JUDGMENT : Heard learned counsel for the appellants as well as learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction and sentence dated 08.02.2013 passed by 1st Additional Sessions Judge Cum Special Judge, Nalanda, Biharshariff in Sessions Trial No. 319 of 2009 arising out of SC/ST Case No. 14 of 2008, whereby the learned trial court convicted the accused, namely, Pappu Singh @ Lambu, Pappu Singh and Shailendra Ram for the offence punishable under Sections 323 and 427 of the Indian Penal Code and Section 3(i) (XI) of the S.C. S.T. Act and sentenced them to undergo S.I. for six months each under Section 323 of the Indian Penal Code and S.I. for three months each under Section 427 of the Indian Penal Code and S.I. for six months each under Section 3(i) (XI) of the S.C. S.T. Act. All the sentences were directed to run concurrently. 3. Factual matrix of the case is that S.C.S.T Case No. 14 of 2008 was instituted under Sections 341, 323, 448, 354, 380, 427 and 504/34 of the Indian Penal Code and Sections 3(i) (X) (XI) of the S.C.S.T. Act against the accused persons, namely, Pappu Singh, Son of Late Lal Singh, Pappu Singh, Son of Dayanand Singh and Shailendra Ram on the basis of the written report of Usha Devi, W/o Arjun Chaudhary with the case in succinct that on 26.07.2008 at around 04:00 PM while she was sitting in the lane located in front of her house, in the meantime Pappu Singh son of Late Lal Singh, Pappu Singh son of Dayanand Singh and Shailendra Ram armed with lathi and danda arrived there to consume toddy and demanded toddy from her husband and on his refusal to oblige them they slated them in the name of their caste and started assaulting her husband by means of lathi. When she rushed in his rescue, they also slated her and assaulted her and extended threatening of ousting from the village. Further allegation is that on the same day at around 06:00 PM, aforesaid accused persons descended at her house and looted away cereals worth Rs 5000/-, ornaments worth Rs 10,000/- and cash of Rs. 15,000/- and damaged the utensils. When she rushed in his rescue, they also slated her and assaulted her and extended threatening of ousting from the village. Further allegation is that on the same day at around 06:00 PM, aforesaid accused persons descended at her house and looted away cereals worth Rs 5000/-, ornaments worth Rs 10,000/- and cash of Rs. 15,000/- and damaged the utensils. The bone of contention is said to be that Pappu Singh runs a country made liquor shop due to which he has committed the occurrence arriving at her house in the pretext of toddy. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge sheet against the aforesaid accused persons under Sections 341, 323, 448, 354, 427 and 504/34 of the Indian Penal Code and Sections 3(i) (X) (XI) of the S.C.S.T. Act. 5. On receiving the charge sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment and on transfer finally the case came in the seisin of 1st Additional Sessions Judge Cum Special Judge, Nalanda, Biharshariff for trial. 6. Charge against the accused persons was framed under Sections 452, 323/34, 427 and 380 of the Indian Penal Code and Sections 3(i) (XI) and 3(i) (X) of the S.C. S.T. Act. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Arjun Choudhary as PW-1, Dhano Devi as PW-2, Fakir Chand Choudhary as PW-3, Rinku Devi as PW-4, informant Usha Devi as PW-5, Dilip Choudhary as PW-6, Paras Singh as PW-7, Ganesh Ram @ Dahadu as PW-8 and Sachchu Ram as PW-9. Out of the aforesaid witnesses, PW-6, PW-7, PW-8 and PW-9 turned hostile. 8. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Accused persons neither adduced any ocular or documentary evidence in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Accused persons neither adduced any ocular or documentary evidence in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellants that the allegation levelled against the appellants are general and omnibus in nature and all the independent witnesses examined by the prosecution namely PW-6, PW-7, PW-8 and PW-9 turned hostile. The other witnesses happen to be the informant and her family members and they are highly interested witnesses of the case. There is vital contradiction in their statement regarding the manner of occurrence, place of occurrence, weapon used in the assault, slating the informant and her husband in the name of their caste, etc. and aforesaid inconsistent ocular evidence of the interested witnesses does not stand corroborated by any independent witness of the occurrence. It is further submitted that the occurrence is said to be of 26.07.2008, but the FIR has been lodged after inordinate delay of five days and the prosecution has not assigned any plausible and convincing reason to explain the aforesaid abnormal delay in lodging the aforesaid FIR which creates serious doubt about the prosecution case. It is further submitted that injury report of the informant and her husband has not been brought on record and the doctor has also not been examined by the prosecution. Hence for the want of the injury report and examination of the doctor, the inconsistent ocular evidence of the aforesaid witnesses also does not stand corroborated by the medical evidence. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. Hence aforesaid judgment and order of conviction and sentence passed against the appellants is liable to be set aside and the appellants are entitled to be acquitted. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. Hence aforesaid judgment and order of conviction and sentence passed against the appellants is liable to be set aside and the appellants are entitled to be acquitted. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant has supported the prosecution case in toto and other witnesses have corroborated the prosecution case by their consistent and unblemished evidence and the learned trial court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and this criminal appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case, the prosecution has examined altogether nine prosecution witnesses but out of them four witnesses namely, PW-6, PW-7, PW-8 and PW-9 turned hostile. From perusal of testimony of PW-1, PW-2, PW-3 and PW-4, it appears that though they have claimed to have witnessed the occurrence and given their statement in their respective examination-in-chief in consonance to the prosecution case but they do not happen to be the eye witness of the occurrence. As as per the prosecution case, the accused persons were armed with lathi and danda at the time of occurrence and assaulted the informant and her husband by means of aforesaid weapon but PW-2 Dhano Devi has stated in her examination-in-chief that the accused persons were armed with Paina and Khanti while PW-3 Fakir Chand Choudhary has stated in his examination-in-chief that they were armed with lathi and Paina and PW-4 Rinku Devi has not stated about any weapon used by the appellants in the occurrence. As per the prosecution case, the appellants assaulted Rinku Devi (PW-4) besides the informant in the occurrence on his refusal to provide toddy to the appellants. But PW-4 Rinku Devi has stated in her examination-in-chief that the accused persons assaulted her brother Laxman Choudhary on his refusal to accord them toddy. As per the prosecution case, the appellants assaulted Rinku Devi (PW-4) besides the informant in the occurrence on his refusal to provide toddy to the appellants. But PW-4 Rinku Devi has stated in her examination-in-chief that the accused persons assaulted her brother Laxman Choudhary on his refusal to accord them toddy. Thus the aforesaid statement of PW-2, PW-3 and PW-4 happens to be in quite contradiction to the prosecution case and creates serious doubt about witnessing of the occurrence by the aforesaid witnesses. Moreover PW-2 Dhano Devi has stated in Para-2 of her cross-examination that when she woke up in the morning, her daughter-in-law divulged her about happening of the occurrence in the night. PW-3 Fakir Chand Choudhary has stated in Para-4 of his cross-examination that the accused persons had slated and assaulted inside the hut but he did not rush there at the time of slating and assaulting scaringly and PW-4 has stated in Para-2 of her cross-examination that when she arrived at the place of occurrence immediately after the hulla, she witnessed Pappu regressing from there which means that she had not witnessed the occurrence of slating and assaulting the informant and her husband by the accused persons rather she had arrived at the place of occurrence after culmination of the occurrence at the time of departure of the accused. In the same paragraph though she has stated against the prosecution case about revisiting of the accused persons at informant’s house within 5-10 minutes instead of 2 hours but in Para-3 of her cross-examination she has stated that at the time of their arrival on the second time she had gone to her house and her brother Arjun had divulged the occurrence to her arriving at her but the aforesaid Arjun Choudhary (PW-1) has not corroborated the factum of divulgence of aforesaid occurrence to PW-4. Hence for the want of corroboration, the aforesaid statement of PW-4 is not admissible in evidence even as a hearsay witness. 15. Hence for the want of corroboration, the aforesaid statement of PW-4 is not admissible in evidence even as a hearsay witness. 15. As per prosecution case, the appellants slated the informant and her husband in the name of their caste on refusal by the husband of the informant to provide them toddy but the informant Usha Devi (PW-5) has stated in her examination-in-chief that on refusal to accord toddy by her husband to the appellants, they extended him threatening of ousting from the village and also started slating him and her husband Arjun Choudhary and PW-1 has stated in Para-1 of his examination-in-chief that on his refusal to accord them toddy they extended threatening of ousting from the village and also slated him in filthy language. But neither the informant nor her husband has stated that on refusal to accord them toddy, the appellants slated them in the name of their caste. Moreover PW-3 Fakir Chand Choudhary who happens to be father of the husband of the informant has stated in Para-4 of his cross-examination that the accused persons had slated inside the hut. The aforesaid statement of PW-1, PW-3 and PW-5 eloquently indicates that the appellants had slated the informant and her husband not in the name of their caste and also not in the public view rather inside the hut. 16. As per the prosecution case, the appellants were armed with lathi and danda at the time of occurrence. But in quite contradiction to the aforesaid prosecution case, PW-1 has stated in his examination-in-chief that they were armed with pistol, lathi and bomb. The said witness happens to be dam liar as in Para-2 of his cross-examination he has stated that he has not given statement before the police under Section 161 Cr.P.C., but from perusal of the case diary it appears that I.O. has recorded his statement under Section 161 Cr.P.C. Hence, the said witness does not appear to be worth credence and reliable. 17. Informant has stated in Para-3 of her examination-in-chief that the accused persons gave 2-3 lathi blow on the back of her husband, but PW-1 has stated in Para-1 of his examination-in-chief that they gave single lathi blow to him. The informant has stated in her examination-in-chief that the appellants had assaulted only on her shoulder meaning thereby she had sustained only single blow. The informant has stated in her examination-in-chief that the appellants had assaulted only on her shoulder meaning thereby she had sustained only single blow. But in Para-11 of her cross-examination, she has stated that occurrence of assault took place for 5-10 minutes. As the accused persons were three in number and as per prosecution case they were armed with lathi and danda and assaulted the informant and her husband for 5-10 minutes then they must have sustained several injuries on their person. But as per the account of the informant and her husband, they had sustained only one lathi blow each which creates serious doubt about the prosecution case. 18. Attention of the informant towards contradiction between the statement given before the court and that given before the I.O. under Section 161 Cr.P.C. regarding giving 2-3 lathi blow on the back of her husband, giving one lathi blow on her shoulder and breaking the lock of the room has been drawn by the defence in Para-17 of his cross-examination, but I.O. of the case has not been examined by the prosecution. 19. When the I.O. of the case is not examined by the prosecution and the attention of the witnesses has already been drawn towards their earlier statements and the Investigating Officer could not be brought to give his evidence, then in my considered opinion, the Court can peruse the case diary and find out as to whether or not the attention of the witnesses towards their previous statements were correctly drawn and to satisfy itself as to whether or not they had given similar statement before police. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. The Second part of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category would come recording about the inspection of place of occurrence, making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. To this category would come recording about the inspection of place of occurrence, making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. The latter part of the case diary cannot be used by the Court unless the Investigating Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that. However the first part of the case diary consists, as already noted, the statement recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portion of the statement of the witnesses to which the attention of the witnesses was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now, the question is, whether that portion of the case diary can be looked into by the Court and used in the trial to aid the Court in reaching at a correct decision when the Investigating Officer is not brought before the Court. Sub-Section (2) of Section 172 of Cr.P.C. provides that the Court cannot only call for the case diary but may also use such diary to take aid in such trial. If the Court only has the power to look into the case diary and whatever it peruses to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the intention of the legislation. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the court cannot use any portion of the case diary as evidence. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the court cannot use any portion of the case diary as evidence. In view of the aforesaid proposition of law and in view of the contradiction between the statement of the said witness, as recorded before the court and that given before the I.O. under Section 161 Cr.P.C., the testimony of the said witness given before the court does not appear to be worth credence and reliable. From perusal of the case diary, it appears that she has not given such statement before the I.O. under Section 161 Cr.P.C. and she appears to have taken altogether different stand before the court regarding aforesaid material aspect of the case. Hence she does not appear to be worth credence and reliable and her evidence does not inspire my confidence to hold conviction of the appellants relying upon her testimony. 20. Barring four witnesses namely PW-6, PW-7, PW-8 and PW-9 who happens to be independent witnesses, none other independent witness has been examined by the prosecution and aforesaid four witnesses have turned hostile. PW-1 Arjun Choudhary has stated in Para-1 of his examination-in-chief that besides his sister Rinku Devi (PW-4) and father Fakir Chand Choudhary (PW-3), other persons, namely, Sadhu Singh, Bachu Singh, Umesh Ram and Pandit Singh are the witnesses of the occurrence. But the aforesaid independent witnesses have not been examined by the prosecution and no plausible and convincing reason has been assigned by the prosecution for their non-examination. Hence adverse inference is drawn against the prosecution. 21. From perusal of the record, it appears that PW-5 Usha Devi happens to be informant, PW-1 Arjun Choudhary husband of the informant, PW-2 Dhano Devi auntin- law of the informant, PW-3 Fakir Chand Choudhary father-in- law of the informant and PW-4 Rinku Devi sister-in-law of the informant and all are the family members and highly interested witnesses of the case. From perusal of the record, it appears that PW-5 Usha Devi happens to be informant, PW-1 Arjun Choudhary husband of the informant, PW-2 Dhano Devi auntin- law of the informant, PW-3 Fakir Chand Choudhary father-in- law of the informant and PW-4 Rinku Devi sister-in-law of the informant and all are the family members and highly interested witnesses of the case. It is settled principle of law that testimony of the interested witnesses should not be discarded out rightly rather it should be scanned and scrutinized cautiously and carefully and on cautious and careful scanning and scrutinizing of the testimony of the aforesaid witnesses, I find that there is vital contradiction between the testimony of the informant and the prosecution case and between their testimonies inter se regarding the manner of occurrence, weapon used in the occurrence, witnesses, wrapping expletives, place of occurrence and aforesaid inconsistent ocular evidence of the interested witnesses also does not stand corroborated by any independent witness of the occurrence. 22. From perusal of the record, it appears that the occurrence is said to have taken place in the evening of 26.07.2008 but written report has been given on the P.S. after abnormal and inordinate delay of five days on 01.08.2008 and FIR was lodged on the same date, but the prosecution has not assigned any plausible and convincing explanation to explain the aforesaid inordinate and abnormal delay in lodging the FIR which also goes to create serious doubt about the prosecution case. 23. Informant has stated in Para-7 of her cross-examination that she and her husband got them treated by the private doctor, but injury report of the aforesaid persons has not been brought on record and doctor has also not been examined by the prosecution. For the want of the examination of the doctor, the appellants have been deprived of the opportunity of drawing his attention regarding the nature of the injury, etc. and due to non-examination of the doctor and non-filing of the injury report, weapon used in the occurrence also could not be ascertained. Thus, the inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 24. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. Thus, the inconsistent ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 24. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellants is set aside and the appellants are acquitted from the charge levelled against them. As the appellants are on bail, they are discharged from the liability of their bail bonds. 25. Accordingly, this criminal appeal is allowed.