JUDGMENT : This Appeal is against the judgment of conviction and order of sentence dated 29.11.2008 passed by learned Additional Sessions Judge, F.T.C. No. I Garhwa in S.T. Case No.50 of 2003 arising out of Bhawnathpur P.S. Case No.67/1995 corresponding to G.R. No.742/1995, whereby and whereunder the sole appellant has been convicted for the offence under Section 324 of Indian Penal Code and thereby sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/-and in case of default to pay fine he must further undergo simple imprisonment for one month. 2. The prosecution story in brief: - as per the written complaint of informant Vijay Prasad dated 26.12.1995 that on that date at 10:30 a.m. Rajo Devi wife of Jagdish Choudhary (appellant) was abusing his mother near the house of Mukesh, informant reached there and objected her from abusing, at that moment, Jagdish Choudhary came from his house having Chura and with intention to kill and assault him resulting into injury upon the informant and thereby a criminal case has set on motion. On the basis of the aforesaid written complaint and accordingly the police had arrested her, a case for the offence under Sections 307 and 324 of the Indian Penal Code. The case was committed before the Court of Session for commencement of trial wherein the charge has been framed for the offence under Sections 307 and 324 of the Indian Penal Code and accordingly the appellant has been subjected to the aforesaid trial. The prosecution has produced altogether five witnesses for proving the guilt against the appellant and on the basis of the deposition rendered by them, the appellant has been convicted for the offence under Section 324 of Indian Penal Code and in consequence thereof the appellant has been sentenced to undergo rigorous imprisonment of three years and to pay a fine of Rs.500/- and in case of default to pay a fine he must further simple imprisonment for one month. The appellant being aggrieved with the aforesaid finding given by the trial Court is before this Court under its appellate jurisdiction raising the following points:- (i) F.I.R. has not been proved; (ii) Doctor has not been examined; (iii) Investigating Officer has not been examined; (iv) Injury report has not been proved; (v) Injured witness namely, Tulsi Ram has not been examined; (vi) P.W. – 4 – Vijay Prasad (informant) in paragrapgh No.9 has stated that Chura by which the blow was given upon the informant although was seized but not produced and not even sent to the Forensic Science Laboratory for its expert examination to corroborate the allegation levelled against the appellant; 3. Learned counsel for the appellant, Mr. Sanjay Kumar Tiwari, while arguing the case has submitted that it is a case of conviction only on the basis of the depositions of P.W. – 4 namely, Vijay Prasad who happens to be informant and P.W. – 5 – Sunaina Devi who happens to be mother of P.W. – 4 and as such the conviction is totally based upon the deposition of highly interested witness without being corroborated by the other independent witnesses. Since the P.W. – 1 and P.W. – 3 namely, Ram Sewak Biyar and Shyam Sunder Kumar who happens to be local people, have been turned hostile and as such there is no corroborative piece of evidence to corroborate the deposition of P.W. – 4 -Vijay Prasad and P.W. – 5 – Sunaina Devi, hence the evidence based upon which the appellant has been convicted is totally untrusty evidence and therefore the conviction is not proper. He further submits that F.I.R. has not been proved although Doctor has not been examined and even the Investigating Officer has also not been examined and since the Doctor has not been examined, the injury has not been proved, hence all these aspects of the matter ought to have taken into consideration by the learned trial Court while convicting the appellant. Since in the criminal jurisprudence the conviction is totally to be based upon only in the circumstances when the prosecution would be able to prove the charge beyond all reasonable doubt and hence according to him, the prosecution has failed to prove the charge beyond all reasonable doubt and as such the judgment of conviction and the sentence is not sustainable, hence the same be set aside. 4. 4. Per contra Mr. Mukesh Kumar, Additional Public Prosecutor by defining the impugned judgment has submitted that it is not a case of no evidence rather the informant who has sustained injury has stated in his deposition that the Chura blow had been given and therefore he was compelled to go to hospital where he was treated and this aspect of the matter has been corroborated by the P.W. – 5 – Sunaina Devi and as such it is a case wherein the prosecution has been able to prove the guilt on the basis of the deposition of P.W. – 4 and P.W. – 5 and therefore it is incorrect to say that that prosecution has not been able to prove the guilt beyond all reasonable doubt and as such no interference is required with the impugned judgment. 5. This Court after appreciating learned counsel for the parties and going across the judgment impugned vis-a-vis the deposition contained in the Lower Court record which has been called upon by this Court vide order dated 27.02.2009 and on examination it has been found by this Court that altogether five witnesses have been arrayed in the list of the witnesses namely Ram Sewak Biyar -P.W. – 1, Dhanjai Kumar -P.W. – 2, Shyam Sunder Kumar -P.W. – 3, Vijay Prasad -P.W. – 4 and Sunaina Devi -P.W. – 5. 6. P.W. – 1 namely, Ram Sewak Biyar has been turned hostile since he has stated that he has not seen the occurrence. P.W. – 2 namely, Dhanjai Kumar who happens to be a local people but he is not the eye witness either he is hearsay witness and he has also been turned hostile. P.W. – 3 namely, Shyam Sunder Kumar has also been declared hostile. P.W. -4 -Vijay Prasad is the informant and P.W. – 5 -Sunaina Devi is the mother of the informant and on the basis of the statement of P.W. – 4 and P.W. – 5, the appellant has been convicted and therefore the deposition of P.W. – 4 and P.W. – 5 needs to be appreciated. 7. P.W. -4 -Vijay Prasad is the informant and P.W. – 5 -Sunaina Devi is the mother of the informant and on the basis of the statement of P.W. – 4 and P.W. – 5, the appellant has been convicted and therefore the deposition of P.W. – 4 and P.W. – 5 needs to be appreciated. 7. P.W. – 4 had stated in his deposition that on 26.12.1995 on Tuesday at 10:00 a.m. in the morning while he was in the house, the wife of Jagdish Choudhary namely Rajo Devi had started his mother and when he reached there and asked Rajo Devi not to abuse, upon this, the appellant, Jagdish Choudhary, entered into his house and came out along with Chura and given a blow from the said Chura on his head but in order to save, he came at back and therefore the injury has been caused in the forehead and by the side of the right eye resulting in the bleeding and he fell down, in order to save him, the maternal grand-father namely, Late Tulsi Ram reached there but he has also been assaulted in his back resulting into bleeding, thereafter went to the hospital where he was treated. In the cross-examination he has stated that the Chura by which the blow was given upon his head was seized. He further deposed that his maternal grand-father was also assaulted. He has stated that he remained in hospital for a day and thereafter he was discharged likewise, his maternal grand-father was also in hospital for a day. 8. P.W. -5 namely, Sunaina Devi who is the mother of P.W. – 4 (informant) has reiterated the same thing which has been stated by P.W. – 4. In her cross-examination she has stated that she is the witness of the occurrence since it has occurred in her presence. Thereafter the appellant has been examined under Section 313 of the Cr.P.C., wherein she has denied the allegation. She has further stated that the blood stained cloth has been handed over to the police. In support of the submission made by the appellant under Section 313 of the Cr.P.C, one Ram Prasad Yadav has been examined as defence witness no.1 who has deposed therein that no incident as has been alleged by the informant against the appellant has occurred. In support of the submission made by the appellant under Section 313 of the Cr.P.C, one Ram Prasad Yadav has been examined as defence witness no.1 who has deposed therein that no incident as has been alleged by the informant against the appellant has occurred. Thus, it is evident that P.W.-1, P.W.-2 and P.W.-3 have become hostile while P.W.-4 who is the informant and P.W.-5 who is the mother of the informant has supported the story of prosecution and on the basis of that the judgment of conviction has been passed. It is apparent from the material available on record that there is no independent eye witness. The basis of the initiation of the criminal case that is the first information report, has not been proved. It is not in dispute that the FIR cannot be treated to be encyclopedia but the thing is that when on the basis of the document, any prosecution is initiated, it is the duty of the prosecution to place it before the Court for its corroboration to come to the right conclusion. 9. It is a case where the appellant has been convicted for the offence under Section 324 of the Indian Penal Code and the ingredients of Section 324 of the Indian Penal Code is that whoever voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, would be convicted with the punishment for a term which may extend to three years, or with fine, or with both, meaning thereby there must be the intention of allegation of voluntarily causing hurt by means of any instrument and to come to the rightful conclusion, there must be an injury for a conviction for the offence under Section 324 of the Indian Penal Code. 10. Thus, the nature of injury is important to be seen and the same can be seen only by an injury report. 10. Thus, the nature of injury is important to be seen and the same can be seen only by an injury report. It is the case of the prosecution that P.W.-4 Vijay Prasad along with his maternal grandfather have been assaulted by Chura and in consequence thereof, were in the hospital they had been for a day, meaning thereby there were indoor patient in the hospital, as such, there must be a discharge certificate. It was the duty of the prosecuting agency to bring on record the discharge certificate before the trial court for the appreciation of the nature of injury but very surprisingly nothing is on record related to the injury even though the informant and his maternal grandfather had been to a hospital for a day. Even the doctor has not been examined and as such the injury said to have been caused by the appellant upon the informant has not been corroborated. Furthermore, the Investigating Officer has also not been examined to appreciate the fact regarding the veracity of incident, the place of occurrence and furthermore at paragraph-6 of the deposition of P.W.-5 Sunaina Devi, she in clear term has stated that she has handed over the blood stained cloth of the informant to the Police. The Investigating Officer before submission of charge-sheet would have taken the initiative to send the blood stained cloth before the Forensic Science Laboratory for its corroboration as to whether any injury has been given upon the body of the P.W.-4 but it has not been brought before the trial court, since the Investigating Officer has not been examined. Tulsi Ram, who subsequent to the incident had died, who happens to be the maternal grandfather of the informant, P.W.-4 but in course of his lifetime, he has also not been examined who can be a best witness, reason best known to the prosecuting agency in not examining late Tulsi Ram. Furthermore, Chura which said to have been seized, is evident from paragraph-9 of the deposition of P.W.-4 but neither sent before the Forensic Science Laboratory to corroborate the occurrence. Furthermore, Chura which said to have been seized, is evident from paragraph-9 of the deposition of P.W.-4 but neither sent before the Forensic Science Laboratory to corroborate the occurrence. Now the question is that in said situation where FIR has not been proved, doctor has not been examined, injury report is not on record, Investigating Officer has not been examined and the blood stained cloth as also the Chura by which the assault was given as per the allegation, has not been placed on record, whether merely on the basis of the deposition of P.W.-4 and P.W.-5, the appellants can be convicted. 11. It is not in dispute that Right to Liberty is the fundamental right but if anybody is acting contrary to the law then such person is to be dealt with as per the penal law but the thing is that before taking the Right to Liberty the trial Court must see that the guilt has been proved beyond all reasonable doubt, meaning thereby, it is the duty of the prosecution to place on record the cogent evidence before the trial Court for convicting the person. It is also a settled position of law if there is any benefit then it goes in favour of the accused, meaning thereby, no person be convicted if there is iotaof benefit upon the incident or the cause of occurrence in absence thereof the person who is subjected to trial is engulfed for benefit of doubt. 12. In this background, the judgment rendered by the Hon’ble Patna High Court, reported in the case of Kamla Kahar & Others Vs. State of Bihar, (2002) (2) East Cr. C. 248, wherein, the issue failed for consideration that as to whether if the prosecution is based mainly on the basis of informant, can the judgment of conviction be passed. 12. In this background, the judgment rendered by the Hon’ble Patna High Court, reported in the case of Kamla Kahar & Others Vs. State of Bihar, (2002) (2) East Cr. C. 248, wherein, the issue failed for consideration that as to whether if the prosecution is based mainly on the basis of informant, can the judgment of conviction be passed. The said issued was framed taking into consideration that the FIR has not been proved and therefore, while dealing with such situation, the Hon’ble Patna High Court in the aforesaid judgment has been pleased to held that although, the FIR cannot be treated as substantive piece of evidence and suppression of FIR by prosecution alone cannot be a ground for disbelieving the entire case of the prosecution but then FIR is a very important document and its absence certainly casts cloud of suspicion over the case of prosecution and therefore it comes directly under the provision of Section 114(g) of Indian Evidence Act. 13. Section 114(g) of Indian Evidence Act deals with a situation conferring power upon the Court to presume existence of certain facts and as per the provision of Section 114(g) that if any document is not being produced then unfavourably inference be drawn. Here in the instant case, the Court has examined an applicability of the provision of Section 114(g) of Indian Evidence Act and has found that since it is a case of conviction under Section 324 of Indian Penal Code, hence, even assuming that F.I.R. has not been proved but the trial Court ought to have seen injury report before convicting for assessing the nature of injury but this document is not placed on record and as such as per the provision of Section 114(g) of Indian Evidence Act, the appellant is entitled to be given the benefit of doubt. Since withholding the document by the prosecution, adverse inference ought to have been given to the appellant. 14. Reference in this regard may be made to the judgment rendered by Hon’ble Supreme Court in the case of Musauddin Ahmed Vs. State of Assam, reported in AIR 2010, Supreme Court 3813, wherein at paragraph-13, the Lordships has been pleased to hold hereinbelow:- “13. 14. Reference in this regard may be made to the judgment rendered by Hon’ble Supreme Court in the case of Musauddin Ahmed Vs. State of Assam, reported in AIR 2010, Supreme Court 3813, wherein at paragraph-13, the Lordships has been pleased to hold hereinbelow:- “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114, Illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohamed haji Latif & Ors., AIR 1968 SC 1413 ).” 15. It is evident from the aforesaid judgment that the Hon’ble Supreme Court after taking 8 of the provisions of Section 114(g) of the Indian Evidence Act and taking into consideration the fact that there was no explanation put forth by the Investigating Officer in not seizing the blood stained cloth, blood samples, etc. from the prosecutrix at the place of occurrence, and therefore, the order of conviction passed by the trial Court confirmed by the Hon’ble High Court has been set aside. 16. Here, in the instant case, after going through the material available on record and considering the fact that the Investigating Officer has not seized the chura, blood stained cloth, not investigated regarding the place of occurrence and without explaining any reason, moreover, the Investigating Officer has not been examined, in view thereof, this Court in exercise of the appellate jurisdiction while appreciating the impugned judgment along with the deposition of the witnesses as also the detailed discussion made hereinabove is of the view that the trial Court ought to have taken into consideration all the aspects of the matter as discussed above but he has failed to do so, hence, the judgment of conviction passed against the appellant, according to the considered view of this Court, is not sustainable in the eye of law on the basis of the detailed discussion made hereinabove and in consequence thereof the judgment dated 29.11.2008 including the order of sentence passed in S.T. Case No.50 of 2003 arising out of Bhawnathpur P.S. Case No.67/1995, corresponding to G.R. No.742/1995 is hereby set aside. 17. 17. As such, the appellant is discharged from the criminal liability so far as the G.R. No.742/1995 arising out of Bhawnathpur P.S. Case No.67/1995 is concerned, the appeal stands allowed accordingly.