JUDGMENT 1. Appellants Rakesh Yadav, Mithilesh Yadav @ Mithlesh Prasad, Karu Yadav and Lakhan Mahto, each has been found guilty for an offence punishable under Section 341 of Indian Penal Code and sentenced to undergo S.I. for one month, under Section 324 of Indian Penal Code and sentenced to undergo R.I. for 03 years, under Section 325 of Indian Penal Code and sentenced to undergo R.I. for 03 years as well as to pay fine of Rs. One thousand each in default thereof, to undergo R.I. for one month with further direction to run the sentences concurrently by Addl. Sessions Judge 4th Nawada (Bihar) in Sessions Trial no. 53/2009/80/2014 vide judgment of conviction and sentence dated 31.03.2015. 2. PW4 Lalo Yadav; the informant gave his fardbeyan before S.I. Nawada (Town) PS while he was admitted at Sadar hospital, Nawada on 01.07.2005 alleging interalia that on the same day at about 6 am while he was engaged in repairing his house, all of a sudden, Lakhan Mahto, Mithilesh Yadav @ Mithilesh Prasad, Rakesh Yadav and Karu Yadav came at his house and began to abuse. They also assaulted with lathi and danda. During course thereof, they have also stated that their land has been captured. Then, thereafter, Mithilesh gave garasa blow over his head while Rakesh gave garasa blow over his son Upendra Yadav. Both of them sustained injuries and they were shifted to hospital where treatment was going on. 3. On the basis of aforesaid fardbeyan, Nardiganj PS case no. 79 of 2006 was registered whereupon investigation commenced and concluded by way of submission of charge sheet paving way for taking of cognizance of an offence found punishable by the Court of Sessions whereupon, after commitment, trial proceeded and culminated, the subject matter of the instant appeal. 4. Defence case as is evident from cross-examination as well as statement recorded under Section 313 of Code of Criminal Procedure is that of complete denial of occurrence. Though, during course of cross-examination of PW3, Upendra Yadav, there happens to be disclosure with regard to the injury having been over the person of the appellants and on account thereof challenged the genesis as well as manner of occurrence but to substantiate the same, neither any DW has been examined nor any chit of paper is there on their behalf. 5. 5. In order to substantiate its case, prosecution had examined altogether five PWs, out of whom, PW1 is Jageshwar Yadav, PW2 is Dinesh Yadav, PW3 is Upendra Yadav, PW4 is Lalo Yadav and PW5 is Dr. Rajkishore Prasad. Side by side had also exhibited Ext.1-signature of informant; PW4 over the fardbeyan and Ext.2 series - injury report of Lalo Yadav and Upendra Yadav respectively. 6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellants that the findings recorded by the learned lower court happens to be cryptic and perverse whereupon, is fit to be set aside. To substantiate the same, it has also been submitted that learned lower court had failed to properly appreciate the evidence adduced by the prosecution, more particularly, both the injured PW3 as well as PW4 in consonance with the Medical Officer; PW5 which completely ruled out authenticity of the prosecution version. 7. It has also been submitted that due to non-examination of the I.O., they found prejudice on the score : (a) inconsistency amongst the witnesses over the place of occurrence. (b) with regard to peculiar event visualizing on the record, as the FIR has been registered after an year on the basis of the carbon copy of the fardbeyan, without any explanation. (c) the improbability coming out from the evidences of PW3 as well as PW4 which cast doubt over genuineness of the prosecution version. 8. Coupled with admission at the end of PW3 that he had seen appellant Lakhan Mahto in an injured condition admitted at the same hospital. Had there been examination of the I.O. then, in that event, atleast the manner of occurrence should have been exposed which would have completely demolished the case of the prosecution. Apart from this, it has also been submitted that the reason best known to the witnesses, though there happens to be some sort of slackness on their part while examining PW4 over testing genuineness of the fardbeyan but the fact remains that the motive which was disclosed at an initial stage has completely been ignored during course of evidence. Apart from this, it has also been submitted that the reason best known to the witnesses, though there happens to be some sort of slackness on their part while examining PW4 over testing genuineness of the fardbeyan but the fact remains that the motive which was disclosed at an initial stage has completely been ignored during course of evidence. In such a situation, the evidence of I.O. was necessary because of the fact that the disclosure coming out from the fardbeyan gives inspiration with regard to land dispute and further, the place where house was being erected by the prosecution party actually belonged to the appellants and on account thereof, even if considering the narration of the witnesses to be true, it would have provide exercise of right of private defense and for that, the appellants were very much entitled to but due to non-examination of the I.O., the aforesaid circumstances could not brought up on the record and by absence of I.O., the right of the appellant is found completely prejudiced. So, submitted that the judgment of conviction and sentence recorded by the learned lower court should be brushed aside. 9. On the other hand, the learned Spl.P.P. while supporting the finding recorded by the learned trial court has submitted that certain lapses would not demolish the case of the prosecution. Furthermore, it has been submitted that while cross-examining PW4; informant, the appellants had an opportunity to test the veracity of the evidence wherein they failed and on account thereof, they are not at all entitled to say anything otherwise than whatever coming out from his evidence. 10. Apart from this, it has also been submitted in terms of Section 134 of the Evidence Act it is not the quantity rather the quality which matters. Therefore, non-examination of other witnesses are not at all relevant for the present in the background of Section 134 of the Evidence Act. Furthermore, both injured were examined who have substantiated the case of the prosecution in toto and the non-examination of the I.O. neither cause prejudice to the interest of the appellants nor would be found a dent in the prosecution case. Accordingly, the finding recorded by the learned trial court is fit to be confirmed. Furthermore, both injured were examined who have substantiated the case of the prosecution in toto and the non-examination of the I.O. neither cause prejudice to the interest of the appellants nor would be found a dent in the prosecution case. Accordingly, the finding recorded by the learned trial court is fit to be confirmed. It has also been submitted that the learned lower court had already taken a lenient view in identifying the appellants guilty for lesser offence than having been charged and in consonance therewith, been properly sentenced which also needs no interference so, appeal is fit to be set aside. 11. PW5 is the doctor who had examined both the injured that means to say PW3 and PW4 on 01.07.2005 at Sadar hospital, Nawada where he was posted. On that day at 11.55 am, he had examined informant Lalo Yadav and found following injuries over his person : (a) incised would 2 ½ “ x 1/2“ x 1/4” on the mid part of scull. (b) Swelling 3” x 2” on right thigh. (c) Swelling 1”x1” on right shoulder Cause and nature- injury no. 1 was caused by sharp substance like garasa, injury no 2 and 3 were caused by hard and blunt substance like lathi. All the injuries were simple in nature. Age of injury-within 24 hours. On the same day at about 12 noon, he had examined Upendra Yadav; PW3 and found following injuries : (a) Incised wound 1 ½” x1/2” x1/4” on right parietal part of skull. (b) Swelling 2”x2” on left shoulder. (c) Swelling 1”x1” on right shoulder. Cause of injury- injury no. 1 was caused by sharp weapons and injury nos. 2 and 3 were caused by hard and blunt substance. So far nature of the injuries are concerned, injury nos. 1 and 3 were simple whereas injury no. 2 was grievous. During cross-examination, nothing material has been brought up save and except in para 11 whereunder, he had categorically stated that he is unable to say whether injured persons were conscious or unconscious at the time of their examination. It has rightly been narrated by him because of the fact that no such finding was recorded in the injury report. 12. PW4 is the informant himself. It has rightly been narrated by him because of the fact that no such finding was recorded in the injury report. 12. PW4 is the informant himself. He had deposed that on the alleged date and time of occurrence, he was sitting at his house at which time, Lakhan Mahto, Ram Mahto, Karu Mahto, Rakesh Mahto and Baleshwar came and began to abuse followed with quarrel and during course thereof, Mithilesh gave garasa blow over his head. Rakesh had given garasa blow over head of Upendra. Thereafter, they were taken to Nawada hospital where police came and recorded the fardbeyan whereupon, he had put his signature and exhibited the same being in the carbon process. He had also identified the accused in dock. During cross-examination at para 4, he had stated that first of all, he sustained injury. At that very time, he was standing having western front in a drainage. Mithilesh Kumar came from Northern side and gave garasa blow as a result of which, he fell down and became unconscious. He regained sense at the night where he saw Upendra admitted. He had also sustained injury. At that very time, Upendra was unconscious. 13. PW3 is another injured Upendra Yadav. He had deposed that on the alleged date and time of occurrence, he along with his father was present at their home when Lakhan, Mithilesh, Karu and Rakesh came and began to abuse. Mithilesh gave garasa blow over his father. Rakesh had given lathi blow over his head. They were shifted to Nawada hospital for treatment. During cross-examination at para 3, he had stated that he along with his father were sitting in a courtyard. He had further stated that first of all, his father was assaulted. He had further stated that when his father was assaulted, he was also assaulted. In para 3, he had stated that he is unable to say whether his father remained conscious or became unconscious. After sustaining injury, he regained sense at the hospital but he is unable to say after how many days. When he regained sense at hospital, his father had already regained sense. 14. In para 3, he had stated that he is unable to say whether his father remained conscious or became unconscious. After sustaining injury, he regained sense at the hospital but he is unable to say after how many days. When he regained sense at hospital, his father had already regained sense. 14. PW2 had stated that on the alleged date and time of occurrence, he rushed from the place where he was ploughing after hearing uproar and came to the house of Lalo Mahto where he had seen Lalo Mahto, Mithilesh Yadav and Karu Yadav indulged in an altercation. Then thereafter, he returned back. He had not shown presence of remaining Appellants. 15. PW1 had stated that he heard uproar but he had not gone to the place. Lateron, he came to know that there was scuffle in between Lalo and Lakhan. 16. True it is, that the evidence of injured lies on upper pedestal than the normal witness. In the present case, both the injured PW3 as well PW4 have been examined. Therefore, their evidences have got priority and should be considered in the aforesaid background. Apart from this, there happens to be basic theory that number of witnesses are not at all material rather reliability of evidence is material aspect and that happens to be reason behind that in terms of Section 134 of the Evidence Act, the aforesaid principle has been reiterated. In the aforesaid background, now the evidence of both the injured that means to say PW3 as well as PW4, who are none-else but the father and son is to be considered and further, whether on account of non-examination of the I.O., the appellant is found prejudiced to the extent effecting upon finding recorded by the learned trial court. As has been found, the fadbeyan of PW4 was recorded at the Sadar hospital, Nawada on 01.07.2005 and further, the original thereof is lacking. On account of non-examination of I.O., the reason thereof could not be ascertained. As has been found, the fadbeyan of PW4 was recorded at the Sadar hospital, Nawada on 01.07.2005 and further, the original thereof is lacking. On account of non-examination of I.O., the reason thereof could not be ascertained. Furthermore, As per evidence of PW4, he sustained injury while was standing in drainage, while as per PW3, in the courtyard and as such, due to non-examination of I.O., actual place of occurrence is not proved and in likewise manner, whether fardbeyan was recorded in carbon process could not properly been brought up on record though PW4, during examination-in-chief failed to depose specifically that fardbeyan was recorded in carbon process, however, exhibited his signature deposing that the present fardbeyan happens to be the carbon copy of original one over which, he had put his signature. Apart from this, examination of PWs 3,4 and 5 happens to be on the date of occurrence itself but the subsequent deposition of PW4 whereunder, he had stated at para 4 that he regained sense at night on the date of occurrence and at that very time, none of the police official were present as per para 5 of his cross-examination is a circumstance which create doubts over genuineness of the fardbeyan which, due to non-examination of I.O. remained unexplained. 17. Apart from this, the place of occurrence is also found fluctuating one after appreciating the evidence of all the PWs. PW2 had stated that when he reached at the house of Lalo, he found Lalo engaged with an altercation with Mithilesh. So, certainly, it was the house of Lalo but he failed to disclose that it was inside or outside the house of the Lalo. PW3 one of the injured, as stated above, had deposed in para 2 that at the time of occurrence, he along with his father were sitting inside his house in a courtyard, so as per his evidence, the occurrence took place inside the house while from the evidence of PW4, informant at para 4, it is evident that at the time of occurrence, he was standing in a drain. Such inconsistent version of the witnesses is indicative of the fact that they have tried to conceal or suppress the real place of occurrence which, in case of examination of I.O. would have properly been identified. Such inconsistent version of the witnesses is indicative of the fact that they have tried to conceal or suppress the real place of occurrence which, in case of examination of I.O. would have properly been identified. That has got relevance in the background of disclosure having been made by PW3 at para 5 whereunder, he had admitted that he had seen Lakhan Yadav in an injured condition at the hospital. Furthermore, he had stated that he has got no knowledge with regard to treatment of other accused persons whether it was at Nardiganj or somewhere else. He had further stated that he has got no knowledge with regard to injury over Ramji, Rakesh and Baleshwar. 18. Now, coming to the manner of occurrence, PW3 had stated that Mithilesh Yadav gave garasa blow over his father while he was assaulted by Rakesh Yadav with lathi over his head. In likewise manner, PW4 informant had deposed that during course of quarrel, Mithilesh gave garasa blow over his head while Rakesh gave garasa blow over Upendra. Neither PW3 nor PW4 had deposed that they were assaulted by others by means of lathi and on account thereof, presence of injuries over their person by means of hard and blunt substance found by PW5; the doctor is found completely unexplained and the cumulative effect thereof suggest that prosecution might have sustained the aforesaid injury in different manner of occurrence at different place which has purposely been withheld. That being so, as well as considering the deficiency in the prosecution case on account of non-examination of the I.O. causing prejudice to the interest of the appellant, the impugned judgment of conviction and sentence would not survive, consequent thereupon, is set aside. 19. Appeal is allowed. Appellants are on bail, hence, are directed to be discharged with immediate effect.