JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against judgment of conviction and order of sentence dated 25th April, 2003 passed by 2nd Additional Sessions Judge, F.T.C., Jamtara in Sessions Trial No.221 of 2000/142 of 2002 holding the sole appellant guilty under Section 323 of the Indian Penal Code and ordered to be released on furnishing probation bond of Rs.1000/- for maintaining good conduct and behavior for six months with one surety of the like amount. 3. The prosecution case, in short, is that on the basis of station diary entry no.487 dated 26.08.1999 made by Fatehpur Police Out Post which was entered as a written report on the same day submitted by informant Karuna Devi. She has stated that on 26.08.1999 around 4 p.m. in the evening her she-calf entered into the house of Prabhakar Mandal then her daughter Seema Dutta aged about 12 years went to bring she-calf and when she reached at the door, Prabhakar Mandal assaulted with stone and his wife slapped her. Neepak Mandal also abused and threatened her. Thereafter, Kundhit P.S. Case No.82 of 1999 under Sections 341, 323, 307 and 504 of the Indian Penal Code was registered against (i) Prabhakar Mandal (ii) Tulabati Mandlain, wife of Prabhakar Mandal (iii) Neepak Mandal, son of Prabhakar Mandal. The police after investigation submitted charge-sheet upon all the accused persons under Sections 341, 323, 307/504 of the Indian Penal Code against accused Prabhakar Mandal, Neepak Mandal and Tulabati Devi. After taking cognizance, the case was committed to the court of Sessions. The charges were framed against all the three accused persons for the offence under Sections 323, 341, 504, 307/34 of the Indian Penal Code to which they denied and claimed to be tried, and the trial proceeded. 4. In order to prove the case, the prosecution examined ten witnesses but the defence has not examined any witness, only a certified copy of deposition of accused Prabhakar Mandal given in G.R. Case No.445 of 1997, T.R. No.578 of 1999 was brought on record which was marked as Ext. A. 5. P.W.1 Seema Kumari Dutta, injured of this case has deposed that the occurrence relates to 2 ½ years before, at around 4 p.m. in the evening her she-calf went into the house of Prabhakar Mandal. A. 5. P.W.1 Seema Kumari Dutta, injured of this case has deposed that the occurrence relates to 2 ½ years before, at around 4 p.m. in the evening her she-calf went into the house of Prabhakar Mandal. She went to bring back she-calf, at that time wife of Prabhakar slapped her and Prabhakar assaulted her with stone and he was uttering, ‘he will kill her’. Gurupad, Shayampad and other witnesses were present there. She became unconscious, and was treated by the doctor at Jamtara. She recognized Prabhakar Mandal in court. During cross-examination, she stated that she came to court with her Nana Dhananjay. She has given statement about her head injury before the police. She also stated that blood stained clothe was not given to the police. She further stated that at around 4 p.m. she-calf entered into the Aangan of the house of the Prabhakar but nothing was there. At that time, Prabhakar was present in the house and he drove the she-calf but at that time he had not assaulted her. She had fallen near the door of the house and became unconscious. Next day, she visited Jamtara Hospital along with her parents and Nana, where she remained for three days. She denied the suggestion that the cattle was grazing paddy from the field of Prabhakar and a false case has been lodged. 6. P.W.2 Karuna Maladasi is informant of this case. She has stated that she has lodged this case. Occurrence is of 2 ½ years ago in the evening. She was returning to her home then Prabhakar entered in her house but again she corrected herself and stated that in the house of Prabhakar her she-calf entered then her daughter Seema went there to bring her back. When Seema was bringing the she-calf, the wife of Prabhakar abused her with fist and slap. Prabhakar Mandal uttering that he will kill her. Thereafter, he assaulted with a stone causing injury as a result of which Seema became unconscious. After some time, they went to police station and lodged the case. On the next date, they visited the hospital. She recognized Prabhakar in the court. During cross-examination, she stated that in the police station she was present with Gurupad, Shayampad but they have not given anything in writing. She denied that some case is going on between Gurupad, Shyampad, Dhananjay with Radha Krishna. On the next date, they visited the hospital. She recognized Prabhakar in the court. During cross-examination, she stated that in the police station she was present with Gurupad, Shayampad but they have not given anything in writing. She denied that some case is going on between Gurupad, Shyampad, Dhananjay with Radha Krishna. She further stated that the distance between her house and Prabhakar is about 300 yards. She further replied that her daughter had not gone for grazing the cattle but she was bringing the cattle from the grazer when the occurrence took place at the door of the house of Dhananjay. There was no enmity with Prabhakar who has not chased her daughter. She stated that he had thrown only one stone which caused head injury. 7. P.W.3 Shyampad Ruj, brother of informant narrated the prosecution case that around 4 p.m. she-calf was returning to the home then it entered into the house of Prabhakar Mandal. Wife of Prabhakar Mandal started beating she-calf to which Seema objected. Then she slapped Seema and Prabhakar had thrown a stone upon her which caused head injury and Seema became unconscious. Prabhakar also stated that he will kill her. The police has prepared the report and sent before the doctor but they remained at the police station. Next day, they went to Jamtara hospital where doctor prepared the injury report and police lodged the case. He recognized Prabhakar in the court. During cross-examination, he stated that police has recorded his statement along with Gurupad and others as well as of the informant. He further stated that Prabhakar thrown only one stone but Seema became unconscious. He further stated that the informant is his sister and Dhananjay is his father and Gurupad is his brother. He also stated that blood was drooped at the place of occurrence and treatment was going on in Jamtara Hospital. He admitted that Prabhakar has deposed in a case against him as Prabhakar belong to the party of Radha Krishna. His father has also lodged a case. He denied the suggestion that no such occurrence had taken place. He stated that his father has lodged a case of dacoity in which the police has submitted final form. 8. P.W.4 is Garbi Bauri. His father has also lodged a case. He denied the suggestion that no such occurrence had taken place. He stated that his father has lodged a case of dacoity in which the police has submitted final form. 8. P.W.4 is Garbi Bauri. She stated that the occurrence is of four years ago at around 6 p.m. She was taking water from the tubewell and saw that she-calf went in the house of Prabhakar and Seema went there to bring her back then wife of Prabhakar slapped her. She was returning home weeping and reached at the door of Dhananjay then Prabhakar assaulted with a stone causing injury. Seema fell down. Shyampad and Gurupad came for her rescue. Prabhakar’s son was telling maro-maro. The people reached there. The assembled persons brought Seema to her residence. She recognized Prabhakar. During cross-examination, she stated that her statement was not recorded by the police. She was working in the house of Dhananjay during the time of occurrence. She also stated that she was alone at the tubewell which is at a distance of 100 yards from the house of Prabhakar. She stated that cattle has entered into field of Prabhakar and was eating paddy then Prabhakar had confined upon which Gurupad gone there for the release of cattle. She stated that she had not seen that Dhananjay and others have beaten Prabhakar. She denied the suggestion that no such occurrence had taken place and she is deposing false. 9. P.W.5 is Nepal Chandra Dutta. He stated that he works in tea shop at Fatehpur and his wife informed that she went with her daughter to police station as Prabhakar and his wife had assaulted her. His wife has assaulted with fist and slap and Prabhakar had assaulted with stone. After getting the news, he reached at the police station and saw head injury on Seema. His wife lodged the case and they were referred to Jamtara Hospital for treatment but at that time she did not go to the hospital. He recognized Prabhakar in court. During cross-examination, he stated that Fatehpur is at a distance of 200 yards from the police station where his had wife had already lodged a case before he could reach. He denied the suggestion that no such occurrence was taken place and due to the enmity with his father-in-law, this false case has been lodged. 10. P.W.6 Dr. During cross-examination, he stated that Fatehpur is at a distance of 200 yards from the police station where his had wife had already lodged a case before he could reach. He denied the suggestion that no such occurrence was taken place and due to the enmity with his father-in-law, this false case has been lodged. 10. P.W.6 Dr. S. N. Mishra, who had examined Seema Dutta on 27.08.1999 found following injury:- “Lacerated wound on head with middle portion of right side with blood clot surrounding it 3” x 1 ½” x skull bone was visible , bone deep.” In his opinion, the injury was caused by hard and blunt substance but the injury was dangerous for the life. The injury report was marked as Ext.1. During cross-examination, he stated that in the written requisition of the police, the injury was shown on the right side of the head. He further stated that the injury may have been caused on fall of rocky substance. He also submitted that when she was brought before him, she was not unconscious. 11. P.W.7 Dhanajay Ruj is Nana of injured who submitted that when he reached Fatehpur Police Station More, then he saw his daughter Karuna Devi along with her daughter Seema and Shyampad. There was head injury on Seema and the girl stated that she-calf had entered into the house of Prabhakar. When she went there to bring her back, she was assaulted by Prabhakar and his wife. Her daughter had given thumb impression on the statement given before the police. They went to Jamtara Hospital for treatment. He recognized the accused. During cross-examination, he stated that his statement was also recorded by the police. He admitted that on 25.08.1994 Prabhakar might have deposed against him in the court as he has lodged three cases and also facing two cases. One case is also continuing with Radha Krishna since 1958 and Prabhakar has given evidence from the side of Radha Krishna as he belongs to his party. He also stated that Seema got injury on the right side of the head. Her clothes were also blood stained but police has not seized those clothes. He denied the suggestion that his daughter has lodged a false case due to the reason that Prabhakar has deposed against him in a separate case. 12. He also stated that Seema got injury on the right side of the head. Her clothes were also blood stained but police has not seized those clothes. He denied the suggestion that his daughter has lodged a false case due to the reason that Prabhakar has deposed against him in a separate case. 12. P.W.8 Umanath Kol deposed that when Karuna Devi came to Fatehpur O.P., he was present there and also saw Seema Dutta. He had written on her dictation. He gave the written paper to the police and recognized three copies of it bearing his handwriting and signature upon which she had given the thumb impression. During cross-examination, he stated that he knows Karuna for the last 10-12 years as his village is situated at the distance of about 2 Km and he used to visit her village. He further stated that he had no personal knowledge about the occurrence, he had only written in the application on the dictation of Karuna Devi. He denied the suggestion that he is deposing false. 13. P.W.9 Gurupad Ruj is Mama of Seema. He also narrated the prosecution story as well as the assault made by Prabhakar and his wife to her Bhagini Seema and lodgment of case. He recognized the accused person. During cross-examination, he admitted that he had already deposed for evidence in two more cases and in one case he is also an accused which was lodged by Radha Krishna for cutting of paddy from his field. Another case has been lodged by Dinesh Sen. He is not aware that in the case lodged by Dinesh Sen, Prabhakar has deposed against him. He stated that blood was dropped on the place of occurrence which they shown to the police but he is not aware that the police has seized the blood stained soil or not. He further stated in cross-examination that blood stained clothe of Seema was given to the police. He also stated that Officer-in-Charge had arranged for the bandage on the head of Seema but he could not name of doctor or compounder. He denied the suggestion that he is deposing false due to the reason that Prabhakar has deposed against him on 25.08 and he was implicated in this false case on 26.08.1994. 14. He also stated that Officer-in-Charge had arranged for the bandage on the head of Seema but he could not name of doctor or compounder. He denied the suggestion that he is deposing false due to the reason that Prabhakar has deposed against him on 25.08 and he was implicated in this false case on 26.08.1994. 14. P.W.10 Tahir Hussain, an Advocate Clerk has proved the station diary no.487/99 in the handwriting of Umanath Kol which has been marked as Ext.2. He has also proved formal F.I.R. as Ext.3 and charge-sheet as Ext.4. During cross-examination, he stated that all the exhibits were not written in his presence. He denied the suggestion that wrong signature has been proved before the court. 15. After closing of the prosecution case, statement of accused persons were recorded under Section 313 of the Code of Criminal Procedure. No evidence was led on behalf of defence but only certified copy of deposition of Prabhakar Mandal in T.R. No.578 of 1999 corresponding to G.R. No.445 of 1997 was marked as Ext. A from the side of defence. 16. Learned Amicus Curiae appearing on behalf of appellant submitted that there are contradiction in the place of occurrence that whether the occurrence took place at the house of Prabhakar or on the road or on the door or field of the informant. He further stated that no blood stained clothe was seized by the police nor it was handed over to the police. He further submitted that neither X-ray report nor subsequent opinion of doctor was brought on record by the prosecution, so conviction is bad in law. He also submitted that defence case about giving evidence by Prabhakar against the relatives of informant has been admitted by the prosecution witness. Lastly, he submitted that I.O. of this case was not examined; therefore, the appellant has been highly prejudiced because of contradictions occurring in the evidence of the prosecution witnesses. The improvement made by prosecution witnesses in their statement made before the court could not be taken from the I.O. due to his non-examination. 17. Learned A.P.P. appearing on behalf of the State submitted that injured victim has clearly stated that the place of occurrence was the house of the appellant while she was bringing back her she-calf, then offence took place. 17. Learned A.P.P. appearing on behalf of the State submitted that injured victim has clearly stated that the place of occurrence was the house of the appellant while she was bringing back her she-calf, then offence took place. He also submitted that the trial court has based his conviction on the basis of her injury and held the appellant guilty only under Section 323 of the Indian Penal Code and acquitted from the charge of Section 307 of the Indian Penal Code and has released the appellant by extending the benefit of Probation of Offenders Act. 18. Having heard the counsel for both sides and upon going through the record, it appears that enmity between the parties have been admitted by the P.W.3 Shyampad Ruj, brother of informant, P.W.7 Dhananjay Ruj, Nana of Seema that the accused-appellant has deposed against them in a case and thereafter the case has been lodged. This is also corroborated through the Ext. A. It further appears from the Ext.1 that the injury of Seema Dutta who was examined on 27.08.1999, lacerated wound was found on the head in the mid portion on right side with blood clot surrounding it. X-ray of skull was advised and the opinion regarding the injury was kept reserved till the X-ray report is received. It further appears that no subsequent report of doctor after the receipt of X-ray was brought on record by the prosecution. Therefore, it cannot be held that the injury caused to Seema Dutta was dangerous to life. Since the I.O. was not examined in this case, so contradiction relating to place of occurrence could not be taken. No blood stained clothes of injured as well as blood stained soil or any seizure list relating to it were proved by the prosecution, therefore, all these things taken together affects the case of prosecution as well as regarding the bleeding injury of Seema Dutta and her head injury being dangerous to her life. 19. For the foregoing reasons, the impugned judgment of conviction and order of sentence dated 25th April, 2003 passed by 2nd Additional Sessions Judge, F.T.C., Jamtara in Sessions Trial No.221 of 2000/142 of 2002 is set aside. The appellant is given the benefit of doubt and he is acquitted of the charge. 20. In the result, this appeal is allowed. 21. For the foregoing reasons, the impugned judgment of conviction and order of sentence dated 25th April, 2003 passed by 2nd Additional Sessions Judge, F.T.C., Jamtara in Sessions Trial No.221 of 2000/142 of 2002 is set aside. The appellant is given the benefit of doubt and he is acquitted of the charge. 20. In the result, this appeal is allowed. 21. Since the appellant was sentenced to be released on furnishing probation bond of Rs.1000/- for maintaining good conduct and behavior for six months with one surety, is no more required to be executed before the court below. 22. Before parting with this judgment, I must record that I have been given able assistance by Mr. Rajesh Kumar Dubey, learned amicus curiae in the case. I direct the Secretary, High Court Legal Services Committee to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this judgment be sent to the Secretary, High Court Legal Services Committee for the needful. 23. Let the Lower Court Records be sent back to the court concerned. Appeal allowed.