JUDGMENT R.K. Mishra, J. This appeal is directed against the judgment of conviction and order of sentence dated 28.11.2000 passed by the court of Additional Sessions Judge-II, Barh, Patna, in Sessions Trial No.738 of 1992, whereby the Additional Sessions Judge-II, Barh, Patna, held the accused-appellants guilty for the offence punishable under Sections 326/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years, whereas the accused-appellant no.2, Baiju Singh, has been acquitted from the charge under Section 379 of the Indian Penal Code. 2. In brief, the prosecution case is that Kamleshwari Prasad Sharma (P.W.3) gave his fardbeyan at the clinic of Dr. Anil Kumar (P.W.4) on 8.11.1990 at about 8.45 P.M. to the Sub Inspector of Police, R. Ranjan of Pandark Police Station to the effect that he has a medicine shop in the name and style of Punyarak Medicine Corner. On that day, as usual, at about 7.30 P.M. he was just to go after closing the shop and his servant, Gariban Ram (P.W.1) was also present in the shop. The sale proceeds of the medicines was kept in the cash box and he was counting the same which was about 1100/-. In the meantime, his villagers and neighbours, namely, Ram Chandar Singh, son of Late Yamuna, Padri Singh and Baiju Singh, both sons of Ram Chandar Singh came at the shop. Ram Chandar Singh asked him to give Rs.10,000/- which he refused on which Padri Singh, told to shot fire. In the meantime, Baiju Singh entered into his shop and asked him to give the money otherwise till the morning he would shot fire. Thereafter, Ram Chandar Singh and Baiju Singh caught hold of him and Padri Singh gave a farsa blow on his head causing blood oozing injury. Baiju Singh took cash of Rs.1100/- from the cash box and, thereafter, they fled away. On hearing hullah, neighbours rushed there and saw the occurrence. Thereafter, he was taken to the clinic of Dr. Anil Babu, where he was treated. The occurrence has been seen by his servant, Gariban Ram (P.W.1) and his neighbour, Pramod Bharti (P.W.2). 3. Baiju Singh took cash of Rs.1100/- from the cash box and, thereafter, they fled away. On hearing hullah, neighbours rushed there and saw the occurrence. Thereafter, he was taken to the clinic of Dr. Anil Babu, where he was treated. The occurrence has been seen by his servant, Gariban Ram (P.W.1) and his neighbour, Pramod Bharti (P.W.2). 3. On the basis of the fardbeyan of the informant, Kamleshwari Prasad Sharma (P.W.3), Pandarak P.S. Case No.94 of 1990 was instituted against the accused-appellants under Sections 341, 323, 324 and 379 of the Indian Penal Code on 8.11.1990 and on investigation police submitted the chargesheet under Sections 341, 326, 323, 307 and 379/34 of the Indian Penal Code. After taking the cognizance of the offence, the case was committed to the court of sessions for trial, where charge under Section 307/34 of the Indian Penal Code was framed against all the accused-appellants and charge under Section 379 of the Indian Penal Code was also framed against the accused-appellant no.2, Baiju Singh, and the same were explained to them, who pleaded not guilty and claimed to be tried. 4. On consideration of the evidence of the prosecution witnesses and the materials available on record, the Additional Sessions Judge-II, Barh, Patna, while acquitted the accused-appellant no.2, Baiju Singh, for the offence under Section 379 of the Indian Penal Code but convicted all the accused-appellants for the offence under Section 326/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. 5. In order to prove its case, the prosecution examined altogether four witnesses, who are P.W.1, Gariban Ram, P.W.2, Pramod Kumar Bharti, P.W.3, Kamleshwari Prasad Sharma, the informant of the case and P.W.4 is Dr. Anil Kumar, who treated the informant, Kamleshwari Prasad Sharma (P.W.3). On the other hand, the defence has examined one witness Sitaram Prasad, who has formally proved the notice issued by Sarpanch of Gram Kutchery Pandarak on 13.6.1995 to Ram Balak Singh and five others as Exts.A and A/1. The defence, as appears from the trend of cross examination of the prosecution witnesses, is that due to dispute regarding the water flow in between the informant and the accused-appellants, the informant has managed to implicate the accused-appellants. 6. The defence, as appears from the trend of cross examination of the prosecution witnesses, is that due to dispute regarding the water flow in between the informant and the accused-appellants, the informant has managed to implicate the accused-appellants. 6. P.W.1, Gariban Ram, has stated in his evidence that the occurrence took place on 8.11.1990 at about 7.30 P.M. At that time, he was outside the medicine shop while his shop owner was in the shop and was counting the money gained by selling the medicines. At that time, he had gone for urinal. He heard hullah and when reached at the shop he saw the accused, Ram Chandar Singh, Padri Singh and Baiju Singh. The accused, Padri Singh, was armed with farsa and was demanding the money from shop owner. When his shop owner refused to give the money then the accused, Ram Chandar Singh and Baiju Singh entered into the shop and the accused, Padri Singh gave a farsa blow at his shop owner, Kamleshwari Prasad Sharma, who fell down. In the meantime, Baiju Singh and Ram Chandar Singh, fled away from there taking the cash of Rs.1100/- of his shop owner. After the occurrence, his shop owner went to the clinic of Dr. Anil Kumar, where he was treated and information regarding the occurrence was given to the police station. Thereafter, Darogaji came and recorded the statement of his shop owner. This witness has stated in paragraph-4 of his cross examination that when he had gone for urinal, at that time, there was no hullah. He, firstly, raised hullah on which 50-60 villagers and nearby shop keepers gathered there. This witness has further stated that the clinic of Dr. Anil Kumar is situated at 30-35 steps away from the shop of his owner. This witness has further stated that on hullah four shop keepers, namely, Babloo Sao, Anant Sao, Balram Sao and Ram Chandra Sao, had come there and besides them the villagers had also come there on hullah. The defence has drawn attention of this witness regarding his statement recorded under Section 161 of the Code of Criminal Procedure before the police on which this witness has stated that he had stated before the police that Padri Singh was armed with farsa and he made demand of money from his shop owner and on refusal the accused, Ram Chandar Singh and Padri Singh entered into the shop. He has also stated that he has given the statement before the police to the effect that the accused, Padri Singh, gave farsa blow on the head of his shop owner and he had also given the statement before the police that Ram Chandar Singh and Baiju Singh took away the cash of Rs.1100/- from the cash box. This witness has denied the attention drawn by the defence that he had not given the statement before the police that his shop owner had gone to the private clinic of Dr. Anil Kumar after the occurrence. P.W.2, Pramod Kumar Bharti, has stated in his evidence that the occurrence took place on 8.11.1990 at about 7.30 P.M. At that time, he was sitting in the north of the place of occurrence at his varamdah. At the place of occurrence there was electric light and the lantern was also lightening. On hearing hulla, he rushed to the place of occurrence and saw the accused, Ram Chandar Singh, Padri Singh and Baiju Singh. The accused Padri Singh, gave a farsa blow at Kamleshwari Singh. Kamleshwari told him that Baiju Singh had taken away Rs.1100/- from the cash box. At that time, the accused, Ram Chandar Singh, was exhorting. This witness has further stated that the injured Kamleshwari was taken to the clinic of Dr. Anil situated in front of his shop, where he was treated. Kamleshwari Singh gave his fardbeyan to the police regarding the occurrence and he put his signature on the fardbeyan of Kamleshwari Singh and proved his signature as Ext.1 and the signature of the informant, Kamleshwari Singh on the fardbeyan as Ext.1/1. This witness has further stated in paragraph-4 of his cross examination that when he reached at the place of occurrence the blood was oozing out from the back side of the forehead of Kamleshwari Singh, who was not in a position to speak. Kamleshwari had not told him about receiving the manner of injury by him. This witness has further stated in paragraph-5 of his cross examination that Pandarak police station is about one kilometer from the place of occurrence and Government Hospital is about 1/2 kilometer from the place of occurrence. This witness has further stated in paragraph-7 of his cross examination that he had not stated before the police that at the time of occurrence there was electric light and the lantern was also burning. This witness has further stated in paragraph-7 of his cross examination that he had not stated before the police that at the time of occurrence there was electric light and the lantern was also burning. This witness has further stated that he had stated before the police about seeing the occurrence and it is not true that he had given the statement before the police that when he rushed at the shop of Kamleshwari Singh, blood was oozing out from his head. From the evidence of this witness, it is apparent that this witness was not the eye witness to the occurrence rather he rushed at the place of occurrence, after the occurrence. P.W.3 is Kamleshwari Prasad Sharma, who is injured and informant of the case, has stated in his evidence that the occurrence took place on 8.11.1990 at about 7.30 P.M. At that time, he was at his shop and counting the money of the cash box and there was electric light. His servant, Gariban Ram, was standing below his medicine shop. In the meantime, the accused, Baiju Singh, Padri Singh and Ram Chandar Singh came there and the accused, Ram Chandar Singh demanded Rs.10,000/- from him, which he refused. Thereafter, Baiju Singh, told him that if the money would not be given, he would shot fire by the morning. Thereafter, the accused, Ram Chandar Singh and Baiju Singh, entered into his medicine shop and caught hold of him and the accused, Padri Singh, gave farsa blow on his forehead causing blood injury. At that time, Baiju Singh, took away about Rs.1100/- from the cash box. On hullah raised by him several persons came and saw the occurrence. He was taken to the clinic of Dr. Anil Kumar, where he was treated, and information regarding the occurrence was given to the police station. Doctor also advised him for X-Ray and after X-Ray, he handed over the X-Ray report to the doctor. This witness has further stated that on the information given by the doctor Darogaji came and recorded his statement and on reading over the same he put his signature, which has already been marked as Ext.1. This witness has also stated in his cross examination that his medicine shop is situated at the distance of 20-25 feets from the clinic of Dr. Anil Babu and in between his medicine shop and the clinic of Dr. This witness has also stated in his cross examination that his medicine shop is situated at the distance of 20-25 feets from the clinic of Dr. Anil Babu and in between his medicine shop and the clinic of Dr. Anil Babu there is road. This witness has further stated that Pandarak Police Station is at the distance of one kilometer from his medicine shop and the Government Hospital is in between his medicine shop and police station. This witness has further stated that the occurrence took time about 3-4 minutes and just after the occurrence about 20 persons came near his shop, out of whom he identified Shrawan Kumar, Ram Chandra Laheri, Prahlad and Thatheri. 7. P.W.4, Dr. Anil Kumar, has stated in his evidence that on 8.11.1990 he was posted as Medical Officer in State Dispensary, Pandarak. On that day at about 8 P.M., he examined Kamleshwari Prasad Sharma, son of Late Sundar Singh of village and P.S. Pandarak, District-Patna in his private clinic and found the following injuries on his person: (i). One cut wound over left parietal occipital region 2” X 1/4” X bone deep with bleeding. Margin of wound was sharp and clean caused by sharp cutting weapon may be Farsa. The injury was dangerous to life. Patient was advised for X-Ray of scalp. Age of injury was within one hour of the examination. (ii). The X-Ray report was produced before him on 10.11.1990 which shows the depressed fracture over left parietal portion of the bone, so the injury was grievous in nature. This witness has proved the injury reports dated 8.11.1990 and 10.11.1990 as Ext.2 and Ext.2/1. This witness has further stated in his cross examination that the X-Ray plate and X-Ray report was not called for and both have been brought at his own instance. He was running a private clinic at Pandarak on the day of occurrence, which is situated about 1/2 kilometers from the State Dispensary. He has further stated in his cross examination that he did not notice any cut in the bone but there was depressed fracture. He cannot give the extent of depression on bone. In X-Ray report the dimension of depression on bone has not been detailed. He has further stated that the X-Ray was not done in his presence, Patna X-Ray Clinic is a private clinic. He cannot give the extent of depression on bone. In X-Ray report the dimension of depression on bone has not been detailed. He has further stated that the X-Ray was not done in his presence, Patna X-Ray Clinic is a private clinic. He has also stated that he could not say whether Patna X-Ray clinic had any radiologist or not. This witness has denied the suggestion of the defence that Punyarak Medicine Corner is the part of his clinic and the injured-informant, Kamleshwari Prasad Sharma, is the owner of that medicine shop. 8. From the evidence of P.W.2, Pramod Kumar Bharti, it appears that while he has claimed to be an eye witness to the occurrence but he has stated in paragraph-4 of his cross examination that when he reached at the place of occurrence, he saw the blood oozing injury on the head of the informant, Kamleshwari Prasad Sharma (P.W.3). As such, this witness is not an eye witness of the occurrence. The defence has also drawn the attention of this witness in cross examination regarding his earlier statement recorded by the police contrary to his statement given in court. P.W.1, Gariban Ram, has also claimed to be an eye witness to the occurrence in his evidence, as detailed above, and has denied the suggestion of the defence in paragraph-7 of his cross examination regarding his earlier statement recorded by the police to the effect that he is not an eye witness to the occurrence. The Investigating Officer of the case has not been examined by the prosecution in this case. Due to that reason, the defence could not testify the trustworthiness of P.W.1, Gariban Ram and P.W.2, Pramod Kumar Bharti. 9. Learned counsel for the appellants made submission that while it would appear from the initial paragraph of the case diary that the police moved from the police station on O.D. slip issued by Anil Kumar, Medical Officer of Primary Health Centre, Pandarak. Investigating Officer has also written the letter to the Medical Officer, Government Hospital, Pandark, for injury report, which would appear from the back of the injury report (Ext.1) but it would appear from the evidence of Dr. Anil Kumar (P.W.4) that the injured-informant, Kamleshwari Prasad Sharma (P.W.3) was medically examined at his private clinic which is situated in front of the Medical shop of the injured-informant, Kamleshwari Prasad Sharma (P.W.3). Anil Kumar (P.W.4) that the injured-informant, Kamleshwari Prasad Sharma (P.W.3) was medically examined at his private clinic which is situated in front of the Medical shop of the injured-informant, Kamleshwari Prasad Sharma (P.W.3). The informant, Kamleshwari Prasad Sharma (P.W.3) is close to Dr. Anil Kumar (P.W.4), which would appear from the prescription (Ext.A) of Dr. Anil Kumar, which is in the name of Ranjeet Singh, in which at the bottom, the place of availability of medicine is mentioned as Punyarak Medicine Corner, Pandarak (Patna) belonging to the informant, Kamleshwari Prasad Sharma (P.W.3). 10. From the evidence of Dr. Anil Kumar (P.W.4) as detailed above, it appears that Dr. Anil Kumar (P.W.4) has a private clinic, which is situated nearby the medicine shop of the informant, Kamleshwari Prasad Sharma (P.W.3) in the name and style of Punyarak Medicine Corner, Pandarak (Patna). This witness has stated in paragraph-6 of his cross examination that X-Ray plate and report was not called for rather he has brought the same at his own instance. He has also stated in paragraph-9 of his cross examination that X-ray was not done in his presence and he cannot say that at Patna X-Ray clinic, where the X-Ray of the injured-informant, Kamleshwari Prasad Sharma (P.W.3) was done, whether there was any radiologist or not. In the facts and circumstances, the evidence of Dr. Anil Kumar (P.W.4) creates doubt regarding genuineness of the injury report. 11. Under the aforesaid facts and circumstances, I come to the conclusion that the prosecution has not been able to prove its case against the appellants beyond reasonable shadow of doubts and the appellants are entitled to get the benefit of doubt. 12. In the result, the judgment of conviction and order of sentence passed against the appellants are hereby set aside and the appeal is allowed and the appellants are acquitted of the charges. The appellants are on bail, so they are discharged from the liabilities of their bail bonds. Appeal allowed.