JUDGMENT : The present appeal is directed against the judgment of conviction and order of sentence dated 11.03.2003 passed by Sri H.P Chakravarty, Additional Judicial Commissioner-cum-Special Judge-VIth C.B.I. (A.H.D.) Ranchi in S.T. Case No. 716 of 1998 whereby and where under the learned Additional Judicial Commissioner-cum-Special Judge convicted all the appellants under section 324 read with 149 of the Indian Penal Code and sentenced them to undergo R.I. for six months and also convicted all of them under section 148 and 341 of the Indian Penal Code but no separate sentence was passed under those sections. 2. The prosecution case as stated in the written report of Goanda Oraon son of Late Mangra Oraon of village-Saheda, police station-Lapung, District-Ranchi is that on 11.03.1998 at around 12.30 p.m. during that time, he was about half km south,away from his village and cutting one Black Berry (Jamun) tree for utilizing in making of house. Balo Gope and son of Garhwa Bhagat were cutting the tree. One of his relative who had come to visit him, namely, Balbir Oraon of village-Fuli, P.S.-Itki was also standing beside. Just then, Suka Pahan Somra Pahan, Kanhuwa Pahan, Kashi Pahan, Bilu Pahan, Ledo Pahan, Jaur Pahan and Gandru Pahan all armed with rods and axes came there and questioned as to why the tree was being cut and started assaulting them. Due to the assault, his relative Balbir Oraon was injured and fell down there and he too was injured. However, he somehow saved himself and managed to flee away. The incident was witnessed by Arjun Gope, Sohar Gope, all from police station Lapung. 3. On the basis of aforesaid written report, Lapung P.S. Case No. 11 of 1998 corresponding to G.R. No. 561 of 1998 under section 144,149,323 and 341 of the Indian Penal Code was instituted. After completing the investigation, police submitted charge sheet against the appellants u/s 147, 148, 323, 325, 307 and 341 of the Indian Penal Code, against all the accused persons. Thereafter the cognizance was taken and the case was committed to the court of sessions. 4. Charges under sections 147, 148, 341, 307/149 and 324/149 of the IPC was framed against all the accused persons to which they have pleaded not guilty and claimed to be tried. 5. Thereafter the cognizance was taken and the case was committed to the court of sessions. 4. Charges under sections 147, 148, 341, 307/149 and 324/149 of the IPC was framed against all the accused persons to which they have pleaded not guilty and claimed to be tried. 5. The prosecution examined altogether 5 witnesses, P.W. 1 Arjun Gope, P.W. 2 Ishwar Gope, P.W. 3 Sohan Gope, P.W. 4 Balo Gope and P.W. 5 Goanda Oraon, the informant. The learned trial court considered the records and evidences available and held the appellants guilty under section 148, 341 and 324/149 of the Indian Penal Code. Hence, this appeal. 6. P.W. 5, is Goanda Oraon the informant. In his deposition he stated that on 11.3.1998 at 12.30 noon, he had gone to cut black berry tree along with Balo Gope and the younger son of Garwa Bhagat. That black berry tree is on his barren plot of land, his relative Balbir Oraon was also there standing beside. Then Suka Pahan, Somra Pahan, Gandru Pahan, Kashi Pahan, Kanhuwa Pahan, Bilu Pahan, Ledo Pahan and Jaur Pahan, total eight persons came while the tree was being cut and started assaulting with stick/rods and axes. He was hurt on his back and on his chest. Balbir Oraon was also injured, both the feet of Balbir Oraon was broken as well as he received injuries on his head and on his back. During assault, Arjun Gope, Ishwar Gope and Sohan Gope came on which the accused ran away. He has recognized all the accused except Ledo Pahan in court and said that he can recognize Ledo Pahan on seeing him. He has proved the signature on his written statement which has been marked as Ext-1. He has further deposed that Balbir Oraon had been murdered. In his cross examination, he has deposed that for assaulting Gandru Pahan with country made pistol, he had been sentenced in S.T. Case No. 399 of 1999 by the Judicial Commissioner, Ranchi with five years sentence and sentenced three years under Arms Act. Then, he says that Gandru Pahan was assaulted by his brother Jagan Pahan. He has further deposed that he instituted a case bearing no. 716 of 1998 in revenge of which he was made to face punishment. He has further deposed that when he was injured, he ran away to Saheda village. Then, he says that Gandru Pahan was assaulted by his brother Jagan Pahan. He has further deposed that he instituted a case bearing no. 716 of 1998 in revenge of which he was made to face punishment. He has further deposed that when he was injured, he ran away to Saheda village. After, he ran away, assault took place which was seen by Arjun Gope, Ishwar Gope and they saw and told. He had received injuries and blood had spilled out. He has further deposed at the time of assault, he was wearing a shirt and lungi and the shirt was torn and which was stained with blood and that he had shown all these to the police and even given it to them. He had gone to the police station after the incident and stayed over night at the Lapung police station and one Sahju Samasi was with him then. He reached the police station at 5 p.m. After 5 p.m., he had got his statement written in the police station. He has further deposed that on 11.3.1998 at 5.30 p.m. in the evening he was admitted to Lapung hospital and he returned from the Lapung Hospital on the next day. On returning, on the next day, the police had again taken his restatement. After Balbir Oraon was hurt, on the next day, he came to know that his brother had taken him in Maruti Car. Balbir Oran did not do business of selling and buying tree. The area around the black berry tree was measured by a private Amin and by the office of Circle Officer, Lapung and the measurement was done on 21.2.1998. 7. P.W. 1 is Arjun Gope. He said that the incident is of two years ago and on that day hearing alarm he had gone to the place of occurrence, there Balbir Oraon was injured and fallen on the ground. There Suka Pahan, Ledo Pahan, Somra Pahan, Bilu Pahan, Kanhuwa Pahan, Jaur Pahan, Kashi Pahan, Gandru Pahan were standing there holding axes, Balua and bow & arrow. He saw two persons Jaur Pahan and Kanhwa Pahan assaulting Balbir Oraon. The rest were standing there. He has further deposed that there was a black berry tree there which was cut to some extent. He has recognized the accused in the court. He saw two persons Jaur Pahan and Kanhwa Pahan assaulting Balbir Oraon. The rest were standing there. He has further deposed that there was a black berry tree there which was cut to some extent. He has recognized the accused in the court. In his cross examination, he has deposed that he had a land dispute with accused Gandru Pahan long time ago. Police had taken his statement. Balbir Oraon, who was wounded is not from his village. He further deposed that he told police that he had seen two persons assaulting. He along with Ishwar Gope, others had also reached the place of occurrence. Sohan Gope, Balak Gope and some women had also reached the place of occurrence. The place of occurrence is Masna Bagicha where Balbir had fallen down. The agricultural field in which Balbir had fallen down was cultivated by Budhwa Oraon and Goanda Oraon. At the time of assault, the field was tilled but there was no crops there. He has further deposed that from the feet and head of Balbir,blood was oozing out. He has further deposed that when he had reached the place of occurrence, at that time Goanda was not there. 8. P.W. 2 is Ishwar Gope. He has deposed that the incident is of two years ago at 12 o'clock, during day time. Goanda and Balbir had gone to cut the Jamun tree and they were assaulted by Suka Pahan, Gandru Pahan, Bilu Pahan, Somra Pahan, Kanhuwa Pahan, Ledo,Kashi, Jaur etc. Balbir and Goanda were assaulted and Balbir was injured and fell on the ground and Goanda after being assaulted, had ran away. He has recognized all the accused present in court. In his cross examination, he said that at the time of occurrence, he was at the place which is known as Masna Tanr and that along with him were one Arjun Gope and Sohar Gope. He did not see which accused was carrying what weapon and who had assaulted with what. Balbir was taken away by his brother in Maruti Car. 9. P.W. 3 is Sohan Gope son of Sri Birsa Gope. He has deposed that the incident is of about 3 years ago at 12 noon during the day time. At that time, he was in his agricultural field and that Goanda and Balbir were about to cut the tree, which was a black berry tree. 9. P.W. 3 is Sohan Gope son of Sri Birsa Gope. He has deposed that the incident is of about 3 years ago at 12 noon during the day time. At that time, he was in his agricultural field and that Goanda and Balbir were about to cut the tree, which was a black berry tree. He had not seen the assault. Goanda and Balbir were injured. He has recognized the accused in the court. He has deposed in his cross examination that he was in his field, hence, he was not able to see that who had assaulted whom. He has also deposed that Balbir Oraon had passed away. 10. P.W. 4 is Balo Gope. He has said that incident is of 3 and 1/2 years ago between 12 to 12.30 p.m. That on that date he had gone with Goanda Oraon on hired wage for cutting black berry tree. Four persons were engaged to cut the tree. Goanda Oraon and Balbir Oraon, Bhagat of Gardi and he had gone. He does not know, whom the tree belong to. He has further deposed that Bilu had come on his exhortation, both the labourers did not cut the tree and went home. He did not see anything there. In his cross examination by prosecution, he further deposed that he did not tell the police that Suka Pahan, Bilu Pahan, Ledo Pahan, Sandru Pahan and Jauru Pahan came and said that the tree is being cut on the instigation of Goanda and his men, and that the accused bearing sticks and axes started assaulting. He has said in his cross examination by the defence that police had not recorded his statement. 11. Learned counsel for the appellant has argued that none of the witnesses are eye witnesses and have not really seen the occurrence of the alleged crime. He asserts that P.W. 1, P.W. 2 and P.W. 3 are all hearsay witnesses. Regarding P.W. 1 Arjun Gope, it is submitted that he saw the accused persons or appellants simply standing at the alleged place which means he has not seen the assault, but he said in paragraph 15 of his deposition that blood was flowing from the injuries on Balbir. Regarding P.W. 1 Arjun Gope, it is submitted that he saw the accused persons or appellants simply standing at the alleged place which means he has not seen the assault, but he said in paragraph 15 of his deposition that blood was flowing from the injuries on Balbir. About P.W. 2 Ishwar Gope, he argued that he is also hearsay and not an eye witness and he was elsewhere at a place caled Masna Tanr with P.W. 1 and P.W. 3, hence his evidence is not reliable. Even P.W. 3 or Sohan Gope did not see the alleged assault or occurrence. Learned counsel for the appellants has argued that the entire case is the result of prior enmity between the appellants Gandru Pahan and the informant Goanda Oraon and this is indicated in the deposition of P.W. 5 Goanda Oraon. In a case P.W. 5 had assaulted Gandru Pahan and was convicted and sentenced for five years. So there is previous enmity, hence there was motive for the informant for trapping Gandru Pahan and Gandru's associates in a false case. Since, in this dispute, there is claim over the same piece or plots of land hence blame is not solely on the appellants' side. In fact both were fighting for possession. Counel has further said it is also an instance of case and counter case and since the issue was over land, mens rea was lacking. 12. Learned counsel for the appellants further submitted that P.W. 5 is informant Goanda Oraon. In his written report there is no whisper of injuries that both the feet of Balbir Oraon was broken. It is difficult to accept that if he was so severely injured, there is no indication that both his feet were broken. If both his feet were broken, certainly there would definitely have been doctor's report or injury report but this is disturbingly missing. Moreover at the time of deposition of P.W. 5, Balbir Oraon was dead, so he has not been examined. Hence, injury of such nature had not been proved. Therefore, one is left wondering. It is thus the reason why conviction was under section 324 of the IPC and not under section 325 and 326 of the Indian Penal Code. Moreover at the time of deposition of P.W. 5, Balbir Oraon was dead, so he has not been examined. Hence, injury of such nature had not been proved. Therefore, one is left wondering. It is thus the reason why conviction was under section 324 of the IPC and not under section 325 and 326 of the Indian Penal Code. P.W. 5 also mentioned that he has been convicted for assaulting Gandru Pahan with country made pistol and sentenced for five and three years, for assault and for the offence under the Arms Act. So the informant had motive for framing the accused, appellants herein. P.W. 5 says after he ran away, assault took place which was seen by Arjun Gope and Ishwar Gope. P.W. 1, Arjun Gope, has deposed that he saw Jaitu Pahan and Kanhuwa Pahan assaulting Balbir Oraon and the rest were standing there. He has also admitted that previously there was a land dispute with the appellant Gandru Pahan, so enmity was there. He says the place of occurrence is Masna Bagicha whih is at variance with what P.W. 2 says, who says that they were at Masna Tanr. P.W. 2 in his deposition makes general allegation against all accused including the appellants for assault. However, in his cross examination, he says that he was at Masna Tanr along with Arjun Gope (P.W. 1) and Sohan Gope. He did not see which accused was carrying what weapon and who assaulted on whom. P.W. 3 Sohan Gope also deposed that he had not seen the assault. P.W. 4 Balo Gope is one of the person engaged to cut the tree, hence though he was or should have been in the place of occurrence, he says that he went home and did not see anything. 13. Learned Additional P.P. has however submitted that the conviction and sentence is appropriate because there were at least two eye witnesses, and one of them was injured so he would be a reliable and vital witness, hence his evidence cannot be discarded. Learned APP has further submitted that Goanda Oraon was injured is established because he was admitted in hospital. Goanda Oraon has stated in his cross examination that he was admitted in Lapung Hospital and this could only mean that he was injured. Learned APP has further submitted that Goanda Oraon was injured is established because he was admitted in hospital. Goanda Oraon has stated in his cross examination that he was admitted in Lapung Hospital and this could only mean that he was injured. Learned APP then submitted that since he was an injured witness, there is every reason to believe that he would name his attackers and no one else. Hence, his testimony is fully reliable and feasible. Learned APP has then submitted that as per the written report of P.W. 5, who had mentioned that Arjun Gope, Ishwar Gope and Sohan Gope had also come to the place of occurrence and their presence was natural and reliable. Thus, they have supported the prosecution case. Learned APP has then contended that on the basis of all these reasons the conviction and sentence of all the appellants are fully proved and deserved. FINDINGS 14. Having heard both counsels and having gone through the records of the case, this case is one where there was deep differences and enmity between the parties even prior to this occurrence. P.W 5 or Goanda Oraon in his deposition has deposed that he was convicted in S.T. Case No. 399 of 1999 by the Judicial Commissioner, Ranchi for the charges of firing on appellant no. 2, Gandru Pahan and was sentenced for five years and was sentenced for three years under Arms Act. He has also deposed that Gandru Pahan was assaulted by his brother Jagan Pahan. He, at the time of deposition also said that Balbir Oraon had passed away. So by the admission of P.W. 5 himself, there was long standing dispute between the parties and he had even been sentenced for five years in one case. P.W. 1, or Arjun Gope has also deposed that he had a land dispute with Gandru Pahan, Appellant no. 2 long time ago. Balbir Oraon has passed away, so he was not made a witness. Another aspect of P.W. 5 Goanda Oraon, the informant is that through the written report he has stated as if he saw the assault but in his deposition in court, he has categorically stated that after he ran away the assault took place which was seen by Arjun Gope and Ishwar Gope and they told him about the assault. It seems that Goanda Oraon himself did not witness any assault. It seems that Goanda Oraon himself did not witness any assault. He had run away to Saheda village. 15. P.W. 1 or, Arjun Gope had deposed that when he reached the place of occurrence, Goanda Oraon was not there. He said he saw two of the accused assaulting Balbir Oraon and subsequently even wounded, but, then Balbir Oraon has not given evidence. He has deposed about dispute with Gandru Pahan. 16. From the deposition of P.W. 2, or Ishwar Gope, though he has deposed about the assault, it is not certain whether he was an eye witness rather, he said, he was at Masna Tanr along with Arjun Gope and Sohar Gope, and that he has not seen what weapons the appellants were carrying or who had assaulted with what weapon. So it seems he is also not an eye witness. 17. P.W. 3 or Sohan Gope had also deposed that he had also not seen the assault or who had assaulted whom. From the evidence of P.W. 2 and P.W. 3, it seems that P.W. 1, P.W. 2, and P.W. 3 were all at Masna Tanr or in agricultural field from where the incident could not be seen. Only P.W. 1 claims to have seen the assault but then why did not P.W. 2 and P.W. 3 saw the assault. P.W. 1 has already admitted that he had land dispute with the appellant Gandru Pahan or enmity, so the evidence of P.W. 1 cannot be relied upon. 18. The informant or P.W. 5 has in the written statement said he saw the assault, but in his cross examination, he said that after he ran away, the assault took place. However, in his deposition he says that he was assaulted on his chest and back. This is a new development but no medical report for the same is there. P.W. 5 has also in his deposition stated that Balbir was hurt, and that both his legs were broken, and that he was injured on his head as well as on back. The question arises that with such injuries, Balbir would have been the most material and main witness, but he has not been examined. Also, there is no injury report or medical report of the injuries of Balbir. The question arises that with such injuries, Balbir would have been the most material and main witness, but he has not been examined. Also, there is no injury report or medical report of the injuries of Balbir. Moreover, if both his legs had been broken, then by his being brought to the court for evidence, would have helped the prosecution case. So far all the aforesaid reasons, some doubt arises and benefit of doubt is given to the appellants and their conviction and sentence passed by the court below in S.T. Case No. 716 of 1998 dated 11th March, 2003 for the offences under sections 148, 341 and 324/149 of the IPC is set aside. The appellants are on bail, the bailors are discharged from their liabilities of bail bonds. 19. Accordingly, this appeal is allowed.