JUDGMENT : Heard Mr. Anurag Kashyap, learned counsel appearing for the appellants and Mr. V. K. Tiwari, learned Addl. Public Prosecutor for the State. 2. The instant Criminal appeal has been preferred against the Judgment of conviction dated 18.12.2003 and order of sentence dated 22.12.2003, passed in Sessions Trial No.376 of 1997 passed by the learned 4th Addl. Sessions Judge, Palamau, Daltonganj whereby both the appellants have been convicted for the offence punishable under Section 394 of the Indian Penal Code and awarded rigorous imprisonment for five years, although by the same impugned judgment, both the appellants have been acquitted of the charge under Section 307 of the Indian Penal Code. 3. The appeal has been preferred before this Court on 14.01.2004 against the said impugned judgment and the prayer for suspension of sentence by grant of bail has been allowed vide order dated 16.04.2004 and since then, the appeal is pending before this Hon'ble Court. 4. The prosecution case is based upon the 'fardbeyan' of Surendra Singh (P.W.6), recorded by Sub Inspector of Police, Satbarwa Out Post on 04.03.1996 at 7.30 a.m. wherein the informant has stated that on 03.03.1996 at around 6.30 p.m., while he along with his mother were returning from Khelari Colliery to their village – Kundelwa, at about 6.30 p.m., when they reached near the bridge at Kundelwa, 3-4 persons came out, one person was having pistol and demanded money from them. In the meantime, another person assaulted the informant on his neck and other accused persons assaulted them with fists and slaps. The informant has identified one of the accused, Kamta Singh of Village-Newi, who is son-in-law of Satyanarayan Singh, resident of Kundelwa and has taken Rs.2200/-from her mother and also the golden nose pin worth Rs.150/-of the mother. The informant has subsequently identified, one of the accused persons, as Tinku Singh, S/o Raja Ram Singh, resident of Village – Kundelwa, who has taken H.M.T. Bijay Wrist Watch of the informant and fled away. The informant has disclosed that Kamta Singh was wearing pant, shirt and shoes and the other accused persons were also wearing pant and shirt. The informant along with his mother came to their house and disclosed the occurrence to villagers, Bindeshwar Singh and Surender Singh. As it was night, they could not go to the Out Post and in the morning, they went there and 'fardbeyan' was recorded. The informant along with his mother came to their house and disclosed the occurrence to villagers, Bindeshwar Singh and Surender Singh. As it was night, they could not go to the Out Post and in the morning, they went there and 'fardbeyan' was recorded. The informant has claimed to identify the accused persons. On the basis of the aforesaid 'fardbeyan' of Surendra Singh, informant, the Police instituted First Information Report, being Sadar P.S. Case No. 88 of 1996 (dated 04.03.1996) corresponding to G.R. No.260 of 1996 under Section 394 of the Indian Penal Code. 5. After investigation, the Police has been submitted charge-sheet against both the appellants vide Charge-sheet No.97 of 1996 dated 30.09.1996 under Sections 323, 325 and 307 of the Indian Penal Code and not under Section 394 of the Indian Penal Code. 6. Cognizance of the offence has been taken vide order dated 11.12.1996 and the case has been committed to the Court of Sessions vide order dated 06.09.1997. The learned trial court has framed the charge under Sections 394 and 307 of the Indian Penal Code vide order dated 1st July, 1998, to which the accused persons pleaded their innocence and thus, they are put under trial. 7. The prosecution, in order to prove its case, has examined altogether eleven witnesses and also exhibited a number of documentary evidences in support of its case. Dhanukdhari Singh has been examined as P.W.1, Sheo Singh has been examined as P.W.2, Jag Sahay Singh has been examined as P.W.3, Basudeo Singh has been examined as P.W.4, all these four witnesses have been declared hostile by the prosecution. Mohiuddin has been examined as P.W.5. This witness is a hearsay witness, who has stated that a quarrel took place between the villagers of Newi and Kundelwa. Surendra Singh (informant of the case) has been examined as P.W.6. This witness has reiterated his 'fardbeyan' during examination-in-chief, but has exaggerated the same by saying that the accused persons have concealed their identification by means of 'Gamcha', but he could identify the accused on the basis of their voice and face. Such statement was not made in the First Information Report. This witness has reiterated his 'fardbeyan' during examination-in-chief, but has exaggerated the same by saying that the accused persons have concealed their identification by means of 'Gamcha', but he could identify the accused on the basis of their voice and face. Such statement was not made in the First Information Report. This witness has categorically stated, that he has disclosed about the occurrence to the co-villagers, but curiously enough, none of the co-villagers supported the case of robbery, rather P.W.5 (Mohiuddin) has categorically stated, that he has heard that quarrel took place between the villagers of Newi and Kundelwa. Dr. Gyan Prakash Singh has been examined as P.W.7. This witness has found three injuries on the person of the informant and injury No.III is caused by sharp-cut weapon, but from perusal of the fardbeyan and deposition of informant as no such weapon has been mentioned. Budhani Devi, mother of the informant, has been examined as P.W.8. She has supported the version of the informant, but has also not stated about any sharp cut instrument or weapon used in commission of offence. Manoj Kumar, Advocate Clerk, has been examined as P.W.9. This formal witness has proved the signature of officer-in-charge on fardbeyan, as Exhibit-3. Bhola Prasad, Advocate Clerk has been examined as P.W.10. This formal witness has proved formal First Information Report as Exhibit-4. Vyomkesh Tiwari, Advocate Clerk has been examined as P.W.11. This formal witness has proved case diary from Paragraph 1 to 73 with signature of Sub-Inspector as Exhibit-5. 8. After closure of the prosecution case, the appellants have been examined under Section 313 Cr.P.C. on 11.11.2003 to which they denied and examined Jag Sahay Singh as D.W.1 although said Jag Sahay Singh has already been examined by the prosecution as P.W.3 and has been declared hostile by the prosecution. 9. Mr. Anurag Kashyap, learned counsel appearing for the appellants has drawn attention of this Court with respect to the evidence of P.Ws.1 to 4 who have been declared hostile by the prosecution. 9. Mr. Anurag Kashyap, learned counsel appearing for the appellants has drawn attention of this Court with respect to the evidence of P.Ws.1 to 4 who have been declared hostile by the prosecution. P.W.5 (Mohiuddin) has categorically stated, that he heard that resident of two villages have quarrelled and P.W.6 (Surendra Singh) has submitted that the accused, Tinku Singh @ Pradip Singh and informant (Surendra Singh) are co-villagers, as it appears from their address and it is alleged that a co-villager has committed robbery with another co-villager, at the way to their own village, on a market day and none of the witnesses have supported the case of the prosecution except the informant (Surendra Singh) and his mother, who are highly interested witnesses. Learned counsel appearing for the appellants has drawn attention of this Court, that Investigating officer of this case has not been examined and as such, non-examination of the Investigating officer has caused serious prejudice to the appellants, as the Investigating officer after institution of the case under Section 394 of the Indian Penal Code, has submitted charge-sheet under Section 307 Indian Penal Code and not under Section 394 Indian Penal Code. The appellants have not been given opportunity to cross-examine the investigating officer and drawn attention with respect to the materials collected during investigation as the charge-sheet has been submitted under Section 307 I.P.C. and not under Section 394 I.P.C. Non-examination of the Investigating Officer has not provided an opportunity to the appellant to elucidate the facts with respect to their innocence and as such, the impugned judgment of conviction and order of sentence is bad in law and cannot be sustained in the eyes of law, so far conviction of the appellants under Section 394 Indian Penal Code is concerned. 10. He further submits that Dr. Gyan Prakash Singh, Medical officer has been examined as P.W.7 and he has proved the injury report of injured, Surendra Singh as Exhibit-2. This injury report may prove the case under Section 307 Indian Penal Code or minor Section of the Indian Penal Code, but certainly not a piece of evidence for convicting the appellants under Section 394 Indian Penal Code apart from this injury report shows injury No.III caused by sharp-cut weapon, which is beyond the case of prosecution itself. Budhani Devi (mother of the informant), one of the victims has been examined as P.W.8. Budhani Devi (mother of the informant), one of the victims has been examined as P.W.8. She has reiterated the statement of her son. From the evidence of this witness, her credential, as a witness is highly doubtful. She seems to be interested witness of this case. If the prosecution case, as made out by P.W.6 (Surendra Singh) and P.W.8 (Budhani Devi) are taken to be true, then while snatching the nose-pin of the victim (P.W.8), there might have been injury caused upon the victim, but that is not at all the case of the prosecution, normally in a case of robbery, while snatching the articles some injuries are caused upon the victim, which is completely lacking in this case that is the reason the Police after investigation has submitted charge-sheet under Section 307 Indian Penal Code. Non-examination of the Investigating officer has certainly caused serious prejudice to the appellant, as the appellant has not been afforded proper opportunity to cross-examine to elucidate the certain facts. 11. Manoj Kumar has been examined as P.W.9, Bhola Prasad has been examined as P.W.10 and Vyomkesh Tiwari has been examined as P.W.11. P.W.9, P.W.10 and P.W.11 are Advocate's Clerk, who have formally proved the signature and hand-writing of the Sub Inspector of the Police, on the 'fardbeyan' as Exhibit-3, Formal First Information Report as Exhibit-4 and original case diary from Paras 1 to 73 as Exhibit-5, though the case diary ought not to have exhibited by the learned trial court. 12. The defence has examined Jag Sahay Singh as D.W.1, although said Jag Sahay Singh has already been examined by the prosecution as P.W.3 and has been declared hostile by the prosecution. Since Jag Sahay Singh has been examined as D.W.1 and his evidence as P.W.3 being hostile. The evidence of this witness has some relevancy for the present case. This witness has categorically stated in para-7 of his cross-examination, that on the alleged date of occurrence and at the time of occurrence up to 8 p.m., he was at his paddy field near the place of occurrence, but no incident had taken place near the bridge. 13. The evidence of this witness has some relevancy for the present case. This witness has categorically stated in para-7 of his cross-examination, that on the alleged date of occurrence and at the time of occurrence up to 8 p.m., he was at his paddy field near the place of occurrence, but no incident had taken place near the bridge. 13. Learned counsel appearing for the State could not explain, from the materials available on record that, how the evidence of D.W.1, who has been examined as P.W.3 and has been declared hostile, cannot be relied upon by this Court for giving benefit of doubt, in favour of the appellants. 14. Heard, Mr. Anurag Kashyap, learned counsel appearing for the appellant and Mr. V. K. Tiwari, learned Addl. Public Prosecutor appearing for the State and having gone through the records, i.e. First Information Report, Evidence, exhibits and evidence of the defence, it appears that non-examination of the Investigating officer has caused serious prejudice to the appellant, as the Investigating officer, who has lodged the First Information Report under Section 394 Indian Penal Code has submitted charge-sheet under Sections 307 Indian Penal Code and not under Section 394 I.P.C. The exhibit which has been wrongly mentioned as Exhibit-5, as the case diary ought not to have been exhibited by the learned trial court and it is not case under Section 394 Indian Penal Code. The witness namely, Mohiuddin, who has not been declared hostile by the prosecution, has categorically stated that there was quarrel between the villagers of Village-Newi and Village-Kundelwa. These materials are sufficient, coupled with the evidence of D.W.1 (Jag Sahay Singh), that on the alleged date of occurrence, no incident had taken place near the bridge, as such, this Court is of the opinion that the prosecution has not proved the case against the appellants beyond all reasonable doubt. Thus, the benefit of doubt is granted to the appellants, as such, the appellants are acquitted of the charge under Section 394 I.P.C., for which they have been convicted by the learned trial court. 15. Accordingly, the Judgment of conviction dated 18.12.2003 and order of sentence dated 22.12.2003, in Sessions Trial No.376 of 1997, passed by the learned 4th Addl. Sessions Judge, Palamau, Daltonganj, is not sustainable in the eyes of law, as such, the same is hereby set aside. 16. 15. Accordingly, the Judgment of conviction dated 18.12.2003 and order of sentence dated 22.12.2003, in Sessions Trial No.376 of 1997, passed by the learned 4th Addl. Sessions Judge, Palamau, Daltonganj, is not sustainable in the eyes of law, as such, the same is hereby set aside. 16. The appellants are already on bail and as such, they are discharged from the liabilities of their bail bonds. 17. Accordingly, the instant appeal stands allowed. 18. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.