JUDGMENT : C.R. Sarma, J. 1. Heard Mr. K. Agarwal, learned Senior Counsel, assisted by Mr. R.J. Baruah and Ms. Rita Dey, learned counsel appearing on behalf of the appellants. Also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam. This appeal is directed against the judgment and order, dated 02.06.2007, passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia, in Sessions Case No. 86(T)/2003, whereby the learned Sessions Judge has convicted the appellants under Sections 326 read with Section 34 IPC and sentenced each of them to suffer rigorous imprisonment for two years and pay fine of Rs. 2,000/- each, in default, suffer rigorous imprisonment for another period of six months. 2. The story of the prosecution case as may be required for disposal of this appeal may, in brief, be set out as follows: On 08.02.2002, at about 8.00 p.m., when Sri Bimal Kumar Singh (PW 8), hereinafter called the victim, had arrived at the house and made attempt to press the doorbell for entering the house, the accused persons arrived there and assaulted him with dao causing injuries on his person. The victim was immediately taken to the Deka Nursing Home, where from he was referred to Ojha Nursing Home. After providing some first aid, at Ojha Nursing Home, he was referred to St. Luke's Hospital, Tinsukia, where from he was taken to Aditya Diagnostics & Hospitals, Dibrugarh, wherein he underwent medical treatment for about 12 days. 3. The informant, Smti. Shobha Singh (PW 9), lodged an FIR with the police at Doom Dooma Police Station. On receipt of the said FIR, police registered Doom Dooma Police Station Case No. 28/2002, under Sections 307/326/34 IPC and launched investigation into the matter. During the course of investigation, police visited the place of occurrence, examined the injured and other witnesses and collected the medical examination reports from the respective hospitals. On completion of investigation, police submitted charge-sheet against the appellants under Sections 307/326/34 IPC. 4. The offence under Section 307 IPC, being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 2nd Class, Tinsukia committed the case to the Court of Sessions, Dibrugarh for trial. The learned Sessions Judge framed charges under Sections 307/326/34 IPC. The charges were read over and explained to the accused persons to which, they pleaded not guilty and claimed to be tried. 5. The learned Sessions Judge framed charges under Sections 307/326/34 IPC. The charges were read over and explained to the accused persons to which, they pleaded not guilty and claimed to be tried. 5. In order to prove their case, prosecution examined altogether 15 witnesses including the Medical Officers, namely, Dr. Sanjib Ranjan Das (PW 12), Dr. Yogendra Prasad Ojha (PW 13) and Dr. Keith Kalyan Ingty (PW 7). After examination of all the prosecution witnesses, the accused persons were examined and their statements were recorded under Section 313 Cr.P.C. They denied the allegations and took the plea of alibi by stating that they were not present at the place of occurrence at the relevant time. 6. Accused Sanjay Singh, in his statement, recorded under Section 313 Cr.P.C., stated that, on the fateful day, he was present in his college and attended the meeting held in connection with Saraswati Puja and accused Dipak Singh stated that, at the time of occurrence, he was in Kaliapani, i.e., his native village. The accused persons examined six defence witnesses including themselves (DW 5 and DW 6) in support of their said pleas. 7. Considering the evidence, on record, the learned Sessions Judge came to the findings that the prosecution could establish the charge under Section 326/34 IPC against the appellants. Accordingly, the accused persons were convicted and sentenced as indicated above. However, they were acquitted of the charge under Section 307 IPC for want of sufficient evidence. 8. Dissatisfied with the said conviction and sentence, the convicted persons, as appellants, have come before this Court with this appeal. 9. Mr. K. Agarwal, learned Senior counsel, appearing for the appellants, has submitted that there are sufficient contradictions, on material point, in the evidence of the witness (PW 3), more particularly, in the evidence of PWs 1, 2, 8 and 9, raising serious doubt about the involvement of the appellants and as such the appellants are entitled to the benefit of doubt. Mr. Agarwal, learned Senior counsel, referring to the defence evidence, has submitted that the defence could successfully prove that, on the date of occurrence, at the relevant point of time, the appellant, Sanjay Singh was present in his college and the appellant Sri Dipak Singh was in Kaliapani, his native village, but the learned Sessions Judge, while recording the conviction against the appellants, failed to properly appreciate the defence evidence, adduced by the appellants. It is also submitted that there are major discrepancies in the medical evidence, i.e., in Exhibits 1 and 3. Mr. Agarwal, learned Senior Counsel, referring to the Ext. 3, i.e., the Medical Certificate, issued from Aditya Diagnostics & Hospitals, Dibrugarh, has submitted that as per the Ext. No. 3, the victim sustained the injuries due to Road Traffic Accident, on 08.02.2002. Therefore, it is submitted that the said Ext. 3 belies the prosecution version that the victim sustained injuries at the hands of the appellants. 10. In view of the above, it is submitted that the prosecution failed to prove the charge under Section 323/34 IPC beyond all reasonable doubt and as such the appellants are entitled to be acquitted on benefit of doubt. 11. Controverting the said argument, advanced by the Senior counsel for the appellants, Mr. K. Munir, learned Additional Public Prosecutor, referring to the evidence of the eye witnesses, i.e., P.Ws. 1, 2, 8 and 9 as well as the said medical evidence, has submitted that there are sufficient materials, on record, to show that the appellants had assaulted the victim causing injuries to his person and as such, the learned Sessions Judge committed no error by convicting and sentencing the appellants under Sections 326/34 IPC. 12. Having heard the learned counsel for the both parties, I have carefully perused the evidence on record. The learned Sessions Judge has based his conviction on the evidence given by P.Ws. 1, 2, 8 and 9. The other witnesses did not see the occurrence. PW 7 is the medical officer, who examined the victim in St. Luke's Hospital, Tinsukia. PW 12 is the Medical Officer, who examined the victim in Aditya Diagnostics & Hospitals, Dibrugarh. 13. Dr. Yogendra Prasad Ojha, who examined the victim in Doom Dooma Polyclinic Nursing Home, deposing as PW 13, stated that the patient was brought to him in injured condition and in unconscious state. He referred the patient to St. Luke's Hospital, Tinsukia, after providing some first aid. He found the following injuries "(ii) Cut injury over his left eye. (iii) Another cut injury over his forehead. (iv) Another cut injury over his scalp." 14. PW 13 has exhibited his report as Ext. 4 and his signature thereon as Ext. 4(1). He referred the patient to St. Luke's Hospital, Tinsukia, after providing some first aid. He found the following injuries "(ii) Cut injury over his left eye. (iii) Another cut injury over his forehead. (iv) Another cut injury over his scalp." 14. PW 13 has exhibited his report as Ext. 4 and his signature thereon as Ext. 4(1). In his cross-examination, this witness stated that he did not make any entry in the Register regarding the injuries in the Doom Polyclinic Nursing Home. From the evidence of PW 13, it appears that the petitioner sustained the cut injury on his left eye, on his forehead and on his scalp. 15. Dr. Keith Kalyan Ingty (PW 7), who was the Medical Officer of St. Luke's Hospital, Tinsukia, stated that the patient was brought to him with history of attack by sharp weapon. This witness deposed that the injured was in unconscious state and he found the following injuries on his person: 1. "Cut over the left eye brow upto the anterior end of the ear and across the anterior aspect of the left ear - 4 1/2" long, 1/4" wide cutting the zygomatic bone, 2. Cut injury extending 2" above the right eye going posteriorly and obliquely towards the left 4" long, 1/2 "wide, cutting through the bone with a little piece of brain tissue and also oozing out, & 3. Cut injury on the back of the head and above 4 1/2" long, 1/2 wide, also cutting the bone." 16. PW 7 has exhibited the Medical Report submitted by him as Ext. 1 and his signature thereon as Ext. 1(1). He has further stated that he had referred the patient to Aditya Diagnostics & Hospitals, Dibrugarh, after giving him some first aid. In his cross-examination, this witness has stated that Ext. 1 is the copy of the record maintained in the hospital. He stated that the original record was not with him at the time of giving evidence. 17. Dr. Sanjib Ranjan Das (PW 12), who was the Medical Officer in Aditya Diagnostics & Hospitals, Dibrugarh, has deposed that he joined the hospital on 16.11.2005 and that as per the hospital record, the injured, i.e., Bimal Kr. Singh (PW 8) was examined and treated in the hospital by Dr. Aza Miya, on 08.02.2002. He further stated that the patient was discharged from the hospital on 18.02.2002. Singh (PW 8) was examined and treated in the hospital by Dr. Aza Miya, on 08.02.2002. He further stated that the patient was discharged from the hospital on 18.02.2002. According to this witness, the injured was brought to the hospital by Sri Bashistha Kumar Singh (PW 1) and one Sri R.K. Rai (not examined). He further stated that the case was diagnosed as Road Traffic Accident with left frontal compound depressed fracture. According to this witness, the initial treatment was done at St. Luke's Hospital, Tinsukia. He further stated that following were the findings in respect of the injured patient: "Blood pressure(BP)-110/70 m.m. Hg mercury. His General scale (GCS): EO1 Eyes opening was 1. BMR was 5 and BVR was 2. Pupils: 3+3+ Left eye was black. CT Scan of brain: Biparietal compound depressed fracture with pneumocephalus. Blood examination - Cervical spine X-ray, chest X-ray, ECG was done. (Reports already enclosed). Operation was elevation of biparietal compound depressed fracture with wound debridement was done under General Anesthesia (GA). Operative findings was "25 c.m. lacerated stitched wound extending anteroposteriorly across midline front parietal scalp and 8 c.m. elevated fracture. (2) Brain herniating out of dural defect. Bone chips excised. Only facial graft applied. Bone not replaced." 18. PW 12 exhibited the attested copy of the medical report as Ext. 3 and the signature of Dr. S.C. Jain thereon as Ext. 3(1). 19. From the evidence of PW 12 it appears that he did not examine the injured person. However, from his evidence as well as the Ext. 3, it appears that the victim sustained the following injuries: "The following is the injury report of Mr. B. singh, s/o. Late Biswanath sing of daily Bazar, P.S. Doomdooma. The was admitted with history of alleged RTA on 08/02/02 with loss of consciousness, vomiting and ENT bleeding. Initial treatment was at St. Luke's Hospital. On Examination his BP was 110/70 m.m. Hg. and pupils were equal and reacting. He had a GCS of 8/15 (EO1 BVR2 BMR5). Left plantar reflex was indeterminate. Local examination revealed the following injuries 1. Black eye (left) 2. 25 c.m. lacerated stitched wound extending antero-posteriorly across midline front parietal scalp CT Brain: Showed biparietal compound depressed fracture with pneumocephalus Nature of injury: Grievous" 20. Ext. 3 further reveals that the injuries were sustained by the victim in connection with Road Traffic Accident. Left plantar reflex was indeterminate. Local examination revealed the following injuries 1. Black eye (left) 2. 25 c.m. lacerated stitched wound extending antero-posteriorly across midline front parietal scalp CT Brain: Showed biparietal compound depressed fracture with pneumocephalus Nature of injury: Grievous" 20. Ext. 3 further reveals that the injuries were sustained by the victim in connection with Road Traffic Accident. It is not the case of the prosecution that the injured person, i.e., PW 8 had sustained injuries in connection with Road Traffic Accident. Therefore, I find no sufficient reason as to how PW 8 could be treated in Aditya Diagnostics & Hospitals, Dibrugarh, as an injured in connection with Road Traffic Accident. As per Ext. No. 3, the injured had undergone treatment from 08.02.2002 till 18.02.2002 in connection with injuries sustained by him in connection with Road Traffic Accident. That apart, the injuries mentioned in Ext. 3, i.e., the Certificate issued by the Aditya Diagnostics & Hospitals, Dibrugarh, does not tally with the injuries mentioned by PW 12 and PW 7, who initially examined the victim in Doom Dooma Polyclinic & Nursing Home and St. Luke's Hospital, Tinsukia respectively. Therefore, I find it difficult to rely on the evidence of PW 12 as well as Ext. 3. Admittedly, Ext. 3 is the copy of the original record. None of the said Medical Officers exhibited the original Medical Records regarding examination of the injured person. 21. It was the duty of the prosecution to produce the original record regarding medical treatment and prove that the injured sustained the injuries at the hands of the accused persons. The evidence of PW 7 and PW 12 does not indicate that the injured sustained any grievous injuries as defined in Section 320 IPC. Hence, the evidence, given by PW 12 and the Ext. No. 3, does not indicate that the injured was treated in Aditya Diagnostics & Hospitals, Dibrugarh, in connection with the injuries sustained by him in the alleged occurrence. 22. On scrutiny of the evidence of PWs 1, 2, 8 and 9, I find sufficient contradictions on material point. According to PW 1, Sri Bashisth Kumar Singh, who was the brother of the injured, both the appellants had assaulted the injured by means of dao by giving 3/4 blows on his head. But PW 2, Sri Ashok Kr. 22. On scrutiny of the evidence of PWs 1, 2, 8 and 9, I find sufficient contradictions on material point. According to PW 1, Sri Bashisth Kumar Singh, who was the brother of the injured, both the appellants had assaulted the injured by means of dao by giving 3/4 blows on his head. But PW 2, Sri Ashok Kr. Choubey, who claims to be an eye witness, being present at the place of occurrence, stated that the appellant Dipak Singh had given the dao blows on the head of the injured and that the appellant Sanjay Singh was holding the injured. He clearly stated that the victim sustained the injuries due to the dao blows given by accused Dipak Singh. The evidence, given by PW 2, raises doubt about the evidence of PW 1. If PW 1 is believed then it is hard to believe the PW 2. Because, they being present in the place of occurrence at the relevant time, cannot be expected to give such contradictory evidence regarding the role played by the accused persons. 23. The informant, Smti. Sobha Singh, who was the wife of PW 1, deposing as PW 9, stated that she along with PW 1 and PW 2 were present in their room at the time of occurrence. According to this witness, through the net of the verandah, she could see Dipak Singh and Sanjay Singh inflicting dao blows on the injured. In her cross-examination, she stated that she could see the incident from inside the house and that the door was not opened. She further stated that when she went forward to open the door, she was followed by PW 1 and PW 2. But, as discussed above, they gave different version on the vital point. Hence, it appears that there is no corroboration in the evidence of the said eye witness on material point. 24. The victim, Bimal Kr. Singh, deposing as PW 8 stated that, when he pressed the calling bell asking to open the door, both the accused persons, along with Gautam Singh, Firoz and Rajen, arrived at the place of occurrence raising hullah and that the appellants had inflicted dao blows near his eyes and on his head. He further stated that, on being so assaulted, he became senseless. According to the victim, he was assaulted by both the appellants by means of dao. 25. He further stated that, on being so assaulted, he became senseless. According to the victim, he was assaulted by both the appellants by means of dao. 25. According to PW 2, the appellant Dipak Singh had inflicted dao blows while appellant Sanjay Singh was holding the injured. PW 2 did not state that Sanjay Singh had inflicted any dao blow. PW 1 and PW 9 also did not support the said evidence of PW 2. According to PWs 1, 2 and 8, the injured had pressed the calling bell of the door and after opening the door, they could see the incident, but according to PW 9, who was also present along with PW 1 and PW 2 in the same room, the door of the room was not open and she along with others could see the incident through the net, fixed in the verandah. PWs 8 and 9 did not support the evidence of PW 1, that Sanjay Singh was holding the injured while the appellant Dipak Singh inflicted the dao blows. As all the said witnesses were present together, their contradictory evidence regarding the role played by the accused persons and the manner of assaulting the injured person, raises doubt about the veracity of their evidence. 26. The defence witnesses supporting the plea of alibi, taken by the accused persons clearly stated that, on the date of occurrence, the accused persons were not present at the place of occurrence. 27. DW 3 and DW 4 clearly stated that, on the date of occurrence, the appellant Sri Sanjay Singh, who was a student of Doom Dooma College, was present in the college at the relevant time. Though the said two witnesses were cross-examined by the prosecution their said evidence could not be discredited. DW 2, namely, Sribhuban Prasad, specifically stated that he found Dipak Singh carrying his belongings with him from 12 noon to 3.30 p.m. He further stated that he did not see Sanjay Singh at the place of occurrence. The said evidence of DW 2 remained un-demolished. 28. Carefully scrutinizing the said defence evidence, I find that the defence could establish that, on the date of occurrence, the accused persons were not present at the place of occurrence. The burden of the defence to substantiate its plea is not that heavy as is on the prosecution, to establish its version. 28. Carefully scrutinizing the said defence evidence, I find that the defence could establish that, on the date of occurrence, the accused persons were not present at the place of occurrence. The burden of the defence to substantiate its plea is not that heavy as is on the prosecution, to establish its version. The defence is required to create reasonable doubt regarding the truthfulness of the prosecution version. 29. In view of the above discussed evidence, more particularly, the contradictions found in the evidence of the eye witnesses and the medical evidence, coupled with the defence evidence, I am inclined to hold that the defence could establish that the prosecution version is not free from doubt. 30. Considering entire aspect of the matter, I have no hesitation in concluding that the prosecution failed to establish the charge under Section 326/34 IPC, against the appellants, beyond all reasonable doubt. Law is well settled that in the event of existence of two views, one going in favour of the accused person and the other in favour of the prosecution, the accused person should get the benefit of such doubt. Therefore, I find it to be a fit case to give the benefit of doubt to the accused persons. 31. In view of what have been discussed above, I am of the considered opinion that the impugned conviction and sentence cannot be maintained. Hence, I find merit in this appeal. Accordingly, the impugned conviction and sentence is set aside. The accused persons are acquitted on benefit of doubt. Send back the LCR.