JUDGMENT : 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 16.12.2002 passed by the 3rd Additional Sessions Judge, Palamau at Daltonganj in connection with Sessions Trial Case no. 115 of 1998, corresponding to G.R. Case no. 118 of 1995 arising out of Chainpur P.S. Case no. 13 of 1995 whereby, the appellants have been convicted for the offence punishable under sections 307/34 and 380/34 I.P.C. and sentenced to undergo imprisonment for three years with a fine of Rs.1000/- each and for the offence u/s 307 IPC and two years with fine of Rs. 1000/- each u/s 380 IPC. Both the sentences were ordered to run concurrently. In default of fine convicts are to undergo imprisonment for six months for both the offences. 2. The case of the prosecution as it appears from the fard-beyan of the informant Amna Khatoon PW-3 wife of Muslimuddin Ansari R/o Sonpurwa Baghandi PS Chainpur recorded on 3.2.1995 at Sadar Hospital, emergency ward, Daltonganj at 17 hours, is that, on the same day she was sitting in her grocery shop and selling the things. In the mean time above named three appellants came and demanded cigarette from her upon which she replied that cigarette is not available in her shop upon which appellant no. 1 Kasim Ansari gave a gupti (sharp cutting weapon) blow in her abdomen. The informant tried to save herself by her left hand causing injury on her left elbow and went across and also she sustained injury in her wrist. Then appellant namely Ehsanuddin Ansari took away Rs. 4,000/- from her shop. Several persons assembled on alarm and the injured narrated the incident before them. Thereafter, she was brought to Daltonganj Sadar hospital for treatment where her fard-bayan was recorded. The informant has also stated that due to previous enmity and litigation the appellants have committed said offence. 3. On the basis of fard-beyan of Amla Khatoon, PW- 3, Chainpur P.S. Case no. 13 of 1995 was registered under sections 447/307/324/379/34 IPC. The police after due investigation submitted charge-sheet accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as S.T. Case No. 115 of 1998. 4. Charges U/Ss. 307 and 380/34 IPC were framed, but the accused pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether eight witnesses. 4. Charges U/Ss. 307 and 380/34 IPC were framed, but the accused pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether eight witnesses. The learned Sessions Judge at the conclusion of the trial, convicted the accused persons for the offences under sections 307/34 and 380/34 I.P.C. and sentenced them to undergo as stated above. Hence, this appeal. 5. PW-3, Amna Khatoon, has stated in her deposition that the incident is of five years ago at about 1:30 noon when she was sitting in her grocery shop and selling the things. In the mean time, above named three appellants came and demanded cigarette from her, upon which she replied that cigarette is not available in her shop then accused Kasim took out gupti and tried to stab in her abdomen but she prevented the blow with left hand causing injury on her left hand, elbow and even hit her a little bit on her stomach. Appellant Ehsanuddin Ansari took Rs. 4000/- which was kept for Mahajan. Then people gathered from the neighbourhood and took her to the hospital where she was treated and her fard-beyan was recorded by the police upon which she put her thumb impression. She has recognized the three accused persons in the doc. In her cross-examination, she has stated that during the incident apart from accused nobody outside was there. Her shop is beside the road and that many people travelled to and fro on the road and vehicles were also moving on the road. She has further deposed that her nephew had come after the incident and people from neighbourhood had also come but she does not remember the name of any of them. There are two or three shops beside her shop. She has further deposed that during the incident her husband had gone to Daltonganj. Her nephew had taken her to the hospital. She has further deposed that while going towards Daltonganj from her house Chainpur P.S. was on the way. She has further deposed that accused Ehsanuddin Ansari is working as a village doctor and is also distributing medicines to the villagers. 6. P.W. -1 is Islam Mian he is the nephew of PW-3. He has deposed that the incident is of four and half years ago at about 1:30 noon and that he was sitting near his house. She has further deposed that accused Ehsanuddin Ansari is working as a village doctor and is also distributing medicines to the villagers. 6. P.W. -1 is Islam Mian he is the nephew of PW-3. He has deposed that the incident is of four and half years ago at about 1:30 noon and that he was sitting near his house. He saw that some people were fighting there. Amla Khatoon had fallen and he met the accused Kasim there and he also saw accused Ehsanuddin who had some rupees in his hand. He also saw Amla Khatoon injured and fallen on the ground. He took the injured to the hospital for treatment. He has also deposed that the police had questioned him about the incident upon which he told that he had gone to the place of occurrence and saw that victim was fallen and she sustained injuries in her elbow. That the Place of occurrence is near the road and houses are also beside the shop. When he had gone to the place of occurrence 10 to 15 boys were also present there. 7. PW-2 is Muslimuddin who is the husband of PW- 3. He has deposed that incident is of 3.2.1995 and on that time he was in Daltonganj and had gone there to do marketing. About 2:30 – 3 p.m. he received information that his wife has been assaulted with knife and injured and that she has been admitted in Sadar hospital. Then he rushed to the emergency ward of Daltonganj, Sadar hospital. He deposed that his wife in an injured condition informed that she was sitting in the shop then the appellants came there and asked for cigarette and when she did not give cigarette they started abusing and Ehsanuddiin Ansari also took Rs. 4,000/-. Kasim Mian assaulted his wife with gupti on her stomach due to which she sustained injuries in her hand. In cross-examination he has deposed that accused Ehsanuddin has been doing work of a village doctor since last ten to eleven years and he also lives in the same village. 8. Learned counsel for the appellants has submitted that three years sentence has been awarded u/s 307 IPC and for conviction u/s 380 IPC, two years imprisonment has been imposed to run concurrently out of which Kasim has spent a few months in custody while other appellants have never been in jail. 8. Learned counsel for the appellants has submitted that three years sentence has been awarded u/s 307 IPC and for conviction u/s 380 IPC, two years imprisonment has been imposed to run concurrently out of which Kasim has spent a few months in custody while other appellants have never been in jail. He has further submitted that as far as the appellant Sarfuddin Ansari is concerned there is no allegation against him rather he seems to be standing by and allegations have been made against two of the appellants and more particularly against Kasim who had assaulted. But no case against Ehsanuddin is made out who allegedly said to have taken Rs. 4000/- from the shop but there was no recovery of money. He has submitted that PW- 1, 2 and 3 are related to each other and hence, they have supported the prosecution case and the depositions of each others. However, PW-4, 5 and 6 are independent witnesses and have turned hostile but in any way they have not supported the case of the prosecution. PW-7 is a doctor who has indicated the injuries inflicted and PW-8 is a constable who has proved the fard-beyan. He has submitted that due to the non examination of the I.O. it would be fatal to the case of the appellants. They would be grossly prejudiced. Particularly when neither gupti nor money have been recovered. He has further stated that P.W. 1 in his cross-examination has stated that he could only reach at the place of occurrence after the occurrence and saw the victim was fallen on the ground which means that he is not eye witness to the occurrence. He has further said that there were 10 to 15 houses nearby but no one came forward to depose. PW-1 is nephew of the PW-3 and as he is an interested witness he has deposed in favour of the prosecution. Further he has submitted that PW-3 victim has also developed a story with respect to number of blow inflicted as in her fard-beyan she has stated that only one blow was inflicted but in her deposition she has stated that several blows were inflicted upon her. Further he has submitted that PW-3 victim has also developed a story with respect to number of blow inflicted as in her fard-beyan she has stated that only one blow was inflicted but in her deposition she has stated that several blows were inflicted upon her. Learned counsel has also stated about deposition of doctor PW-7 who has found following injuries: (i/a) Sharp cut injury on the lateral side of middle of left forearm in size 1” x 1/2” x skin deep leading to a sharp cut injury at the other side of forearm. (i/b) 1½” x 1/2” x skin deep in the same position of forearm. The track below the skin of both injuries is same. (ii) There is abrasion 1/2”x skin deep in the left side of abdomen. (iii) Bruise of right wrist. Learned counsel has further stated that first of all since nobody had seen the assault, the assault is itself questionable and the victim has stated that she had sustained several injuries but the doctor in his deposition has stated that only one blow was inflicted. He has submitted that as the doctor has said that injury could have been formed by hard and blunt substance so because of the thrust may it would have touched her arms and may be to some extent on the stomach. But the main injuries have been indicated as not in the vital part of the body and injuries are also said to be simple in nature as such there was no intention to kill and hence, no offence can be made out u/s 307 IPC. With respect to Section 380 IPC he has again reiterated that in this case no amount was ever recovered from the appellants but due to prior enmity allegation has been made. Further he has taken the court to the deposition of DW-1 who has said that there was burial ceremony and appellant no. 2 and 3 were present in that ceremony at about 11 O'clock to 2-2:30 O'clock hence, when they were not at the place of occurrence, entire incident would be falsified against them. He has further stated that in the FIR nothing has been really attributed against appellant no.3. He was not a participant to the assault nor in the theft of the money. He has further stated that in the FIR nothing has been really attributed against appellant no.3. He was not a participant to the assault nor in the theft of the money. He was only standing there and for which he should not be convicted as no overt act has been committed by him. 9. Learned A.P.P. has read out the fard-beyan and also taken the court towards deposition of PW-1, 2 and 3 and also deposition of defence witness. He has also tried to make out a case that the I.O. was not examined is another matter but I.O. had investigated the matter and submitted the charge sheet. PW-8 is a constable who has proved the fard-beyan. He has said that offence is serious one by three male persons against one sole lady sitting in a shop and it is definite that this occurrence took place as has been deposed by PW-1,2 and 3 and even PW-4,5 and 6 have not denied the occurrence. He has further stated that PW-1 went to the place of occurrence and saw that appellant no.2 had money in his hand and victim was fallen on the ground. PW-1 had gone immediately to the place of occurrence as such there was no occasion for him to concoct the story and it is PW-1 who had taken the injured to the hospital where she was treated and her fard-beyan was recorded. Learned A.P.P. further submitted that PW-2 who is the husband of the injured has supported the case as he has stated that his wife was treated in Daltonganj Sadar Hospital and she had informed him about the incident. Further learned APP has stated that Doctor who is PW-7 has opined that injuries are possible by sharp cutting weapon like gupti and that he has proved the injuries. He has further stated that injuries supports the allegation as made by victim in her fard-beyan. Regarding evidence of DW-1 he has said that it can not be relied upon because this witness was never mentioned before any authority and only to defend the appellants this witness was put in the witness box. He has finally said that the motive was definitely there as there was prior enmity between the parties. 10. Regarding evidence of DW-1 he has said that it can not be relied upon because this witness was never mentioned before any authority and only to defend the appellants this witness was put in the witness box. He has finally said that the motive was definitely there as there was prior enmity between the parties. 10. After going through the arguments and records and evidences of the case, it seems that the two main actors in the entire crime are Kasim Ansari appellant no. 1 and Ehsanuddin Ansari, appellant no.2. As far the assault by Kasim Ansari goes, the informant Amna Khatoon has directly alleged that he was the one who assaulted with knife, a sharp cutting weapon (gupti). P.W.-1 Islam Mian, who is the nephew of the informant deposed that he saw Kasim Ansari when he went to the place of occurrence. Finally, the injuries as reported by the doctor are significant and cannot be manufactured. Regarding Ehsanuddin Ansari, also there is a direct allegation by Amna Khatoon that he took Rs. 4,000/- from the shop and PW-1 has said that when he went to the place of occurrence he saw the money in the hand of Ehsanuddin Ansari. The observations made by the trial court may be important when he says that a persons who was known as a medical practitioner he was an influential person, so the main roles in the incident by appellants 1 and 2 cannot be ruled out. 11. The non-examination of the investigating officer will not prejudice against the appellants because, the informant's accusation is reliable, and supported by injury report of the doctor. So something did take place, she is not going to cook up injuries. And the presence of two other accused is possible because why will one develop enmities unless the accusations are true. 12. Regarding the incident, it does seem to have arisen over a petty issue of not being provided with a cigarette, and it is possible that if the cigarette had been made available then the incident would not have taken place. But the question then is, why one will move around with a gupti. 13. Appellant no.3, or Sarfuddin Ansari, has nothing against him, but that he was only with the other two appellants at the time of the occurrence, and hence, may be given the benefit of doubts. But the question then is, why one will move around with a gupti. 13. Appellant no.3, or Sarfuddin Ansari, has nothing against him, but that he was only with the other two appellants at the time of the occurrence, and hence, may be given the benefit of doubts. The other two appellants are specifically seen to be doing overt act while this appellant has no specific such role. 14. In the result, the judgment of conviction and order of sentence recorded against Sarfuddin Ansari U/Ss. 307 and 380 IPC is hereby set-aside. The appeal as against him stands allowed. Appellant Sarfuddin Ansari is on bail and, therefore, he is discharged from the liabilities of his bail bond and set at liberty. 15. So far appellants Kasim Ansari and Ehsanuddin Ansari @ Hesamuddin Ansari are concerned, judgment of conviction and order of sentence dated 6.12.2002 passed by the 3rd Additional Sessions Judge, Palamau at Daltonganj in connection with Sessions Trial Case no. 115 of 1998, corresponding to G.R. Case no. 118 of 1995 arising out of Chainpur P.S. Case no. 13 of 1995, is hereby upheld. The bail bonds of Kasim Ansari and Ehsanuddin Ansari @ Hesamuddin Ansari are hereby cancelled and they are directed to surrender before the convicting/successor court to serve out the remaining sentence. If they fail to surrender before the convicting court within thirty days from the date of receipt of this order the learned convicting/successor court shall take appropriate steps by issuing processes against the said appellants namely Kasim Ansari and Ehsanuddin Ansari @ Hesamuddin Ansari, to secure their arrest. 16. Instant appeal is allowed in the case of appellant no.3, Sarfuddin Ansari. However, appeal against appellant no.1 and 2 namely Kasim Ansari and Ehsanuddin Ansari stands dismissed.