JUDGMENT : Challenge in this appeal is of judgment of conviction dated 09.02.2002 and order of sentence dated 10.10.2002, passed by Shri Ramesh Kumar Rateriya, 4th Addl. Sessions Judge, Begusarai, in Sessions Trial No. 246/96, by which all the accused persons stood convicted under Section 307/34 of the Indian Penal Code (in short the “IPC”) and were sentenced to undergo R.I. for 07 years. Accused Ramashis Singh and Navin Singh also stood convicted under Section 307 of the IPC and were sentenced to undergo R.I. for 07 years. Apart from that accused Ramsashish Singh, Navin Singh, Bhola Singh and Ramdhani Singh were convicted under Section 447, 341, 323 of the IPC and were sentenced to undergo R.I. for one year under each Sections. All the sentences were directed to run concurrently. 2. Earlier, a report was called for from the S.P. of concerned district with regard death/alive status of the appellants, from which it appears that appellants – Navin Singh, Bhola Singh and Ramdhani Singh has already died and, therefore, this appeal stands abated so far the above appellants are concerned. 3. Prosecution case as per the fardbeyan of Umashankar Singh (P.W. 2), in short is that accused Bhola Singh has given his land to wife of accused Ramashish Singh by executing a gift deed and the said land was beside the house and land of the informant and the said land was being used as rasta. It is alleged that on 04.09.1994 at about 2.30 P.M. when informant was sitting in again of his house, accused Ramashish Singh and Navin Singh armed with bhala, accused Bhola Singh and Ramdhani Singh armed with lathi and other female co-accused came to there house and asked the informant not to use the said land as rasta on which informant protested and said that he used his own land as rasta. On which some wordy altercation took place, thereafter, accused Ramashish Singh assaulted the informant on his head by means of bhala and accused Navin Singh assaulted the informant on his left leg by bhala and other accused persons assaulted the informant by means of lathi causing injuries to informant and when his wife and his brother came to save him, they were also assaulted by brick bats and her golden chain was snatched. On hulla villagers came there. On hulla villagers came there. On the basis of the above fardbeyan, Muffasil P.S. Case No. 254/94 was registered against the accused persons. 4. Police after investigation submitted charge-sheet and cognizance of the offence was taken, thereafter the case was committed to the court of sessions, which ultimately came to the file of Ramesh Kumar Rateriya, 4th Addl. Sessions Judge, Begusarai for trial and disposal. 5. To prove its charge, prosecution has examined altogether nine witnesses. They are: P.W. 1- Ashok Singh, P.W. 2 – Umashankar Singh (informant/injured) P.W. 3 – Umesh Singh (brother of informant) P.W. 4 – Mantoon Kumar, (son of informant), P.W. 5- Rukmini Devi (wife of informant), P.W. 6 – Ramshankar Singh, P.W. 7 – Prakashchandra Choudhary, Judicial Magistrate, who recorded statement of witnesses under Section 164 Cr.P.C., P.W. 8 – Dr. Ramjatan Singh, who treated the informant, P.W. 9 and P.W. 10 Triveni Jha and Balmiki Singh, formal witnesses, who proved some documents. 6. Apart from that following documents have been brought on record and marked as; Ext. 1/2 – Signature of Mantoon Kumar on statement under Section 164 Cr.P.C. Ext. 1/3 – Signature of P.W. 5, Rukmini Devi on statement under Section 164 Cr.P.C, Ext. 1/4 – Signature of P.W. 6 Ramshankar Singh on Statement under Section 164 Cr.P.C, Ext. 2 – Deposition of P.W. 2, Ext. 9 – Statement of Umesh Singh under Section 164 Cr.P.C., Ext. 2/1 – Deposition of P.W. 7, Ext. 10 – Statement of Ramshankar Singh under Section 164 Cr.P.C., Ext. 2/2, Statement under Section 164 Cr.P.C., Ext. 2/2, statement of Ashok Singh under Section 164 of the Cr.P.C, Ext. 2/3 Statement of Rukmini Devi under Section 164 of Cr.P.C., Ext. 2/4 –Statement of Bashisht Singh under Section 164 Cr.P.C., Ext. 3. – Injury report of Umashankar Singh, Ext. 4 – Signature of Dr. Ashok Upadhyay on X – ray report, Ext. 3/1 – Injury report of Umashankar Singh in the pen of Dr. Ramjatan Singh, Ext. 5 – prescription in the pen of Dr. Ramjatan Singh, Ext. 6 – Sale deed, Ext. 7 – Fardbeyan and Ext. 8 – Original case diary of Muffasil P.S. Case No. 254/94. 7. From the side of defence also two witnesses have been examined, they are:- D.W. 1 – Ramdeo Singh and D.W. 2 – Awadh Kishor Rai, who proved the documents brought by the defence, which are Ext. 6 – Sale deed, Ext. 7 – Fardbeyan and Ext. 8 – Original case diary of Muffasil P.S. Case No. 254/94. 7. From the side of defence also two witnesses have been examined, they are:- D.W. 1 – Ramdeo Singh and D.W. 2 – Awadh Kishor Rai, who proved the documents brought by the defence, which are Ext. A – Signature of witness on gift, Ext. B. – Original gift deed, Ext. C – Certified copy of judgment in G.R. No. 1340/91 and Ext. D – Certified copy of Judgment in G.R. No. 2375/94 8. Defence of the accused persons is that they have falsely been implicated in this case due to enmity and the informant being annoyed by the execution of gift deed by accused Bhola Singh in favour of wife of Ramashish Singh as he himself was interested in the said land, has filed the present false case. Further defence of the accused person is that earlier informant and P.W. 6 were convicted in a case filed by accused – Bhola Singh. 9. Learned trial court after conclusion of trial convicted all the accused persons under Section 307/34 of the IPC and also convicted appellant Ramashish Singh and accused Navin Singh under Section 307 of the IPC and all the appellants were also convicted under Section 447, 341, 323 of the IPC and sentenced them in the manner as stated above. 10. Contention of learned counsel for the appellant is that out and out false and concocted case has been lodged by the informant as he was annoyed by the execution of gift deed by accused Bhola Singh in favour of wife of accused Ramsashish Singh as the informant himself was interested in the said land and further both sides are Gotias. It has also been submitted that the present case is the outcome of a case lodged by accused Bhola Singh against informant and P.W. 6, in which they stood convicted. Further argument is that as per prosecution case occurrence is of 04.09.94 at about 2.30 P.M. but surprisingly fardbeyan was recorded on 06.09.94 at about 12.30 P.M. after lapse of almost 46 hours and no plausible explanation has been offered for the same. Further argument is that as per prosecution case occurrence is of 04.09.94 at about 2.30 P.M. but surprisingly fardbeyan was recorded on 06.09.94 at about 12.30 P.M. after lapse of almost 46 hours and no plausible explanation has been offered for the same. It has also been contended that in spite of the fact that Government Hospital was available in the village, the injured was treated in a private clinic and injury report has also been proved by a private doctor and further injury report also does not support the manner of occurrence as the prosecution story is that some of the accused assaulted the informant by means of bhala, however, in the injury report no injury from bhala has been established rather it has been opined that the injuries were caused due to hard and blunt substance coupled with the fact there are contradictions in between the evidence of prosecution witnesses and all the witnesses are related witnesses in this case except P.W. 6, who was at inimical terms with the appellant and the trial court without considering all these infirmities have convicted the appellants, which is out and out bad and not sustainable in the eye of law. 11. On the other hand, learned counsel for the respondent-State defended the finding of guilt recorded by learned Trial Court and submitted that there are consistent evidence of witnesses with regard to occurrence and assault on the informant on his head and left leg by bhala by the accused Ramashish Singh and Navin Singh and by lathi by the accused and several injuries were found on the person of the injured out of which two were found grievous in nature. It has also been submitted that though there was some contradiction between the medical evidence of doctor and ocular evidence of witnesses, however, it is settled principle of law that where there is conflict between the documentary evidence and ocular evidence, the ocular evidence shall prevail and, therefore, there is no infirmity in the impugned judgment of trial court and conviction of appellant is just and proper. 12. Heard the rival contentions of the parties. 12. Heard the rival contentions of the parties. It appears that in this case as discussed above, the injured was treated in a private clinic and the Doctor of the said clinic, namely, Ramjatan Singh has been examined as P.W. 8, in this case and found the following injuries on the person of the injured. (i) one lacerated injury 1”x ½ ”x ½ on left parietal region of scalp. (ii) Bruise on left forearm in the left upper part 6” in length. (iii) Swelling in left elbow in full dimension. (iv) Lacerated wound 1” x ½” x ½” in the left leg. (v) Bruise on back 2”x 1”. (vi) Bruise 2" x ½ " in left side of chest between sixth and seventh rib. 13. He opined that the injuries were caused by hard and blunt substance and found two injuries grievous in nature. This witness was cross – examined by defence in his cross – examination, he has stated that bhala is sharp pointed weapon and further stated that those injury may also cause due to fall on the ground. His evidence further disclose that he examined the injured on 04.09.94 at about 2.45 P.M. His evidence also shows that he informed the police, however, in spite of that there is delay of about 46 hours in recording the statement of P.W. 2 (informant/injured). 14. So far evidence of other witnesses are concerned, P.W. 2, Umashankar Singh (informant/injured) has supported the genesis and manner of occurrence and specifically stated that accused Ramashish Singh and Navin Singh assaulted on his head and left leg respectively and others assaulted him by means of lathi. Evidence of this witness has been corroborated by the evidence of other witnesses also. 15. However, as I have discussed above, doctor has not found any bhala injury on the person of the injured rather he opined that injuries were caused due to assault by hard and blunt substance and though it is opined that some of the injuries were found grievous in nature, however, he has not disclosed as to how he reached to the conclusion that the injuries were grievous in nature. It also appears from perusal of Ext. It also appears from perusal of Ext. C and D brought by the defence that earlier a case was lodged by accused Bhola Singh against the informant (P.W. 2) and P.W. 6, in which they were convicted and, therefore, I find, learned counsel for the appellant right, in his submission that in this case no independent witness has been examined and though one witness P.W. 6 has been examined but he appears to be at inimical terms with one of the accused. Further it is also an admitted fact that there is delay of almost forty six hours in recording the fardbeyan and no satisfactory explanation has been offered for the same coupled with the fact medical evidence does not support the manner of occurrence as alleged by the prosecution as no bhala injury was found in medical examination rather it has been opined that all the injuries were caused by hard and blunt substance and there appears to be a dispute between the parties with respect to a certain land from before, which was being used by the informant as rasta. 16. I am aware of the settled law that when there is contradiction between medical evidence and ocular evidence, primacy has to be given to the ocular evidence, especially when injured has himself stated about manner of assault. However, in the present case, there is enmity between the parties from before, both parties are agnates and deed of gift was executed by one of the appellants in favour of wife of Ramashish Singh and it looks probable that it must have caused annoyance to the prosecution party. Considering the background of case, contradiction between the medical evidence and ocular evidence, the delay in recording the fardbeyan as well as the fact that there was case lodged by one of the accused against the informant and P.W. 6, in which both of them stood convicted, probability of false implication of appellants cannot be ruled out. As such appellants in these facts and circumstance, certainly deserve the benefit of doubt. 17. Accordingly, this appeal is allowed. Judgment of conviction dated 09.02.2002 and order of sentence dated 10.10.2002, passed by Shri Ramesh Kumar Rateriya, 4th Addl. Sessions Judge, Begusarai, in Sessions Trial No. 246/96 is hereby set aside. 18. As the appellant is on bail, he is discharged from liability of bail bond.