C.A.V. JUDGMENT Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 2. Both the appellants stand convicted for the offences under Sections 323/34, 324/34 and 341 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years under section 324 of the I.P.C. and rigorous imprisonment for one year under section 323 of the I.P.C. and one month under section 341 of I.P.C. and the sentences will run concurrently, by 5th Additional Sessions Judge, Fast Track Court, Purnia, in Sessions Trial No. 120/05/Tr. No. 461/05 arising out of Kasba P.S. Case No. 209/2001, G.R. No. 2221/2001. 3. The prosecution case in short, as is evident from the written application of P.W. 4 Narayan Lal Das, attested by Sukhdeo (not examined) is that in the previous night at about 11.30 P.M. while the informant after finishing his dinner was sitting at Verandah of his house both the appellants arrived there and appellant no. 1 questioned about withdrawal of the case and appellant no. 2 directed to kill. They were accompanied by two to three unknown persons who could not identified due to darkness and appellant no. 1 stabbed the informant at right side of his head, and on alarm, his daughter Geeta Devi (P.W.2) arrived who was also assaulted by knife by appellant no. 2. However, on alarm neighbour Bindeshwari Thakur (not examined), Jagdish Biswas (P.W.3) and others arrived, so the miscreants fled away. The motive behind the occurrence as alleged is old running case wherein date was fixed for producing witnesses. This written report was produced before the police station at 10.00 A.M. and on institution of the case after investigation police submitted charge-sheet for the offence under section 447, 441, 323, 324 and 307/34 of the Indian Penal Code. Cognizance was taken after commitment of the case. Charges were framed against the appellants for the offences under sections 323, 324, 341 and 307/34 of the Indian Penal Code. 4. On behalf of the prosecution altogether seven witnesses were examined besides producing exhibits. Exhibit – 1 - Injury report of Narayan Lal Biswas Exhibit – 1/1 – Injury report of Geeta Devi Exhibit – 2 – Signature of Mithilesh Prasad, S.I. on F.I.R. Exhibit – 3 – Signature of Mithilesh Prasad, S.I. on written application. Exhibit – 4 – writing and signature of Binod Pd. Exhibit – 1 - Injury report of Narayan Lal Biswas Exhibit – 1/1 – Injury report of Geeta Devi Exhibit – 2 – Signature of Mithilesh Prasad, S.I. on F.I.R. Exhibit – 3 – Signature of Mithilesh Prasad, S.I. on written application. Exhibit – 4 – writing and signature of Binod Pd. Singh from paras 1 to 46 of the case diary. Exhibit – 5 – certified copy of order sheet of C.A. Case No. 1275/1998 Exhibit – 6 – Certified copy of charge in C.A. Case No. 1275/1998 Exhibit – 7 - Certified copy of order sheet dated 30.11.2002 of G.R. No. 786/1999. 5. In defence there is one witness besides producing exhibits. Exhibit – A – Certified copy of order dated 20.09.1999 in G.R. No. 2761/98 Exhibit – A/1, A/2 – Certified copy of orders dated 16.09.2000, 24.05.2008 in G.R. No. 2761/98 Exhibit – B – Certified copy of order dated 15.03.2008 Exhibit – C - First Information Report of Kasba P.S. Case No. 243/1998 Exhibit – D – Compliant Case No. 820/2000 The court below on consideration of the material available acquitted the appellants from the charges under section 307/34 of the Indian Penal Code but hold them guilty for the remaining and accordingly sentenced giving rise to this appeal. 6. It is submitted on behalf of the appellants that there are vital and material contradictions in the statements of the witnesses examined and in this case instituted just to falsely implicate the appellants due to previous rivalry and their conviction is not at all sustainable. Learned Additional Public Prosecutor tried to support the findings of the court below. 7. P.W. 1 Shanti Devi, wife of the informant coming to say that at the time of occurrence she was sleeping in the western room and informant was in the Verandah. She heard alarm raised by her daughter Geeta Devi, opened the door found both the appellants stabbing her husband. And appellant no. 2 also stabbed her daughter Geeta Devi on her thigh, hand and nose. Both the injured were raising alarm and on arrival of Bindeshwari Thakur and Jagdish Biswas and others the miscreants fled away and they were identified in the light of lantern. She speaks about bringing the injured before the doctor at about 4.00 A.M. in the morning who according to her treated them and bandage etc. was done. Both the injured were raising alarm and on arrival of Bindeshwari Thakur and Jagdish Biswas and others the miscreants fled away and they were identified in the light of lantern. She speaks about bringing the injured before the doctor at about 4.00 A.M. in the morning who according to her treated them and bandage etc. was done. In para 4 of the cross examination her attention was drawn about stating before the police regarding means of identification. In para 8 she also states that house of appellant no. 2 is just by three houses. 8. P.W.2 Geeta Devi coming to say that she was sleeping in the eastern room and her father the informant was at western Verandah. She identified the miscreants in the light of Lantern who were pressing her father to withdraw the case and thereafter appellant no. 1 stabbed him on right side of head and when she intervened she was stabbed by appellant no. 2 at her hand and nose. She further stated that both sustained bleeding injuries and her father went to police station and hospital. In para 4 of the cross examination she said that at about 9.00 to 10.00 A.M. she along with her mother and father arrived at police station information was lodged and thereafter injureds were treated by doctor in hospital. They never thought it proper to get them treated in the hospital at night. In para 6 she speaks about inability to identify other miscreants due to darkness. There appears material contradiction between the statements of these two witnesses about the manner of occurrence and appearance before the doctor for treatment. As per P.W. 1, the injured went there at wee hours at 4.00 A.M. On the other hand, this witness no. 2 speaks about the same much after 9.00 to 10.00 A.M. moreover, P.W.1 says about stabbing of P.W.2 on thigh also, but P.W.2 is silent regarding stabbing on thigh but states about hand, nose and head. 9. P.W. 3 Jagdish Biswas is said to be arrived at the place of occurrence on alarm. He is not an eye witness to the occurrence but claimed to see the informant and his daughter in injured state and could know about the occurrence. He further claims to bring the injureds to the hospital which is not in consonance with the statement of P.Ws. 1 and 2. He is not an eye witness to the occurrence but claimed to see the informant and his daughter in injured state and could know about the occurrence. He further claims to bring the injureds to the hospital which is not in consonance with the statement of P.Ws. 1 and 2. In para 4 he admits his detention earlier in connection with a case instituted at the instance of appellant no. 1. 10. P.W. 4 is the informant tried to support the prosecution version. In cross examination, para 2, he admits institution of earlier case by the appellants against him and his family and other associates including P.W. 3. In para 3 he speaks about his arrival at police station at about 8.30 A.M. and remained after the occurrence till arrival at police station and house itself and only from police station he went to hospital and return home in the evening at about 3.00 to 4.00 P.M. and found the police there. In para 5 he speaks about his injuries and treatment and states further that three to four stitches were provided and he was not in a position to say to what extent he was stabbed. His statement is also not in consonance with the evidence of earlier witnesses. 11. P.W. 5 is the doctor who examined the injured at 1.00 P.M. (contrary to the time stated by the witnesses) and found following injuries which are simple in nature. (i) Lacerated wound 1” x 1/4” x 1/8” over right side of scalp; (ii) Swelling 1” x 1/2" over right upper arm; (iii) Bodyache. And following six injuries upon P.W. 2 that too is simple in nature. (i) Abrasion 1/2” x 1/8” over right side of nose; (ii) Abrasion 1/2” x 1/8” over right side of scalp (iii) Abrasion 1” x 1/2” over right hands palm dorsal aspect; (iv) Abrasion 1/2” x 1/2” over right wrist joint dorsal aspect; (v) Swelling 3” x 1” over right thigh in front; (vi) Bodyache. Injuries caused by hard and blunt substance within 26 hours which proved exhibit 1 and 1/1 respectively. None of the injuries is said to be caused by any sharp cut or pointed weapon rather inflicted by hard and blunt substance. Contrary to the statement of the informant the doctor in cross examination states that neither any stitches were given nor required. None of the injuries is said to be caused by any sharp cut or pointed weapon rather inflicted by hard and blunt substance. Contrary to the statement of the informant the doctor in cross examination states that neither any stitches were given nor required. Further in para 4 he speaks that all the injuries sustained by the injured were superficial in nature. In his statement before the Court this witness has not stated about the time of examination of the injureds who as P.W. 2 and 4 given such time around 9.00 to 10.00 A.M. contrary toe the time of the examination of the injured given 1.00 P.M. on 13.12.2001, and according to them occurrence taken place at about 11.30 P.M. on previous night. Making the injuries sustained within 12 hours, if it is within 26 hours i.e. more than 18 to 24 hours which contradicts the prosecution case as regard to manner and time of occurrence. 12. P.W. 6 Umesh Prasad, an Advocate Clerk proved formal First Information Report, exhibit – 2, and P.W. 7 Shankar Thakur, a constable in court proved exhibit 4, paragraph 1 to 46 of the case diary since investigating officer is dead and defence has produced solitary witness Ganesh Prasad, Jamadar, and Advocate Clerk a formal witness Exhibit – D. 13. The prosecution has not examined the witness attesting the written report and the informant an attesting witness both appears illiterate person putting their thumb impression given name of author of the written report has not been disclosed nor is examined. That apart non examination of the investigating officer also causes prejudice to the defence, since as it appears in the written report and statement of the informant that it was a dark night causing non identification of either three companions of the appellants but P.Ws. 1 and 2 claimed identification of the appellants in the light of Lantern which were there developed statement during trial, they never made any such statement before investigating officer and since he is reportedly dead, case diary in his writing has been marked as Exhibit – 4, for the purposes of corroboration/contradiction. It is perused but paragraph 6 & 7 of the case diary (Ext.4) respectively containing statements of P.W. 2 and 1 finds no mention about their statement indicating means of identification (Lantern) rather they were silent on the point. 14. It is perused but paragraph 6 & 7 of the case diary (Ext.4) respectively containing statements of P.W. 2 and 1 finds no mention about their statement indicating means of identification (Lantern) rather they were silent on the point. 14. On overall consideration of the materials available, it is crystal clear that prosecution has not been able to fully establish the charge for which the appellants have been held guilty by the court below rather the clouds casted against their version as discussed above have not been removed. Hence, the appellants deserve the benefit thereof. 15. In the result, the judgment of the court below is set aside. The appeal is hereby allowed.