JUDGMENT : The instant Criminal Appeal has been preferred against judgment of conviction dated 18.11.2003 and order of sentence, dated 20.11.2003, passed by learned Additional Judicial Commissioner, Fast Track Court No. 10, Ranchi, in Sessions Trial No. 338/02/ Trial Register No. 256/03, whereby two appellants above named have been convicted by the learned Trial Court for offence punishable under Sections 307/34, 323, 324, 450 of the Indian Penal Code and Sections 27/35 of the Arms Act and awarded rigorous imprisonment for four years for offence under Sections 307/34 of the Indian Penal Code each, three years rigorous imprisonment for offence under Section 450 of the Indian Penal Code each, two years rigorous imprisonment for offence under Sections 27/35 of the Arms Act each. The appellant No. 1 Bimal Oraon has been convicted for offence committed under Section 323 of the Indian Penal Code and awarded further sentence for one year rigorous imprisonment for the offence committed under Section 323 of the Indian Penal Code and (appellant no. 2) Kunwar Baraik has been convicted for offence committed under Section 324 of the Indian Penal Code and awarded further sentence of two years rigorous imprisonment for offence committed under Section 324 of the Indian Penal Code and all the sentences are directed to run concurrently. 2. The prosecution case is based upon the fardbeyan of Surendra Mahto (P.W. 3) recorded by S.I. Ramanuj Singh of Namkum Police Station, where informant has alleged, that on 04.11.2001 at around 7.00 pm, he was sitting in his shop, when suddenly three persons entered from northern direction and out of three persons, he could identify one person, who is a co-villager, appellant no. 2 Kunwar Baraik and two other persons were not known to the informant. It is further stated that one of the accused-appellant fired upon the informant but that has missed. Subsequently he was assaulted by ‘butt’ on the nose causing injury. Kunwar Baraik (appellant no. 2) has assaulted the informant by chhura (knife) first on the left side of the chest and second on the right palm. On brawl raised by the informant, his younger brother, Narendra Mahto came and he caught hold of the person, who was having pistol. In the scuffle, the co-villager, Manoj Mahto, Arun Mahto, Bhola Munda, Yaddu Baraik, Sunder Baraik and others have also supported in overpowering the accused person. On brawl raised by the informant, his younger brother, Narendra Mahto came and he caught hold of the person, who was having pistol. In the scuffle, the co-villager, Manoj Mahto, Arun Mahto, Bhola Munda, Yaddu Baraik, Sunder Baraik and others have also supported in overpowering the accused person. The accused, who was caught along with the country made pistol having cartridge disclosed his name as Bimal Uron (appellant no. 1) and the accused, who fled away along with the bomb like object, his name has been disclosed by the accused apprehended as Sukra Baraik the third accused was having chhura, is a co-villager of the informant, Kunwar Baraik. Said apprehended accused, Bimal Uraon has disclosed that they were called by Kunwar Baraik for killing the informant but he was caught. The reason behind the occurrence as alleged by the informant is, that he has taken a land on lease at Namkum, Tupudana road for constructing a house and for that Kunwar Baraik (appellant no. 2) was asking a rangdari tax and because of non-payment of the same, and Kunwar Baraik has constructed a jhopdi adjacent to his house in the north. The informant has further alleged that Kunwar Baraik (appellant no. 2) having criminal behaviour and was also in custody and has been released on bail one month ago in a murder case. The informant has claimed that his co-villager Kunwar Baraik (appellant no. 2) with intention to kill has called two persons with country made pistol and have assaulted him, causing injury by chhura and the accused Bimal Uraon (appellant no. 1) has been caught by the villagers along with country made loaded pistol and has been handed over to the police. The informant has further stated that Bimal Uraon (appellant no. 1) has also sustained some injury during scuffle. 3. On the basis of the fardbeyan, police instituted Namkum P.S. Case No. 170/2001 dated 04.11.2001, under Sections 323, 324, 307, 450, 34 of the Indian Penal Code and 25 (1-b) A/27 of the Arms Act and 3/4 of Explosive Substance Act. After investigation the police submitted charge sheet vide charge sheet no. 153 of 2001 dated 27.12.2001 under Sections 386, 324, 307, 450 of the Indian Penal Code and 25 (1-b), 26, 27, 35 of the Arms Act but no charge sheet has been submitted under the Explosive Substances Act against Bimal Uraon and Kunwar Baraik. 4. After investigation the police submitted charge sheet vide charge sheet no. 153 of 2001 dated 27.12.2001 under Sections 386, 324, 307, 450 of the Indian Penal Code and 25 (1-b), 26, 27, 35 of the Arms Act but no charge sheet has been submitted under the Explosive Substances Act against Bimal Uraon and Kunwar Baraik. 4. That the cognizance of the offence has been taken on 04.03.2002 and the case has been committed to the court of Sessions on 11.07.2002. 5. That charge has been framed against both the appellants on 25.07.2002 under Sections 307/34, 323, 324, 450 and 386 of the Indian Penal Code with 25(1-B), 26, 27 and 35 of the Arms Act. The appellants pleaded their innocence and thus they are put under trial. 6. The prosecution has examined altogether nine witnesses to prove its case. The prosecution has also adduced and proved a number of documentary evidences which have been proved and marked as exhibits. 7. Narendra Mahto has been examined as P.W. 1, Manoj Mahto has been examined as P.W. 2, Surendra Mahto (victim and informant of the case), has been examined as P.W. 3, Bhola Munda has been examined as P.W. 4, Etwa Munda has been examined as P.W. 5, Sunder Baraik has been examined as P.W. 6, Yaddu Baraik has been examined as P.W. 7, Dr. Badri Pd. Gupta, who has examined the victim, Surendra Mahto, has been examined as P.W. 8, Robert Toppo, an advocate clerk being a formal witness has been examined as P.W. 9. 8. Badri Pd. Gupta, who has examined the victim, Surendra Mahto, has been examined as P.W. 8, Robert Toppo, an advocate clerk being a formal witness has been examined as P.W. 9. 8. The signature of Narendra Mahto (P.W. 1) has been proved and marked as Exhibit- 1, the signature of the seizure witness Manoj Mahto, on the seizure list of the remnant of the bomb has been proved and marked as Exhibit-1/2, injury report of Surendra Mahto (P.W. 3) examined by doctor Badri Prasad Gupta, Medical Officer, Incharge, Primary Health Centre, Namkum has been proved and marked as Exhibit-2, fardbeyan of the informant Surendra Mahto has been proved and marked as Exhibit- 3, formal F.I.R. bearing signature of Officer-in-charge, Choudhary Prakash Narayan has been proved and marked Exhibit-3/1, seizure list of remnant of the bomb has been proved and marked as Exhibit- 4, the seizure of country made pistol having length of 3”, butt of 4” with cartridge, special bore has been proved and marked as Exhibit-4/1 and the signature of Manoj Mahto in the seizure list of country made pistol and cartridge, special bore has been proved and marked as Exhibit-1/3, signature of seizure witness Etwa Munda on the same has been proved and marked as Exhibit-1/5 and signature of Narendra Mahto, who has produced the same has been proved and marked as Exhibit-1/1, the seizure list of Namkum Police Station written and signed by A.S.I. Ramanuj singh has been marked as Exhibit 4 and 4/1. After closure of the prosecution evidence the appellants/accused have been examined under Section 313 Cr.P.C. and after hearing the parties, the learned Trial Court has passed the impugned judgment of conviction and order of sentence. 9. Heard, learned Amicus Curiae, Mr. Rupesh Singh on behalf of the appellant. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the present case. The learned amicus curiae has further submitted that from perusal of the First Information Report, it appears that the appellant Bimal Oraon (appellant no. 1) was caught by the villagers along with country made pistol. The learned amicus curiae has further submitted that from perusal of the First Information Report, it appears that the appellant Bimal Oraon (appellant no. 1) was caught by the villagers along with country made pistol. But from perusal of the First Information Report, it was a country made single barrel pistol loaded with a cartridge, and the informant has alleged that when the accused persons entered into the shop, the accused, Bimal Oraon, who was having pistol, fired but that missed. The Forensic Expert in this case has not been examined to suggest that the country made pistol having cartridge was a missed cartridge or was having a live cartridge and as such, the benefit of doubt must go in favour of the appellant. Learned Amicus Curiae has further submitted that, as per the prosecution case Bimal Oroan (appellant no. 1) has also sustained injury, while scuffling with the prosecution party, but no injury report has been brought on record to substantiate that Bimal Oraon has sustained such injury and non-examination of the investigating officer has caused serious prejudice to the appellants, as the appellants have not been afforded opportunity to cross-examine him to elucidate the material to prove their innocence. Apart from this, no explanation regarding the injury upon Bimal Oraon, coupled with the missed cartridge, and the scattering of articles of the shop are concerned, if scuffle has taken place inside the shop, as per the prosecution case there must be sign of scuffle or scattering of articles of the shop and as such non-examination of the investigating-officer is fatal for the prosecution case. Learned Amicus Curiae has further submitted that if a person had intention to kill the person, he will stab on the vital part of the body not on the axilla. Learned Amicus Curiae has further submitted that, as per the prosecution case, the informant Surendra Mahto has said that Kunwar Baraik, who is a co-villager came with a ‘chhura’ and has first stabbed on the left side of the chest and subsequently on the right palm of the informant but from perusal of the Exhibit-2, which is the injury report of Surendra Mahto, the doctor has found four incised injuries, which are on below and middle to axilla, left little finger and on the surface of the left elbow and two lacerated injuries, swelling on the nose and bleeding from the forehead. Learned counsel Amicus Curiae, has submitted that from perusal of the injury report of Surendra Mahto (Exhibit-2), the allegation, which has been levelled in the First Information Report or the evidence brought during the trial, is not in consonance with the injury report and as such, the benefit of doubt may be granted in favour of the appellant, Kunwar Baraik. Learned Amicus Curiae, has further submitted, that it is a case, where the allegation has been levelled against a co-villager for demand of ‘rangdari’ for constructing a house by the informant but no such police report or any complain was produced in the court. Learned Amicus Curiae has further submitted, that non-examination of the investigating officer has caused serious prejudice to the appellant by not providing an opportunity to Kunwar Baraik to prove his innocence, as Kunwar Baraik has been alleged to have assaulted twice to the informant and on allegation that he has constructed a hut on the north side, adjacent to the house of the informant, as such because of non-examination of the investigating officer has caused serious prejudice as no opportunity was given to defence to cross-examine the investigating officer to elucidate the fact and to prove his innocence. Learned Amicus Curiae has further submitted that since Kunwar Baraik, has been alleged to cause two injuries but the doctor, who has been examined in this case, as P.W. 8 has found six injuries but all injuries are simple in nature, which has been proved and marked as Exhibit-2. Learned Amicus Curiae, thus submitted, that instead of convicting the appellant under Sections 307/34 of the Indian Penal Code, at best the appellant may only be convicted for offence alleged under Section 324 of the Indian Penal Code or the benefit of doubt may be given to the appellant, Kunwar Baraik, as six injuries have been found on the body of the victim, Surendra Mahto is not in consonance with the prosecution case. Learned Amicus Curiae, has drawn the attention of this court towards the deposition of Narendra Mahto (P.W. 1), the attention of this court towards discrepancies, whether the Bimal Oraon (appellant no. Learned Amicus Curiae, has drawn the attention of this court towards the deposition of Narendra Mahto (P.W. 1), the attention of this court towards discrepancies, whether the Bimal Oraon (appellant no. 1) was caught inside the shop or outside the shop, as Narendra Mahto (P.W. 1) has said that Bimal Oraon has sustained some injury but the same has been contradicted by Manoj Mahto (P.W.2), who has categorically stated that neither Narendra Mahto nor Bimal Oraon have sustained any injury, in the scuffle and as such, learned Amicus Curiae has submitted that the evidence of Narendra Mahto (P.W. 1) and Manoj Mahto (P.W. 2) are contradictory to each other. Learned Amicus Curiae, has drawn the attention of this court towards the evidence of Surendra Mahto, who is the informant of this case. It appears from the evidence of Surendra Mahto (P.W. 3), informant and victim of this case, that a firing was made and that missed. He (informant) has not categorically stated, whether the firing was made and hit some place, not hitting the target, or the firing was not made from the seized cartridge and as such, non-examination of the Blastic Expert or Investigating Officer is fatal in this case, as the prosecution has not come with clean hands. Learned Amicus Curiae, has further submitted that as per the prosecution case, Kunwar Baraik fled away, but there is no evidence that while fleeing away, Kunwar Baraik has left the chhura or the chhura was fallen from his hand, which was seized by the police. It is a case of false implication of the appellants at the hands of Surendra Mahto, who has a shop under the Namkum Police Station and in connivance with the police officer by implanting the fire arm without having any proof, regarding its workable condition along with a knife. The appellants have been falsely implicated. The investigating officer or Blastic expert have not been examined by the prosecution, so as the defence could have elucidated the fact from the mouth of the investigating officer or Blastic expert regarding weapon, its seizure and the same belongs to the appellants. The appellants have been falsely implicated. The investigating officer or Blastic expert have not been examined by the prosecution, so as the defence could have elucidated the fact from the mouth of the investigating officer or Blastic expert regarding weapon, its seizure and the same belongs to the appellants. Learned Amicus Curiae, has further submitted, that the fire arm and the cartridge, which were seized by the police has not been sent before the forensic expert to have its opinion about the workable condition of the fire arm as well as about the nature of the cartridge, whether that was missed or not or that was a live cartridge and can be used by such country made pistol as such, the benefit of doubt may be given to the appellants. Learned Amicus Curiae, has further submitted that in the advanced stage of investigation, the finger print found on the fire arm and the chhura must have been proved by the prosecution, which has not been proved in this case nor the investigating officer has been examined in this case as country made pistol and chhura have been produced by the prosecution side to the police officer and as such false implication cannot be overruled. 10. Bhola Munda has been examined, as P.W. 4. This witness has categorically stated during cross-examination that he has come along with Surendra Mahto for his deposition. He has categorically stated that before his statement in the court, no statement was recorded, as such it appears that this witness is a person whose statement under 161 Cr.P.C. has not been recorded by the police. Learned Amicus Curiae, has submitted that since his statement has not been recorded by the police under Section 161 Cr.P.C., his evidence in the court is meaningless. Learned amicus curiae, has further submitted that the non-examination of the investigating officer has caused serious prejudice to the appellants as the appellants could not draw their attention about these admission made by Bhola Munda (P.W.4) that his statement has not been recorded under Section 161 Cr.P.C. 11. Etwa Munda (P.W. 5) has been declared hostile by the prosecution. 12. Sunder Baraik has been examined as P.W. 6 and has been declared hostile by the prosecution. 13. Yaddu Baraik has been examined as P.W. 7. This witness has stated during cross-examination that he has not seen any person assaulting the victim. 14. Dr. Etwa Munda (P.W. 5) has been declared hostile by the prosecution. 12. Sunder Baraik has been examined as P.W. 6 and has been declared hostile by the prosecution. 13. Yaddu Baraik has been examined as P.W. 7. This witness has stated during cross-examination that he has not seen any person assaulting the victim. 14. Dr. Badri Prasad Gupta has been examined as P.W. 8. He is the medical officer and proved the injury report of Surendra Mahto as Exhibit-2 but has categorically stated that all injuries are simple in nature and the injury was already covered with bandage. The doctor has found six injuries (four incised-2 lacerated) and proved the injury report as Exhibit-2, which is carbon copy. This witness has further submitted that all the injuries were simple in nature. During cross-examination, this witness has said that injured came with Bandage. 15. Learned Amicus Curiae, has submitted that carbon copy of the injury report was brought on record and not the original. He has further submitted that as per the prosecution case, Surendra Mahto was twice assaulted by Kunwar Baraik by means of chhura but the doctor has found four sharp cut injuries, which has not been explained by the prosecution. Learned Amicus Curiae, has further submitted that all the injuries were simple in nature and the injured came with bandage meaning thereby that initial treatment was given at some other place. Learned Amicus Curiae has submitted that injury report is not in consonance with the prosecution case, for convicting the appellant Kunwar Baraik under Section 324 of the Indian Penal Code. 16. Robert Toppo (P.W. 9), Advocate clerk, being a formal witness has proved the signature of Ramanuj Singh (Sub-Inspector), on the fardbeyan as Exhibit-3, the endorsement of the Officer-in-Charge, Choudhary Prakash Narayan on the formal F.I.R. as Exhibit-3/1 and the production cum seizure list of Namkum Police Station bearing signature of the Sub-Inspector, Ramanuj Singh as Exhibit-4 and 4/1. During cross-examination, this witness has said that none of the documents have been written in his presence nor he has said that on what date it was written. Learned amicus curiae has further submitted that this witness is not a competent witness to prove all these documents and as such these documents cannot be considered as prosecution material for convicting the appellant. 17. Learned counsel for the State, Mr. Learned amicus curiae has further submitted that this witness is not a competent witness to prove all these documents and as such these documents cannot be considered as prosecution material for convicting the appellant. 17. Learned counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence is based on material available on record, as Bimal Oraon was caught by the residents along with loaded pistol and Kunwar Baraik has been identified by the informant as a co-villager having ‘chhura’ and has assaulted the informant but from material available on record, he could not explain, that how six injuries were found on the person of Surendra Mahto. Learned counsel for the State, Mr. Tapas Roy, has submitted that since Kunwar Baraik has a criminal antecedent, his sentence has been rightly passed by the learned Trial Court. 18. Heard, learned Amicus Curiae for the appellants, Mr. Rupesh Singh and counsel for the State Mr. Tapas Roy, Additional Public Prosecutor and from perusal of the First Information Report, charge, deposition of the witnesses, statement of the appellants recorded under Section 313 Cr.P.C. and the impugned judgment, this court is of the opinion that in the First Information Report, the informant Surendra Mahto (P.W. 3) has stated that he was twice assaulted by Kunwar Baraik, co-villager, whom he has identified, but from the medical report which is Exhibit-2, six injuries were found, at best, informant can sustain three injuries. One assaulted by ‘butt’ of pistol by Bimal Oraon, co-convict, but six injuries has not been explained by the prosecution, as to how the same has been caused by the appellants. From perusal of the evidence, it appears that the arms were produced by the prosecution side to the police officer but said arms has not been examined by the experts to establish that it was in a workable condition to substantiate that the same has been used but missed. The submission of the learned Amicus Curiae is also well founded, he has submitted that the cartridge which has been recovered is a missed-cartridge. To substantiate the case of prosecution, as the same cartridge has been used but no mark was found on the same, that cartridge which has been found has hit some place. The submission of the learned Amicus Curiae is also well founded, he has submitted that the cartridge which has been recovered is a missed-cartridge. To substantiate the case of prosecution, as the same cartridge has been used but no mark was found on the same, that cartridge which has been found has hit some place. The prosecution case is that, firing was made which has missed and then the cartridge will be found to be a missed cartridge but since in the absence of any forensic report, the same has not been substantiated. Apart from this investigating officer of this has not been examined in this case to prove the prosecution case and has caused serious prejudice to the appellants as the appellants could not draw the attention of the investigating officer with respect to the discrepancies found in the prosecution case and shop. Learned Amicus Curiae has submitted that if a person has been assaulted twice by sharp cut weapon, he cannot sustain four sharp cut injuries. If a person is assaulted by ‘butt’ on the nose, he cannot sustain two injuries of laceration. The finger print expert has not examined in this case to substantiate, whether the revolver, which has been implanted by the prosecution side for falsely implicating Bimal Oraon or the chhura, which has been used by Kunwar Baraik, have not been proved by the prosecution by examining expert, that the same belongs to the Kunuwar Baraik and has been used by Kunwar Baraik against Surendra Mahto. This court is of the opinion that under such background conviction of the appellants is not justified and the benefit of doubt is given to the appellants as non-examination of the investigation officer of the case has caused serious prejudice to the appellants. The prosecution has not proved its case beyond all reasonable doubts. There are certain clouds which creates doubt in the mind of the court. Thus, both the appellants are acquitted by giving benefit of doubt. 19. The prosecution has not proved its case beyond all reasonable doubts. There are certain clouds which creates doubt in the mind of the court. Thus, both the appellants are acquitted by giving benefit of doubt. 19. In the result, the impugned judgment of conviction dated 18.11.2003 and order of sentence, dated 20.11.2003, passed by learned Additional Judicial Commissioner, Fast Track Court No. 10, Ranchi, in Sessions Trial No. 338/02, in connection with Namkum P.S. Case No. 170/2001 corresponding to G.R. No. 3150/2001 is hereby set-aside and the appellants are acquitted of the charges under Sections 307/34, 323, 324, 450 of the Indian Penal Code and under Sections 27/35 of the Arms Act by giving benefit of doubt. 20. The appellants, who are on bail, are discharged from liability of their bail bonds. 21. Accordingly, the present criminal appeal is allowed. 22. Let a copy of this order be handed over to the member Secretary, JHALSA to pay remuneration to Mr. Rupesh Kumar, learned Amicus Curiae. This Court appreciates, the assistance provided by the learned amicus curiae. 23. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.