JUDGMENT Anil Kumar Choudhary, J. - Heard learned counsel for the appellant and learned Addl. P.P. for the State. 2. The appellant has preferred this appeal being aggrieved by the Judgment of conviction and order of sentence dated 28.01.2006, passed by the learned 5th Additional Sessions Judge (Fast-Track-Court), Jamtara in Sessions Case No.97 of 2005/154 of 1996, whereby and where under, the learned court below held the appellant guilty for the offence punishable under sections 323 and 341 of the Indian Penal Code and released him on probation for a period of two years on execution of bond for Rs. 5000/- with two sureties of the like amount each, to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. 3. The case of the prosecution as unfolded in the fardbeyan of the victim-Ganesh Prasad is that in the intervening night of 14/15.10.1994, the informant was returning to his house after immersion of idol of Goddess Durga but on the way when he reached the road, the appellant along with co-accused persons came out from the bushes and wrongfully confined the informant and assaulted him with iron rod causing injuries on the hand and other parts of the body of the victim. The co-accused-Baru Rai took Rs. 305/- from the pocket of the informant. On the basis of the fardbeyan, police registered Nala (Bindapathar) P.S. Case No.147 of 1994 and took up investigation of the case. After completion of the investigation, police submitted charge-sheet against the accused persons. Upon commitment of the case to the Court of Sessions, charges for the offences punishable under Section 341/323/307/379 of the Indian Penal Code were framed against the accused persons and on their pleading not guilty to the charges, the appellant and the co-accused persons were put to trial but later on during the trial, the case of Baru Rai and Harwa @ Haru Rai was separated as they absconded and the trial proceeded only against the appellant. 4. In support of its case, the prosecution has altogether examined seven witnesses besides proving the documents while no witness was examined by the defence nor any document was proved on behalf of the defence. 5. Out of seven witnesses examined on behalf of the prosecution, P.W.4-Ganesh Prasad Yadav is the alleged victim-the informant of the case. 4. In support of its case, the prosecution has altogether examined seven witnesses besides proving the documents while no witness was examined by the defence nor any document was proved on behalf of the defence. 5. Out of seven witnesses examined on behalf of the prosecution, P.W.4-Ganesh Prasad Yadav is the alleged victim-the informant of the case. He has stated that the occurrence took place in the intervening night of 14- 15.10.1994 at about 1:30 a.m. While the P.W.-4 was returning to his house after immersion of the idol of Goddess Durga, Haru Rai, Pancha Rai and Baru Rai assaulted him by rod and lathi. He has further stated that Haru Rai gave a blow of rod on his head due to which P.W.-4 sustained grievous injury. When the P.W.4 fell down, Baru Rai started assaulting him with stick. The assailants were saying that they should kill P.W.4 as the P.W.4 has identified them. When the P.W.4 tried to escape, Baru Rai caught hold of him and snatched Rs. 305/- from his pocket. P.W.4 took shelter in the house of Sardar Mritunjay. When the P.W.4 raised alarm, Bilu Yadav and Sharad Yadav reached the place of occurrence and saved P.W.4. P.W.4 sent his jeep driver-Ramesh Singh to police station and while the P.W.4 was himself going to Jamtara for treatment, he met the police on road where police recorded his statement. The reason for such assault was that some quarrel took place between the driver of P.W.4 and the accused persons one day prior to the occurrence and on being informed, police came. In his cross-examination, P.W.4 has stated that he did not lose his sense after the assault and his statement was recorded at about 5:00 a.m. in the morning. P.W.4 went to the Doctor at Bindapathar Public Health Centre at about 6:00 a.m. Before meeting the doctor, no treatment was received by the victim-informant. 6. P.W.1-Mritunjay Rai has stated that the occurrence took place 7- 8 years back at about 12:30-1.00 p.m.. He saw the P.W.4 in an injured state. P.W.4 told him that Haru Rai has assaulted him and at that time Baru Rai was also present with Haru Rai. 7. P.W.2-Bilu Yadav has stated that he heard the alarm raised by P.W.4. When he went to the place of occurrence, he saw that the appellant and the co-accused persons were assaulting P.W.4 by lathi and rod. P.W.4 told him that Haru Rai has assaulted him and at that time Baru Rai was also present with Haru Rai. 7. P.W.2-Bilu Yadav has stated that he heard the alarm raised by P.W.4. When he went to the place of occurrence, he saw that the appellant and the co-accused persons were assaulting P.W.4 by lathi and rod. In his cross-examination, the P.W.2 has stated that he and the P.W.7 both reached the place of occurrence together and attempted to catch hold of the assailants but the assailants managed to escape. 8. P.W.3-Sharad Prasad Yadav has also stated that the occurrence took place in the intervening night of 14-15.10.1994 between 1.00-1:30 a.m. He has further stated that when he went to the place of occurrence, he saw the appellant along with co-accused persons with rod in their hands. Baru Rai was having lathi in his hand by which they were assaulting P.W.4-Ganesh Yadav. P.W.4 sustained bleeding injury on his head by such assault and in the night itself the victim had gone to police station alone by his jeep. In his cross-examination, he has stated that he had seen the accused persons from their back side and from a distance of about 100 yards when they were fleeing away, he could not catch them as they had fled away. 9. P.W.5 -Dr. Damodar Yadav, is the doctor who examined the P.W.4. On being proved by him the injury report has been marked as Ext.2. He found the following injuries on P.W.4 :- (i) Lacerated wound 8 c.m. X 1 c.m. X 0.5 c.m. over right lateral side of skull-fresh bleeding present. (ii) Contusion 4 c.m. X 2 c.m. over left side of skull. (iii) Contusion 2 c.m. X 1 c.m. on right shoulder. (iv) Contusion 4 c.m. X 1.5 c.m. over right back region. (v) Contusion 1.5 c.m. X 1 c.m. over right ear on lower lid. All injuries are simple in nature except injury no.1 and all injuries caused by hard and blunt substance and age of all injuries-about one day. 10. P.W.6 -Mohan Rai has stated that the occurrence took place at about 15.10.1994 but no assault on P.W.4 took place on that day rather P.W.6 saw the P.W.4 in a compromising position with one Ghatwalin. On hue and cry of the villagers the said Ganesh Yadav fled away. 11. 10. P.W.6 -Mohan Rai has stated that the occurrence took place at about 15.10.1994 but no assault on P.W.4 took place on that day rather P.W.6 saw the P.W.4 in a compromising position with one Ghatwalin. On hue and cry of the villagers the said Ganesh Yadav fled away. 11. P.W.7 - Sharat Kumar Yadav is a formal witness and has proved the formal F.I.R. which has been marked as Ext.3 and fardbeyan which has been marked as Ext.1/1. 12. After closure of the evidence of the prosecution, learned trial court recorded the statement under section 313 Cr.P.C., 1973 of the appellant-accused person in respect of the circumstances appearing in evidence against him and the appellant denied the questions put to him and submitted that he is innocent. On the basis of the evidence in the record, learned trial court convicted the appellant as already indicated above and released him on probation. 13. Mr. Nityanand Choudhary, the learned counsel for the appellant submits that the P.W.4 is the victim and can be termed as the sole eye-witness to the occurrence and he has not specifically stated about any hurt having been caused to him by the appellant nor has stated anything about any overt act of the appellant for wrongfully confining the informant. He further submits that in the absence of any evidence regarding the essential ingredients to constitute the offence punishable under Sections 323 or 341 of the Indian Penal Code, particularly in view of the fact that there is neither any charge framed nor the conviction of the appellant being with the aid of Section 34 of the Indian Penal Code, the learned court below erred in convicting the appellant and thus this is a fit case where the appellant be acquitted by giving him the benefit of doubt. Hence, it is submitted that the impugned judgment of conviction be set aside and the appellant be acquitted of the charges by at least giving him the benefit of doubt. 14. Mr. Abhinesh Kumar, learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the P.W.4 has stated that the appellant has assaulted him along with the co-accused persons. 14. Mr. Abhinesh Kumar, learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the P.W.4 has stated that the appellant has assaulted him along with the co-accused persons. His testimony is supported by the other witnesses of the prosecution being the P.Ws.1, 2 and 3 and the testimony of the said material witnesses is corroborated by the P.W.5 being the doctor who examined the P.W.4 after the occurrence. Hence, he submits that the evidence in the record is sufficient to hold the appellant guilty of the charges punishable under Sections 323 and 341 of the Indian Penal Code and the learned court below having rightly convicted the appellant for the said offence, this appeal being without any merit be dismissed. 15. Having heard learned counsel for the parties and going through the evidence on record, I find that there is no specific overt act attributed to the appellant by the P.W.4 in his deposition rather the P.W.4 stated about the categorical role played by Haru Rai and Baru Rai of having assaulted him. The P.W.4 is the sole eye witness of the occurrence. There is no material in the record to suggest any plausible reason as to why the P.W.4 would have spared the real culprit(s). As there is no specific overt-act attributed to the appellant in commission of any assault on the P.W.4 nor the aid of Section 34 of the Indian Penal Code has been taken for his conviction, I have no hesitation in holding that the evidence in the record is inadequate to establish the charge for either of the offences punishable under Sections 323 or 341 of the Indian Penal Code against the appellant beyond all reasonable doubt. Hence, the appellant-Panchanan Rai is acquitted by giving him the benefit of doubt and the impugned judgment of conviction of the said appellant is set aside. It appears that time period of the bond executed by the appellant after his conviction has already expired. 16. Let the Lower Court Record be sent back to the court below with a copy of the judgment forthwith. 17. In the result this appeal is allowed.