JUDGMENT : Heard, learned senior counsel appearing on behalf of the appellants, Mr. A. K. Kashyap assisted by Mr. Sudhir Kumar and Mr. Anurag Kashyap, Advocates and learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 17th March, 2004, passed by the learned 1st Additional Sessions Judge, Fast Track Court, Garhwa, in S.T. Case No.96 of 1998, arising out of Meral P.S. Case No.63 of 1995 corresponding to G.R. No.566 of 1995, whereby all the sixteen (16) appellants have been convicted for the offence committed and punishable under Sections 147 and 323 I.P.C. and the appellant No.1 (Ram Niwas Choubey) has further been convicted for the offence committed and punishable under Sections 148 and 324 I.P.C. All the accused persons/appellants from No.2 to 16 have been released on probation for the period of one year to maintain peace and good behaviour on furnishing probation bond of Rs.10,000/- with two sureties of like amount each, under Section 4(1) of the Probation of Offenders Act, 1958. So far as appellant No.1, Ram Niwas Choubey is concerned, the learned trial court has awarded sentence to undergo rigorous imprisonment for two years for the offence committed and punishable under Section 324 I.P.C. and rigorous imprisonment for one year for the offence committed and punishable under Section 148 I.P.C. Both the sentences are directed to run concurrently. 3. The prosecution case, is based upon, the 'fardbeyan' of the informant, Jogi Choudhary (P.W.5), recorded by S. Paswan, Sub Inspector of Police, Meral Police Station, on 26.09.1995 at 11.00 A.M. at State Dispensary Meral. The informant has alleged that today at around 8-9 A.M., when all the four sons of the informant, namely, Prasad Choudhary, Moti Choudhary, Moti Lal Choudhary and Mantu Choudhary were ploughing their field, situated on the south east of the village, then accused persons namely, (1) Dosh Choubey, (2) Dwarika Choubey, (3) Mandip Choubey, (4) Hardev Choubey, (5) Amar Choubey (6) Ramniwas Choubey (7) Prem Choubey, (8) Subhash Choubey (9) America Choubey (10) Mithilesh Choubey (11) Kalai Choubey (12) Biren Choubey (13) Rabindra Choubey (14) Binay Choubey and other persons of Choubey family, whose names are not known to the informant, approximately 20-25 persons, came over the land of the informant with lathi, garasa and bhala. As soon as, the accused persons came, Ram Niwas Choubey assaulted son of the informant, Moti Choudhary by means of garasa on his head causing bleeding injury. All the other accused persons have also assaulted by means of lathi, due to which all the four sons of the informant sustained injury. The informant has specifically alleged that Dwarika Choubey has assaulted son of the informant, namely, Prasad Choudhary by means of lathi. Dosh Choubey has assaulted Moti Lal Choudhary causing injury. All the accused persons have assaulted indiscriminately, causing injury to his sons, who fell on the ground. On brawl, co-villagers came there and thereafter the accused persons have fled away. The villagers assembled there, saved these persons and brought them to the Hospital and the informant remained at his field. The informant has stated that he was also in the field, but at a distance. The informant has claimed that the occurrence has been witnessed by the other persons, who will say about the occurrence. The informant has alleged that cause of the occurrence is due to land dispute, prevailing between the parties for 25 -30 years and the accused persons are trying to grab the three acres and sixty two decimals (3 acres 62 decimals) of land, which the informant is opposing. On the basis of the aforesaid 'fardbeyan' of the informant, Police instituted First Information Report bearing Meral P.S. Case No. 63 of 1995 (dated 26.09.1995), corresponding to G.R. No.566 of 1995, under Sections 147/148/149/324/323/307 of the Indian Penal Code against the named accused persons and 20-25 unknown accused persons. 4. After investigation, the Police has submitted first charge-sheet vide Charge-sheet No.15 of 1996 dated 29.03.1996 against sixteen accused persons, under Sections 147/148/149/447/307/324/323 I.P.C. 5. The cognizance of the offence has been taken against accused/appellants vide order dated 02.04.1996 and the case has been committed to the Court of Sessions vide order dated 19.03.1998. 6. The charge has been framed by the learned trial court on 24.07.2000 against the accused/appellants under Sections 147/148/324/323/307 I.P.C., to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 7. The prosecution has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence as exhibits in order to prove its case. 6. The charge has been framed by the learned trial court on 24.07.2000 against the accused/appellants under Sections 147/148/324/323/307 I.P.C., to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 7. The prosecution has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence as exhibits in order to prove its case. Moti Choudhary has been examined as P.W.1, Moti Lal Choudhary has been examined as P.W.2, Prasad Choudhary has been examined as P.W.3, Kunti Devi has been examined as P.W.4, Jogi Choudhary, informant of the case, has been examined as P.W.5 and Dr. Ram Naresh Singh Diwakar, Medical officer, has been examined as P.W.6. Signature of the informant (P.W.5) on the fardbeyan has been proved and marked as Exhibit-1, injury report of Moti Lal Choudhary (P.W.2) has been proved and marked as Exhibit-2, injury report of Kunti Devi has been proved and marked as Exhibit-2/a, injury report of Moti Choudhary has been proved and marked as Exhibit-2/b and injury report of Prasad Choudhary has been proved and marked as Exhibit-2/c. 8. After closure of the prosecution evidence, the statements of the accused/appellants have been recorded under Section 313 Cr.P.C., on 16.08.2003, to which the accused/appellants have categorically stated that they have been falsely implicated in this case, as there is case and counter-case between the parties and they will adduce evidence on their behalf. Basudeo Prasad has been examined as D.W.1 and he has proved the formal First Information Report of Meral P.S. Case No.62 of 1995, dated 26.09.1995 corresponding G.R. No.567 of 1995, which has been marked as Exhibit-A. 9. The learned trial court, after hearing learned counsel for the parties and on the basis of materials brought on record, has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 10. Heard, learned senior counsel appearing on behalf of the appellants Mr. A. K. Kashyap assisted by Mr. Sudhir Kumar and Mr. Anurag Kashyap, Advocates. Learned senior counsel on behalf of the appellants 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 senior counsel appearing on behalf of the appellants Mr. A. K. Kashyap assisted by Mr. Sudhir Kumar and Mr. Anurag Kashyap, Advocates. Learned senior counsel on behalf of the appellants 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 senior counsel on behalf of the appellants has submitted that there is case and counter-case between the parties, as Ram Niwas Chaubey (appellant No.1) has initially filed First Information Report bearing Meral P.S. Case No.62 of 1995 dated 26.09.1995 against the informant and his sons, which was registered under Sections 147/148/149/324/323/307 I.P.C. and thereafter to save their own skin, the informant (Jogi Choudhary) has filed the present case, without disclosing this fact in the fardbeyan that the accused persons of the present case have also sustained injuries and they have already filed a case against them. Learned senior counsel on behalf of the appellants has further submitted that Sub Inspector of Police, S. Paswan of Meral Police Station has recorded the fardbeyan at State Dispensary, Meral, but non-examination of investigating officer has caused serious prejudice to the appellants, as the case and counter-case have not been tried together, as such, fair investigation and trial has not been done in this case. Learned senior counsel appearing on behalf of the appellants, in support of his submission, has put reliance in the case of Subramani and Ors. Vs. State of Tamil Nadu, as reported in (2002) 7 SCC 210 , wherein the Hon'ble Supreme Court has held 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.” Learned senior counsel on behalf of the appellants has further submitted that from the evidence brought on record, the land of Plot No.1305, Khata No.180, total area 8.39 acres has been declared in possession of accused persons, Ram Niwas Choubey and others by the Executive Magistrate vide order dated 19.09.1988 and this fact has been admitted by Moti Choudhary (P.W.1) in Para-8 of his cross-examination. Learned senior counsel on behalf of the appellants has further submitted that after this occurrence, the order of the Executive Magistrate was assailed before the learned Additional Collector and as such, at the time of alleged date of occurrence, the informant's side has not been allowed to go over the land. Learned senior counsel on behalf of the appellants has further submitted that whatever has occurred, that was free fight between the parties, as the informant's side was law breakers, went to the plot of the appellants in whose favour, the Executive Magistrate has given order vide order dated 19.09.1988 under Section 145 Cr.P.C. and as such, the appellants have reason to go over the plot in support of right of their private defence of property and whatever has been committed by them that will come under the purview of Sections 96 and 97 of the Indian Penal Code. Learned senior counsel appearing on behalf of the appellants has further submitted that non-examination of the Investigating officer has caused serious prejudice to the appellants, regarding the manner of occurrence and right of the parties over the land, as they have not been provided an opportunity to cross-examine the Investigating officer to elucidate the fact, so far as manner of occurrence and the right of the parties over the land is concerned. Learned senior counsel for the appellants has further submitted that from the evidence of P.W.1 (Moti Choudhary), it appears that there is contradictory evidence, so far as the manner of occurrence is concerned. As per the evidence of P.W.1, he was first persons, who was assaulted, but from the perusal of evidence of other prosecution witnesses, it appears that there is free fight between the parties, in which both the sides have sustained injuries and the case and the counter-case have been instituted, but not tried together. There is every likelihood of contrary finding in both the cases, as both the cases have not been tried together. Learned senior counsel for the appellants has thus, submitted that considering the private defence of the parties as well as free fight between them, the appellants are entitled for benefit of doubt, as the prosecution party has not brought true version of the prosecution case, by explaining the injuries caused upon the appellants. 11. Heard, Mrs. Laxmi Murmu, learned Additional Public Prosecutor appearing for the State. 11. Heard, Mrs. Laxmi Murmu, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court on the basis of the materials available on record and the learned trial court has rightly convicted the appellants. Learned counsel appearing for the State has further submitted that the appellants have assaulted the prosecution side and injury reports of the injured persons have been proved and marked as Exhibit-2 Series. Learned counsel for the State has further submitted that injury report of Moti Choudhary (P.W.1), has been proved and marked as Exhibit-2/b, which shows incised injuries over the parietal region of head of the victim though simple in nature and order of conviction has been passed against the appellant, Ram Niwas Choubey, under Section 324 I.P.C. and as such, this Court may not interfere with the impugned judgment of conviction and order of sentence. Learned counsel for the State has further submitted that non-examination of the investigating officer has not caused any prejudice to the appellants, as no such suggestion has been given to any of the prosecution witnesses, during their cross-examination. The examination of the Investigating officer with respect to possession over the land is not detrimental factor for adjudication of the present case, as such, no prejudice has been caused and impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court. 12. Heard, learned senior counsel for the appellants Mr. A. K. Kashyap assisted by Mr. Sudhir Kumar and Mr. Anurag Kashyap, Advocates and Learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor and also perused the entire records of the case i.e. First Information Report, framing of charge, evidence of six prosecution witnesses, prosecution exhibits up-to Exhibits-2 Series, statement of the appellants recorded on 16.08.2003 under Section 313 Cr.P.C. and one defence witness and one defence Exhibit as well as the impugned judgment of conviction and order of sentence and also materials brought on record i.e. Certified copy of the order dated 19.09.1988 passed in Misc. Case No.386 of 1982 under Section 145 Cr.P.C., which was passed in favour of the second party (defence side). This Court has perused the entire evidence. Case No.386 of 1982 under Section 145 Cr.P.C., which was passed in favour of the second party (defence side). This Court has perused the entire evidence. It appears that earlier Ram Niwas Choubey (appellant No.1) has filed a case bearing Meral P.S. Case No.62 of 1995 dated 26.09.1995, under Sections 147, 148, 149, 323, 324 and 307 I.P.C. against Jogi Choudhary and others as well as two hundred unknown persons for the same occurrence dated 26.09.1995. The fardbeyan of Ram Niwas Choubey was recorded by S. Paswan, Sub Inspector of Police of Meral Police Station, at State Dispensary, Meral at 10.30 hours on 26.09.1995 and soon thereafter, the same Police officer, Sub Inspector of Police, S. Paswan of Meral Police Station has recorded the fardbeyan of Jogi Choudhary (informant of this case) at 11.00 a.m. on 26.09.1995 at State Dispensary, Meral. From perusal of the same, it appears that there was assault from both the sides, causing injuries to both the sides and both the sides were given treatment at State Dispensary. From perusal of the Exhibit-1 as well as Exhibit-A, it appears that true version of the case has not been brought on record. Both the sides have not disclosed the injuries sustained by the injured persons of other side. The judgment referred by the learned senior counsel, as reported in (2002) 7 SCC 210 , in the case of Subramani (supra) is fully applicable in the present case, as the prosecution has not brought the true version of the occurrence before the Court. 13. From perusal of the records, this Court has also found that the Certified copy of the order dated 19.09.1988 passed in Misc. Case No.386 of 1982 by the Executive Magistrate, Garhwa, declaring the possession over Khata No.180 and Plot No.1305, measuring an area of 8.39 acres in favour of the second parties, who are appellants in this Criminal Appeal. Under the aforesaid circumstances, when a free fight took place and both the sides have sustained injuries and both the sides have not brought the true version of the prosecution case to the Court, the benefit of doubt must go in favour of the appellants, as such, the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. 14. 14. Accordingly, the Judgment of conviction and order of sentence, both dated 17th March, 2004, passed by the learned 1st Additional Sessions Judge, Fast Track Court, Garhwa, in S.T. Case No.96 of 1998, is hereby set aside by extending benefit of doubt in favour of the appellants, as these appellants are in litigating term for a piece of land for approximately 30 years. 15. Accordingly, the present Criminal Appeal stands allowed. 16. The appellants, who are bail, they are discharged from the liability of their bail bonds. 17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal allowed.