JUDGMENT : Heard learned counsel for the appellant Mr. Anurag Kashyap and learned counsel for the State, Mr. Mr. Vikash Kishore, learned Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 20.12.2003, passed by learned Ist Additional District & Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 146 of 1989, whereby the sole appellant, Ram Prawesh Ram has been convicted under Section 324 of the Indian Penal Code and awarded rigorous imprisonment for one year. The co-accused, Sudarshan Mahto and Indeshwar Ram have been acquitted by the learned Trial Court. 3. Neither the State nor the informant has preferred any appeal against acquittal of Sudershan Mahto and Indeshwar Ram nor has preferred any appeal for the enhancement of sentence against the appellant. 4. The prosecution case is based upon fardbeyan of Suraj Ram (P.W.2), recorded by Officer-in-Charge, Satyadev Singh posted at Mohammadganj police station in the district of Palamau, where the informant has stated that he is working as chowkidar in place of father of Indeshwar Ram, Rajendra Ram and grandfather of Ram Prawesh Ram (appellant), who have given him (Suraj Ram) consent to work, as a chowkidar and since then he has been appointed and working, as a chowkidar. The informant (Suraj Ram) has further stated that 2-3 months ago all three named persons (Indeshwar Ram, Rajendra Ram and Ram Prawesh Ram) were pressurizing him to leave the job of chowkidar and due to that today in the evening all the three accused persons in presence of Sudershan Mehta called both the brothers and asked them to leave the job of chowkidar immediately. When informant and his brother made a protest then, Sudershan Mehta, Rajendra Ram and Indeshwar Ram ordered and instigated Ram Prawesh Ram, who went his house and brought a garasha (sharp cut weapon) and on the order of the above three persons, Ram Parwesh Ram attacked, upon the neck of the brother of the informant, Baikunth Ram twice but his brother saved himself with his left hand and thus, Baikunth Ram (brother of the informant) sustained two injury on the left hand and fell down. When Ram Prawesh Ram tried to attack again, the informant came for rescue. Thus Ram Prawesh Ram assaulted the informant, on the left shoulder. When Ram Prawesh Ram tried to attack again, the informant came for rescue. Thus Ram Prawesh Ram assaulted the informant, on the left shoulder. On brawl, the villagers came and saved them (Baikunth Ram and Suraj Ram) and with the help of villagers, the injured were brought to the police station, where his fardbeyan has been recorded. 5. On the basis of the fardbeyan, the police registered Mohammadganj P.S. Case No. 23 /1988 dated 26.07.1988 under Section 307, 324/34 of the Indian Penal Code and after investigation the police submitted charge Sheet vide no. 18 of 1988 dated 27.09.1988, against all four accused persons under Section 307, 324, 323/34 of the Indian Penal Code. The cognizance of the offence has been taken vide order dated 11.01.1989 and case has been committed to the court of Sessions vide notification dated 29.03.1989. The charge has been framed against three persons namely Indeshwar Ram, Rajendra Ram and Sudershan Mehta under Section 115/307 of the Indian Penal Code on 11.03.1994 and against appellant Ram Prawesh Ram under Section 307 of the Indian Penal Code on 11.03.1994 but during the trial Rajendra Ram died and thus his case has been dropped by order dated 12.07.1999. The appellants pleaded their innocence and thus, have been put for trial. 6. The prosecution has examined altogether six witnesses. P.W. 1 is Biswas Topno, who is a formal witness, who has proved the signature of the Officer-in-Charge, Satyadev Singh on the F.I.R. and marked the same as Exhibit 1. During cross-examination, he has admitted that same has not been written in his presence. 7. Suraj Ram, informant of the case has been examined as P.W. 2. He is chowkidar no. 6/69. This witness has stated that on 26.07.1988 at around 6.00 p.m., while he was performing his duty, owing to the “Bakreed festival” at Barwadih village, where, some altercation took place with Ram Prawesh Ram with respect to chowkidari. Baikunth Ram (Suraj Ram’s elder brother) was also present with him. Ram Prawesh Ram was pressurizing him to leave the post of chowkidar, upon which this witness has said that he will do so if the Government asks him to leave the post. Thereafter scuffle took place. Sudershan Ram, Indeshwar and Rajendra Ram assembled there. Baikunth Ram (Suraj Ram’s elder brother) was also present with him. Ram Prawesh Ram was pressurizing him to leave the post of chowkidar, upon which this witness has said that he will do so if the Government asks him to leave the post. Thereafter scuffle took place. Sudershan Ram, Indeshwar and Rajendra Ram assembled there. Ram Prawesh Ram went to his own house to bring garasha (sharp cut weapon) and attacked twice, upon his brother, due to which his brother sustained injury and the informant has also sustained injury on the left shoulder. The injury has been caused on the left hand of his brother at two places. The informant has further said, that he went to the police station and gave his statement to Officer-in-Charge, which was read over to him upon which, he has put his signature. The formal F.I.R. has already been marked as Exhibit -2 and his brother has put his thumb impression on the same. During cross-examination, this witness has said that on the day of occurrence, it was “Bakreed festival”. There were no constable in the village except the two chowkidars, one is the informant (Suraj Ram) and the other is Ganesh Ram. This witness has further admitted during cross-examination, that Ganesh Ram, Chowkidar (from village Bardanda) was also with him. The villages Bardanda and Barwadih, which are adjacent to each other but are separate villages. The occurrence took place at the place, which is situated 20 steps south from his house and the house of the accused persons is situated at a distance of 40 steps north. The informant has further stated during cross-examination, at paragraph 10, of his deposition that when he was assaulted by garasha, he raised hulla and the witnesses namely Baleshwar, Chandra Deo, Parida, Bindeshwari came but he has not disclosed the name of these witnesses before the police. This witness has further stated, that because of assault made by garasha, he never became unconscious nor he fell down nor he fled away for saving his life. This witness has further stated, that there was a hot exchange of words with Ram Prawesh Ram and subsequently on arrival of Indeshwar, Sudershan and Rajendra, the altercation became more serious and thereafter Ram Prawesh Ram went to his house, brought a garasha and assaulted them. This witness has further stated, that there was a hot exchange of words with Ram Prawesh Ram and subsequently on arrival of Indeshwar, Sudershan and Rajendra, the altercation became more serious and thereafter Ram Prawesh Ram went to his house, brought a garasha and assaulted them. The witness has further stated, that after sustaining injury, both brother went to the Mohammadganj Police Station and from there came to the Haidernagar hospital with two constables. This witness has further stated, in paragraph 17 of the cross-examination, that blood has not stained on the cloth of any of the brother. Both brothers were wearing banyan. 8. The learned counsel for the appellant, Mr. Anurag Kashyap has submitted, that the evidence of informant is itself doubtful, as the allegation has been made that Ram Prawesh Ram assaulted his elder brother, Baikunth Ram twice, on his left hand and once on the left shoulder of the informant but curiously enough this witness has stated in paragraph 17 of his cross-examination, that blood has not stained on the cloth of any of the brothers. This witness has further stated, that both brothers were wearing banyan. The learned counsel has drawn the attention of this court towards such statement. If a person has worn banyan, when there is an altercation and he has been assaulted on the left shoulder by a garasha (sharp cut weapon), then blood will certainly stain over the banyan or the banyan will be cut into two parts because of the assault made by garasha and as such, this statement of the informant creates some doubt about the prosecution case coupled with the fact in paragraph 7 of his cross-examination, that he was on “Bakreed” duty along with Ganesh Ram but Ganesh Ram has not been examined in this case. The attention of the court has further been drawn towards paragraph 9-10 of the cross-examination, where this witness has disclosed the name of Baleshwar, Chandra Deo, Parida, Bindeshwari, as the witnesses, who came on brawl but none of the witnesses have been examined in this case and non-examination of Ganesh Ram, chowkidar is fatal to the prosecution case as prosecution has only examined six witnesses out of which P.W. 1, P.W. 5 and P.W. 6 are formal witnesses and the entire case is based upon statement of P.W. 2, P.W.3 and P.W. 4 and as such, the learned Trial Court without scrutinizing the evidence, wrongly convicted the appellant under Section 324 of the Indian Penal Code, where non-examination of doctor and the Investigating Officer, have caused serious prejudice to the appellant. The injury report has been proved by a formal witness and from perusal of the injury report of both the brothers, caused by Ram Prawesh Ram, with garasha (sharp cut weapon), but curiously enough, the informant has sustained one sharp cut injury and his brother (Baikunth Ram) sustained two injuries (one lacerated wound and one abrasion). The learned counsel for the appellant, Mr. Anurag Kashyap has submitted that, such three types of injuries cannot be caused by a single weapon, and as such, benefit of doubt may be granted in favour of the appellant. 9. Learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor has submitted, that some minor discrepancies are there in the evidence of P.W. 2 because of the lapse of time as the occurrence took place on 26.07.1988 and the evidence has been recorded on 22.08.2000 and as such, discrepancies in the evidence, cannot be construed to be fatal in nature to disbelieve the prosecution case. 10. Baikunth Ram, elder brother of the informant and one of the victim of the case has been examined as P.W. 3. This witness has stated that after hearing hulla at 6.00 p.m. regarding assault, upon his brother, he went to the place of occurrence and saw a cut mark, on the neck of informant Suraj Ram (P.W.2). Ram Prawesh Ram was having garasha in his hand, Sudershan Ram and Indeshwar Ram were instigating Ram Prawesh Ram to kill. Thereafter Ram Prawesh Ram assaulted him by garasha twice, causing bleeding injury and he fell down. Thereafter the accused persons fled away. Ram Prawesh Ram was having garasha in his hand, Sudershan Ram and Indeshwar Ram were instigating Ram Prawesh Ram to kill. Thereafter Ram Prawesh Ram assaulted him by garasha twice, causing bleeding injury and he fell down. Thereafter the accused persons fled away. This witness has further stated, that he along with his brother came to Mohammadnagar police station and his brother has filed a case. Thereafter they have been sent to Haider Nagar Hospital for treatment, where they were admitted for four days. During cross-examination, this witness has also stated that his brother Suraj (P.W. 2) is chowkidar and he came at the place of occurrence after hearing the brawl. He saw his brother in pool of blood and his brother Suraj Ram was unconscious, as stated in paragraph 8 of his cross-examination. This witness has further stated, in paragraph 9 of his cross-examination, that because of assault made by garasha, huge blood has oozed out due to which he became unconscious. The people brought them by lifting to the police station but he is not remembering the name of the persons, who lifted them. The witness has further stated, that occurrence took place for chowkidari. The learned counsel for the appellant has submitted, that from perusal of the evidence of Suraj Ram (P.W. 2) and evidence of Baikunth Ram (P.W. 3), there are vital contradictions in the prosecution case. Suraj Ram has never claimed that he became unconscious rather, he has said that, it was his elder brother Baikunth Ram, who was assaulted causing bleeding injury. 11. The learned counsel for the appellant has further submitted, that when the evidence of P.W. 3 has been placed before this court particularly in paragraph 8 and 9 of the cross-examination, it is apparent that Baikunth Ram (P.W.3) has stated that it was Suraj Ram, who has been assaulted initially and because of the assault he was in pool of blood and was unconscious. This witness has further stated that, when he sustained injury, he became unconscious and both the brothers were brought to the Mohammadganj Police station by lifting them, which is totally contradictory to the evidence adduced by Suraj Ram (P.W.2) and as such the testimony of Suraj Ram (P.W. 2) and Baikunth Ram (P.W. 3) is contradictory and as such the benefit of doubt may be granted in favour of the appellant. Learned counsel for the State, Mr. Learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor has submitted, that some contradictions has cropped up in the case because of lapse of time but these are not fatal for the prosecution case. 12. Brij Mohan Ram has been examined as P.W. 4. During cross-examination, this witness has stated that prior to the date of deposition, his statement has never been recorded but claimed to be an eye-witness to the occurrence, as he was present in his house, which is situated at a distance of ten metres from the place of occurrence. This witness has categorically stated in paragraph 8 of his cross-examination, that the occurrence took place in front of the house of Suraj Ram, where house of 25 persons are there. This witness has further stated in paragraph 9 of his cross-examination, that when he was in his house, he heard that Ram Parwesh Ram has killed Suraj and thereafter he came out of his house and saw both the injured along with the accused persons at the place of occurrence. This witness has further stated in paragraph 10 of the cross-examination, that at the time of occurrence, it was completely dark and when he reached there, 20-25 persons were there but he has no conversation with any of them. The witness has further stated, that he heard about the occurrence from the injured, Suraj Ram and Baikunth Ram. This witness has admitted, that Suraj Ram is his uncle. 13. Learned counsel for the appellant has submitted, that from perusal of the evidence of (P.W. 4) Brij Mohan Ram, it is apparent that initially Baikunth Ram (P.W. 3) was assaulted by Ram Prawesh Ram, in presence of Suraj Ram, chowkidar by means of garasha but learned counsel for the appellant has further submitted, that if the evidence of (P.W. 2) Suraj Ram, (P.W. 3) Baikunth Ram and (P.W. 4) Brij Mohan Ram are compared with each other, vital contradictions are there. This witness (P.W.4) Brij Mohan Ram has stated, that when he reached to the place of occurrence, it was completely dark and the injured along with accused persons and 25 villagers were also present there where the occurrence has been disclosed by Suraj Ram, who is his uncle. This witness (P.W.4) Brij Mohan Ram has stated, that when he reached to the place of occurrence, it was completely dark and the injured along with accused persons and 25 villagers were also present there where the occurrence has been disclosed by Suraj Ram, who is his uncle. Learned counsel for the appellant has further submitted, that in this case (P.W. 4) Brij Mohan Ram being the close relative of the injured, has supported the prosecution case but the vital contradiction that has been cropped up in this case, cannot be accepted by this court. This witness (P.W. 4) has stated, that when he reached at the place of occurrence, the injured were standing and subsequently they were brought by P.W.4 and the villagers to Mohammadganj Police Station and from there to the Haiderganj hospital, but this witness (P.W. 4) has not disclosed the name of the other person who have accompanied them. This fact is contradictory to the fardbeyan of Suraj Ram (informant) as well as evidence of P.W. 2 (Suraj Ram) and also to the evidence of Baikunth Ram (P.W. 3) and as such, no reliance can be placed on the evidence for convicting the appellant under Section 324 of the Indian Penal Code as the same is not sustainable in the eyes of law. 14. The State Counsel, Mr. Vikash Kishore has submitted, that it is true that there is some contradictions and this witness is the nephew of the informant. Learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor has submitted that Brij Mohan Ram (P.W.4) claims himself to be an eye-witness to the occurrence, the person who reached soon after the occurrence but could not satisfy this court, how Brij Mohan Ram (P.W. 4) has identified them (P.W. 2 and P.W. 3) from a distance, among 20-25 persons in a dark evening and further this witness, has not disclosed the names of other witnesses who reached prior to him. The learned State Counsel could not satisfy this Court from the record of the case. 15. Rajnish Kumar, an advocate clerk has been examined as P.W. 5, who has proved, the First Information Report as Exhibit 2 and admitted, during cross-examination, that the same has not been prepared in his presence. 16. Fauzdar Singh has been examined as P.W. 6. This witness has proved the hand-writing of Dr. 15. Rajnish Kumar, an advocate clerk has been examined as P.W. 5, who has proved, the First Information Report as Exhibit 2 and admitted, during cross-examination, that the same has not been prepared in his presence. 16. Fauzdar Singh has been examined as P.W. 6. This witness has proved the hand-writing of Dr. S.P. Singh, on the injury report of Baikunth Ram and Suraj Ram, which has been marked as Exhibit 3 and 3/A but admitted during cross-examination, that those injury reports have not been prepared in his presence. Mr. Anurag Kashyap, learned counsel for the appellant has submitted, that non-examination of the doctor and non-examination of the Investigating Officer, have caused serious prejudice to the appellant. Injury report cannot be proved by formal witness like an advocate clerk, the inscriber of the injury report is required to proved by the same or by another doctor, who has worked with him, is the only competent person to give proof and proof the same. In absence of examination of Investigating Officer or Doctor (S.P. Singh), the injury report cannot be exhibited and no explanation has been given by the prosecution for non-examination of the Investigating Officer and the Doctor (S.P. Singh). 17. Learned counsel for the appellant has submitted that, since vital contradictions have been crept up in the evidence of Suraj Ram (P.W. 2), Baikunth Ram (P.W. 3), Brij Mohan Ram (P.W. 4), the non-examination of the Investigating Officer, has caused serious prejudice to the appellant as the defence could not draw the attention of the court towards the manner of occurrence, place of occurrence and the injury caused upon the victim, as P.W. 4 - Brij Mohan Ram has said, that the occurrence took place in front of the house of Suraj Ram, whereas Suraj Ram (informant) of the case has said that the occurrence took place in the village, where he was performing the duty owing to the “Bakreed festival”. This has caused serious prejudice to the appellant. Learned counsel for the appellant has further submitted, that the injury which has been sustained by P.W. 2, on the shoulder and P.W.3, on the left hand are bleeding injury but the witnesses have said that although, they have worn banyan but the banyan has not stained with blood. This has caused serious prejudice to the appellant. Learned counsel for the appellant has further submitted, that the injury which has been sustained by P.W. 2, on the shoulder and P.W.3, on the left hand are bleeding injury but the witnesses have said that although, they have worn banyan but the banyan has not stained with blood. Such vital contradictions are there in the deposition of the prosecution witnesses and because of the non-examination of the Investigating Officer, defence could not elucidate the fact by cross-examining him and as such, under such background the appellant is entitled for benefit of doubt, by setting aside the impugned judgment and order of sentence passed by the learned Trial Court. Learned counsel for the appellant has drawn attention of this Court towards Exhibit- 3 and 3/1 which are injury reports of Baikunth Ram and Suraj Ram. Suraj Ram has suffered single injury, which is incise in nature but Baikunth Ram has sustained two injuries, one is lacerated wound and the other is abrasion (3 injuries). The injuries caused upon, Baikunth Ram is simple in nature, caused by hard and blunt substances whereas the injury of Suraj Ram is caused by sharp cut weapon. The learned counsel for the appellant has submitted, that if the prosecution case is taken in totality, Ram Prawesh Ram has assaulted Baikunth Ram by means of garasha, which is a sharp cut weapon on his left hand twice but the doctor has found one injury being lacerated on Baikunth Ram and as such, the prosecution is itself doubtful and the prosecution could not explain the same. Prosecution has failed to explain how two such injuries can be caused upon both the victims, caused by single garasha but having nature of sharp cut, laceration and abrasion and as such the entire case is doubtful and as such, benefit of doubt may be granted in favour of the appellants. 18. Learned Counsel for the State, has vehemently argued the case and has supported the impugned judgment of conviction and order of sentence passed by the learned Trial Court. Learned Additional Public Prosecutor, Mr. Vikash Kishore has submitted, that some contradictions has crept up in the case because of lapse of time but these are not fatal for the prosecution case and has fairly conceded, that Dr. Learned Additional Public Prosecutor, Mr. Vikash Kishore has submitted, that some contradictions has crept up in the case because of lapse of time but these are not fatal for the prosecution case and has fairly conceded, that Dr. S.P. Singh has not been examined, nor the prosecution has given any satisfactory explanation for non-examination of the Dr. S.P. Singh, who has issued injury report in favour of the prosecution. Learned counsel for the State could not explain the various nature of injuries found on the victims caused by single weapon. Learned counsel for the State further stated, that non-examination of the Investigating Officer and Doctor (S.P. Singh) may have caused some prejudice to the appellant. 19. After hearing learned counsel for the appellant Mr. Anurag Kashyap and learned counsel for the State Mr. Vikash Kishore, Additional Public Prosecutor and on perusal of the record, this court has found force in the submission of the learned counsel for the appellant. It is true that injuries, which have been found on the person of the victims Suraj Ram and Baikunth Ram, cannot be caused by a single weapon, as alleged by the prosecution i.e. by garasha. Furthermore, non-examination of the doctor and Investigating Officer with respect to the manner of occurrence and place of occurrence have caused serious prejudice to the appellant. Further, non-examination of Ganesh Ram, another chowkidar present there and other independent witnesses, have also caused prejudice to the appellant. 20. As a cumulative effect of this, along with discussions made above, this court is of the opinion, that the appellant is acquitted by giving benefit of doubt. This appellant is acquitted of the offence committed under section 324 of the Indian Penal Code by setting aside the impugned judgment of conviction and order of sentence, both dated 20.12.2003 passed by learned Ist Additional District & Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 146 of 1989, Mohammadganj P.S. Case No. 23 /1988 consequent to G. R. No. 983 of 1988. 21. The appellant, who is on bail is discharged from liability of his bail bond. 22. In the result, the appeal is allowed. 23. Let the lower court record be sent along with judgment of this court for necessary action.