JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned counsel for the appellants, Mr. Ranjan Kumar Singh assisted by Mr. Din Dayal Saha, Advocate and learned counsel for the State, Mr. Sudhir Kumar Roy, learned Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 13.02.2004 and order of sentence dated 16.02.2004, passed by learned Ist Additional Sessions Judge, Deoghar in Sessions Trial No. 79 of 1996/49 of 2002, whereby the appellant, Kartik Pandit has been convicted for offence committed and punishable under Sections 323, 324 and 326 of the Indian Penal Code. Appellant, Shantu Pandit has been convicted for offence committed and punishable under Section 323 of the Indian Penal Code. Appellant, Charku Pandit has been convicted for offence committed and punishable under Sections 323 and 325 of the Indian Penal Code. Appellant, Sakal Pandit has been convicted for offence committed and punishable under Sections 323, 324 and 326 of the Indian Penal Code. No separate sentence has been awarded by the learned trial Court for the offence committed and punishable under Sections 323 and 324 of the Indian Penal Code. However, for the offence committed and punishable under Section 326 of the Indian Penal Code, the learned trial Court has awarded Rigorous Imprisonment for two years with fine of Rs. 500/- each and in case of default in payment of fine to undergo further simple imprisonment for five months against appellants, Kartik Pandit and Sagar Pandit @ Sakal Pandit. So far offence committed and punishable under Section 325 of the Indian Penal Code is concerned, the learned trial Court has awarded Rigorous Imprisonment for one year with fine of Rs. 500/- and in case of default in payment of fine to undergo further simple imprisonment for five months, against appellant, Charku Pandit. Appellant, Shantu Pandit, who has been only convicted for offence committed and punishable under Section 323 of the Indian Penal Code has been released on his entering into a bond of Rs. 1000/- with two sureties of like amount to appear and receive sentence when called upon during one year and in the meantime to keep peace and be of good behaviour under Section 4(1) of the Probation of Offenders Act and these accused persons have been released on provisional bail by learned Court below vide order dated 16.02.2004. 1000/- with two sureties of like amount to appear and receive sentence when called upon during one year and in the meantime to keep peace and be of good behaviour under Section 4(1) of the Probation of Offenders Act and these accused persons have been released on provisional bail by learned Court below vide order dated 16.02.2004. But by the same impugned judgment the learned trial Court has acquitted nine other co-accused persons. The state or informant has not preferred any criminal appeal against acquittal of nine co-accused persons. 3. The prosecution case, is based upon, fardbeyan of informant, Nuneshwar Roy recorded by A.S.I. Madhusudan Singh, Sarath Police Station on 31.10.1985 at 20.00 hrs. wherein, the informant has alleged that, yesterday i.e. on 30.10.1985 at about 7.00 P.M. When he has returned to his house from Deoghar, he saw some persons gathered near his house and his son Triveni Roy was lying unconsciously in injured condition and Bishwanath Roy and Uttam Kumar Roy were also standing there in injured condition. On query Bishwanath Roy told to the informant that Shantu Pandit and Nakul Pandit were using filthy language and were saying that Sanjeev Roy had damaged their paddy crops by uprooting the same, upon which Triveni Roy, Uttam Roy and Bishwanath Roy went to the house of Santu Pandit and Nakul Pandit and forbade them from abusing but the accused Santu Pandit instigated other accused persons to assault upon Triveni Roy and others, upon which all the accused persons namely, Santu Pandi, Charkhu Pandit, Sudama Pandit, Nakul Pandit, Sagar Pandit, Kartik Pandit, Badri Pandit, Raghu Pandit, Sukhdeo Pandit, Sakal Pandit, Sugriv Pandit, Karman Pandit, Kirtan Pandit and Bharat Pandit armed with lathi, Bhala, Farsha and Bhujail, surrounded Triveni Roy, Uttam Kumar Roy and Bihswanath Roy and started assaulting them. It is alleged that Kartik Roy has assaulted Triveni Roy, by means of Farsha on his thigh and Sagar Pandit has also assaulted by means of Bhala on his thigh and Charku Pandit has assaulted by means of rod on his nose. It has further been alleged that Santu Pandit has assaulted Bishwanath Roy on his head with Bhujali and Sudama Pandit has assaulted Uttam Kumar Roy with lathi on his head, as a result of which they have sustained injuries. It has further been alleged that Santu Pandit has assaulted Bishwanath Roy on his head with Bhujali and Sudama Pandit has assaulted Uttam Kumar Roy with lathi on his head, as a result of which they have sustained injuries. It has been further alleged that all the other accused persons surrounded the said injured persons and were assaulting them with lathi. On raising brawl, Chowkidar Jugal Mirdha and his brother Chigar Mirdha, Bhagirath Roy and Ashok Prasad Roy and others came there, then the accused persons entered into their own house. The injured Triveni Prasad Roy, Bishwanath Roy and Uttam Kumar Roy were taken to Hospital for treatment as they were in serious condition. Subsequently information was given to the police station. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Sarath P.S. Case No. 80 of 1985, dated 02.11.1985, under Sections 147, 148, 149, 307, 324, 323 of the Indian Penal Code against fourteen named accused persons. 5. After investigation, police has submitted charge sheet vide charge sheet no. 52 of 1985 dated 04.12.1985, under Sections 147, 148, 149, 307, 326, 325, 324, 323 of the Indian Penal Code against all the fourteen named accused persons. 6. The cognizance of the offence has been taken vide order dated 08.03.1986 and the case has been committed to the Court of Sessions vide order dated 19.03.1996. 7. The learned trial Court has framed charge against fourteen named accused persons on 06.05.1996, under Sections 147, 307, 149, 323, 324 and 326 of the Indian Penal Code and Kartik Pandit, Sagar Pandit, Karman Pandit and Santu Pandit have also been charged separately on 06.05.1996, under Section 148 of the Indian Penal Code, to which all the accused persons have pleaded their innocence and thus, they were put under trial. One co-accused namely, Karman Pandit has died during trial and his case has been dropped vide order dated 14.09.1998. 8. The prosecution, in order to prove its case, has examined altogether fifteen prosecution witnesses, but informant of the case, Nuneshwar Roy has not been examined in this case nor the injured, Uttam Kumar Roy has been examined on behalf of the prosecution. The prosecution has also exhibited documentary evidence. 8. The prosecution, in order to prove its case, has examined altogether fifteen prosecution witnesses, but informant of the case, Nuneshwar Roy has not been examined in this case nor the injured, Uttam Kumar Roy has been examined on behalf of the prosecution. The prosecution has also exhibited documentary evidence. Yugal Mirdha, Chowkidar of the village and a hearsay witness, has been examined as PW-1, Chigad Mirdha, brother of Chowkidar (PW-1) and another hearsay witnesses, has been examined as PW-2, Renu Prasad Rai, an eye-witness to the occurrence has been examined as PW-3, Bhagirath Prasad Roy, an eye witness to the occurrence has been examined as PW-4, Triveni Prasad Roy, injured of the case and son of the informant, has been examined as PW-5, Bishwanath Roy, another injured and the person who gave information to the informant, Nuneshwar Roy, has been examined as PW-6, Angeshwar Roy @ Angrej Roy, a hearsay witness has been examined as PW-7, Ashok Kumar Roy, tendered witness, has been examined as PW-8, Parmeshwar Mahto, other hearsay witness, has been examined as PW-9, Madhusudan Singh, Police Officer and Investigating Officer of the case has been examined as PW-10, Baldeo Rai, formal witness being an advocate clerk, has been examined as PW-11 and has proved the carbon copy of injury report (Exhibit-1) of Triveni Roy (PW-5), in the handwriting and signature of Dr. Awadesh Prasad Singh, Saroj Kumar Rai, grand son of the informant, has been examined as PW-12, Balkrishna Yadav, advocate clerk being a formal witness, has been examined as PW-13 and has proved the carbon copy of fardbeyan in the handwriting and signature of the A.S.I. Madhusudan Singh, which has been marked as Exhibit-2/1 and also proved the same with Sanha entry, which has been marked as Exhibit-3, Dr. Awadesh Kumar Singh (Medical Officer) has been examined as PW-14, who has examined injured, Triveni Prasad Roy, report of which has already been brought on record, has been proved and marked as Exhibit-1 and Chhote Lal Yadav, advocate clerk being a formal witness has been examined as PW-15 and has proved the fardbeyan, which has been marked as Exhibit-4. Injury report of Triveni Prasad Roy (PW-5) has been proved and marked as Exhibit-1, Injury report of Bishwanath Roy (PW-6) issued by Dr. Injury report of Triveni Prasad Roy (PW-5) has been proved and marked as Exhibit-1, Injury report of Bishwanath Roy (PW-6) issued by Dr. A.K. Banarjee has been proved and marked as Exhibit-1/1, Signature of Nuneshwar Prasad Roy on carbon copy of fardbeyan has been proved and marked as Exhibit-2, carbon copy of fardbeyan of Nuneshwar Roy has been proved and marked as Exhibit-2/1, carbon copy of First Information Report of Sarath P.S case no. 80 of 1985 has been proved and marked as Exhibit-3, fardbeyan has been proved and marked as Exhibit-4, signature of M.P. Yadav on fardbeyan has been proved and marked as Exhibit-5 and formal First Information Report has been proved and marked as Exhibit-6. 9. After closure of the prosecution evidence, the statement of the accused persons have been recorded under Section 313 Cr.P.C. on 17.08.2002, to which accused persons have denied about the occurrence and have stated that, they will give defence evidence. No defence witness has been examined, but the certified copy of judgment dated 30.04.1998 passed in G.R. Case No. 632 of 1985 arising out of Sarath P.S. Case No. 79 of 1985 passed by learned Sub-Divisional Judicial Magistrate, Madhupur, Deoghar showing conviction of Triveni Prasad Roy, Bishwanath Prasad Roy, Tripurari Prasad Roy, Binod Kumar Roy, Paku @ Pappu Roy, Manoj Kumar Roy, Anoj Kumar Roy and Santosh Kumar Roy under Sections 147 and 323 of the Indian Penal Code has been brought on record, which has been proved and marked as Exhibit-A. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has convicted four accused persons out of thirteen accused persons facing trial. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellants before this Hon’ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Mr. Ranjan Kumar Singh assisted by Mr. Din Dayal Saha, Advocate. Learned counsel for 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. 11. Heard, learned counsel for the appellants, Mr. Ranjan Kumar Singh assisted by Mr. Din Dayal Saha, Advocate. Learned counsel for 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 counsel for the appellants has further submitted, that there is case and counter case between the parties, the present case is Saratha P.S. Case No. 80 of 1985 and prior to this, appellant side has filed a case against, Triveni Rai, Bishwanath Prasad Rai, Tripurari Rai, Binod Kumar Rai, Paku @ Pappu Rai, Anoj Kumar Rai and Santosh Kumar Rai before Sarath Police Station, which was registered as Sarath P.S. Case No. 79 of 1985. Learned counsel for the appellants has submitted, that in the case lodged by the appellants side i.e. Sarath P.S. Case No. 79 of 1985, the prosecution party of the present case being the accused persons of that case have been convicted under Sections 147 and 323 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that both the case i.e. Sarath P.S. case No. 79 of 1985 and 80 of 1985 are case and counter case and both should have been tried together, in view of judgment State of Madhya Pradesh vs Mishrilal (Dead) and Others, (2003) 9 SCC 426 where the Hon'ble Apex Court has held that: "The cross-cases should be tried together by the same court irrespective of the nature of the offence involved. The rationale behind this is to avoid conflicting judgments over the same incident." Learned counsel for the appellants has submitted, that informant of the present case has not explained the injury caused upon the appellants side in the counter case though the injuries were found, to be simple in nature, but that will not absolve the prosecution from explaining the same. Learned counsel for the appellants has further submitted, that there is a case and counter-case between the parties, as such in view of the judgment of Hon'ble Supreme Court in the case of Subramani and Others vs. State of Tamil Nadu, (2002) 7 SCC 210 , 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 counsel for the appellants has further submitted, that informant Nuneshwar Roy is not an eye witness to the occurrence rather he got information about the occurrence as per disclosure made before him by Bishwanath Rai (PW-6). Learned counsel for the appellants has thus submitted, that true version of the prosecution case has not been brought on record nor both the cases have been tried together so as to decide, who was the aggressor of the occurrence, which is against the judgment as reported in case of Nathi Lal and Others vs. State of Uttar Pradesh and Another, 1990 (Supp) SCC 145, wherein the Hon'ble Apex Court has held that: “each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case. But both the judgments must be pronounced by the same learned Judge one after the other.” Learned counsel for the appellants has further submitted, that appellants may be acquitted from the charge and conviction by extending the benefit of doubt as the conviction of the appellant is subsequent to the conviction of the informant side vide judgment dated 30.04.1998, passed in G.R. No. 632 of 1985/T.R. No. 106 of 1998, passed by learned Sub-Divisional Judicial Magistrate, Madhupur, District-Deoghar and the said order has not been assailed by the convicts and as such, they are the aggressor of the case. Learned counsel for the appellants has thus submitted, that appellant deserved to be acquitted by extending the benefit of doubt. 12. Heard, learned counsel for the State, Mr. Sudhir Kumar Roy, Additional Public Prosecutor. Learned counsel for the State has submitted that learned trial Court has passed the impugned judgment of conviction and order of sentence on the basis of the materials available on record. Learned counsel for the State has submitted, that though for the same occurrence, two cases have been instituted i.e. Sarath P.S. Case No. 79 of 1985 and 80 of 1985, but since both the sides have sustained injuries, as such, both the sides have been rightly convicted by the trial Court in the respective cases. Learned counsel for the State has submitted, that though for the same occurrence, two cases have been instituted i.e. Sarath P.S. Case No. 79 of 1985 and 80 of 1985, but since both the sides have sustained injuries, as such, both the sides have been rightly convicted by the trial Court in the respective cases. Learned counsel for the State has submitted, that it was duty of the appellants to point out the same and prayed before the learned trial Court that, both the cases ought to have been tried together, but any procedural lacuna in the case will not affect the judgment passed by the learned Sessions Judge unless prejudice caused by the same is proved on the basis of materials available on record. Learned counsel for the State has submitted, that all the witnesses either eye witnesses or injured eye witnesses or hearsay witnesses have supported the prosecution case. The Medical evidence has also been brought on record and as such, this Court may not interfere with the impugned judgment of conviction and order of sentence passed by learned trial Court. 13. Heard, learned counsel for the appellants, Mr. Ranjan Kumar Singh assisted by Mr. Din Dayal Saha, Advocate and learned counsel for the State, Mr. Sudhir Kumar Roy, learned Additional Public Prosecutor and perused the materials available on record including the First Information Report, framing of charge, evidence of fifteen prosecution witnesses, six prosecution exhibits and statement of the accused/appellants recorded under Section 313 Cr.P.C. and defence exhibit-A as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence. It appears that there is a case and counter case between the parties, but both have not been tried together. The case filed by the appellants have been registered as Sarath P.S. Case No. 79 of 1985 and that was concluded vide Judgment dated 30.04.1998, in which the present prosecution party being accused of the case, has been convicted under Sections 147 and 323 of the Indian Penal Code. Against the said judgment of conviction, the appellants of that case have not preferred any criminal appeal. Against the said judgment of conviction, the appellants of that case have not preferred any criminal appeal. Subsequently, the present case has been tried by learned trial Court and by the impugned judgment, four of the accused persons have been convicted and nine of the co-accused have been acquitted by the learned trial Court meaning thereby learned Sessions Judge has also disbelieve half of the prosecution case and prosecution party has not bought the true version of the occurrence. Under the aforesaid circumstances, since it is very difficult to ascertain that these appellants are aggressors of the occurrence as both the case and counter case have not been tried together and as such, the appellants deserve to be acquitted by extending benefit of doubt. Accordingly, the impugned judgment of conviction dated 13.02.2004 and order of sentence dated 16.02.2004, passed by learned Ist Additional Sessions Judge, Deoghar, in Sessions Trial No. 79 of 1996/49 of 2002, arising out of Sarath, P.S. Case No. 80 of 1985 corresponding to G.R. No. 663 of 1985 is hereby set aside. 14. In the result, the present Criminal Appeal is hereby allowed. 15. The appellants, who are on bail, are discharged from the liability of their bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal allowed.