ORDER Heard the parties. 2. All the seven appellants have preferred this Appeal against their conviction for the offence under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and, appellant nos. 6 and 7 have further been convicted for the offence under Section 323 of the Indian Penal Code but no separate sentence was awarded by the learned 3rd Additional Sessions Judge (FTC), Bhojpur at Ara in his judgment dated 14th August 2002 in Sessions Trial No.10 of 1992 arising out of Ara Muffasil P.S. Case No. 130 of 1991. 3. The prosecution case as reveals from Ext.2, fardbeyan of Md. Idrish Miya, PW-2 recorded on 20th June 1991 at 05:30 P.M. at his door by A.S.I., Syed Ziaullah (not examined) is that in the same morning about 10:00 A.M. appellant no.1, Mizamuddin Miya called him in the orchard and got hold thereafter others appellants started assaulting him, caused head injury, and when he fell down he was further assaulted and there was brick batting also anyhow his family members could arrive and save him. 4. In order to substantiate the charges, the prosecution had produced the following documents which is as under:– “Ext.1 Sign of Md. Kamarudin on fardbeyan. Ext.1/1 Sign of Md. Idris Mian on fardbeyan. Ext.2 Fardbeyan. Ext.3 FIR Ext.4 Inquest report.” Besides examining altogether five witnesses, wherein PW-4, Mahanand Singh, an advocate Clerk is a formal witness proved Ext. 3. PW-1, Md. Kamaruddin stated the prosecution version and proved Ext.1. He further submits that he sustained no injury and claimed to witness the occurrence from the roof. PW-2. Md. Idris, is the informant solitary injured stated the prosecution version and proved Ext.1/1. PW-3, Md. Sadaruddin, stated the prosecution version as an eye witness he is none else than full brother of informant PW-2 but in cross examination at para 6 states when he arrived at the place of occurrence several persons had already their. 5. PW-5, Md. Sarfuddin states the prosecution case apart from the above there is another witness Brij Nandan Singh an advocate Clerk shown examined as Court witness no.1 but for prosecution and proved injury report of the informant i.e. marked as Ext.4. 5. PW-5, Md. Sarfuddin states the prosecution case apart from the above there is another witness Brij Nandan Singh an advocate Clerk shown examined as Court witness no.1 but for prosecution and proved injury report of the informant i.e. marked as Ext.4. This compels me to examine the circumstances under which this witness was examined and it reveals from the ordersheets of the trial Court that during course of argument on behalf of prosecution one petition was filed with a prayer to examine the doctor and after hearing on 1st August 2002 it was ordered in the event doctor is physically present he may be examined as court witness but surprisingly enough on the date fixed i.e. 3rd August 2002 in pursuance of the above order but in absence of the doctor an advocate Clerk was produced and examined brining the injury report of the informant i.e. solitary injured of the case. 6. There appears no explanation for non-production/examination of the doctor or in unavoidable circumstances any person competent to prove such injury if at all sustained by the informant and this proves fatal to the prosecution case and makes exercise including conviction and sentence of the appellants unsustainable. Consequently, it is set aside and the Appeal is hereby allowed. The appellants are set free from the liabilities of the bail bonds furnished on their behalf.