JUDGMENT L. NARAYANA SWAMY, J.-The appellants who were tried for offence punishable under Sections 323, 324, 302, 504 read with Section 34 Indian Penal Code in S.C. No. 5/2006 on the file of the District & Sessions Judge, Gadag. The learned Sessions Judge by the judgment and order dated 16.2.2008 convicted all the accused persons for the offence under Section 304(2) read with Section 34 Indian Penal Code. Hence this appeal. 2. The prosecution has examined PW-1 to PW-19 of which PW-5 is the complainant and PW-2 is the wife of the deceased and PW-13 is the sister PW-2 (sister-in-law of deceased). PW-1 is an eye witness. PW-18 and 19 are the doctors. PW-3 & PW-4 are panch witnesses and others are witnesses for the incident. Ex.P1 to P20 are marked and material objects marked were MO-1 & MO-2. 3. It is the case of the prosecution that the accused persons while playing cricket, ball did hit PW-13 as a result, the deceased quarreled with the accused persons. In response to the same, to take vengeance, on the same day at 8 o'clock, the accused assaulted the deceased with cricket bat and wickets, which resulted in death of the deceased while taking him to hospital for further treatment. 4. The learned counsel for the appellants submits that the learned Sessions Judge has committed an error in convicting the accused persons though the prosecution has not proved the case as the prosecution witnesses have turned hostile by not supporting its case. Even the wife PW-2, and sister of PW-2 against whom ball was alleged to have hit also turned hostile. The complainant has not supported the case of the prosecution. I O has not been examined which is fatal to case of the prosecution. Hence he pays for setting aside the order passed by the Court below. 5. The learned Additional Government Advocate does not dispute the fact of I O not being examined. It is submitted, though the star witnesses PW-1, PW-2, PW-5 and PW-13 and other witnesses did not support the prosecution in cross-examination, but by considering the chief examination, the learned Sessions Judge has rightly convicted the accused persons. The non-examination of I.O is not fatal to the case of the prosecution, since materials available on record prove the case of the prosecution. Accordingly, he prays for dismissal of the appeal. 6. The non-examination of I.O is not fatal to the case of the prosecution, since materials available on record prove the case of the prosecution. Accordingly, he prays for dismissal of the appeal. 6. On the basis of the submissions made, the point that arises for my consideration is, whether the learned Sessions Judge has committed an error in passing conviction order against the accused persons for the above offence in the light of the evidence and materials available on record? My answer would be in favour of the appellants for the following reasons. 7. PW-1 is said to be the eye witness. He has stated that on hearing the fact that the deceased was attacked by the accused persons, he went to the spot and found that the accused persons were assaulting the deceased with bat and wickets and therefore he was shifted to hospital. In his cross-examination he has deposed that he was not in place of incident and further deposed that he was at Yamanur to attend a festival. The distance between Yamanur and place of incident according to him is about 25 k.ms. but actually it was 60 k.ms. He has answered to the question, whether he witnessed ball hitting PW-13, he answered, he heard about hitting of ball by some one. He has also deposed that he has not seen, assaulting of deceased, which is contrary to the case of the prosecution. 8. PW-2 is none other than wife of the deceased. She deposed that she got married about less than a year ago and at the time of incident she was also at Yamanur for Jatra. She left Yamanur at 7 o'clock and she came to Government Hospital. She has not seen the incident. She heard of hitting ball to her sister. When she came to hospital, her husband was not in a position to speak. 9. Another witness PW-5 the complainant, has stated that his signature was obtained and he has not seen the incident. He is also not aware as to why the deceased succumbed to injuries. This evidence of PW-5 goes to root of the prosecution case. 10. The other witnesses PW-8 to 17 have turned hostile. PW-18 & 19 are the doctors who conducted post-mortem. PW-19 also treated the injured persons. 11. He is also not aware as to why the deceased succumbed to injuries. This evidence of PW-5 goes to root of the prosecution case. 10. The other witnesses PW-8 to 17 have turned hostile. PW-18 & 19 are the doctors who conducted post-mortem. PW-19 also treated the injured persons. 11. In the instant case, none of the prosecution witnesses have supported the case of the prosecution including the wife and sister-in-law of the deceased. I.O. has not been examined. The examination of I.O. is essential as it is he who has to speak of recording the statement of witnesses and he has to be subjected to cross-examination. The non examination of the I.O. is fatal to case of the prosecution. 12. By considering the evidence and materials on record, I am of the view that the prosecution has failed to prove case pleaded by it. In the absence of materials, the order of conviction passed by the Court below is erroneous. 13. In the result, this appeal is allowed. Judgment and order passed by the trial Court in S.C. No. 5/2006 dated 16.2.2008 stands set aside. The bail bonds shall stand canceled. Fine amount, which is paid by the appellants, is ordered to be refunded to them.