JUDGMENT : Heard learned counsel for the appellant, Mr. Kaushal Kishore Mishra and Mr. Mukesh Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 19.07.2004, passed by the learned 3rd Additional Sessions Judge, Fast Track Court, Jamtara in Sessions Case No.181 of 1995/66 of 2003, whereby the sole appellant, Kumaris Mandal @ Kumaris Gorai has been convicted by the learned trial court for the offence committed and punishable under Section 324 of the Indian Penal Code and awarded rigorous imprisonment for two years, and a fine of Rs.500/-and in case of default of payment of fine to further undergo simple imprisonment for two months. The other five co-accused persons have been acquitted of the charge by the learned trial Court, by the same impugned judgment. 3. The prosecution case, is based upon, written report submitted by Sanatan Mandal before the Officer In-Charge, Kundahit Police Station on 24.06.1993, wherein, the informant has alleged, inter alia, that a case is pending against Bijay Mandal, Shasti Mandal, Anil Mandal, Ranjeet Mandal, etc with respect to land. The informant has further alleged that on 23.06.1993 at around 5-6 P.M., we were uprooting maize crops from the land. At that time, those people did not said any word. Rather at around 12.00 P.M. in the night, Kumaris Mandal @ Kumaris Gorai, Ranjeet Mandal, Anil Mandal, Uttam Mandal, Nimai Mandal and Shasti Mandal came to the house of the informant armed with Kulhadi (axe) and lathi. it is alleged that aforesaid persons assaulted the informant with axe and brother of the informant, Dhananjay Mandal, was assaulted by the accused persons by means of lathi causing injury to the informant and his brother. Informant has further alleged that Kumaris Mandal has assaulted him with axe causing injury on the head and that is why he is giving written report to the Police for taking legal action. 4. On the basis of the written report of informant, the Police instituted First Information Report bearing Kundahit P.S. Case No. 48 of 1993 dated 24.06.1993 under Sections 452, 323, 324 and 307/34 of the Indian Penal Code. 5. After investigation, the police submitted charge sheet against all the accused persons vide charge sheet no. 11 of 1993, dated 30.06.1993, under Sections 452, 323, 324, and 307/34 of the Indian Penal Code. 6. 5. After investigation, the police submitted charge sheet against all the accused persons vide charge sheet no. 11 of 1993, dated 30.06.1993, under Sections 452, 323, 324, and 307/34 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 21.04.1994 and the case has been committed to the court of Sessions vide order dated 22.04.1995. 7. The charge has been framed against the five accused persons on 15.09.2000 under Sections 323, 324, 452 and 307/34 of the Indian Penal Code, to which the accused persons have pleaded their innocence and stated that, they have been falsely implicated because of enmity and land dispute, and thus they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether four witnesses and also exhibited a number of documentary evidences. Buju Gorain (daughter in law of the informant) has been examined as P. W. 1, Sanatan Mandal (informant and injured in this case) has been examined as P. W.2, Tahir Hussain (formal witness being an advocate clerk) has been examined as P. W.3, Dr. Uday Narayan Sinha who has examined both injured has been examined as P. W.4. The signature of Sanatan Mandal (P.W.2) on fardbeyan, has been proved and marked as Exhibit 1, signature of B. Singh, officer in-charge, on the First Information Report has been proved and marked as Exhibit 1/A, injury report of Sanatan Mandal (informant and P.W.2) has been proved and marked as Exhibit 2, injury report of Dhananjay Mandal (brother of the informant) has been proved and marked as exhibit 2/1, though he has not been examined in this case, because of his death, during pendency of case. 9. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr. P. C. on 02.08.2003, to which they have pleaded that, they have been falsely implicated in this case. 10. No defence witness or documentary evidence has been adduced on behalf of the appellant/accused persons. 11. After hearing learned counsel for the parties and on perusal on record, learned trial Court passed the impugned judgment of conviction and order of sentence, against appellant. However, by the said impugned judgment the learned trial Court has acquitted other five co-accused persons. Neither the State nor informant has preferred any acquittal appeal against the said acquittal of other co-accused persons. However, by the said impugned judgment the learned trial Court has acquitted other five co-accused persons. Neither the State nor informant has preferred any acquittal appeal against the said acquittal of other co-accused persons. Being aggrieved at and dissatisfied by the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant, assailing the impugned judgment of conviction and order of sentence, before this Hon’ble Court. 12. Heard, learned counsel for the appellant, Mr. Kaushal Kishore Mishra. Learned counsel for the appellant has submitted that, impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that the First Information Report has been lodged by the informant but there is no whisper that accused persons have removed the maize crops from field of the informant. Learned counsel for the appellant has further submitted that, the prosecution has examined four witnesses in this case. Evidence of P. W. 1, Buju Gorain, who is daughter in law of the informant. Her evidence is contradictory to the prosecution case as made out in the First Information Report or deposition of the P. W.2, Santan Mandal informant and victim of this case. P. W.1 has stated that accused persons came to field where maize was growing and removed the same. On protest made by her along with, Sanatan Mandal, Dhananjay Mandal, Brindawan Mandal and Kashinath, the accused persons have assaulted Sanatan Mandal on his head, causing bleeding injury and also assaulted Dhananjay Mandal by means of lathi. Learned counsel for the appellant has further submitted that, the prosecution case is that, at 12.00 A.M. (night) when the informant was sleeping, the accused persons entered into the house and assaulted the informant, but P. W. 1 has given a contradictory version as compared to the First Information Report as well as from the deposition of the P. W.2, informant of the case and as such P. W. 1 is not a reliable witness, who is highly interested being daughter of the informant. Learned counsel for the appellant has further submitted that P. W.2, Sanatan Mandal, is only an eye witness to the occurrence, being the informant and victim and that learned trial Court has wrongly relied upon his evidence and passed the impugned judgment of conviction and order of sentence with scrutinizing the same. Learned counsel for the appellant has further submitted that P.W. 2, in his examination-in-chief, has categorically stated that, while he was sleeping, in the night at 12:00 A.M., on hearing halla, he woke up and asked who are you and thereafter along with daughter-in-law and son went to the field, where accused persons were destroying the maize crop. On being made protest as why the accused persons are destroying maize crop, Kumaris Mandal (appellant) has assaulted him on head by means of tangi and also assaulted other persons by means of lathi. The informant has claimed that he got unconscious, although no such averment has been made in the First Information Report. Learned counsel for the appellant has further submitted that, in paragraph 3 of his cross examination, this witness has admitted that the accused, Kumaris Mandal has also filed a case against Sanatan Mandal (P. W.2), Brindawan and Kashinath, as accused and as such there is a counter case between the parties which has not been tried together, in view of judgment as report in Nathi Lal Vs. State U.P. in 1990 Suppl. SCC 145. Learned counsel for the appellant has further submitted that, in view of the judgment cited above, both case and counter case have not been tried together as such learned trial court has wrongly convicted the appellant, considering him as aggressor. Learned counsel for the appellant has further submitted that from evidence of P.W. 2 in para 5 of his cross examination, it appears that the prosecution case has been exaggerated from the First Information Report with respect to removing crops by the accused person, as the same has been orally disclosed to the police, but has not been written by the police officer. The contradiction regarding the same has not been elucidated by the defence/appellant because of non-examination of Investigating officer. Learned counsel for the appellant has further submitted that, non-examination of the investigating officer, has caused serious prejudice to the appellant, as no opportunity was provided him to elucidate the fact, which has not been stated in the fardbeyan. The contradiction regarding the same has not been elucidated by the defence/appellant because of non-examination of Investigating officer. Learned counsel for the appellant has further submitted that, non-examination of the investigating officer, has caused serious prejudice to the appellant, as no opportunity was provided him to elucidate the fact, which has not been stated in the fardbeyan. Learned counsel for the appellant has further submitted that, under the aforesaid circumstances, the appellant has been wrongly convicted by the learned trial court. Learned counsel for the appellant has further drawn attention of this court, with regard to the averment made in para 5 of his cross examination, wherein the informant has claimed that when he was assaulted on the head, then he woke up from the sleep, whereas in examination-in-chief, the informant has stated that, on hearing halla he woke up from the sleep, and as such, there is vital contradiction, even in the evidence of P.W.2 (Sanatan Mandal), whose evidence is the sole basis for conviction of the appellant by the learned trial court. Learned counsel has further submitted that Tahir Husain, a formal witness being an Advocate Clerk, has proved, the signature of officer-in-charge, B. Singh, on F.I.R. which has been marked as exhibit 1/A, although in his cross-examination, this witness has stated that, such signature has not been done before him by the Officer In-charge. Learned counsel has further submitted that Dr. Uday Narayan Singh has been examined as P.W. 4, who has examined both injured persons, Sanatan Mandal and his brother Dhananjay Mandal, which has been proved and marked as exhibits 2 and 2/1, although Dhananjay Mandal (brother of the informant) has not been examined in this case as he has died during trial of the case. Learned counsel for the appellant has further submitted that, doctor has found three injuries on the person of the informant, Sanatan Mandal, but as per the First Information Report and the deposition of the informant, Sanatan Mandal, the only allegation which has been levelled by him is that, he was assaulted by Kumaris Mandal by means of tangi on his head. Dr. Uday Narayan Singh has examined the informant-cum-injured and found the following injuries:- (i) Red coloured incised wound of 3 1/2” x 1/2”. scalp deep over just behind the middle of scalp. (ii) Red coloured abrasion of 2”x1” over right wrist. Dr. Uday Narayan Singh has examined the informant-cum-injured and found the following injuries:- (i) Red coloured incised wound of 3 1/2” x 1/2”. scalp deep over just behind the middle of scalp. (ii) Red coloured abrasion of 2”x1” over right wrist. (iii) Red coloured abrasion of 1”x1/4” over right elbow. Learned counsel for the appellant has further submitted that averments with respect to other injuries are not explained by the prosecution as such, benefit of doubt may be granted in favour of the appellant. As the informant has claimed that, night was rainy night, he might have sustained such injury because of fall. Learned counsel for the appellant has submitted that under the above circumstances, the appellant may be acquitted of charge and conviction under Section 324 of Indian Penal Code by extending benefit of doubt as stated above. 13. Learned counsel for the State, Mr. Mukesh Kumar Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence is well founded and based on the material available on record. Learned trial Court has rightly passed the judgment of conviction and order of sentence against the appellant under Section 324 of Indian Penal Code. Learned trial court has scrutinized the evidence and thus, has rightly acquitted the other co-accused persons from the charge framed against them. Learned counsel for the State has further submitted that, the informant (Sanatan Mandal) has been examined as P.W. 2, who is one of the victims along with his brother Dhananjay Mandal and the said Dhananjay Mandal could not be examined in this case, as Dhananjay Mandal died during pendency of the trial, and as such, the evidence of injured witness can not be discarded on the ground, that there is some minor contradiction in their evidence. Learned counsel for the State has further submitted that, impugned judgment of conviction and order of sentence is well founded and based on material available on record and requires no interference by this Hon’ble Court, at the stage. 14. Heard learned counsel for the appellant Mr. Kaushal Kishore Mishra and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor and perused the record, including the First Information Report, charge, evidence of four witnesses, exhibits up to 2 series and the statement of the appellant recorded under Section 313 of Cr. P.C. 15. 14. Heard learned counsel for the appellant Mr. Kaushal Kishore Mishra and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor and perused the record, including the First Information Report, charge, evidence of four witnesses, exhibits up to 2 series and the statement of the appellant recorded under Section 313 of Cr. P.C. 15. From perusal of the evidence of Sanatan Mandal (P. W. 2), when compared with the First Information Report, this court is of the opinion that there is vital contradiction in the evidence of P.W.2, who is author of the First Information Report, as in the First Information Report, he has never stated that the accused persons have removed the crops rather, specific averment is that they have removed the crops and at that time accused persons did not whisper any word. This court has also found that Buju Gorain (P.W.1), who is daughter-in-law of the informant, has alleged that in the evening when they were removing the crops, accused persons came there and assaulted her husband, her father in law. This is not the prosecution case and as such the evidence of PW-1 Buju Gorain is hereby discarded, doubting her credential to be a eye witness to the occurrence. 16. Sanatan Mandal (P.W.2), informant-cum-injured, has stated in his examination-in-chief that, at around 12:00 P.M. in the night, while he was sleeping in the courtyard, he woke up on the sound of the accused persons, but during cross examination in para 5, this witness has stated that he was sleeping in the courtyard and when accused persons assaulted on his head, he woke up from sleep. This witness has further stated that, on the date of occurrence, there was rainy season and even then he had come to sleep in the courtyard on that day. This court has also found that informant has claimed that after sustaining injury, he became unconscious, but no whisper with regard to same has been made in the first information report. It is also found by this court after perusing paragraph 3 of deposition of the informant, (P. W.2) during cross examination that there is a case and counter case between the parties, in which the informant, Brindavan and Kashi Nath were accused, but this fact has also not been disclosed by the informant, in the First Information Report. It is also found by this court after perusing paragraph 3 of deposition of the informant, (P. W.2) during cross examination that there is a case and counter case between the parties, in which the informant, Brindavan and Kashi Nath were accused, but this fact has also not been disclosed by the informant, in the First Information Report. This court has also found that informant, has claimed in para 5 of his cross examination that removal of maize crops by accused persons from field has been disclosed to the investigating officer, but since the investigating officer has not been examined in this case, appellant could not elucidate the truth ness of this fact from the investigating officer by cross examination him. Under such circumstance, this court is of the opinion that non examination of the investigating officer has caused serious prejudice to the appellant. This court has perused the evidence of P.W. 3, being a formal witness, who has proved signature, on the formal First Information Report, of the officer in charge. Doctor Uday Narayan Singh P.W.4, (Medical officer) has examined both the injured, has found three injuries on the person of the informant, which is contrary to the case of the prosecution as made out by P.W.2, Sanatan Mandal. The injuries no. 2 & 3 have not been explained by the informant, either in fardbeyan or his deposition. 17. Considering the above discussion, this Court is of the opinion that the impugned judgment of conviction and order of sentence is contrary to the material available on record, and as such, the impugned judgment of conviction and order of sentence, both dated 19.07.2004, passed in Sessions Case No. 181 of 1995/66 of 2003, passed by learned 3rd Additional Sessions Judge, Fast Track Court, Jamtara, is hereby set aside and accordingly, the appellant is acquitted of the charge and conviction under Section 324 of the Indian Penal Code. 18. From the aforesaid reasons, we are of the considered view that the impugned judgment of conviction and order of sentence, both dated 9.07.2004, passed by the learned 3rd Additional Sessions Judge, Fast Track Court, Jamtara, in Sessions Case No.181 of 1995/66 of 2003, is not sustainable in the eyes of law and thus, the impugned judgment of conviction and order of sentence is hereby set aside. 19. 19. The appellant is already on bail and as such, he is discharged from the liability of bail bond. 20. Accordingly, the instant appeal stands allowed. 21. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.