JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 18.07.2003, passed by learned Additional District and Sessions Judge, Dhanbad, in Sessions Trial Case No. 46 of 2000, whereby the appellant Surendra Nonia has been convicted for offence committed and punishable under Section 326 of the Indian Penal Code and Gokul Nonia under Sections 326/34 of the Indian Penal Code and have been awarded rigorous imprisonment for five years. The period already undergone in custody, during trial will be set off under Section 428 Cr.P.C. The learned Trial Court has acquitted the appellants of the charge under Sections 304/34 of the Indian Penal Code. 2. The prosecution case is based upon the fardbeyan of Bhagwat Singh (P.W. 5), recorded by S.I. Banarasi Prasad of Katras police station, on 16.10.1999 at 10.30 A.M. at I.C.U., Central Hospital, Dhanbad, where the informant has alleged, that in the night of 15.10.1999, at around 9.15 p.m., he was watching television with his family. He was informed by his mother, that some persons have come outside of the house and are saying, that the Bada Babu (Officer-in-Charge) of the police station is calling him. Upon that, the informant came outside of the house hurriedly, as he was driving police vehicle but saw his neighbors Surendra Nonia @ Markhanda, Gokul Nonia with two other persons (one was wearing full pant and red checked shirt and another was wearing kurta and pyjama). The informant asked, that where is bada babu? In the meantime, Surendra Nonia @ Markhanda and one of the persons, who was wearing pant-shirt, came near the informant and Gokul Nonia asked them to kill the informant, upon which the informant tried to flee away to save his life but Surendra Nonia and one of the unknown person took out katari from their waists and with intention to kill, assaulted the informant on the neck, in the right side by one unknown persons and Surendra Nonia by katari assaulted on the left side of the neck of the informant. It is further alleged that, the informant, after sustaining injury, fled away, thereafter the accused/appellants exploded two bombs. The informant, anyhow, entered into his house and fell down in the injured condition. It is further alleged that, the informant, after sustaining injury, fled away, thereafter the accused/appellants exploded two bombs. The informant, anyhow, entered into his house and fell down in the injured condition. The injured was brought to Choudhary Nursing Home, Katras for treatment from where, he has been referred to the Central Hospital, Dhanbad, where he is under treatment. At hospital, he got knowledge, that his daughter Ramrati Kumari, aged about twelve years, has also been assaulted by the accused/appellants and she has sustained injury on her head by katari and mother of the informant has also sustained injury by the bombs exploded by the accused persons in his house. The informant has stated that treatment of her daughter is also going on at Central Hospital, Dhanbad. The informant has further alleged, that because of old enmity, the occurrence has taken place, where the accused persons, with intention to kill, have assaulted the informant by katari. 3. On the basis of the fardbeyan of the informant, the police has registered Katras P.S. Case No. 358 of 1999, dated 16.10.1999, under Sections 448, 307, 324, 325/34 of the Indian Penal Code and Section 3/5 of the Explosive Substance Act. 4. After investigation, the police has submitted charge sheet against the appellants vide charge sheet No. 361 of 1999, dated 13.12.1999, under Sections 448, 324, 326, 307/34 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 14.12.1999 and the case has been committed to the court of Sessions vide order dated 14.01.2000. 6. The charge has been framed against the appellants Gokul Nonia and Surendra Nonia @ Markhanda on 06.06.2000, under Sections 307, 326 and 307/326 read with section 34 of the Indian Penal Code, to which the appellants have pleaded their innocence and thus they have been put under trial. 7. The prosecution, to prove its case, has examined altogether ten witnesses. The prosecution has also proved a number of documentary evidence to prove its case beyond all reasonable doubts. 8. 7. The prosecution, to prove its case, has examined altogether ten witnesses. The prosecution has also proved a number of documentary evidence to prove its case beyond all reasonable doubts. 8. Ram Janam Singh has been examined as P.W. 1, Fulmati Devi has been examined as P.W. 2, Ram Kripal Singh has been examined as P.W. 3, Geeta Devi has been examined as P.W. 4, Bhagwat Singh, informant of the case, has been examined as P.W. 5, Ramrati Kumari, daughter of the informant, has been examined as P.W. 6, Dheeraj Bhuiya @ Dhirwa Bhuiyan has been examined as P.W. 7, Umesh Kumar has been examined as P.W. 8, Dr. K.P. Sinha, medical officer, who has examined Ramrati Kumari (P.W. 6), has been examined as P.W. 9, Dr. A.K. Mishra, other medical officer, who has examined Bhagwat Singh (P.W. 5), has been examined as P.W. 10. The signature of the informant, Bhagwat Singh, on the fardbeyan, has been proved and marked as Exhibit- 1, fardbeyan has been proved and marked as Exhibit- 2, formal F.I.R. has been proved and marked as Exhibit- 3 and the injury reports of Ramrati Kumari and Bhagwat Singh, have been proved and marked as Exhibits- 4 or (X/1) for identification and 4/1 or (X) for identification. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C. on 14.07.2003, to which the appellants have pleaded, that there is no evidence against them and they have been falsely implicated in this case. 10. After hearing the parties and on perusal of the record, the learned Trial Court has convicted the appellant Surendra Nonia under Section 326 of the Indian Penal Code and Gokul Nonia under Sections 326/34 of the Indian Penal Code by the impugned judgment of conviction and order of sentence. The learned Trial Court has acquitted the appellants of the charge under Sections 307/34 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, these appellants have preferred the present criminal appeal, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellants, Mr. Shekhar Prasad Sinha, Advocate. Learned counsel has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. 10. Heard, learned counsel for the appellants, Mr. Shekhar Prasad Sinha, Advocate. Learned counsel has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that in the First Information Report, the informant has alleged, that friend of Gokul Nonia has assaulted him on the right side of the neck by katari and Surendra Nonia has assaulted him on the left side of the neck by katari. Learned counsel for the appellants has further submitted, that two bombs were also exploded upon the informant causing injury but no such injury of bomb was found on the person of the informant and from perusal of the injury by the doctor, which has been alleged against unknown person, to be caused by the katari, on the right side of the neck and by Surendra Nonia on the left side of the neck, by katari, the same is unexplained. The said injury may cause death of a person because, if a katari is being used on the right side as well as on the left side of the neck, then the entire veins and artries of the neck will be chopped up. The doctor, (P.W. 10, Dr. A.K. Mishra, who has examined the informant, has not found such injury on the person of the informant, which will be apparent from the injury report i.e. Exhibit- 4/1, which has also been marked as Exhibit- X for identification. Learned counsel for the appellants has further submitted, that considering these vital contradictions in the medical evidence, the appellant, Surendra Nonia cannot be convicted under Section 326 of the Indian Penal Code and Gokul Nonia under Sections 326/34 of the Indian Penal Code. Learned counsel for the appellants has further drawn the attention of the Court, towards the evidence of the witnesses. Learned counsel for the appellants has further submitted, that Ram Janam Singh, father of the informant and Fulmati Devi, mother of the informant, who have been examined as P.W. 1 and P.W. 2 in this case, have been declared hostile by the prosecution though informant has stated in fardbeyan that mother has sustained bomb injury. 11. Learned counsel for the appellants has further submitted, that Ram Janam Singh, father of the informant and Fulmati Devi, mother of the informant, who have been examined as P.W. 1 and P.W. 2 in this case, have been declared hostile by the prosecution though informant has stated in fardbeyan that mother has sustained bomb injury. 11. Ram Kripal Singh, brother of the informant, who has been examined as P.W. 3, has categorically stated in paragraph 3 of his examination-in-chief, that his brother could not disclose the name of the person, who has committed the offence, in the hospital, as such the evidence of P.W. 3, Ram Kripal Singh has relevancy in the present case as informant has developed its case to falsely implicate the appellants subsequently for ulterior motive. 12. Geeta Devi, wife of the informant, has been examined as P.W. 4. She has stated in paragraph- 14 of his cross-examination that she has not seen the person, who has assaulted Ramrati Kumari. This witness has further stated that, she has seen Bhagwat Singh after assault. She has further stated, that she has seen Ramrati Kumari in injured condition, when she came out of the house after explosion of bomb. This witness has categorically stated in paragraph 20 of her cross-examination that on brawl, she came out of the house but she could not see the accused, who had committed the offence. Learned counsel for the appellants has further submitted that, in the examination on recall on 14.07.2003, this witness has admitted that there was a compromise between the parties and the cordial relationship has been established between the parties. 13. Learned counsel for the appellants has further submitted, that the informant-cum-injured of the case, Bhagwat Singh (P.W. 5) has stated in paragraph- 25 of his cross-examination, that while, he was under treatment, his statement was recorded, which was not written in his presence, rather his signature has been obtained on a blank sheet. This witness has further stated in paragraph- 27 of his cross-examination that fardbeyan was never read over and explained to him and he does not know the contents of the First Information Report. This witness has further stated in paragraph- 27 of his cross-examination that fardbeyan was never read over and explained to him and he does not know the contents of the First Information Report. Learned counsel for the appellants has further submitted, that from perusal of the paragraph- 2 of his examination-in-chief, it appears that this witness (informant of the case) has tried to exaggerate the prosecution case by stating some facts, which has not been stated in the First Information Report. In paragraph- 3 of his examination-in-chief, this witness (P.W. 5) has alleged, that as soon as, his daughter Ramrati Kumari came out of the house, she was caught by the appellant, Gokul Nonia and thereafter, she was assaulted. Learned counsel for the appellant has further submitted, that had this fact been witnessed by the informant/injured of this case, he (Bhagwat Singh) could have mentioned the same in the First Information Report. Learned counsel for the appellants has further submitted, that in the First Information Report, the informant has categorically stated that, while he was getting treatment at Central Hospital, Dhanbad, he got information that his daughter has also sustained injury and she is also getting treatment at Central Hospital, Dhanbad. Learned counsel for the appellants has further submitted, that this witness Bhagwat Singh (P.W. 5) has further exaggerated his case, as in paragraph- 24 of his cross-examination, he has categorically stated that he could not disclose the name of the doctor, who has treated him. Learned counsel for the appellants has further submitted that, as per the evidence of this witness (P.W. 5) in paragraph- 24, he has alleged that, he remained unconscious for 24 hours, and after regaining consciousness, his statement has been recorded. Learned counsel for the appellants has further submitted, that this statement is also an exaggerated form, as the fardbeyan of this witness was recorded on 16.10.1999 at Central Hospital, Dhanbad at 10.30 A.M., whereas the alleged occurrence is of 15.10.1999 at around 9.15 P.M. and as such, relying upon the testimony of the informant, appellants cannot be convicted, as this witness has also stated during recall, on 14.07.2003, that they have compromised the case. Learned counsel for the appellants has further submitted, that the credential of this witness (P.W. 5) is highly doubtful and conviction of the appellants cannot sustain in the eyes of law and as such, the impugned judgment of conviction and order of sentence is bad in law and is fit to be set aside. 14. Learned counsel for the appellants has further submitted, that Ramrati Kumari (P.W. 6), who is one of the injured, has stated, that earlier she was treated by Dr. Choudhary, but no medical report of Dr. Choudhary has been brought on record. Learned counsel for the appellants has further submitted, that this witness, who has sustained injury could not say, whether she has been assaulted by a katari or by a knife, rather, she says that, she has been assaulted by bhujali thrice, on her head. Learned counsel for the appellants has further submitted, that she was never examined by the investigating officer meaning thereby, her statement under Section 161 Cr.P.C. has not been recorded and that is the reason, this witness has not been cited as a chargesheet witness by the investigating officer and as such, the evidence of this witness is not reliable to be considered by this Hon’ble Court, as the statement of this witness has not been recorded under Section 161 Cr.P.C. On 14.07.2003, this witness was recalled and on recall this witness has stated that, they have compromised the case. 15. Dheeraj Bhuiyan @ Dhirwa Bhuiyan, who has been examined as P.W. 7, has been declared hostile by the prosecution. 16. Umesh Kumar, Sub-Inspector of police and Investigating Officer of the case, has been examined as P.W. 8. This witness has proved the writing of Banarsi Prasad and signature of Ramnath Tiwari, on the fardbeyan, which has been proved and marked as Exhibit- 2 and also proved the writing of Saryu Prasad and signature of Ram Nath Tiwari on the formal F.I.R., which has been proved and marked as Exhibit- 3. This witness has categorically stated, that on 18.10.1993, the injured Bhagwat Singh, has never came to the police station, rather, he went to the hospital and at the hospital, the statement of Bhagwat Singh was recorded. This witness has further stated in paragraph- 15 of his cross-examination, that the inspection of the place of occurrence on the basis of information by witness, has not been written in the case diary. This witness has further stated in paragraph- 15 of his cross-examination, that the inspection of the place of occurrence on the basis of information by witness, has not been written in the case diary. This witness has further stated that, he got information that initially injured persons were treated at Choudhary Nursing Home at Katras, from where, they have been sent to the Central Hospital, Dhanbad but he never enquired about the first aid or treatment given by the doctor at Choudhary Nursing Home. Learned counsel for the appellant has further submitted that under such sketchy evidence, the appellants cannot be convicted. 17. Dr. B.K. Sinha, who has examined Ramrati Kumari, has been examined as P.W. 9. This witness has categorically stated that, he found three injuries on the person of Ramrati Kumari, one on the head, second on the left parietal scalp and third on the left cheek and has proved the injury report of Ram Rati Kumari, which has been marked as Exhibit- 4. Learned counsel for the appellants has further submitted, that no allegation with respect to injury on the cheek has been alleged by the prosecution witnesses nor injury caused by bomb has been found on the person of the victim, as alleged by the prosecution witnesses and as such, the evidence of P.W. 9 is not in consonance with the prosecution case. 18. Learned counsel for the appellants has further submitted that Dr. A.K. Mishra, who has examined the informant, Bhagwat Singh, has been examined as P.W. 10., and has found four injuries on the person of Bhagwat Singh but those injuries have not been alleged by the prosecution. The first injury is near the left ear, the second injury is above the left hand, third injury on the right side of the head and fourth on the back. The injury report of Bhagwat Singh has been proved and marked as Exhibit- 4/1, which has also been marked as ‘X’ for identification. Learned counsel for the appellants has further submitted, that injury found by the doctor is not in consonance with the prosecution case. The injury report of Bhagwat Singh has been proved and marked as Exhibit- 4/1, which has also been marked as ‘X’ for identification. Learned counsel for the appellants has further submitted, that injury found by the doctor is not in consonance with the prosecution case. Learned counsel for the appellants has further submitted that considering the above submissions, the appellants cannot be convicted under Sections 326 and 326/34 of the Indian Penal Code, as there is a vital lacunae in the prosecution case and as such, the impugned judgment of conviction and order of sentence, may be set aside by giving benefit of doubt, as enmity was prevailing between the parties, and some of the witnesses have admitted during their depositions. 19. Heard, learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence is based on the materials available on record. Learned counsel for the State has further submitted, that the doctor (P.W. 10) has stated, that four injuries were found, but from perusal of the injury report which has been marked as Exhibit- 4/1 and X for identification, in this case, there are only two incised injuries, though the said injuries are not in consonance with the prosecution case. Learned counsel for the State has further submitted, that it is a case under Sections 326 and 326/34 of the Indian Penal Code, which are not compoundable in nature and even after recall, the compromise has been admitted between the parties and filed before the learned Trial Court but has rightly been rejected by the learned Trial Court, as compromise cannot be allowed under Sections 326 or 326/34 of the Indian Penal Code and as such, the impugned judgment of conviction and order of sentence requires no interference of this Hon’ble Court at this stage. 20. Heard, learned counsel for the appellants, Mr. Shekhar Prasad Sinha, Advocate and learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor and from perusal of the record i.e. F.I.R., framing of charge, evidence of ten prosecution witnesses and exhibits up to Exhibit- 4, the statement of the appellants under Section 313 Cr.P.C. and the impugned judgment, this Court has found that the informant has exaggerated his case during his examination as P.W. 5. Vikash Kishore, Additional Public Prosecutor and from perusal of the record i.e. F.I.R., framing of charge, evidence of ten prosecution witnesses and exhibits up to Exhibit- 4, the statement of the appellants under Section 313 Cr.P.C. and the impugned judgment, this Court has found that the informant has exaggerated his case during his examination as P.W. 5. This Court has considered the First Information Report and compared the same with the injury reports which have been marked as Exhibit- 4/1 or ‘X’ for identification and Exhibit- 4 or ‘X/1’ for identification, which are the injury reports of Bhagwat Singh and Ramrati Kumari but from perusal of the First Information Report and evidence of P.W. 5, Bhagwat Singh and P.W. 6, Ramrati Kumari, it is apparent, that there is a vital contradictions in the medical evidence, which is not in consonance with the prosecution case. This Court has also found that father of the informant, Ram Janam Singh (P.W. 1) and mother of the informant, Fulmati Devi (P.W. 2) have been declared hostile by the prosecution, although the informant has stated, that his mother has also sustained injury but no such statement was made by P.W. 2 nor any injury report of Fulmati Devi (P.W. 2) has been brought on record. This Court has also found that the injured Bhagwat Singh and Ramrati Kumari have categorically stated, that initially they were given treatment at Choudhary Nursing Home, Katras but the Investigating Officer (P.W. 8), Umesh Kumar has categorically stated, that he never inquired about the treatment given to the informant and his daughter at Choudhary Nursing Home, Katras. This Court has also found that Ram Kripal Singh (P.W. 3), who is brother of the informant has categorically stated in paragraph- 3 of his cross-examination that, his brother has not disclosed the name of person, who has committed the offence. This Court has also found that informant, who has been examined as P.W. 5 has categorically stated in paragraphs- 24, 25 and 27 of his cross-examination, that his fardbeyan was recorded by the police in the intensive care unit of the hospital and his signature was obtained on a blank sheet and till date, it has not been read over or explained to him nor he knows about contents of the same. As such, this Court is of the opinion, that under such lacunae as discussed above, that the fardbeyan is not the statement, which was verified and signed by the informant, rather the informant has signed on a blank sheet coupled with the fact that the credential of P.W. 5 Bhagwat Singh is highly doubtful, as he has tendency to exaggerate the case, the initial injury report of Choudhary Nursing Home, Katras has not been brought on record and P.W. 1 and P.W. 2 are father and mother of the informant, who have been declared hostile by the prosecution, though, the informant has claimed, that his mother has sustained injury. Under such circumstances, both the appellants deserve, benefit of doubt. 21. Thus, the impugned judgment of conviction and order of sentence, both dated 18.07.2003, passed by learned Additional District and Sessions Judge, Dhanbad, in Sessions Trial Case No. 46 of 2000 in connection with Katras P.S. Case No. 358 of 1999, consequent to G.R. Case No. 3196 of 1999, is hereby set aside and the appellants Surendra Nonia and Gokul Nonia are acquitted of the charge and conviction under Sections 326 and 326/34 of the Indian Penal Code respectively. 22. Accordingly, the present criminal appeal is allowed. 23. The appellants, who are on bail are discharged from the liability of their respective bail bonds. 24. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal allowed.