition. According to this witness, he had carried the injured person to the hospital for treatment. As the PW 1 did not see the occurrence himself, I find no substantial evidence to believe that the accused/Petitioners had assaulted the PW 3. 11. Musst. Faizur Nessa, PW- 2, who was the wife of the injured person deposed that she saw the occurrence. She stated that when the accused persons, namely, Aftab, Lokman, Asad and Cherag Ali started cutting earth from their (PW- 2 and PW-3) land, her husband i.e. PW-3 resisted the accused persons from doing so, accused Cherag Ali caught hold of her husband from behind and Aftab had given blow with the back side of a Dao. She also stated that Lokman had given blow with the back side of a spade. According to this witness, hearing hue and cry, raised by her, her brother-in-law i.e. Md. Abdul Haque PW -1 (informant) arrived at the place of occurrence and took the injured to the hospital. In her cross examination, PW- 2 admitted that the accused/Petitioners were cutting earth from their (Petitioners) boundary for the purpose of constructing a path. She denied the suggestion that she did not at tell the police that at the time of occurrence her husband had come out from their house and that the accused persons had cut the earth from their boundary. She also denied the suggestion that she did not tell the police that the accused persons had abused her husband. She further denied the suggestion that she did not tell the police that her husband was assaulted by the accused persons. Admittedly, in the present case the prosecution failed to examine the investigating officer and this failure on the part of the prosecution deprived the defence from proving the contradictions and to disprove the prosecution version. 12. PW-3 is the injured person. He stated that as the accused persons were cutting earth from his boundary, he asked them not to do so and on being so resisted the accused persons had assaulted him. He further stated that accused Aftab assaulted him with a dao, Lokman assaulted him with a spade while Asad assaulted him with a lathi. PW-3 is the injured person. He stated that as the accused persons were cutting earth from his boundary, he asked them not to do so and on being so resisted the accused persons had assaulted him. He further stated that accused Aftab assaulted him with a dao, Lokman assaulted him with a spade while Asad assaulted him with a lathi. According to his witness, due to the said assault, caused by the accused Petitioners he sustained injuries requiring him to undergo medical treatment for 9/10 days as indoor patient. 13. Carefully perusing the evidence of PW -2 and PW -3, who were the star witnesses, I find that there are some major contradictions, regarding the involvement of the accused persons. According to PW- 3, Aftab, Lokman and Asad assaulted him with dao, spade and lathi respectively whereas PW -3 did not state anything about the involvement of Cherag. In my considered opinion, if the PW-2 had seen the occurrence, there should not have been discrepancy on material point. If PW-3 is believe, the involvement of the accused Cherag Ali stands null out. On the other hand, if the PW-2 is believed then the involvement of the accused Aftab Uddin stands excluded. In view of the above contradictions on material point, I find it hard and unsafe to believe the contradictory evidence given by PW-2 and PW-3. 14. Both the PW-2 and PW-3 stated the injured had taken medical treatment. PW 3 stated that he stayed for 9/10 days in hospital as indoor patient But there is no such medical evidence to substantiate the said claim. Non-examination of the Medical Officer, who treated the injured also raises doubt about the veracity of the prosecution story. 15. It is settled law that in a criminal trial the prosecution is required to prove its case beyond all reasonable doubt. It is also settled that in the event of existence of two probabilities, the benefit should always goes in favour of the accused persons. The contradiction evidence given by both the husband and the wife i.e. the PW-3 and PW-2, absence of medical evidence and non-examination of the investigating officer have adversely affected the prosecution case. Absence of medical evidence raises doubt as to whether the injured had sustained the injuries alleged by the PW-2 and PW-3. That apart, non-examination of the investigating officer had caused prejudice to the accused persons. Absence of medical evidence raises doubt as to whether the injured had sustained the injuries alleged by the PW-2 and PW-3. That apart, non-examination of the investigating officer had caused prejudice to the accused persons. Therefore, the impugned conviction and sentence can't stand the eye of law. 16. Considering entire aspects of the matter, I am inclined to hold that the prosecution failed to prove the case beyond all reasonable doubt. Therefore, the accused/Petitioners are entitled to be acquitted on benefit of doubt. 17. In view of the above discussion, I find sufficient merit in this revision requiring interference with the impugned judgment and order, passed by the learned Courts below. Accordingly, the revision petition is allowed. 18. Consequently, the impugned judgment and order of conviction and sentence are set aside. The accused/Petitioners are acquitted and set at liberty. Their bail bonds shall stand discharged. 19. Send down the LCR forthwith. Petition allowed