JUDGMENT : Aditya Kumar Trivedi, J. 1. As the learned counsel for the appellant failed to appear on account thereof, Mr. Ranbir Singh, learned advocate has been requested to assist the court as an Amicus Curiae. 2. Appellant, Kritya Nand Choudhary has been found guilty for an offence punishable under Section 341 IPC and sentenced to undergo S.I. for fifteen days, under Section 307 IPC and sentence to undergo R.I. for five years, under Section 27 of the Arms Act and sentenced to undergo R.I. for one year with a further direction to run the sentences concurrently vide judgment of conviction and order of sentence dated 10.02.2009 passed by Additional Sessions Judge, FTC, VI, Saharsa in Sessions Trial No.95/1994. 3. Bechan Kamat, PW.5 gave his fardbeyan on 25.02.1992 while he was admitted at Sadar Hospital, Saharsa in an injured condition along with his injured brother Ramdeo Kamat alleging inter alia that in usual manner while he along with Ramdeo Kamat was going to Saharsa in order to earn their livelihood, and reached near the house of Chandi Jha, Krityanand Chaudhary, Ugara Mohan Jha @ Bhutai Jha, Amar Jha, Magan Jha, Devta Jha, Malik Jha, Mauli Jha, Indu Bala Choudhary, Chandi Jha armed variously surrounded them. Out of them Krityanand Chaudhary, Ugara Mohan Jha @ Bhutai Jha, Indu Bala Chaudhary were armed with three knots (a kind of firearm) and gun who shouted 'Jan Se Maro-Jan Se Maro, Goli Chalawo' whereupon, there was firing on account of which, his brother Ramdeo Kamat became seriously injured and fell down. Then thereafter, Magan Jha, Mauli Jha and Mallik Jha shot arrows as a result of which, he himself sustained injury over his palm. On hue and cry Priybrath Kamat (PW.1), Shiv Ratan Kamat (PW.3), Sitaram Kamat (not examined), Babuwa Kamat (PW.2), Shobha Kant Pandit (not examined) along with others came seeing whom, accused persons fled away. Then thereafter, both of them were lifted to the hospital by the witnesses where they are being treated. 4. On the basis of the aforesaid fardbeyan Saur Bazar P.S. Case no.88/1992 was registered followed by investigation as well as submission of charge sheet against others while Indu Bala Choudhary was not sent up for trial whereupon, trial proceeded and concluded in a manner meeting with the ultimate result, subject matter of instant appeal. 5. 4. On the basis of the aforesaid fardbeyan Saur Bazar P.S. Case no.88/1992 was registered followed by investigation as well as submission of charge sheet against others while Indu Bala Choudhary was not sent up for trial whereupon, trial proceeded and concluded in a manner meeting with the ultimate result, subject matter of instant appeal. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been pleaded that on the alleged date and time of occurrence, in the background of long standing enmity, the prosecution party after forming an unlawful assembly armed with deadly weapon raided house of Amarnath Jha and during course thereof, assaulted them and for that on the fardbeyan of Amarnath Jha Saur Bazar P.S. Case No.87/1982 was registered. Furthermore, the injuries whatever been over the person of Ramdeo Kamat as well as informant were self-inflicted injury. Furthermore, oral as well as documentary evidence has been adduced in support thereof. 6. Six PWs have been examined on behalf of prosecution namely, PW.1-Priybrath Kamat, PW.2-Babuwa Kamat, PW.3-Shiv Ratan Kamat, PW.4-Ramdeo Kamat, PW.5-Bechan Kamat, PW.6-Dr. B.K. Singh. Side by side also exhibited, Ext.1-Injury Report, Ext.2- Fardbeyan, Ext.3-Formal FIR. In likewise manner, two Dws have also been examined namely, DW.1-Shyamlal Kishore and DW.2-Amrendra Prasad and following documents have also been exhibited, viz judgment of Title Suit No.47/1988-Ext.A, Sanha No.580 dated 14.06.1988-ext.B, Attendance Register showing presence of Krityanand Chaudhary at his office (District Rural Development Authority Saharasa)-Ext.C, Formal FIR of Saur Bazar P.S. Case No.87/1992- Ext.D, Fardbeyan of Saur Bazar P.S. Case No.87/1992-Ext.E. 7. Heard, learned Amicus Curiae as well as learned Additional Public Prosecutor. Gone through the record. PW.6, doctor has examined Ramdeo Kamat on 25.05.1992 at Sadar Hospital, Saharsa and found the following: (i) Multiple pellet injuries numbering about 25 to 35 spread over left side of anterior abdomen wall and left side of chest wall. Margin of skin was burnt and was of 1 mm in diameter and edge of injuries was lacerated. (ii) 3/4 pellet injury over left thigh. (iii) 2/3 mark of pellet injury on the left thigh anterior surface. (iv) one pellet injury over left side of forehead. (v) One lacerated wound 1"x1/8"x1/8" over left side of cheek. Margin of skin was burnt and was of 1 mm in diameter and edge of injuries was lacerated. (ii) 3/4 pellet injury over left thigh. (iii) 2/3 mark of pellet injury on the left thigh anterior surface. (iv) one pellet injury over left side of forehead. (v) One lacerated wound 1"x1/8"x1/8" over left side of cheek. The injury was operated and found as follows:- On operation pellet injuries found is misengetry left para colic gutter. There was larger clot and bleeding. No vital organ was injured like liver, spleen etc. Post operatively patient recovered. Weapon, Nature No. (i) to (ii) were caused by firearm gun shot. Grievous in nature No.(v) was caused by hard blunt substance may be lathi. Age-Within six hours (approximately) From the cross-examination of the witness, it is evident that nothing has been elicited from him in order to discredit his finding. That being so, presence of frearm injury over the person of Ramdeo Kamat goes out of controversy. However, prosecution failed to exhibit injury report if any, relating to informant nor an explanation has been offered on that score. 8. Now remains the ocular evidence and for that, first of all evidence of PW.4, alleged injured is to be seen. During his examination-in-chief he has stated that on the alleged date and time of occurrence, he along with his brother Bechan Kamat proceeded towards Saharsa. As soon as, they came infront of house of Chandi Jha, Krityanand Chaudhary, Ugara Mohan Jha @ Bhutai Jha, Amar Jha, Chandi Jha, Magan Jha, Malik Jha, Devta Jha, Mauli Jha, Indu Bala Choudhary, encircled them and began to assault by lathi. During midst thereof, Indu Bala brought the gun and handed it over to Krityanand Choudhary who fired causing injury over his stomach. At that very time Ugara Mohan Jha was armed with country made pistol, Magan Jha was armed with farsa, Amarnath Jha armed with bow and arrow. His brother was shot at with arrow by Amarnath Jha. Then thereafter, both of them were taken to Saharsa Hospital where he became unconscious. At that very time Ugara Mohan Jha was armed with country made pistol, Magan Jha was armed with farsa, Amarnath Jha armed with bow and arrow. His brother was shot at with arrow by Amarnath Jha. Then thereafter, both of them were taken to Saharsa Hospital where he became unconscious. The motive for occurrence has been shown as, about a year ago the accused persons had cut away head of Lakhan Jha for which a panchayati was convened wherein it was resolved that accused persons will give cash as well as land to the wife of Lakhan Jha which they declined and on account thereof, they were arrested by the authorities. 9. During cross-examination at para-4 he has stated that he had contested Title Suit no.47/1988 with Krityanand Choudhary. He denied the suggestion that he lost the case. In para-5 there happens to be contradiction relating to his previous statement which appears to be material one more particularly identifying Krityanand to be his assailant by means of firearm. Because of non-examination of the I.O. the aforesaid theme could not properly be brought up on record in accordance with law. In para-6 he has stated that he was shot at very front side. From a distance of two laggi. There was single firing which caused injury over his stomach. Blood had fallen from the injury. Just after sustaining injuries, he became unconscious. At that very time 5-6 more persons were there namely Banarsi Pandit (not examined), Badrinath Jha and others. Blood stain cloth was handed over to the police. In para-8 he had shown boundary of the P.O. as East-West Road, North-House of the accused and South-Field. In para-11 he admitted Krityanand Chaudhary to be Class-III employee at Saharsa Collectorate. He has further admitted that Krityanand Chaudhary had filed Sanha against him and others before commission of the occurrence. In para-12 he denied the suggestion that Krityanand Chaudhary was present at Saharsa and was discharging his duty. He has also denied the suggestion that Krityanand was not the assailant and he has been falsely implicated out of personal grudge and vendetta. 10. Pw.5 is the informant. During his examination-in-chief, he has stated that on the alleged date and time of occurrence he along his brother Ramdeo Kamat was going to Saharsa. He has also denied the suggestion that Krityanand was not the assailant and he has been falsely implicated out of personal grudge and vendetta. 10. Pw.5 is the informant. During his examination-in-chief, he has stated that on the alleged date and time of occurrence he along his brother Ramdeo Kamat was going to Saharsa. When they reached near the house of Chandi Jha, Amarnath Jha, Chandi Jha, Mauli Jha, Magan Jha, Devta Jha, Mali Jha and others armed with lathi, farsa, Bhutai Jha armed with pistol, Krityanand Chaudhary armed with gun came. Chandi Jha, Devta Jha and others assaulted Ramdeo Kamat with lathi while Amarnath gave arrow blow causing injury to him. It has further been disclosed that Indu Bala Chaudhary brought the gun and handed it over to Krityanand who shot at Ramdeo causing injury over him. Both of injured were taken to Saharsa Hospital where, police came and recorded his fardbeyan. Identified the accused. During cross-examination, at para-3 he has admitted pendency of litigation amongst them. However, he has shown his ignorance with regard to result of the title suit. In para-7 he has shown ignorance with regard to institution of a criminal case at the end of the accused persons against him and others. In para-10 he has shown ignorance over filing of Sanha at the end of Krityanand against him as well as his brother and others. In para-11 he has stated that at the time of occurrence, he was two laggi east to Ramdeo. Accused encircled Ramdeo only. Ramdeo Kamat was assaulted firstly with lathi. He had seen at which part of body he was assaulted by lathi. In para-12 he has stated that he was assaulted with lathi. 10-20 blows were given over his back, thigh and other parts of body over which he shouted attracting so many persons whereupon accused persons fled away. In para-13 he has stated that apart from witnesses, 25-50 others have assembled. In para-14 he has asserted that he sustained arrow injuries. In para-17 he had stated that his statement was recorded but a after the occurrence at hospital by the police and then thereafter police had not taken his statement. In para-18 he denied the suggestion being an accused of Saur Bazar P.S. Case no.87/1992 instituted by the accused for the same occurrence. In para-17 he had stated that his statement was recorded but a after the occurrence at hospital by the police and then thereafter police had not taken his statement. In para-18 he denied the suggestion being an accused of Saur Bazar P.S. Case no.87/1992 instituted by the accused for the same occurrence. He denied the suggestion that no such kind of occurrence had ever taken place rather, they were the aggressors who, being fully armed with pistol raided the house of Amarnath, assaulted with arrow, fired and during course thereof injury have been sustained by Ramdeo Kamat, a self-inflicted. On account of institution of case by the Amarnath Jha, this case has been instituted as a counter blast. 11. Pw.1 has stated that on the alleged date and time of occurrence, while he was returning from a village shop, he saw Krityanand Chaudhary, Ugra Mohan Jha, Amarnath Jha, Chandi Jha, Maugan Jha, Malik Jha, Devta Jha, Bholi Jha, out of whom Krityanand Chaudhary was armed with gun, Ugra Mohan Jha was armed with gun, rest were armed with arrow, farsa as well as other kind of weapon. At that very moment Ramdeo Kamat and Bechan Kamat were proceeding towards Saharsa and as soon as reached near the house of Maugan Jha, all the accused persons attack upon Bechan as well as Ramdeo Kamat and during course thereof, Krityanand fired causing injury over chest of Ramdeo Kamat as a result of which, he became unconscious. Amarnath shot arrow causing injury over Bechan. Sita Ram along with others lifted both of them to hospital. Identified the accused. At para-3 he has admitted to have deposed against the accused on behalf of informant in a title suit. In para-5 he has stated that at the time of occurrence he was at the shop of Maugan Jha. P.O. happens to be five laggi south to the shop of Maugan Jha. While Ramdeo and Bechan were coming, all the accused were present since before. First of all Amarnath Jha, Ugranath Jha and others indulged in push and pull with Ramdeo and Bechan. He is unable to disclose how much time they continued with such activity. In para-6 he has stated that he had not counted how many fist blows were given. He has seen the marpit only. While scuffle was going on, during midst thereof, Krityanand Chaudhary fired. He is unable to disclose how much time they continued with such activity. In para-6 he has stated that he had not counted how many fist blows were given. He has seen the marpit only. While scuffle was going on, during midst thereof, Krityanand Chaudhary fired. He fired from a distance of four hands causing injury followed with oozing of blood from the injury. Only one round firing was made by which Ramdeo had sustained injury. He after sustaining injury, rushed and covered about three distance. Then, Amarnath shot arrow causing injury over plam of Bechan. He fell down. Blood oozen out from the injury and spread over the ground. Lathies were hurled indiscriminately. They were just seeing the occurrence. In para-7 he has admitted presence of litigation since before the occurrence. At para-8 he has stated that he had gone near Ramdeo who was unconscious. Both the injured were taken away over rickshaw of Jawahar Kamat son of Badri. In para-9 he has stated that he had accompanied the injured were taken to hospital but, fardbeyan was recorded in his absence as during said period he had gone to purchase medicine. Police had come to place of occurrence, but had not lifted blood stain earth as, there was rain. In para-10 and 11 he has stated that he is not knowing that Krityanand happens to be a government employee. He has further stated that krityanand happens to be son-in- law of his village. He denied the suggestion that being henchmen of the Bechan and Ramdeo, he has come forward to depose falsely. 12. Pw.2 has stated that on the alleged date and time of occurrence he was carrying rickshaw. At that very time, Ramdeo and Bechan were proceeding ahead of him. Then he had seen Krityanand Chaudhary, Amarnath Jha, Guru Mohan Jha, Indu Bala Chaudhary, Chandi Jha, Malik Jha, Magan Jha, Devta Jha sieged him and shot at. Then, Amarnath shot arrow to Bechan, Ramdeo and Bechan both fell down. Then thereafter, they were lifted to hospital where they were treated. Identified the accused. At para-4 he admitted presence of land dispute since before the occurrence and for that, litigation was going on. In para-6 he has stated that Marpit took place in front of Darawaja of Magan Jha. In para-7 he has stated that he had seen the firing as a result of which, Ramdeo became injured. Identified the accused. At para-4 he admitted presence of land dispute since before the occurrence and for that, litigation was going on. In para-6 he has stated that Marpit took place in front of Darawaja of Magan Jha. In para-7 he has stated that he had seen the firing as a result of which, Ramdeo became injured. Only one shot was fired. At the time of firing he was there. Krityanand hasgot licency gun. He had seen injury over stomach of Ramdeo. After firing, all the accused persons fled away. All of them fled away. Only he remained. In para-8 he has said that about 8-10 minutes prior to the occurrence raining was stopped. In para-9 he has stated that he identified the persons who have assembled at the place of occurrence. He has further stated that he reached later on at the place where firing was made. He had seen Ramdeo lying over the ground. Blood had spread over the ground. He lifted him on rickshaw with the help of the witnesses and then, they took him to Naryut and from there, he was taken over tempo of Dobhi Sao. In para-11 he has stated that police had not recorded his statement. He had not seen the I.O. lifting blood stain earth. In para-12 he has stated that Krityanand does service and at the time of occurrence, was also was in service. Then has denied the suggestion that in collusion with prosecution party he has deposed falsely. 13. Pw.3 has stated that on the alleged date and time of occurrence he was at his house. While Ramdeo Kamat and Bechan Kamat were going to market, there was commotion whereupon she had seen Krityanand Chaudhary, Magan Jha, Amarnath Jha, Devta Jha, Malik Jha and others, encircled them. Krityanand Chaudhary was armed with gun while rest were armed with farsa, bow and arrow. Krityanand Chaudhary shot at Ramdeo, Amarnath shot arrow over Bechan. Sita Ram came who lifted injured to Saharsa. Identified the accused. During cross-examination at para-3 he has stated that he was ploughing his land 10 lagga away from the place of occurrence. P.O. is road. He had seen accused persons having encircled Ramdeo Kamat whereupon there was uproar. He rushed when he reached he saw accused person. Then thereafter, they have gone therefrom. 20-25 persons were present. Identified the accused. During cross-examination at para-3 he has stated that he was ploughing his land 10 lagga away from the place of occurrence. P.O. is road. He had seen accused persons having encircled Ramdeo Kamat whereupon there was uproar. He rushed when he reached he saw accused person. Then thereafter, they have gone therefrom. 20-25 persons were present. In para-5 he has stated that later on he returned back therefrom. Ramdeo was taken away by Bhutto and Siyaram. Ramdeo Kamat was unconscious on account of firearm injury sustained by him. He had not seen whether blood spread over on the ground or not. In para-6 he has stated that Krityanand is the son-in-law of the village and is in service. In para-7 he has stated that Krityanand was armed with gun. Only one firing was made. He had seen firing. As a result of which, Ramdeo Kamat sustained injury over his stomach. Again said that when he reached at the place of occurrence, accused persons have already left the place. He has further stated that he happens to be Bataidar under the accused. Then has denied the suggestion that being in collusion with the prosecution party, he has deposed falsely. 14. There happens to be bulk of documents exhibited at the end of the defence/appellant wherefrom it is evident that a title suit was brought up at the end of appellant against Ramdeo Kamat for specific performance of contract before institution of this case wherein the judgment gone in his favour. The other exhibits also suggest that for the same day's occurrence, one of the accused (since acquited) Amarnath Jha had instituted Saur Bazar P.S. Case No.87/1992 and the fardbeyan was recorded while he was admitted in the hospital in an injured condition. From perusal of the same, there happens to be specific disclosure that accused persons that means to say the prosecution party of the instant case have fired and then, they have seen one person amongst them to be an injured. That means to say sustaining of firearm injury by Ramdeo Kamat is not at all under controversy irrespective of examination of PW.6 doctor who had found firearm injury over the person of PW.4, grievous in nature. 15. That means to say sustaining of firearm injury by Ramdeo Kamat is not at all under controversy irrespective of examination of PW.6 doctor who had found firearm injury over the person of PW.4, grievous in nature. 15. After proper scrutiny of the materials available on the record, it has become crystal clear that an occurrence took place on 25.05.1992 and for that, case and counter case was instituted. More or less, the P.O. is also admitted one. I.O. has not been examined. In the aforesaid background, the non-examination of the I.O. has really caused prejudice to the accused persons. Before adjudicating the same, the principle so laid down by the Hon'ble Apex Court on that very score is to be seen. 16. In Baldev Singh v. State of Haryana, (2016) CriLJ 154, it has been held: "16. Contention at the hands of the learned Senior Counsel for the appellant is that non-examination of Chander Singh-SI who prepared rukka and who investigated the case raises serious doubts about the prosecution case. Material on record would show that Chander Singh-SI who investigated the case was not examined by the prosecution in spite of several opportunities. No doubt, it is always desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka. Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case. Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case." 17. The most crucial aspect, as is evident comes out from the deposition of PW.4, the injured. When his evidence more particularly paragraph 5 has been gone through, it is evident that there happens to be material development from his earlier statement including, he had not spoken against Krityanand Chaudhary to be his assailant by means of firearm during his statement under Section 161 Cr.P.C. On account of non-examination of the I.O., the appellant could not be able to bring the aforesaid contradiction in accordance with law. Apart from this, there happens to be specific disclosure of the witnesses that Krityanand Chaudhary was possessing licensee gun which was handed over by Indu Bala (his wife, not sent up for trial) by which, firing was made. Apart from this, there happens to be specific disclosure of the witnesses that Krityanand Chaudhary was possessing licensee gun which was handed over by Indu Bala (his wife, not sent up for trial) by which, firing was made. Had there been examination of the I.O., the defence would have been in a position to cross-examine whether aforesaid gun was seized or not and if so seized, the ballistic expert opinion whether the gun was used or not. In likewise manner Krityanand Chaudhary had adduced Ext.C, the attendance register in order to substantiate his alibi. Had there been examination of the I.O. The defence would have been in a position to cross-examine him whether he had tested the reliability of the alibi and the last one, had there been examination of the I.O., defence would have been in a position to take advantage of cross-examination him on the score of counter case. That means to say, due to non-cognizable of the I.O. the interest of the appellant/accused is found highly prejudiced. From the judgment impugned it is evident that the learned lower court has not considered the aforesaid aspect rather, gone to adjudicate the activity of the appellant Krityanand under para-16 of the judgment and further opined the reliability of Ext.'C' to be doubtful and further, the appellant might have an opportunity to attain his office after covering the distance of 15-16 KM. Furthermore, from para-15 of the judgment, the learned lower court has observed that there happens to be no contradiction persisting in the evidence of any of the witness which happens to be incorrect as, from para-5 of PW.4, the injured the same happens to be and the nature thereof has got severe impact upon the prosecution case as, from that statement, it is evident that his attention has been drawn apart from other to the fact that he had not stated before the police that Krityanand Chaudhary was armed with gun and fired causing injury over him. Last but not least PW.5, informant apart from other Pws has claimed to have sustained arrow blow over his palm on account of which he also sustained injury, admitted at Sadar Hospital Saharasa along with Ramdeo and but, no injury report is there nor the doctor PW.6 has substantiated the same. Last but not least PW.5, informant apart from other Pws has claimed to have sustained arrow blow over his palm on account of which he also sustained injury, admitted at Sadar Hospital Saharasa along with Ramdeo and but, no injury report is there nor the doctor PW.6 has substantiated the same. PW.6, the doctor found the margin of the injuries caused by firearm, burnt, that means to say, the injured might have been shot at from close range, at least 2 to 4 feet, but when the same is taken together with the distance disclose by the witnesses in between assailant and victim, it is evident that same should not have been. That means to say, manner of occurrence as projected by the prosecution has become doubtful. Furthermore, presence of self-inflicted injury by the prosecution party is itself disclosed in the fardbeyan of counter case instituted prior to the instant case, which also to be taken into consideration as will play an important role. 18. Giving anxious consideration to the evidence available on the record, as discussed herein above, apart from infirmities persisting in the prosecution case,, on account of non-examination of the I.O. the interest of appellant is found prejudiced and the cumulative effect, did not justify the judgment impugned consequent thereupon, same is set aside. Appeal is allowed. Appellant is on bail, hence is discharged from its liability. First and last page of judgment be handed over to the learned Amicus Curiae for the needful.