JUDGMENT 1. - Convicted for offences under Sections 325/149 IPC and sentenced to two years of rigorous imprisonment, and imposed with a fine of Rs. 2,000/-, and directed to further undergo six months of simple imprisonment in default thereof, convicted for offences under Sections 323/149 IPC and sentenced to one year of rigorous imprisonment, and convicted for offence under Section 147 IPC and sentenced to one year of rigorous imprisonment and imposed with fine of Rs. 100/- and directed to undergo fifteen days of rigorous imprisonment in default thereof, vide judgment dated 09.08.1990, passed by the Additional District & Sessions judge Nagaur camp Deedwana, the appellant, Plasan Khan, has challenged the same before this Court. 2. Briefly, the facts of the case are that on 09.03.1988, Alam Khan (P.W. 10) submitted a report before the police, wherein he claimed that one Kasam Khan had taken his son, Babu Khan, to his house as there was to be a "Nangal" (inauguration of the house) on 10.03.2008. Next to the house of Kasam Khan, the house of Kailash Agrawal was also under construction. At the relevant time, Niyaz Mohd. and Kailash Agrawal were present at he house of Kailash Agrawal. From the house of Kasam Khan, Babu Khan went to the house of Kailash Agrawal and had his meals there. Subsequently Kailash left his house. Thereafter, Niyaz Mohd. also left the place. Around 11 P.M. when Babu Khan left the house, he was attacked by seven or eight persons. Amongst these persons was Hasan Khan (the appellant before this Court). All these persons were armed with lathis. When Babu Khan shouted for help. Pukhraj and Girdhari rushed to his rescue. On the basis of this report, a formal FIR was chalked out for offence under Section 147. 341, 323 IPC. However, during the course of investigation, offences under Sections 325, 325 read with Section 149 IPC and under Section 307 read with Section 149 IPC were added. Subsequently, the charge sheet was submitted only against the appellant and not against anyone else. 3. In order to support its case, prosecution examined fourteen witnesses and submitted few documents. The defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. 3. In order to support its case, prosecution examined fourteen witnesses and submitted few documents. The defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. Sunil Ranwa, the learned counsel for the appellant, has vehemently contended that it is a case of conviction based on the testimony of a sole eyewitness viz., Babu Khan, the injured. However, his testimony has not been corroborated by the medical evidence. In fact, the medical evidence belies the testimony of the sole witness. Thus, Babu Khan is not a reliable, or a trustworthy witness. According to Babu Khan (P.W.5), the appellant was carrying a Barchhi and had struck him on his head on the right side of the face, and on his left hand with the Barchhi. According to him, others had assaulted him with lathis. However, according to the injury report, Babu Khan did not suffer even a single sharp edged injury on his body. Thus, there is a contradiction between the ocular evidence, and the medical one. Yet, the learned judge has covicted the appellant solely on the basis of Babu Kahn's testimony. Moreover, the learned Judge has ignored the fact that during the course of investigation, no Barchhi was recovered from the appellant. Furthermore, according to the other eyewitnesses, the appellant was not present at the scene of the crime. Lastly, that according to Babu Khan there was some disagreement between him and the appellant over a partnership with regard to a bus, the account of which is yet to be settled. Therefore, according to the learned counsel, the possibility that the appellant is being falsely implicated in this case cannot be ruled out. Yet this facet has not been appreciated by the learned judge. 5. On the other hand, learned Public Prosecutor has contended that the learned judge has critically analyzed the evidence and has given cogent reasons for convicting the accused appellant. Hence, he has supported the impugned judgment. 6. Heard the learned counsel for the parties and perused the impugned judgment. 7. A bare perusal of the impugned judgment clearly reveals that the conviction is based on the testimony of the sole witness, viz. Babu Khan, the injured, in this case. Hence, he has supported the impugned judgment. 6. Heard the learned counsel for the parties and perused the impugned judgment. 7. A bare perusal of the impugned judgment clearly reveals that the conviction is based on the testimony of the sole witness, viz. Babu Khan, the injured, in this case. Therefore, the testimony of Babu Khan, as the sole witness, has to be of sterling worth. In case, there are lacunae in his testimony, then the conviction cannot be upheld. 8. Babu Khan has specified a Barchhi in the appellant's hand. Moreover, according to him, the appellant had assaulted him thrice causing three different injuries on his body. Thus, one would have expected three incised wounds on his body. However, according to the injury report (Ex. P/6), not a single incised injury exists on his body. Most of the injuries are either bruises, or are abrasions, both caused by blunt weapon. Thus, the injury report (Ex. P/ 6) belies his claim that he was assaulted by the appellant with a sharp edged weapon. Morevover, during the course of investigation, no sharp edged weapon was recovered from the appellant. Furthermore, mere recovery of the lathi does not connect the appellant to the alleged crime. 9. The learned judge has observed that in the darkness of the night, the witness may not have been able to distinguish between a Brachi and a lathi. However, the injured certainly would have been able to distinguish between an injury caused by a blunt weapon and an injury caused by sharp edged weapon. After all, there is a difference between the cut, or an incised would caused by a sharp edged weapon, and a bruise, abrasion or laceration caused by a blunt weapon. Therefore, the logic given by the learned judge is certainly unsustainable. 10. Furthermore, while the judge has consistently harped on the fact that Babu Khan was assaulted by an unlawful assembly of seven to eight persons, the learned judge has overlooked the fact that no other person except the present appellant was charge-sheeted. Surprisingly, there is no discussion in the impugned judgment as to what became of the other alleged co-accused persons. Hence, it is surprising that the learned judge has convicted the appellant for offence under Section 325 read with Section 149 IPC. 11. For the reasons stated above, this appeal is allowed. Surprisingly, there is no discussion in the impugned judgment as to what became of the other alleged co-accused persons. Hence, it is surprising that the learned judge has convicted the appellant for offence under Section 325 read with Section 149 IPC. 11. For the reasons stated above, this appeal is allowed. The impugned judgment dated 09.08.1990 is quashed and set aside. Since the accused appellant is already on bail, his bail bonds shall not be forfeited.Appeal Allowed. *******