JUDGMENT : RATNAKER BHENGRA, J. 1. When the matter is called out, counsel for the State is present. 2. It is seen that this appeal was part-heard on 01.10.2018. Thereafter, on two other dates i.e. 26.10.2018 and 02.11.2018 this appeal was taken up. On 02.11.2018, counsel for the appellants had requested that this case be put up on 30.11.2018. On 30.11.2018, counsel for the State has appeared and made his submissions. 3. As per the report of officer-in-charge of Mihijam police station dated 12.03.2018 appellant No.8, Arjun Mandal, S/o Golak Mandal has died. Hence, his appeal stands abated. 4. Present appeal is directed against the judgment of conviction and order of sentence dated 17.04.2003, passed by the learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 179 of 1997, corresponding to Sessions Case No. 152 of 2001, wherein the learned 1st Additional Sessions Judge has convicted all the nine appellants, guilty of having committed offences under Sections 148 and 323 of the Indian Penal Code and has sentenced them to undergo rigorous imprisonment for a period of six months for the offence under Section 148 of the Indian Penal Code and further to undergo six months rigorous imprisonment for the offence under Section 323 of the Indian Penal Code. Both the sentences were directed to run concurrently. 5. The case of the prosecution, as per the fardbeyan of Suwalal Mondal, PW-8, recorded on 24.03.1996, is that about five months ago, there was a quarrel between him and Nabik Mondal and his brother. Due to this quarrel on 24.03.1996 at around 10:00 a.m. Nabik Mondal, Shymal Mondal, Asim Mondal, Fatik Mondal, Arjun Mondal, Parimal Mondal, Bisambar Mondal, Sanjeet Singh, Pappu Kr. Singh and Upendra Ram came to his village Kalahi. They were armed with pistol, lathi, tangi, bricks and stones. After breaking his door by tangi accused entered into his house with intention to kill him and his wife and fired shot from pistol, however, the cartridge hit the wall. Thereafter, the accused injured him and his wife with bricks and stones. 6. On the basis of the fardbeyan, police instituted Mihijam P.S. Case No. 74 of 1996 and commenced investigation. Thereafter, charge-sheet was submitted under Sections 147, 323, 325, 307 of the Indian Penal Code and also under Section 27 of the Arms Act. Cognizance was taken and the case was committed to the Court of Sessions. 6. On the basis of the fardbeyan, police instituted Mihijam P.S. Case No. 74 of 1996 and commenced investigation. Thereafter, charge-sheet was submitted under Sections 147, 323, 325, 307 of the Indian Penal Code and also under Section 27 of the Arms Act. Cognizance was taken and the case was committed to the Court of Sessions. The accused pleaded innocence and claimed to be tried. Accordingly, witnesses were examined and trial was continued and at the conclusion of the trial, the accused or the appellants, herein, were convicted and sentenced, as aforesaid. Hence, this appeal. 7. Prosecution has examined altogether ten witnesses in support of its case. Defence produced three witnesses. 8. PW-8, Suwalal Mondal, is the informant and an injured witness of this case. He has deposed in his evidence that all the ten accused persons armed with pistol, bomb, kulhari, lathi, bricks and stones had come to his house. He shut the door but the accused persons broke open the door by kulhari and entered into his house. Ashim and Fatik assaulted him with lathi on his right arm. When his wife came to rescue him she sustained injury by lathi on her left leg as a result her leg was fractured. From his house, thereafter, the accused entered into the house of Dhirendra Pandit. His fardbeyan was recorded by the police. He has proved his signature on the fardbeyan which was marked as Ext. 2/1. He also proved the endorsement on the fardbeyan of officer-in-charge G.P. Mishra marked as Ext.3. He was treated at Mihijam Hospital. In his cross-examination, he said that regarding the same incidence a case was lodged against him and others which is pending. 9. PW-7, Angura Devi is wife of the informant and another injured witness of this case. She deposed that Nabik, Asim, Shymal, Fatik, Arjun, Bisambar, Parimal and others numbering about ten accused were assaulting her husband. When she went to save her husband then Ashim assaulted her with lathi on her right leg as a result she sustained injury. She was treated at Mihijam Hospital. At para-5, she said that she did not see the mark of injury or assault on the body of the accused persons. 10. PW-1 is Sunil Gorain. When she went to save her husband then Ashim assaulted her with lathi on her right leg as a result she sustained injury. She was treated at Mihijam Hospital. At para-5, she said that she did not see the mark of injury or assault on the body of the accused persons. 10. PW-1 is Sunil Gorain. He has deposed in his evidence that Nabik Mandal, Asim Mondal, Shymal Mondal, Arjun Mondal, Fatik Mandal, Bisambar Mondal, Parimal Gorai, Pappu Singh, Sanjeet Singh and Upendra Ram attacked the house of Suwalal Mandal. They were armed with bomb, pistol and lathi. They threw bricks and stones and entered into the house by breaking the door. They started assaulting Subalal Mandal and his wife Angura Mandal. Due to the said assault, Subalal Mandal received injury on right shoulder and left leg and his wife sustained injury on right hand and right leg. When police came accused left their cycle and scooter and fled away. Police seized one scooter, green cycle and a black cycle. In his cross-examination, he deposed that the wife of Kartik Mandal had instituted a case regarding the occurrence of same day and same date in which he is also an accused and the matter is pending. At para-11, he said that blood oozed out from the leg of Subalal. He also said that blood oozed out near the right eye of Angura. In para-22, he has said that a number of cases are going on between Suwalal and Nabik Mandal. 11. PW-2 is Abdut Pandit. He deposed on the day of occurrence he saw that accused persons eight in number were throwing bricks and stones on the house of Suwalal. Thereafter, they broke open the door and assaulted Suwalal and his wife. In his cross-examination, he said that blood was oozing out from near the eye of Angura. Blood was oozing out from shoulder and leg of Suwalal. 12. PW-3 is Manik Gorain. He has deposed on the day of occurrence he saw Nabik Mandal, Asim Mandal, Shymal Mandal, Bisambar Mandal, Arjun Mandal, Fatik Mandal, Parimal Gorai and some others outsider person throwing bricks and stones in the house of Suwahal. Nabik and Shymal was armed with pistol, Fatik was armed with lathi, Arjun was armed with an axe and remaining persons were armed with bricks and stones. Nabik and Shymal was armed with pistol, Fatik was armed with lathi, Arjun was armed with an axe and remaining persons were armed with bricks and stones. Thereafter breaking the door, they entered into the house of Suwalal and assaulted Suwalal and his wife. He deposed that he had seen the injuries on the right hand of Suwalal and right leg of Angura. In his cross-examination, at para-14, he said that blood did not ooze from the injury of Suwalal and his wife. 13. PW-4 is Binod Mondal. He deposed on the day of occurrence he saw from his door that Nabik Mandal, Asim Mandal, Shymal, Fatik Mandal, Parimal Gorain, Arjun Mandal and three outsiders accused persons were throwing stones and bricks on the house of Suwalal. They were armed with lathi and kulhari. Nabik was armed with pistol. They entered the house of Suwalal. After some time, he heard the sound of bomb. He went to the house of Suwalal after the accused fled away. Suwalal told him that accused persons assaulted him and his wife. Police came and seized two cycles and one scooter. He proved his signature on the seizure list of cycle marked as Ext.1 and also proved the signature Dhirendra Pandit marked as Ext.1/1. He also proved his signature on the seizure list of Scooter marked as 1/2 and also proved the signature of Dhirendra Pandit marked as Ext.1/3. 14. PW-5 is Rajendra Gorai and PW-6 Badal Gorain are the cousin brothers of the informant PW-8 Subalal Mandal. PW-5 has recognized his signature his signature on the fardbeyan which was marked as Ext.2. Both these prosecution witnesses have reiterated almost the same thing regarding the occurrence as other prosecution witnesses. 15. PW-9 is Dr. Surendra Kumar Mishra, who examined the injured from both the side i.e. informant side and accused of appellants side. He examined the informant Suwalal Mandal, PW-8 and his wife Angura Devi, PW-7 and proved their injury report marked as Ext.4 and 4/1 respectively. The Doctor or PW-9 also proved the injury report of accused or appellants herein Fatik Mandal, Arjun Mandal, Nabik Mandal, Asim Mandal, Sanjeet Singh, Upendra Ram and Pappu Kr. Singh which was marked as Ext.A, Ext.A/1, Ext.A/2, Ext.A/3, Ext.A/4, Ext. A/5 and Ext.A/6 respectively. 16. PW-10, Gayasuddin is a formal witness. He has proved the formal FIR, marked as Ext.5. Arguments of learned counsel for the appellants: 17. Singh which was marked as Ext.A, Ext.A/1, Ext.A/2, Ext.A/3, Ext.A/4, Ext. A/5 and Ext.A/6 respectively. 16. PW-10, Gayasuddin is a formal witness. He has proved the formal FIR, marked as Ext.5. Arguments of learned counsel for the appellants: 17. Learned counsel for the appellants has argued that this is a case in which there is also a counter case. He has argued that it is not simply a case of one party assaulting another but argued that the genesis of the case took place due to certain enmities or differences that have already existed in the past and therefore, learned counsel says that it is a matter of case and counter case. Learned counsel argued that it has come on the record that many of the accused were themselves injured and when the accused are also injured then the genesis of the assault needs explanation. He has argued that the injuries on the accused have not been indicated in the fardbeyan and therefore, there has been suppression of this aspect and accordingly, the genesis is not explained and therefore, who were the aggressors, has not been properly explained. Counsel, therefore, says that in such circumstances, the benefit of doubt would go or accrue to the appellants and they cannot be held guilty of the offences alleged. 18. Learned counsel for the appellants submitted that the injuries inflicted to the accused side or appellants’ side have been exhibited as Ext.A to Ext.A/6 and therefore, even the manner of assault has not been brought forth properly in the Trial Court below. If the manner of occurrence is itself cloudy and doubtful then it is very difficult to prove the case against the appellants. 19. Learned counsel for the appellants has also argued that the Investigating Officer has also not been examined. Counsel for the appellants has argued that in such a case, particularly, when it is a matter of case and counter case, it was necessary that the Investigating Officer be examined and then only it could have been determined as to who was the aggressing party or the aggressors and he was the only person, who could have then proved the manner of occurrence. Since there is also a counter case then it would have been necessary for the examination of the Investigating Officer who could have gone to the place of occurrence and determine where the place of occurrence was and he could also on the basis of the injuries inflicted on both the sides and also on the basis of the weapons used, come to a proper conclusion as to who the aggressors were. It would only be proper to determine who the aggressors were because then for the other party it would be a matter of self-defence, but, the non-examination of the Investigating Officer has unfortunately deprived the appellants of this basis. Lastly, learned counsel for the appellants submitted that impugned judgment passed by the learned court below is without any evidence and it be set aside. Arguments of learned counsel for the State: 20. Learned counsel for the State has, on the other hand, argued that in this case there are sufficient witnesses to fully establish the case against the accused or the existing appellants. Counsel for the State has submitted that there are ten prosecution witnesses and they are reliable and trustworthy witnesses including injured witnesses PW-8 and PW-7 and the Doctor and their evidences are sufficient to uphold the conviction. The non-examination of the Investigating Officer, as argued by the counsel for the appellants, would not prejudice the appellants. Learned counsel for the State has further submitted that first and foremost it is revealed from the evidence of Suwalal Mondal, PW-8, who is the informant in this case, in his fardbeyan, as to how and where the occurrence took place and the manner of assault by the accused persons and that they were armed with tangi, lathi and other weapons of assault. Learned counsel for the State has argued that he has fully corroborated his fardbeyan in his deposition. He is an injured witness and his injuries have been supported and corroborated by the Doctor, who is PW-9. He proved the injury report of informant marked as Ext.4. 21. Learned counsel for the State has then referred to the evidence of PW-7, Angura Devi, who is wife of the informant and submitted that she was in the house during the occurrence and she is also injured witness and therefore, fully reliable and trustworthy witness. Her injuries have also been proved by the evidence of the Doctor, PW-9. 21. Learned counsel for the State has then referred to the evidence of PW-7, Angura Devi, who is wife of the informant and submitted that she was in the house during the occurrence and she is also injured witness and therefore, fully reliable and trustworthy witness. Her injuries have also been proved by the evidence of the Doctor, PW-9. Injury report of PW-7 was marked as Ext.4/1. 22. Learned counsel for the State has then argued that apart from these important witnesses, who are injured witnesses and the Doctor, whereby ocular evidence is fully supported by medical evidence, there are other witnesses, who also supported the case of the prosecution. Learned counsel for the State has pointed out to the evidence of PW-1, PW-2, PW-3, and PW-4, who have also supported the prosecution case. 23. Learned counsel for the State then argued that the conviction is done under Sections 148 and 323 of the Indian Penal Code. Counsel for the State also argued that as per the fardbeyan, the accused persons or appellants including ten in number had made a concerted assault on the informant and his wife. They had come armed with weapons and committed the assault at about 10:00 a.m. in the morning. There is admittedly existing difference and enmity between the parties, however, this in no way excuses the concerted assault made on the husband and wife and therefore, the offence under Section 148 of the Indian Penal Code is fully made out. Counsel for the State says that result of this concerted assault was the injuries inflicted on the husband and the wife and for which, the conviction under Sections 323 and 148 of the Indian Penal Code has rightly been made by the learned court below. FINDINGS 24. Having heard both the counsels, having gone through the records of the case, evidences and in the facts and circumstances, the following is observed: (i) It is noted that as per the fardbeyan the assault is alleged in the house of the informant and his wife by the appellants and it has been done so allegedly with bricks, stones, lathies, tangies, pistol and bombs. In the evidences of prosecution witnesses also, the witnesses deposed about the assault made by the appellants on the informant Suwalal Mandal and his wife Angura Devi. In the evidences of prosecution witnesses also, the witnesses deposed about the assault made by the appellants on the informant Suwalal Mandal and his wife Angura Devi. As per the fardbeyan, in the assault by these appellants only two persons were injured i.e. informant himself and his wife. However, Dr. Surendra Kumar Mishra or PW-9, who examined the injured informant and his wife on 24.03.1996 had proved their injury reports, which were marked as Ext.-4 and Ext.-4/1 respectively. On the same day the Doctor or PW-9 also examined other persons from the side of the accused or the appellants and found injuries on six accused persons and he proved injury reports of them which were marked as Ext. A and running to Ext. A/6. The persons whose injury reports have been made, is apparently by the same Doctor who examined those who have been injured from both sides, including from the side of the other accused persons, including the remaining appellants. The remaining appellants being Fatik Mandal and his injury report was marked as Ext.‘A’, Arjun Mandal and his injury report was marked as Ext. ‘A/1’, Nabik Mandal and his injury report was marked as Ext. ‘A/2’, Ashim Mandal and his injury report was marked as Ext. ‘A/3’, Ranjit Singh and his injury report was marked as Ext. ‘A/4’, Upendra Ram and his injury report was marked as Ext. ‘A/5’ and Pappu Kumar Singh and his injury report was marked as Ext. ‘A/6’. Though in the fardbeyan, it has been indicated that only the husband and wife have been injured but in the evidences, there is injury report i.e. Ext.A to Ext. A/6 of at least seven accused persons including the appellants who have been examined by the same Doctor and therefore, this raises some concern or doubts. So the question arises that how so many accused persons or the appellants specifically seven in number were injured. So it was simply not possible without a counter attack by the informant side. (ii) The other aspect is that though in the fardbeyan as well as in the evidence there is reference of assault being made including pistol and bombs but in injury report Doctor or PW-9 deposed that injury caused to informant and his wife could be by lathi or stones or bricks. Hence, no injury was caused by any bullet or bombs or bombs’ splinters. Hence, no injury was caused by any bullet or bombs or bombs’ splinters. Neither there been any recovery of any pistol or any residues of bomb material and not even recovery of lathi or tangies which are also the alleged weapons of assault. (iii) Initially, the accused including the appellants were also alleged for the offence under Section 27 of the Arms Act but they were acquitted for the offence under Section 27 of the Arms Act by the learned court below. It is also seen that the investigating officer has also not been examined and given the fact that the aforesaid issues or doubts have been raised which are of a significant in nature, it would have been more crucial for investigating officer to be examined so that the truth of the matter could be resolved. Particularly, as to how so many injuries were received on behalf of the accused including the appellants, surely they were not self-inflicted to counter the case by the informant. However, since the investigating officer has not been examined, in the facts and circumstances of the case, the appellants have certainly been prejudiced in his absence. 25. Therefore, based on my observations aforesaid, this Court thinks that surely a question of concern or doubt arises and therefore, I do not think that the judgment of conviction and order of sentence dated 17.04.2003, passed by the learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 179 of 1997, corresponding to Sessions Case No. 152 of 2001, wherein, all the nine appellants have been convicted under Sections 148 and 323 of the Indian Penal Code and sentenced for a period of six months each for the different offences, both the sentences to be run concurrently, cannot be sustained and is set aside. Accordingly, giving them the benefit of doubts, all the appellants, named above, are hereby acquitted of the charges. The appellants are discharged from the liabilities of their bail bonds. 26. Accordingly, this appeal is allowed.