CAV JUDGMENT Hemant Kumar Srivastava. J. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 5.2.2001 and 7.2.2001 respectively, passed by Ist Additional Sessions Judge, Ara in Sessions Trial No. 33 of 1992 by which and whereunder, he convicted the appellants for the offence punishable under Sections 324/34 of the IPC and sentenced them, to undergo rigorous imprisonment for two years for the above-said offence and furthermore, appellants No. 1 and 2 were also convicted for the offence punishable under Section 27 of the Arms Act and they were sentenced to undergo rigorous imprisonment for 4 years for the offence under Section 27 of the Arms Act, however, the sentences of the appellants No. 1 and 2, were ordered to run concurrently; and sentences of the appellants were ordered to be set off, with the period which has undergone by them, in course of trial. 2. The prosecution case, in brief, is that PW 8. namely, Saira Bano along with her son namely, Shahid Ali (PW 6) on 29.11.90 in injured condition went to Agion Police Station and gave her statement before the officer-In-charge of Agion police station, to this effect that on the same day at about 8:00 a.m. her neighbour namely. Malik Shah (appellant No. 3) was digging drainage on the road whereupon, her son namely. Shahid Ali (PW 6) forbade him to do so and requested that after arrival of his father he may construct the aforesaid drainage and after that a hot exchange of words ensued between them and thereafter Malik Shah started assaulting her son Shahid Ali. In the meantime appellant No. 1, appellant No. 3 and appellant No. 4 also came there and at that time, the appellant No. 1 and appellant No; 2 were carrying guns in their hands. She further stated that after arrival of the above-said appellants, she took her son to her house and came on rooftop of her house. The aforesaid four appellants also came at the rooftop of MOSALLI MIA through the roof of their house and from there appellant number 2. Satyendra Singh opened fire aiming her son, as a result of which her son sustained fire-arm injury on the right side of his neck and fell down there. The aforesaid four appellants also came at the rooftop of MOSALLI MIA through the roof of their house and from there appellant number 2. Satyendra Singh opened fire aiming her son, as a result of which her son sustained fire-arm injury on the right side of his neck and fell down there. In the meantime, appellant No. 1 came at rooftop of her house and he too fired on her, as a result of which, she sustained fire-arm injury on her left hand and she also fell down there. The appellants No. 3 and 4 also came on her rooftop and started assaulting her as well as her son with fist and legs. In the meantime co-villagers, Bijli Thakur, Chandrma Singh and others, came there and after that, the appellants fled away from there. 3. On the basis of aforesaid statement of PW 8. Agion (Garhani) PS case No. 47 of 90 for the offences under Sections 341, 323, 324, 307 and 447/34 of the IPC and 27 of the Arms Act, was registered. 4. The formal FIR was drawn up against the appellants for the above-said sections and later on, Section 295 (A) of the IPC was also added. The matter was investigated by the police and after completion of investigation, charge-sheet was submitted. The learned CJM took the cognizance and committed the case to the Court of Sessions in usual way. 5. The appellants were put on trial and on 12.10.93 all the four appellants were jointly charged for the offences punishable under Sections 307/34 and 448 of the IPC whereas; appellant Nos. 1 and 2 were separately charged for the offence punishable under Section 27 of the Arms Act. 6. In course of trial prosecution examined altogether, 12 witnesses and also got exhibited injury report of PW 6 and PW 8 as Ext. 1 series. FIR as Ext. 2 and fardbeyan as Ext. 3. 7. The statements of appellants were recorded under Section 313 of the Cr PC in which they denied the entire prosecution story. No evidence was adduced by the appellants in support of their defence but it appears from perusal of statements of the appellants recorded under Section 313 of the Cr PC as well as trends of cross-examination of prosecution witnesses that the defence of appellants was total denial of the prosecution story. 8. No evidence was adduced by the appellants in support of their defence but it appears from perusal of statements of the appellants recorded under Section 313 of the Cr PC as well as trends of cross-examination of prosecution witnesses that the defence of appellants was total denial of the prosecution story. 8. Learned trial Court, having considered the materials available on the record convicted the appellants for the offence punishable under Section 324/34 of the IPC and appellant Nos. 1 and 2 were further convicted under Section 27 of the Arms Act and accordingly all the appellants were sentenced in the manner as stated above. However, learned trial Court acquitted the appellants for the offence punishable under Section 448 of the IPC. 9. I have already heard learned counsel for the appellants learned Additional Public Prosecutor for the state as well as learned counsel appearing for the informant (PW 8). 10. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and order of sentence arguing that there was no legal and cogent material available on the record to convict the appellants for the offence punishable under sections -324/34 of the IPC and 27 of the Arms Act. He further contended that the prosecution could not succeed to prove that the PW 6 and the PW 8 had sustained fire-arm injury. Continuing his submission, he argued that in the present case, PW 7 Dr. Shashi Bhushan Singh stated that on 27.11.90 at about 3:15 p.m. he examined PW 6 and PW 8 and found injuries on the person of aforesaid PW 6 and PW 8 but PW 7 admitted that he based his opinion regarding the nature of injury as well as arms used in causing the aforesaid injury; on the basis of opinion mentioned on bed head ticket. He, further submitted that the prosecution did not produce any X-Ray plates and nor the radiologist as well, as the doctor who examined PW 6 and PW 8 just after the alleged occurrence was produced before the trial Court and, therefore the prosecution could not succeed to prove the nature of injury as well as the weapons used for causing the aforesaid injury. 11. 11. He further, submitted that the prosecution witnesses developed their statements in course of trial, and the defence drew their attention towards the aforesaid statements but due to non-examination of the I.O., a serious prejudice has been caused to the appellants and therefore, the appellants are entitled to get the benefit of doubt. 12. He further submitted that PW 6 and PW 8 as well as other witnesses stated that firing was made from the rooftop of house of appellant No. 1 but they admitted that between the houses of appellant No. 1 and PW 8. there were so many houses and the rooftop of house of prosecution witness No. 8 was not visible from the rooftop of house of appellant No. 1 and, therefore, the aforesaid circumstance also, creates doubt about the genuineness of the prosecution story and therefore the impugned judgment of conviction and order of sentence cannot sustain in the eye of law. 13. On the other hand learned Additional Public Prosecutor assisted by learned counsel for the informant, supported the impugned judgment of conviction and order of sentence submitting that almost all the material prosecution witnesses; supported the story of firing as well as assault and furthermore. PW 7 clearly opined that firearm injuries were found on the person of PW 6 and PW 8 and therefore the learned trial Court rightly convicted and sentenced the appellants. 14. Learned counsel appearing for the informant added to the above said submissions that during pendency of this appeal the appellants No. 1 and 2 committed another crime for which a criminal case was lodged by Mukhiya of the village and therefore the aforesaid circumstance suggests that appellants are habitual offenders. 15. As I have already stated that altogether 12 prosecution witnesses were examined on behalf of the prosecution in course of trial out of whom; PW 2 Kamla Singh has been declared hostile whereas; PW 10 Husna Bano was tendered by the prosecution and apart from this, PW 12 is a police official who stated that on 26.12.90 he was posted as officer-in-charge, Garhari police station and he having perused the statements of witnesses as well as supervision notes of his higher officials had submitted charge-sheet in the present case. This witness proved the formal FIR as well as fardbeyan as Exts. 2 and 3. 16. PW 1, namely, Asgar Ali, PW 3. namely, Md. Rafique, PW 4. This witness proved the formal FIR as well as fardbeyan as Exts. 2 and 3. 16. PW 1, namely, Asgar Ali, PW 3. namely, Md. Rafique, PW 4. namely, Md. Muntasir Ali are claimed themselves to be eye-witness of the alleged occurrence whereas; PW 5 claimed that after the alleged occurrence he went to the rooftop of house of PW 8 and saw the PW 6 and PW 8 lying on the earth having fire-arm injury on their persons and PW 6 disclosed to him about the alleged occurrence. 17. PW 6. Md. Shahid Ali, and PW 8. Saira Bano are injured of this case and both the witnesses stated that they sustained injury from the hands of appellants on the alleged date of occurrence. 18. PW 7 is the doctor who had examined PW 6 and PW 8 on 27.11.90. PW 9 is the daughter of PW 8 and she also claimed herself to be eye-witness of the alleged occurrence. 19. In Ext. 3, the statement of PW 8 reveals that appellant No. 2 made firing from the rooftop of house of Mosalli Mia and appellant No. 1 as well as appellants No. 3 and 4 came on the rooftop of house of PW 8 and from there appellant No. 1 made firing whereas; rest appellants assaulted her as well as her son when having sustained fire-arm injury they fell down on the ground but when PW 8 deposed before the Court that appellant No. 2 opened fire from the rooftop of his house and the aforesaid firing hit to the PW 6 and furthermore she stated before the Court that appellant No. 1 opened fire from the rooftop of his house and the aforesaid firing hit to her. In her deposition before the lower Court she changed the manner of occurrence and stated that the firing was made from the rooftop of house of appellant No. 1 and the appellants never came at the roof of her house. She has not even whispered this fact that in course of the aforesaid firing appellants came on the roof of her house and assaulted her as well as her son. She also stated that her injuries were X-rayed and the documents of the aforesaid X-Ray were handed over to her and the said documents were deposited in Court by her son Shahid All. 20. She also stated that her injuries were X-rayed and the documents of the aforesaid X-Ray were handed over to her and the said documents were deposited in Court by her son Shahid All. 20. From perusal of the deposition of PW 8 it is apparent that she changed her version before the trial Court when her deposition was recorded. 21. PW 1, Asgar Ali, PW 3. Md. Rafique, PW 4. Md. Muntashir All, PW 6. Shahid Ali supported the above-said statement of PW 8 and almost all the aforesaid witnesses stated that in course of occurrence appellants went on the rooftop of house of appellant No. 1 and from there they made firing. 22. The attention of the PW 8 was drawn towards her fardbeyan Ext. 3 and it was specifically suggested on behalf of the appellants that she had stated before the police that appellants had gone on the rooftop of MOSALLI MIA through the rooftop of appellant No. 1 and appellant No. 2 fired from the rooftop of MOSALLI MIA. Admittedly, the Investigating Officer has not been examined by the prosecution and therefore in my view, appellants could not get an opportunity to bring the aforesaid contradiction on record in course of trial. Due to non-examination of the I.O. a serious prejudice has been caused to the appellants. Furthermore, due to non-examination of the I.O., the place of occurrence could not be fixed because in fardbeyan. PW 8 stated that firing was made from the rooftop of Mosalli Mia but when she was examined in course of trial, she stated that firing was made from the rooftop of the appellant No. 1 and similarly; she stated that appellants came on her roof and appellant No. 1 fired on her from there and after that the rest appellants assaulted her as well as her son with fist and slaps but in course of trial she stated that appellant No. 1 made firing from the rooftop of his house and appellants never came at her roof in course of the aforesaid occurrence. The aforesaid contradictions are major contradictions and the aforesaid contradictions not only create doubt about the place of occurrence but also manner of occurrence, and, therefore, in the aforesaid circumstance non-examination of the I.O. was fatal to the prosecution case. 23. The aforesaid contradictions are major contradictions and the aforesaid contradictions not only create doubt about the place of occurrence but also manner of occurrence, and, therefore, in the aforesaid circumstance non-examination of the I.O. was fatal to the prosecution case. 23. PW 1, PW 3, PW 4, PW 9 and PW 11 claimed themselves to be eye-witness of the alleged occurrence and the defence drew attention of almost all the aforesaid witnesses, towards their previous statements recorded by the Investigating Officer in course of investigation. Although all the aforesaid witnesses denied the suggestion of the defence and stated that they had claimed before the police to have witnessed the alleged occurrence but the learned trial Court found that the aforesaid witnesses had not claimed before the Investigating Officer to have witnessed the alleged occurrence and accordingly the learned trial Court did not place any reliance on the deposition of above-said prosecution witnesses except prosecution witness Nos. 9 and 11. 24. Prosecution witness No. 9 is the daughter of prosecution witness No. 8 but PW 8 nowhere stated the presence of PW 9 and PW 11 on her roof at the time of alleged occurrence when she gave her fardbeyan to police. Moreover, PW 8 deposed before the Court that when she along with her son having sustained fire-arm injury fell down on the earth PW 9. PW 11 and others came on her roof. 25. Almost similar statement has been made by PW 6 in his deposition stating that when he sustained fire-arm injury, PW 9 and PW 11 and others came at the roof. Therefore, the presence of PW 9 and 11 on the roof of PW 8, appears to be doubtful though PW 9 and 11 are family members of PW 8. 26. PW 7 Dr. Shashi Shushan Singh examined PW 6 and PW 8 on 27.11.1990 at 3:15 p.m. and he found following injuries on the person of PW 8 :- I. lacerated wound 1/2" x 1/2" x muscle deep over left upper arm; II. Swelling 2" x 2" over left arm upper region. 27. This witness stated that aforesaid injuries were simple in nature and caused by fire-arm. Swelling 2" x 2" over left arm upper region. 27. This witness stated that aforesaid injuries were simple in nature and caused by fire-arm. This witness further stated that on the same day he examined PW 6 and found following injuries on his person :- I. Lacerated wound 1" x 1/2" x muscle deep over right side of neck above right sternum; II. Lacerated wound 1/6" x 1/6" x muscle deep over right side of nose; III. Lacerated wound 1/6" x 1/6" x skin deep over right side of his neck. 28. This witness opined on the basis of bed head ticket No. 7024 dated 27.11.90 that multiple radio opaque (foreign body) substance of small sizes were found in right side of his face and he further opined that injury No. 1 was caused by hard and blunt substance and injuries No. 2 and 3 were caused by fire-arms but all the aforesaid injuries were simple in nature. This witness admitted that his opinion was based on the opinion of the surgeon on call, which had been written on the bed head ticket. This witness further admitted that the copies of the original bed head ticket were not produced before him at the time of recording his deposition. This witness also admitted that the X-Ray plates as well as X-Ray report was not produced before him at the time of recording his deposition. This witness also admitted that in the injury report, he did not mention that he advised the injured for X-Ray. 29. On perusal of the aforesaid evidence of PW 7 it is apparent that he based his opinion regarding the injury of PW 6 and PW 8 on the basis of opinion written by surgeon on call on bed head ticket but admittedly neither the aforesaid bed head ticket nor the X-Ray plates and X-Ray report was produced before the trial Court and furthermore the surgeon who on call had mentioned the aforesaid opinion on the bed head ticket was also not examined. Apart from this, the radiologist who had done the X-Ray and prepared X-Ray report was also not examined by the prosecution. 30. Apart from this, the radiologist who had done the X-Ray and prepared X-Ray report was also not examined by the prosecution. 30. It has been argued on behalf of the appellants before this Court as well as before the learned Court below that on the prayer of the appellants a Medical Board was constituted to examine the PW 6 and PW 8 and notices were sent to PW 6 and PW 8 to appear before the Medical Board and therefore an adverse inference would be drawn against the prosecution. The learned trial Court has dealt with the aforesaid contention in the impugned judgment and rejected the aforesaid contention of appellants on the ground that the appellants could not bring any material to show this fact that PW 6 and PW 8, were summoned by the Medical Board and appellants also could not succeed to prove this fact that any summons or notice issued by the Medical Board was ever served upon PW 6 and PW 8. 31. From perusal of lower Court record, I find that learned CJM directed the Civil Surgeon, Ara, to constitute Medical Board for examination of PW 6 and PW 8 vide his order dated 6.12.90 and in response to the aforesaid order dated 6.12.90 the Civil Surgeon, Ara, sent a letter on 20.12.90 to CJM, Ara, for sending the names of the PW 6 and PW 8 for medical examination but learned CJM, Ara, refused to send the names of PW 6 and PW 8 to Civil Surgeon, Ara, but a liberty was given to the appellants to approach to the higher police officials for their grievances. Therefore, it appears that although Medical Board was ordered to be constituted and from the very inception of the case the appellants were saying that PW 6 and PW 8 had not sustained any fire-arm injury but it appears that the PW 6 and PW 8 were never summoned or noticed either by CJM or by Civil Surgeon, Ara, for their examination by the Medical Board. Therefore, the learned trial Court rightly held that appellants could not bring any material on record to show that the PW 6 and PW 8 evaded their appearance before the Medical Board. Therefore, the learned trial Court rightly held that appellants could not bring any material on record to show that the PW 6 and PW 8 evaded their appearance before the Medical Board. However, the appellants could not get an opportunity to ask from the Investigating Officer as to whether he had summoned PW 6 and PW 8 for their examination by Medical Board or not and therefore at this juncture also it appears to me that non-examination of the I.O. was fatal to the prosecution case and caused serious prejudice to the appellants. 32. PW 6 and PW 8 deposed before the trial Court that some pellets were removed from their bodies when they were admitted in the hospital but admittedly no pellets were produced before the Court and due to non-examination of the I.O., the appellants could not get an opportunity to ask from the I.O. as to whether the aforesaid pellets were seized by him or not and what happened to the aforesaid pellets. PW 6 stated that when appellant No. 2 fired from his pistol the aforesaid firing hit on his face and on right neck. The aforesaid statement has been made by PW 8 also but PW 7 stated that no fire-arm injury was found on the neck of PW 6 rather the aforesaid injury had been caused by hard and blunt substance. PW 6 and PW 8 nowhere stated that before arrival of PW 6 on his roof he sustained any visible injury and they only stated that appellants assaulted him by leg and fist. So the aforesaid contradiction also creates doubts about the genuineness of the prosecution case. 33. On the basis of above-said discussions. I feel no hesitation to hold that prosecution could not succeed to prove its case beyond shadow of all reasonable doubts and the appellants are entitled to get the benefit of doubt. 34. Thus, this Criminal Appeal is allowed and impugned judgment of conviction and order of sentence is hereby set aside. All the appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.