JUDGMENT Kailash Prasad Deo, J. - Heard, learned Amicus Curiae, Mr. Rahul Dev, advocate and Mrs. Lily Sahay, learned Addl. Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the Judgment of conviction dated 05.01.2004 and order of sentence dated 06.01.2004, passed by the 5th Additional District and Sessions Judge, Dumka (F.T.C.), in Session Case No.67 of 1999, whereby, the appellants Lakhi Yadav, Naresh Kumar Yadav, Mangal Nand Yadav, Jit Narayan Yadav, Nanku Mahto, Bishun Pd. Yadav, Dineshwar Yadav, Naresh Yadav, Bishwanath Yadav, Jeetu Mahto, Hari Kishore Yadav, Yugal Kishore Yadav, Roop Narayan Yadav, Birsa Yadav and Deo Narayan Yadav have been convicted under Sections 147 and 307/149 of the I.P.C. and awarded sentence to undergo one year of rigorous imprisonment for the offence committed and punishable under Section 147 I.P.C. and further five years of rigorous imprisonment and fine of Rs. 3000/- for the offence committed and punishable under Sections 307/149 I.P.C, and in default of payment, of fine, to further undergo simple imprisonment for three months. Appellants Babulal Yadav, Nundeo Yadav, Hilu Yadav, Girjanand Yadav and Rameshwar have been convicted under Sections 148 and 307/149 I.P.C. and awarded sentence to undergo rigorous imprisonment for two years for the offence committed and punishable under Section 148 I.P.C. and further five years of rigorous imprisonment and fine of Rs. 3000/-, for the offence committed and punishable under Sections 307/149 IPC and in default of payment of fine, to further undergo simple imprisonment for three months. All the sentences are directed to run concurrently and the period already undergone in custody during trial will be set off under Section 428 Cr.P.C. 3. 3000/-, for the offence committed and punishable under Sections 307/149 IPC and in default of payment of fine, to further undergo simple imprisonment for three months. All the sentences are directed to run concurrently and the period already undergone in custody during trial will be set off under Section 428 Cr.P.C. 3. The prosecution case is based upon the fardbeyan of informant Balram Yadav (P.W.10), before the Officer In-charge, Saraiyahat Police Station, on 22.06.1997 alleging therein that, while the informant alongwith his father Jaikrishna Yadav, mother Makka Devi and brother Babumani Yadav were cultivating their field i.e. plot no.208, at around 7:00 A.M., meanwhile co-villager Lakhi Mahto (appellant no.8) saw them, raised alarm and began to call Babulal, Rameshwar, Bhuneshwar and Nundeo to come with lathi and bhala and also call their other party men, as Balram alongwith his father, mother and brother are forcibly cultivating the land and have uprooted the paddy seedlings from the plot, upon which Babulal Mahto having barcha, Bhuneshwar Mahto having lathi, Nundeo Mahto having farsa, Rameshwar Mahto having bhala and Birsa Mahto having lathi raised hulla and came running over the place of occurrence followed by Naresh yadav having lathi, Hari Kishore Mahto having lathi, Hilu Mahto having tangi in their hands. Mangal Mahto, Nanku Mahto, Dineshwar Mahto and Jitu Mahto also followed them. Co-villagers Naresh Mahto having lathi, Jitnarayan Mahto and Dev Narayan Mahto having lathi and Girja Mahto having tangi also came to the place of occurrence. Babulal assaulted the father of informant by means of bhala, on his head, which entered into the head of the father of the informant, as the father of informant was repairing his ploughing instrument. Nundeo Mahto assaulted the brother of informant on head by means of farsa, causing bleeding injury. Meanwhile, Rameshwar Mahto gave bhala blow to the informant but informant save himself, which hit on the shoulder of the brother of informant causing bleeding injury. Girja Mahto assaulted the informant on his left wrist by means of tangi, rest of the accused persons have also assaulted prosecution parties by means of lathi, fist and slaps, causing injury upon them, they raised alarm, on hearing alarm, co-villagers namely Ratheswar Yadav, Ramjeevan Yadav, Giro Yadav, Harinath Yadav, Shankar Prasad Yadav, Raghunath Yadav, Rohan Mahto and Shiro Mahto came there and witnessed the occurrence and tried to save the prosecution party. Meanwhile, Rameshwar Mahto by taking benefit of time, snatched the golden earing of the mother of informant worth Rs. 2000/- each, Bhuneshwar Mahto snatched silver chain (20 Bhar) from the neck of mother of the informant worth Rs. 1600/-. When brother-in-law of the informant (Triveni Yadav) came for rescue, his wrist watch was also taken by Girja Mahto. Thereafter, all the injured along with informant went to the Police Station for lodging First Information Report. 4. On the basis of the fardbeyan of the informant, the Police registered Saraiyahat P.S. Case No.87 of 1997, dated 22.06.1997 under Sections 147, 148, 149, 379, 307, 324 and 323 I.P.C. and after investigation the Police submitted charge-sheet vide charge-sheet no.19/1998, dated 31.03.1998, under sections 147, 148, 149, 307, 323 and 325 I.P.C. 5. The cognizance of the offence has been taken vide order dated 14.05.1998 and case has been committed to the Court of Sessions vide order dated 08.06.1999. 6. The charge has been framed against the accused persons under Sections 147, 148, 324 and 307/149 IPC vide order dated 10.01.2000, to which the appellants have pleaded their innocence and thus, they were put under trial. One accused namely Guni Mahto died during the pendency of the trial and the proceeding against him was dropped vide order dated 17.01.2001. 7. The prosecution has examined, altogether 12 witnesses and also exhibited, a number of documentary evidences, which have been proved and marked as exhibits upto exhibit-13, to prove its case beyond all reasonable doubts. 8. Binod Kumar Yadav has been examined as P.W.-1, Harinath Yadav has been examined as P.W.-2, Babumani Yadav (brother of the informant) has been examined as P.W.-3, Ramu Yadav has been examined as P.W.-4, Raghunath Yadav has been examined as P.W.-5, Jaikrishna Mahto (father of the informant) has been examined as P.W.-6, Shankar Prasad Yadav has been examined as P.W.-7, Makka Devi (mother of the informant) has been examined as P.W.-8, Doctor Prabhat Kumar, who has examined as the injured persons, has examined as P.W.-9, Balram Yadav (informant of the case) has been examined as P.W.-10, Thiro Yadav has been examined as P.W.-11 and Kailash Prasad Yadav has been examined as P.W.-12. The fardbeyan of the informant has been proved and marked as exhibit-1. The fardbeyan of the informant has been proved and marked as exhibit-1. The Signature of Balram Yadav on the fardbeyan has been proved and marked as exhibit-1/1, the signature of Shankar Prasad Yadav on the fardbeyan has been proved and marked as exhibit-1/2, injury report of Makka Devi has been proved and marked as exhibit-2, injury report of Jaikrishna Mahto has been proved and marked as exhibit-3, injury report of Balram Yadav has been proved and marked as exhibit-4, injury report of Babumani Yadav has been proved and marked as exhibit-5, formal first information report has been proved and marked as exhibit-6, certified copy of order dated 05.02.1998 passed by S.D.O., Dumka, in R.M. Case No.246/1992-93 has been proved and marked as exhibit-7, certified copy of order dated 14.09.2001 in Rev.Misc. Appeal No.01/1999-2000 has been proved and marked as exhibit-8, extract copy of P.A. Case No.66/1933-34 has been proved and marked as exhibit-9, certified copy of charge-sheet of T.R. No.418/203 has been proved and marked as exhibit-10, original discharge sheet of injured Balram Yadav, Babumani Yadav and Jaikrishna Mahto has been proved and marked as exhibits 11 to 11/2 respectively, certified of charge framed of T.R. No.418/2003 has been proved and marked as exhibit-12, certified copy of order dated 30.07.2003 passed by Judicial Magistrate, 1st Class, Dumka has been proved and marked as exhibit-13. 9. After closure of the prosecution evidence, the appellants have been examined under section 313 Cr.P.C. on 07.03.2003, to which they have pleaded their innocence and false implication in the present case. 10. The defence has also examined two witnesses, Bacchu Mahato as D.W.1 and Shiv Nath Mahato as D.W.2. Apart from the oral evidence, the defence has also adduced a number of documentary evidences, which have been proved and marked as exhibits up to exhibit-J. 11. After hearing the learned counsel for the parties and on the basis of material available on record, learned trial court has passed the impugned judgment of conviction and order of sentence. 12. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 13. 12. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 13. During the pendency of the present criminal appeal, before this Hon''ble Court appellant no.2, Roop Narayan Yadav @ Roop Narayan Mahto died in the year 2004 and appellant no.4, Babulal Yadav @ Babulal Mahto died on 20.06.2016, since no application for grant of leave under Section 394 Cr.P.C. have been filed by the relatives or the legal heirs within 30 days of the death of the deceased/appellants, as such, their criminal appeals have been abated vide orders dated 10.07.2018 and 02.08.2018 respectively, passed by this Hon''ble Court, the present criminal appeal remain pending with respect to rest of the 18 appellants. 14. Heard, Mr. Rahul Dev, learned Amicus Curiae appearing on behalf of the appellants has submitted, that impugned judgment of conviction and order of sentence passed by the learned trial court is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has further submitted, that the learned trial court without scrutinizing the evidence of the prosecution witnesses, has convicted the appellants against the material available on record. As such, the findings given by the learned trial court is perverse in nature. Learned Amicus Curiae has further submitted, that there is a case and counter case between the parties and from the evidence of the prosecution witnesses it appears, that the prosecution has not brought the true version of the case before the Court. Learned Amicus Curiae has further submitted, that all the witnesses, who have been examined are related and interested witnesses. Even though, the name of the several independent witnesses have been mentioned in the First Information Report but some of them have not been examined by the prosecution before the learned trial court. Learned Amicus Curiae has further submitted, that non examination of the Investigating Officer has caused serious prejudice to the case of the appellants, with regard to nature of injury found on the head of the Jaikrishna Mahto (P.W.-6), as alleged by the informant, in the First Information Report, that his father Jaikrishna Mahto has been assaulted by Babulal Yadav by means of bhala. Neither Jaikrishan Mahato (P.W.-6) during his evidence has stated that, he was assaulted by Babulal Yadav by means of bhala nor any injury was shown to the learned Court before, with regard to the same. Learned Amicus Curiae has further submitted, that P.W.-3 (Babumani Yadav), in paragraph-7 of his cross-examination has admitted, that appellant Babulal Yadav and others, who have sustained injuries, have been examined by the Doctor Prabhat Kumar (P.W.-9). P.W.-10, informant of the case, in paragraph nos.6 and 9 of his cross-examination, has admitted, that there is a counter case pending against them and also that accused persons have also sustained injuries. 15. Learned Amicus Curiae, in support of his submission, has relied upon a decision rendered in the case of Subramani and Others Vrs. State of Tamil Nadu , (2002) 7 SCC 210 , wherein, it has been held that "failure to explain injuries on accused-That injuries were simple, held, does not relieve the prosecution of its obligation-On failure, court can draw inference that prosecution has not presented the true version of the occurrence". 16. Learned Amicus Curiae has further submitted, that in view of the judgment and evidence brought on record, there is a free fight between the parties and prosecution has not brought true version of the case and non examination of the Investigating Officer has caused serious prejudice to the appellants, as the appellants had no opportunity to cross-examined the Investigating Officer to elucidate the facts from the Investigating Officer regarding their innocence. Under the aforesaid background, learned Amicus Curiae has submitted, that the appellants may be given benefit of doubt and be acquitted of all the charges framed against them and conviction, under Sections 147 and 307/149 I.P.C. and five appellants under Sections 148 and 307/149 I.P.C. 17. Heard, Mrs. Lily Sahay, learned Additional Public Prosecutor appearing for the State has submitted, that impugned judgment of conviction and order of sentence is based on the fact, that altogether four persons have sustained injuries i.e. P.W.-3 Babumani Yadav, P.W.-6 Jaikrishna Mahto, P.W.-8 Makka Devi and P.W.-10 Balram Yadav, informant of the case. Though, some of the injuries were simple in nature but 21 accused persons have assaulted the informant side with various arms, which are deadly weapons. Though, some of the injuries were simple in nature but 21 accused persons have assaulted the informant side with various arms, which are deadly weapons. Learned counsel for the State has further submitted, that considering the evidence against the appellants, learned trial court has rightly convicted the appellants under Sections 147 and 307/149 I.P.C. and five appellants under Sections 148 and 307/149 I.P.C. 18. Heard, learned Amicus Curiae, Rahul Dev, advocate and Mrs. Lily Sahay, learned Additional Public Prosecutor for the State and from perusal of the record, such as, First Information Report, framing of charge, evidence of 12 witnesses, exhibits, statement of the appellants recorded under Section 313 Cr.P.C., defence witnesses and defence exhibits, this Court found, that the prosecution has not come up with clean hands as the Babumani Yadav (P.W.- 3) in paragraph-7 of his cross-examination and informant, Balram Yadav (P.W.- 10) in paragraph nos.6 and 9 of his cross-examination have admitted about the case and counter case between the parties and also admitted that the injury caused upon the accused persons, who were also examined on the same date by the same Doctor, Prabhat Kumar (P.W.-9), who had examined the witnesses, this fact neither disclosed by informant in First Information Report nor the trial court has tried both the cases jointly together. In view of the Judgment of Nathi lal Vrs. State of U. P. , (1990) Supp1 SCC 145, this Court has also found that the prosecution has not come up with clean hands. The evidence of the prosecution witnesses have been examined by this Court and it was found that there are contradictions in the evidence of the prosecution witnesses. Jaikrishna Mahto (P.W.-6), father of the informant has not sustained any injury on the head nor he has alleged, that he was assaulted by the accused Babulal Yadav but from the perusal of the First Information Report it appears that the specific allegation has been made, that Jaikrishna Mahato was assaulted by Babulal Yadav, on his head by means of bhala, such contradictions are fatal to the prosecution case. In addition thereto, nonexamination of the Investigating Officer has caused serious prejudice to the appellants, as the appellants had no opportunity to cross-examine the Investigating Officer to elucidate the facts regarding place, manner of occurrence and injuries caused upon victims, to disbelieve the case of the prosecution. 19. In addition thereto, nonexamination of the Investigating Officer has caused serious prejudice to the appellants, as the appellants had no opportunity to cross-examine the Investigating Officer to elucidate the facts regarding place, manner of occurrence and injuries caused upon victims, to disbelieve the case of the prosecution. 19. From the perusal of the record, this Court is of the opinion, that there is a case and counter case between the parties and thus there is a free fight between them. It would be appropriate, in the interest of justice, under aforesaid lacuna as discussed above, the appellants be granted benefit of doubt. 20. In the aforesaid circumstance, it is very difficult to say that, who are aggressor, whether the appellants or the prosecution party, as both the cases have not been tried together, in view of the judgment of Nathi lal Vs. State of U. P., and as such, considering the facts and circumstance of the case and from perusal of the record, this Court extend benefit in favour of the appellants, and the appellants are acquitted of the charges and conviction under Sections 147 and 307/149 I.P.C. and five appellants namely Babulal Mahto, Nandeo Yadav, Hilu Yadav, Girjanand Yadav, Rameshwar Yadav are acquitted of the charges and conviction under Sections 148, 307/149 I.P.C. 21. The impugned judgment of conviction dated 05.01.2004 and order of the sentence dated 06.01.2004, passed by the 5th Additional Sessions Judge, Dumka (F.T.C.) in Session Case No.67 of 1999, arising out of Sariyahat Police Station Case No.87 of 1997 dated 22.06.1997, consequent to G.R. No.530/1997, is not sustainable in the eyes of law and thus, the same is hereby, set aside. 22. Accordingly, the instant criminal appeal stands allowed. 23. The appellants who are on bail are discharged from liability of their bail bonds. 24. Let L.C.R. along with a copy of this judgment be sent to the Court concerned at once. 25. Before parting with the aforesaid judgment, this Court appreciates the assistance rendered by Mr. Rahul Dev, learned Amicus Curiae. The Member Secretary, JHALSA, is directed to release the amount of remuneration to Mr. Rahul Dev, learned Amicus Curiae within a period of six weeks from the date of receipt of the copy of this judgment. 26. Let a copy of this judgment be communicated to the Member Secretary, JHALSA for needful forthwith.