JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 31-03-2003, passed by Shri Paras Nath, Presiding Officer, Additional Court (F.T.C. No. 1) in Sessions Trial No. 132 of 1981/04 of 2001, by which the appellant Bauka Kamat was convicted under Section 148 and 307 of the Indian Penal Code (hereinafter referred to as “the IPC”) and was sentenced to undergo R.I. for two years under Section 148 of the IPC and R.I. for ten years under Section 307 of the IPC. Appellants-accused Kameshwar Kamat, Shakti Kamat and Jiwachh Kamat were convicted under Section 148 and 324 of the IPC and were sentenced to undergo R.I. for two years under Section 148 of the IPC and R.I. for three years under Section 324 of the IPC. Appellants-accused Faujdar Kamat, Bhim Kamat and Jhingur Kamat were convicted under Section 147 and 323 of the IPC and were sentenced to undergo R.I. for one year under each Sections of the IPC respectively. Appellants - accused Palat Kamat, Jaleshwar Kamat and Gaunu Kamat were convicted under Section 148 and 380 of the IPC and were sentenced to undergo R.I. for one year under Section 148 of the IPC and R.I. for three years under Section 380 of the IPC. All the above sentences were directed to run concurrently. 2. Earlier a report was called for from the Superintendent of Police, Madhubani with regard to death/alive status of appellants – accused Bhim Kamat, Jaleshwar Kamat and accused Jiwachh Kamat, from which it appears that appellants-accused Bhim Kamat, Jaleshwar Kamat and Jiwachh Kamat has already died during pendency of the appeal. As such this appeal with regard to appellant nos. 3, 4 and 5, namely, Bhim Kamat, Jaleshwar Kamat and Jiwachh Kamat stands abated. 3. As such this appeal with regard to appellant nos. 3, 4 and 5, namely, Bhim Kamat, Jaleshwar Kamat and Jiwachh Kamat stands abated. 3. Prosecution case as per the fardbeyan of informant Satya Narayan Jha (P.W. 3) recorded before the S.I. of Rajnagar police Station in Sadar Hospital, Madhubani on 23.09.1980, in short is that on 22.09.1980, he had gone to ease out, his father Garib Jha (now dead) was there at a baithka constructed over the ridge of a Tank in the night and while he was washing his mouth, appellants-accused Gopajee Kamat (now dead), Jhingur Kamat, Gaunu Kamat, Jaleshwar Kamat, Jiwachh Kamat, Bhim Kamat, Bauka Kamat, Faudar Kamat, Kameshwar Kamat and Shakti Kamati came armed with bhala, Kulhari and lathi reached there and surrounded the informant and his father and accused Jivachh Kamat gave bhala blow to the informant Satyan Narayan Jha (P.W. 3) on his chest, however, the said assault hit his hand and blood started oozing out. Appellant Bauka Kamat assaulted the father of informant Garib Jha by means of bhala on his left chest and appellant Kameshwar Kamat assaulted on the left hand of the said Garib Jha. Accused Gopaljee Kamat assaulted father of informant Garib Jha on his left hand and accused Shakti Kamat inflicted bhala blow on the thumb of the father of informant Garib Jha and after sustaining injuries, the said Garib Jha fell down on the ground and, thereafter remaining appellants including co-accused of this case assaulted him by means of lathi. On hulla, people assembled and appellants and other accused persons fled away. 4. The aforesaid fardbeyan of informant, led to registration of Rajnagar P.S. Case No. 12 of 1980. Police after investigation submitted charge-sheet. Cognizance of the offence was taken and the case was committed to the court of Sessions, which ultimately came to the file of Shri Paras Nath, Presidding Officer, Additional Court (F.T.C. No. 1), Madhubani for trial and disposal. 5. To prove its case, prosecution examined altogether three witnesses. They are: P.W. 1 – Bachu Jha @ Ramakant Jha, P.W. 2 Feku Chaudhary and P.W. 3 – Satya Narayan Jha (informant) One witness has been examined on behalf of the Court i.e. Doctor Y. Jha. In this case Investigating Officer has not been examined and further the father of informant i.e. Garib Jha could also not been examined as he died during pendency of the trial. In this case Investigating Officer has not been examined and further the father of informant i.e. Garib Jha could also not been examined as he died during pendency of the trial. 6. Neither oral nor documentary evidence has been brought on record by the defence and their defence is of false implication and of innocence. 7. On conclusion of trial, the Trial Court, has convicted the appellants and sentenced them in the manner aforesaid. 8. Being aggrieved, the appellants preferred the present appeal. 9. Submission of learned counsel for the appellants is that if the evidence of witnesses is believed to be true then it does not appear to be a case under Section 307 of the IPC as appellant Bauka Kamat has been convicted under Section 307 of the IPC as there is allegation against appellant Bauka Kamat of assaulting the Garib Jha by means of bhala but there is not repetition of blow and there is allegation against other appellants and accused persons also is of assault to Garib Jha. It has further been submitted that in this case the said Garib Jha as well as I.O. has not been examined and the defence has been prejudiced by the non examination of the above two persons as the defence could not get the chance of cross-examine the I.O. as well as the Garib Jha on the point of manner of occurrence as well as with regard to place of occurrence and as to what the said Garib Jha had stated during the course of investigation and in absence of cross examination of Garib Jha, the evidence regarding assault by appellant Bauka Kamat, Kameshwar Kamat and Gopajee Kamat on the Garib Jha by means of bhala could not be established. Further submission of learned counsel for the appellants is that the evidence of PW 1 shows that there was proceeding under Section 145 of the Cr.P.C., pending between the parties, which was later on decided in favour of the appellants an as such the land dispute between the parties is admitted. In such a situation, non examination of Investigating Officer caused serious prejudice to the defence. Further there are vital contradictions in between the evidences of prosecution witnesses. It has also been submitted that though doctor has found the injury no. In such a situation, non examination of Investigating Officer caused serious prejudice to the defence. Further there are vital contradictions in between the evidences of prosecution witnesses. It has also been submitted that though doctor has found the injury no. 1 on the person of Garib Jha, grievous in nature, but x-ray report has not been brought on record to substantiate the claim of injury no. 1 being grievous in nature and as such, conviction of appellant Bauka Kamat under Section 307 of the IPC, conviction of appellants–accused Kameshwar Kamat, Shakti Kamat and Jiwachh Kamat under Section 324 of the IPC and conviction of appellants Faujdar Kamat, Bhim Kamat and Jhingur Kamat were convicted under Section 323 of the IPC, does not appear to be just and proper, and the trial court without considering all these facts has convicted the appellants, which is not sustainable in the eye of law and the appellants, at least, are entitled for benefit of doubt. 10. On the other hand, learned counsel appearing on behalf of respondent – State supported the finding of guilt recorded by the learned Trial Court and has submitted that prosecution evidence is consistent so far manner of occurrence, place of occurrence and genesis of occurrence is concerned couple with the fact that the doctor has also found one of the injuries inflicted on the person of Garib Jha, grievous in nature and, therefore, there is no infirmity in the judgment of Trial Court and conviction of appellants is just and proper. 11. Heard both sides and considered the submissions made on behalf of the parties. On perusal of the evidence, it appears that P.W. 3 is the informant in this case and he has supported the prosecution case so far manner of occurrence is concerned and he has also stated about manner of assault by appellant Bauka Kamat and other appellants. However, it appears that the said Garib Jha could not be examined in this case as it appears that he died during pendency of trial and Investigating Officer has also not been examined and as such he could not be confronted with the statement made by Garib Jha during investigation. However, it appears that the said Garib Jha could not be examined in this case as it appears that he died during pendency of trial and Investigating Officer has also not been examined and as such he could not be confronted with the statement made by Garib Jha during investigation. The doctor who has been examined as Court witness found a penetrating wound 2” x 1” x chest cavity deep in the lower part of the left side front of the chest, an incised wound ½” x ½” x skin in the upper part of the left arm, left shoulder joint and other incised wound 1” x1/2” x skin deep in upper part of the left arm above elbow joint on the person of Garib Jha. According to him injury no. 1 was caused by sharp cutting weapon may be spear and injury no. 2 and 3 were caused by sharp cutting weapon may be pharsa and garasa. It appears that there is allegation against appellants Bauka Kamat, Kameshwar Kamat, Shakti Kamat and Gopal Ji Kamat to have inflicted bhala blow on the person of the informant but it also appears that X-ray report has not been brought on record and in absence of X-ray report, the finding of doctor regarding injury no. 1 being grievous in nature does not appear to be sustainable. The doctor has further found incised wound 2”x 1” skin deep on upper part of left arm on the person of informant Satya Narayan Jha caused by sharp cutting weapon. However it is the prosecution story that Jiwachh Kamat assaulted the informant Satya Narayan Jha by means of bhala, which is not a sharp cutting weapon rather a pointed weapon. 12. It also appears that there is admitted land dispute between the parties and since the Investigating Officer has not been examined in this case, as such, the defence has been prejudiced by non-examination of the Investigating Officer. However, the learned Trial Court has failed to consider all these infirmities and inconsistencies and as such, in these circumstances, appellants certainly deserve the benefit of doubt. 13. Accordingly, this appeal is allowed. Judgment of conviction and order of sentence dated 31-03-2003, passed by Shri Paras Nath, Presidding Officer, Additional Court (F.T.C. No. 1) in Sessions Trial No. 132 of 1981/04 of 2001, is hereby set aside. 14. 13. Accordingly, this appeal is allowed. Judgment of conviction and order of sentence dated 31-03-2003, passed by Shri Paras Nath, Presidding Officer, Additional Court (F.T.C. No. 1) in Sessions Trial No. 132 of 1981/04 of 2001, is hereby set aside. 14. As the appellants are on bail, they are discharged from liability of bail bonds.