JUDGMENT : Heard learned counsel for the appellant Mr. Navneet Sahay assisted by Mr. Diwakar Jha, Advocates as well as learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 20.12.2003 passed by learned Additional Sessions Judge (Fast Track Court- II), Chaibasa in Sessions Trial No. 123 of 2003, whereby five appellants Dhan Singh Laguri, Rabinder Laguri, Mangal Singh Laguri, Poda @ Podo Laguri and Kandey Pingua, have been convicted u/s 325/34, 341/34, 452/34 of the Indian Penal Code and have been awarded rigorous imprisonment for five years for offence u/s 325/34 of the Indian Penal Code, rigorous imprisonment of five years u/s 452/34 of the Indian Penal Code and further sentenced to undergo simple imprisonment for one month for offence u/s 341/34 of the Indian Penal Code. All the sentences are directed to run concurrently. 3. Being aggrieved by the said impugned judgment of conviction and order of sentence, the present appeal has been preferred before this Hon’ble Court, which has been admitted on 01.04.2004 suspending the sentence of the appellants by releasing them on bail and since then the appeal is pending before this Court. 4. The prosecution case is based upon fardbeyan of Mana Ram Pingua recorded by A.S.I. Ram Swarth Prasad on 19.11.2002 at Sadar hospital, Chaibasa, bed no. 8 at 13.30 hours, where the informant Mana Ram Pingua( P.W.1) has stated that yesterday on 18.11.2002, he returned from Hatgamharia bazar and was present in his house. At around 8.00 p.m in the night, co-villager, Rabi Laguri and Dhan Singh Laguri entered into his house, caught hold of him, abused him and dragged him outside the house. In the meantime, Mangal Singh Laguri, Podo Laguri and Kandey Pingua also reached there and all of them assaulted the informant by lathi, danda, kick and fist and because of assault made by lathi, informant sustained injury on his head from which blood was oozing and the informant has also sustained injury on the other part of his body. On brawl, the neighbourer Rasika Pingua (P.W.2) and others came there who rescued him and thereafter Rasika Pingua along with village munda brought him for treatment at Sadar Hospital, Chaibasa, where he is under treatment. 5. On the basis of fardbeyan police instituted Jhinkpani (Hatgamharia) P.S. case no. On brawl, the neighbourer Rasika Pingua (P.W.2) and others came there who rescued him and thereafter Rasika Pingua along with village munda brought him for treatment at Sadar Hospital, Chaibasa, where he is under treatment. 5. On the basis of fardbeyan police instituted Jhinkpani (Hatgamharia) P.S. case no. 29/2002 dated 19.11.2002 under Section 452/341/323/34 of the Indian Penal Code consequent G.R. No. 403 of 2002 and after investigation police submitted charge sheet no. 29 of 2002 dated 31.12.2002 under Section 307/452/341/323/504/34 of the Indian Penal Code. Cognizance of the offence has been taken on 09.01.2003 and case has been committed vide notification dated 12.06.2003. The learned Sessions court framed the charge against all five appellants under section 307/34, 452/34 and 341/34 vide order dated 28.07.2003. 6. Prosecution has examined altogether nine witnesses to prove its case beyond all reasonable doubts and also adduced documentary evidence such as signature of Rashika Pingua on fardbeyan as Exhibit 1, Injury report of Mana Ram Pingua dated 19.11.2002 as Exhibit 2, Injury report of Mana Ram Pingua dated 28.11.2002 as Exhibit 2/1, fardbeyan of the informant as Exhibit 3, forwarding of the fardbeyan as Exhibit 3/1 and endorsement on the fardbeyan as Exhibit 3/2, formal F.I.R. as Exhibit 4, requisition for the injury report as Exhibit 5. 7. Mana Ram Pingua has been examined as P.W. 1. He is the informant and the victim of this case. This witness has stated during examination-in-chief, that while he was inside his house at 8.00 p.m., Rabi and Dhan Singh caught hold of him and dragged him out of his house and assaulted him. He saw Mangal Singh Laguri, Monica (wife of Dhan Singh), wife of Chamu, wife of Chaitan, wife of Arun, Podo Laguri and Kandey Pingua and others also present there. They have assaulted him with the help of juat (wooden log). This witness has stated during cross-examination, that occurrence took place as this witness and Rashika (P.W.2) were working as a munsi before a thekedar, who is an outsider to the village, which was not acceptable to the villagers. This witness has further stated in paragraph 3 of his cross-examination that, he has not stated before the police that, there is some enmity with the villagers rather he has given statement in his unconscious condition and that is the reason he has not remembered that what he said to the sub-inspector. This witness has further stated in paragraph 3 of his cross-examination that, he has not stated before the police that, there is some enmity with the villagers rather he has given statement in his unconscious condition and that is the reason he has not remembered that what he said to the sub-inspector. This witness has further stated in paragraph 4 of his cross-examination, that on 18.11.2002, he met Dhan Singh and Mangal Singh while returning from bazar as this witness was with a lady, who is wife of Martiliya, while they were taking liquor. This witness has further stated, that no witness other than Rasika and Ladura were present at the place of occurrence and Rasika is working as a munsi with him and Ladura was present there, who is his own brother. The witness has admitted in paragraph 6 of his cross-examination, that he was unconscious for 48 hours and his statement was recorded only after he regained his consciousness. This witness has further stated, that he did not remember what was his statement, he has given to the police, as he was not remembering anything at that relevant time. This witness has categorically stated that he sustained only one injury which is on head. 8. Learned counsel for the appellant Mr. Navneet Sahay assisted by Abhishek Gautam, Advocates has submitted that in this case the only eye-witness as claimed by the prosecution is P.W. 1, but his statement is itself doubtful. The learned counsel has drawn attention of this court towards certain paragraphs of the deposition such as paragraph no. 1, where the wives of the accused persons have been named as accused but the same has not been mentioned in the ‘fardbeyan’. Apart from that, pressing of the neck by the accused persons have also not been stated in the fardbeyan. Furthermore, this witness has stated Rasika is working as a munsi with him but when Rashika was examined as P.W.2, he claimed that he was working in the house of P.W. 1. This witness has further stated that whatever he has said to the police, that was in unconscious condition and subsequently he has also admitted, that soon before the occurrence he has taken liquor. This witness has further stated that whatever he has said to the police, that was in unconscious condition and subsequently he has also admitted, that soon before the occurrence he has taken liquor. This witness has further stated that as he has not mentioned the name of the lady member, the sub-inspector told him that if the name of the lady member is taken then case will become stronger and a fatal blow to the prosecution case came when this witness has stated that he remained unconscious for 48 hours and thereafter his statement was recorded but none of the witness has said this fact and as such relying, upon the testimony of P.W.1 for convicting five persons by the learned Trial Court is not in accordance with law, as the learned Trial Court has not scrutinized the evidence and has not taken judicial notice of the fact, that if five person will assault a person with lathi, fist, leg and juat (a wooden log) then how only one injury will be caused on the person and as such the evidence of P.W.1 is itself doubtful and the judgment of conviction and order of sentence cannot be sustained in the eyes of law. 9. The learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor has submitted that it is true, that the informant is victim and eye –witness to the occurrence and F.I.R. is not an encyclopedia of the incident rather subsequent statements made by the informant, is just to explain the occurrence. Learned Additional Public Prosecutor has fairly conceded that some facts are new facts which have not been explained by the informant. When this court has drawn the attention of the learned Additional Public Prosecutor towards paragraph 6, the learned counsel could not explain the same. 10. Rasika Pingua has been examined as P.W. 2. This witness has stated that Podo Laguri has assaulted on head of Mana Ram Pingua by wooden log (juat) and sustained bleeding injury and became unconscious and on brawl, the villagers came, including the village head man. Then Mana Ram Pingua was brought to the police station and from there to the Sadar hospital, Chaibasa. This witness has also stated in examination-in-chief, that police asked from Mana Ram but he could not say anything. The signature of this witness on the fardbeyan has been proved and marked Exhibit-1. Then Mana Ram Pingua was brought to the police station and from there to the Sadar hospital, Chaibasa. This witness has also stated in examination-in-chief, that police asked from Mana Ram but he could not say anything. The signature of this witness on the fardbeyan has been proved and marked Exhibit-1. During cross-examination this witness has stated that he is working in the house of Mana Ram. At 7.00 P.M Mana Ram went to take liquor and took two mathia of liquor. At the time of occurrence Mana Ram, his brother, bhabhi (wife of brother) and mother were present in the house. This witness has further stated that Mana Ram was assaulted on his head, hand and entire body causing injury, which he has seen and went for his rescue. When Mana Ram fell down, accused persons fled away and it was Podo who has assaulted Mana Ram with juat. This witness brought Mana Ram Pingua to the hospital, where Mana Ram said to the sub-inspector about arrival of the lady members also. Learned counsel for the appellant has submitted that as per statement of Mana Ram Pingua (P.W. 1) has not stated anything to the police which will be apparent from last portion of paragraph 1 of his examination-in-chief of Rasika Pingua (P.W.2) and as such, the fardbeyan on the statement of Mana Ram Pingua (informant), is itself doubtful. Furthermore, this witness during cross-examination has admitted that, at the relevant time, his brother, wife of brother and mother of Mana Ram Pingua were present but wife of his brother and mother have not been examined in this case. Further this witness has given a fatal blow to the prosecution case when he has stated that, he saw injury on the head, hand and entire body but the police requistition (Exhibit-5) and the injury report (Exhibit 2) reveals that only one injury was found on head of the informant. From police requisition (Exhibit 5) it is only mentioned that blood oozing injury on the head and from the injury report (Exhibit 2), a lacerated wound at right anteromedial upper part of scalp with blood clot of size 10 cm x 0.7 cm up to bone deep was found and as such the testimony of P.W. 2 is also not reliable. 11. The learned counsel for the State, Mrs. 11. The learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor has submitted that observation are made by the witnesses as per their capacity but this witness is an eye-witness to the occurrence, although this witness has stated that Mana Ram Pingua has not stated anything before the police. 12. Ladura Pingua has been examined as P.W. 3. This witness is elder brother of Mana Ram Pingua and has claimed himself to be an eye-witness to the occurrence but during cross-examination, this witness has stated that, his statement was not recorded by the police and further he has stated that at the time of alleged occurrence except him, his wife and Mana Ram Pingua, no outsider was present in the house, meaning thereby that presence of Rasika Pingua (P.W. 2) is doubtful in this case, as per the evidence of P.W. 3. This witness has further stated that when he went for rescue of Mana Ram Pingua, accused persons have also assaulted him causing some injury on his back but no treatment of doctor was taken by this witness. 13. Learned counsel for the appellant has submitted that if evidence of P.W. 2 and P.W. 3 are compared then presence of P.W. 2 is doubtful. Apart from that this witness has also sustained injury as he claimed himself in his cross-examination but this fact has not been stated by Rasika Pingua (P.W. 2) and as such the presence of P.W. 3 at the place of occurrence is doubtful in absence of any corroborative piece of evidence. 14. When this court has drawn the attention of the learned Additional Public Prosecutor, about the statement of the investigating officer (P.W. 9) Sri Ram Swarath Singh made in cross-examination that this witness has never said about presence of the female members and drawn the attention towards the evidence at paragraph 2 of P.W. 3, then learned Additional Public Prosecutor could not explain and justify the same and as such this court is of the opinion that P.W. 3 (Ladura Pingua) was not present at the place of occurrence and he is not an eye-witness to the occurrence. 15. Mata Pingua has been examined as P.W. 4. Sona Ram Pingua as P.W. 5, Serka Pingua as P.W. 6. 15. Mata Pingua has been examined as P.W. 4. Sona Ram Pingua as P.W. 5, Serka Pingua as P.W. 6. These three witnesses have claimed themselves to be a hearsay witness and they got knowledge of the occurrence from Rasika, who came to their house and informed about the occurrence. 16. Dr. Bala Krishna Sahni, the Medical Officer who examined Mana Ram Pingua on 19.11.2002, has been examined as P.W. 7. This witness has found one lacerated wound at right antromedial upper part of scalp with blood clot of 10 cm x 0.7 cm up to the bone deep and opinion was kept reserved for X-ray examination report and proved the injury report in his handwriting and signature as Exhibit-2 and subsequent report dated 28.11.2002 on the basis of X-ray report dated 27.11.2002 as Exhibit 2/1, where this doctor has found on the basis of A.P. and lateral view of X-ray, depressed fracture of vault in frontal region of skull and declared the injury to be grievous in nature due to hard and blunt substance. 17. Learned counsel for the appellant, Mr. Navneet Sahay has submitted that if the initial injury is only found to be bone deep. On the basis of an X-ray conducted on 27.11.2002 after eight days of occurrence and the doctor’s opinion dated 28.11.2002 cannot be accepted in absence of any X-ray Report, as the fracture of vault in frontal region of scalp, had it been so, the doctor could have said in the initial report dated 19.11.2002 marked Exhibit- 2 that there is a fracture of bone. Learned counsel for the appellant Mr. Navneet Sahay has drawn the attention of the court towards the grievous hurt as envisaged under Section 320 of the Indian Penal Code and has fairly submitted that the injury found on the person of injured will not fall in any of the categories as mention in Section 320 of the Indian Penal Code and as such the learned Trial Court has wrongly relied upon the testimony of the doctor in absence of X-ray report as done by the learned Trial Court in the impugned judgment and as such conviction of the appellants under Section 325/34 of the Indian Penal Code is not sustainable in the eyes of law. 18. Learned counsel for the State, Mrs. 18. Learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor has submitted that this is a doctor’s opinion on which she cannot say that it is not acceptable to the court. The learned Trial Court has rightly accepted the same. 19. Ram Pujan Singh, Sub-Inspector of Police who is the investigating officer of this case, has been examined as P.W. 8. He has proved the fardbeyan written by Ram Swarth Prasad as Exhibit 3, the endorsement by the Officer-in-Charge as Exhibit 4 but has admitted during cross-examination that he has not investigated anything in this case nor Exhibit 3 and 4 have been written in his presence nor X-ray plate has been handed over to him nor any seizure has been made by him. 20. Sri Ram Swarath Prasad (Investigating Officer) of this case, has been examined as P.W. 9. This witness has stated that he has investigated the case, after recording the fardbeyan of the informant and the medical requisition has been proved as Exhibit 5. The forwarding of the fardbeyan as Exhibti 3/1 and endorsement on the fardbeyan as Exhibit 3/2. This witness has admitted during cross-examination that witness Ladura pingua has never said before him that at the time of occurrence, 5-6 ladies were also present nor Mata Pingua (P.W. 4) has claimed himself to be an eye witness to the occurrence. He has also admitted that he has not mentioned in the case diary that for how many days Mana Ram Pingua remained in the hospital. This witness has also stated that Mana Ram Pingua has not taken, the name of any lady member as an accused. This witness has further stated during cross-examination that Mana Ram Pingua has never said about assault made in the cow-shed. He has not seized the cloth of the informant nor has found any weapon at the place of occurrence as nothing has been found. This witness has also stated that he has not received any X-ray report. He has recorded the fardbeyan of the informant on 28.11.2002 but did not enquire whether X-ray has been done or not. The place of occurrence is in the village. 21. This witness has also stated that he has not received any X-ray report. He has recorded the fardbeyan of the informant on 28.11.2002 but did not enquire whether X-ray has been done or not. The place of occurrence is in the village. 21. Learned counsel for the appellant has submitted that nothing has been brought on record to suggest that appellants have assaulted the informant as doctor has found single injury on the head of the informant whereas Rasika Pingua (P.W. 2) has stated that he has seen injuries on the hand, head and entire body of the informant. Furthermore, the investigating officer of the case (P.W.9) Ram Swarath Prasad has not found any incriminating weapon at the place of occurrence nor has seized any weapon or X-ray plate and as such impugned judgment of conviction is not sustainable in the eyes of law, which is based on a fardbeyan and the evidence adduced thereof as it appears contradictory to each other and the same cannot be formed the basis of conviction of the appellants. 22. Learned counsel, Mr. Navneet Sahay has further submitted that if the evidence of P.W. 1 is accepted, during cross-examination in paragraph 6, the fardbeyan, itself is doubtful and if five persons have assaulted informant as alleged by the informant then atleast one injury will not cause and that too only bone deep as per injury report of the doctor in paragraph 6 (injury report) Exhibit-2. 23. Learned counsel for the appellant has further submitted that the informant has taken liquor at 7.00 p.m with one lady member as stated by Rasika Pingua (P.W. 2) but non-examination of that lady member coupled with the fact that wife of P.W. 3 and mother of the informant have also not been examined, itself creates some doubt about the present case. None of the villagers have been examined in this case and as such conviction of the appellant under Section 325 of the Indian Penal Code, when ingredient of 320 of the Indian Penal Code is missing, 452 of the Indian Penal Code when ingredient of taking out the informant from the house is not proved as female members, who were present in the house have not been examined in this case and thus under aforesaid background offence u/s 341 of the Indian Penal Code regarding wrongful restrainment of the informant is itself doubtful. The appellants are entitled for benefit of doubt, as motive has not been explained in the First Information Report, as to why occurrence has been committed. The learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor, has supported the impugned judgment of conviction and order of sentence and has stated that some contradictions are therein the evidence but that will not go to the root of prosecution case and the learned Trial Court is justified in convicting the appellant under Section 325/34 452/34 and 341/34 of the Indian Penal code. 24. After hearing the learned counsel for the appellant, Mr. Navneet Sahay and counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and from perusal of the record this court is of the opinion that conviction under section 325/34 cannot sustain in the eyes of law as subsequent injury report which has been marked Exhibit 2/1 is not in consonance with initial injury report as Exhibit-2, and as such the appellant cannot be convicted under Section 325/34. This court is also of the opinion that the First Information Report, which is the basis of the present case is itself doubtful from paragraph 6 of the cross-examination of the informant and subsequent admission made by P.W. 2 during examination-in-chief of Rasika, where the informant has said that he remained unconscious for 48 hours and thereafter the F.I.R. was lodged and also Rasika Pingua (P.W. 2 ) has said that no statement was given by Mana Ram Pingua (P.W.1) as he was unconscious and if the time of F.I.R is taken, then the fardbeyan was lodged on 19.11.2002 at 1.30 p.m. which is well within 48 hours. When as per informant Mana Ram Pingua(P.W.1), he was unconscious. This court has also found that credential of P.W. 1 is itself doubtful and no material was brought on record to substantiate that appellants have entered into the house and two of the appellants Dhan Singh Laguri and Rabi Laguri have entered into the house of the informant, as non-examination of the female members present in the house i.e. mother and sister-in-law of the informant have not been examined in this case and the same is fatal. This court is of the opinion that, no offence under Section 341 of the Indian Penal Code for restraining the informant is made out as the case of the prosecution is that he was assaulted and thereafter the accused fled away but this fact has not been corroborated by the Investigating Officer, who has visited the place of occurrence and has not found anything abnormal at the place of occurrence nor has seized wooden log (juat) which is alleged to have been used by Poda @ Podo Laguri (whose case has been abated). Further, the evidence of P.W.2 and P.W.3 are doubtful as both of them are claiming to be an eye-witness to the occurrence but they are not saying the presence of each other and as such their evidence cannot be accepted. Apart from this, even the informant has not stated the motive of the occurrence. Under such background, where Rasika Pingua (P.W. 2) has submitted that at 7.00 p.m Mana Ram Pingua went to take liquor such injury may be caused, which has size of 10 cm x 0.7 cm x bone deep because of fall after taking liquor and as such this Court is of the opinion that benefit of doubt is extended in favour of the appellants. 25. Considering all these above facts, benefit of doubt is granted to the appellants by setting aside the judgment of conviction conviction and order of sentence dated 20.12.2003 passed by learned Additional Sessions Judge (Fast Track Court II), Chaibasa in Sessions Trial No. 123 of 2003 arising out of Jhinkpani (Hatgamhariya) P.S. Case No. 29 of 2002 dated 19.11.2002 consequent G.R. No. 403/2002, and the appellants are acquitted. 26. Hence, the appellants are acquitted by giving benefit of doubt. The impugned judgment of conviction and order of sentence is hereby set aside. The appellants who are on bail are discharged from the liability of their bail bond. 27. Let the lower court record be sent down.