JUDGMENT Ratnaker Bhengra, J. - When the matter was called out nobody appeared on behalf of appellants. Counsel for the State Mr. Rakesh Kumar was present. 2. Mr. Bibhash Sinha is appointed as amicus curiae to assist the court. Consequently, counsel for the appellants Mr. Chandra Shekhar Prasad, assisted the amicus curiae. 3. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 6.9.2002 passed by 1st Additional Sessions Judge, Giridih in S.T. No. 189 of 1982 whereby and where under appellants namely Dako Singh, Arjun Singh, Nakul Singh , Sibi Modi, Basudeo Modi, Laxman Modi and Bahadur Singh were convicted u/s 147 and 323 IPC and sentenced to undergo R.I. for six months each for each offences under sections 147 and 323 of IPC respectively. Appellants Kesho Modi, Munshi Modi, Kartik Singh and Raj Kumar Singh were convicted u/s 148 IPC and 323 IPC and sentenced to undergo R.I. for one year each under section 148 IPC and six months each under section 323 IPC. Appellants Munshi Modi and Raj Kumar Singh were further convicted under 324 IPC and sentenced to undergo R.I. for one year each u/s 324 IPC. All the sentences were directed to run concurrently. 4. The case of the prosecution in brief as per the fardbeyan of the informant Babu Lal Modi PW-7 is that on the day of occurrence on 26.6.1980 in the morning at about 7 a.m. informant had gone to plough field situated at village Rupaidih.The informant was accompanied by his father Budo Modi (PW-6), Prayag Modi(PW-1), Bhuneshwar Modi(PW-3) and Choutu Modi(PW-2).When they had ploughed some area of plot then accused persons fourteen in numbers namely-1. Kesho Modi, 2. Munshi Modi, 3. Laxman Modi, 4. Sibi Modi 5. Basudeo Modi, 6. Khedan Modi, 7. Raj Kumar Singh, 8. Bahadur Singh, 9. Arjun Singh, 10. Kartik Singh, 11. Dako Singh, 12. Nakul Singh, 13. Baleshwar Singh and 14. Degan Modi arrived there variously armed with deadly weapons and started assaulting the informant side.The occurrence of assault was seen by Basudeo Modi,Narayan Modi and Mahru Modi. 5. On the basis of the fardbeyan of the informant Birni P.S. case no. 7 dated 26-6-1980 under sections 147,148,324,325,323 and 379 of I.P.C. was registered against the accused persons. Degan Modi arrived there variously armed with deadly weapons and started assaulting the informant side.The occurrence of assault was seen by Basudeo Modi,Narayan Modi and Mahru Modi. 5. On the basis of the fardbeyan of the informant Birni P.S. case no. 7 dated 26-6-1980 under sections 147,148,324,325,323 and 379 of I.P.C. was registered against the accused persons. On completion of investigation charge-sheet was submitted and cognizance of the offences were taken and the case was committed to the court of Sessions for trial.Charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried.Trial was held and at the conclusion of trial accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. 6. Prosecution has examined altogether seven witnesses to prove its case. PW-1 Prayag Modi, PW-2 Chotu Modi, PW-3 Bhuneshwar Modi are the cousin brothers of informant. PW-4 is Mahadeo Modi and PW-5 is Basudeo Modi . PW-6 Bedo Modi is the father of the informant and PW-7 Babulal Modi is the informant of this case. 7. Pw-7 Babulal Modi is the informant of the case. Informant has in his examination-in-chief has stated the occurrence is of 26.6.1980 at about 7 to 7:30 a.m. in the morning.He along with Prayag Modi, Bhuneshwar Modi, Chhotu Modi and his father Bedo Modi were present in the field situated at Rupaidih village. His father was sitting on the ridge and they were ploughing the field. In the mean time all the fourteen accused persons variously armed with weapon came there and attacked upon them. Kesho Modi assaulted his father by stick part of barchha on his right arm. Munshi Modi assaulted his father by sword on his left shoulder a result his father became senseless. Thereafter Raj Kumar Singh assaulted Prayag Modi by sword on his head and Munshi Modi assaulted Prayag Modi on his left hand. Munshi Modi assaulted Bhuneshwar by sword on his head. Degan Mahto assaulted Bhuneshwar on his mouth by tangi as a result his front teeth was broken. Kartik Singh assaulted Chotu Modi on his left hand by tangi as a result his hand was cut. Kesho Modi also assaulted Chhotu Modi on his left arm by sword. Arjun Singh and Dako Singh assaulted him by stick on his whole body. Degan Mahto assaulted Bhuneshwar on his mouth by tangi as a result his front teeth was broken. Kartik Singh assaulted Chotu Modi on his left hand by tangi as a result his hand was cut. Kesho Modi also assaulted Chhotu Modi on his left arm by sword. Arjun Singh and Dako Singh assaulted him by stick on his whole body. On alarm Mahadeo Modi and Tilo Modi were coming towards them then Sibi Modi, Laxman Modi and Nakul Singh assaulted Tilo Modi by tangi,stick and back portion of tangi respectively. Mahadeo was assaulted by Kesho Modi,Sibi Modi and Laxman Modi by sword, tangi and stick respectively.At the time of assault Narayan Modi, Mahru Modi, Basudeo Modi and other villagers came there .Villagers took them to the hospital on bullock cart where they were treated. Chotu Modi was sent to Ranchi for treatment.Informant further stated that he had left his cycle at the place of occurrence which was carried by Degan Mahto.Informant has proved his fardbeyan which was marked as Ext.-1. 8. Pw-1 Prayag Modi in his examination-in-chief has stated that they purchased the place of occurrence land in the year 1970 at Rupaidih village.The sale deed was in the name of his father and uncle. PW-1 further stated that on the day of occurrence on 26-6-1980 at about 7 a.m. in the morning he and three others were ploughing the field.In the meantime the accused persons came at the place of occurrence and assaulted them.PW-1 further stated that Raj Kumar singh and Munsi Modi assaulted him by sword on his head.Munsi Modi also assaulted him on his head by sword.Basdeo assaulted him with stick as a result his hand was broken. 9. Pw-2 Chotu Modi in his examination-in-chief has stated that on the date of occurrence on 26-6-1980 at 7a.m. in the morning he along with his brother Bhuneshwar Modi, Prayag Modi and Babulal Modi were ploughing the field. His uncle Bedo Modi was sitting there. In the meantime all the fourteen accused persons came there and started assaulting them. Kartik Singh assaulted him by tangi on his left hand, Keso Modi assaulted him by stick of barchha on his leg. After the occurrence he came to Birni hospital from where he was sent to Ranchi Hospital for treatment. 10. In the meantime all the fourteen accused persons came there and started assaulting them. Kartik Singh assaulted him by tangi on his left hand, Keso Modi assaulted him by stick of barchha on his leg. After the occurrence he came to Birni hospital from where he was sent to Ranchi Hospital for treatment. 10. Pw-3 Bhuneshwar Modi stated in his evidence that on date of occurrence he along with others were ploughing the field and his uncle Bedo Modi was also present there. In the mean time all the fourteen accused persons came there and started assaulting them. Keso Modi assaulted Bedo Modi by the stick of barchha on his shoulder and Munsi Modi assaulted Bedo Modi by sword on his arm. PW-3 further stated that accused Munsi Modi assaulted him with sword on his head and accused Degan Mahto assaulted him by tangi on his mouth as a result his three teeth of the front was broken.Accused Keso Modi assaulted him with sitick of barchha on his hand. Accused Baso Modi and Lakshman Modi assaulted him with lathi on his leg and several other place.Accused Sibi Modi assaulted him with tangi on his leg. 11. Pw-4 Mahadeo Modi stated in his evidence that on the day of occurrence in the morning he was going to Ambadih for bringing the veterinary doctor as his bullock was ill. When he reached near place of occurrence at Rupaidih he saw assault taking place.PW-4 further stated that fourteen accused persons were assaulting the informant side.He also sustained injury at five places. Accused Kesho Modi assaulted him with sword on his right arm and right theigh.Accused Sibi Modi assaulted him with back side of tangi on his right shoulder. 12. Pw-5 Basudeo Modi stated that on the day of occurrence he had gone to sow the seeds in his field and when he was returning he saw Babulal Modi,Bhuneshwar Modi,Chotu Modi and Prayag Modi were ploughing the field and Bedo Modi was standing there.In the mean time accused party came there armed with sword, tangi and lathi and assaulted the informant side. 13. 13. Pw-6 Bedo Modi is the father of the informant.He has stated in his evidence that on the day of occurrence Babulal Modi,Bhuneshwar Modi,Prayag Modi and Chotu Modi were ploughing the field and he was standing there.In the meantime fourteen accused persons surrounded them and started assaulting them.Accused Kesho Modi assaulted him with the stick part of barchha. Thereafter accused Munsi Modi assaulted him with sword on the left portion of his neck.In his cross-examination PW-6 stated that he is engaged in litigation with the accused party. ARGUMENTS ON BEHALF OF APPELLANTS: 14. Learned counsel for the appellants submitted that- (i) Due to non examination of investigating officer of this case the appellants are greatly prejudiced. The matter relates to case and counter case but the learned court below wrongly gave the finding that accused parties were aggressor as because due to non-examination of investigating officer place of occurrence was not determined. (ii) As many as fourteen persons were named in the fardbeyan by the informant as assailant and in their depositions also prosecution witnesses stated about the injury inflicted on them but due to non-examination of doctor, appellants cannot be convicted in absence of evidence of the doctor and absence of injury report of the injured witnesses. (iii) The appellants party had valid title over the disputed land as the disputed land was purchased by the appellants side on 14-9-1970 by a registered sale deed viz Ext-I and were in the possession of the same. ARGUMENTS ON BEHALF OF STATE: 15. Learned counsel for the state submitted that in this case the informant has corroborated his fardbeyan in his evidence. The evidence of PW-1 Prayag Modi, PW-2 Chotu Modi, PW-3 Bhuneshwar Modi, PW-4 Mahadeo Modi, PW-5 Basudeo Modi and PW-6 Bedo Modi and the informant PW-7 Babulal Modi when taken together appear genuine and corroborates each other substantially. Each of the prosecution witnesses have named specifically the name of the assailants and the weapons used by them. Minor inconsistencies are to be expected but do not rule out the assault. Learned Counsel for the state lastly submitted that the impugned judgment of conviction and order of sentence passed by the learned court below is proper and requires to be sustained and upheld. FINDINGS: 16. Minor inconsistencies are to be expected but do not rule out the assault. Learned Counsel for the state lastly submitted that the impugned judgment of conviction and order of sentence passed by the learned court below is proper and requires to be sustained and upheld. FINDINGS: 16. Having heard learned counsel for both sides and on the basis of aforesaid facts and circumstances, I find that background of the case is land dispute which occurred almost 39 years ago in 1980.Informant parties have claimed that they have purchased the disputed land of plot no.206,Khata No.3,area 61 decimal of village Rupaidih,district-Giridih by a registered sale deed on 21-10-1970 by one Mathura Dusadh. Appellants side have also claimed that they have purchased the disputed land i.s. plot no.206,Khata No.3,area 1.83 decimal of village Rupaidih, district-Giridih on 14-9-1970 by a registered sale deed by one Giridhari Dusadh.Both the parties have exhibited several document to show their title over the disputed land. Prosecution has submitted Ext-2 which is certified copies of judgment dated 5-2-2001 passed by the Executive Magistrate in case No.841/80,Tr.No.311/99 under section 145 of Cr.P.C, Ext-3 which is the original sale deed dated 21-10-1970, Ext-4 original cancellation deed dated 26-10- 1970,Ext-5 original rectification deed dated 21-10-1970.Likewise,appellant side also submitted rent receipt Ext-M, Ext-M/1and Ext-M/2 and original sale deed Ext-I of the disputed land bearing plot no.206,Khata No.3,area 1.83 decimal of village Rupaidih, district-Giridih registered on 14-9-1970. So, in the background of this land dispute, present case has to be seen. 17. (I) In the fardbeyan informant Babulal Modi PW-7 has categorically named fourteen accused persons and stated kind of weapon such as sword, barchha,stick and tangi with which each accused persons were armed with. Further,in the fardbeyan informant has in detail narrated which of the accused person assaulted whom on which part of the body and by what weapon. In their deposition also all the prosecution witnesses have stated about the assault made on them in deatail.Informant has stated in his evidence that his father Bedo Modi PW-6 was assaulted by stick part of barchha on his right arm and by sword on his left shoulder. Prayag Modi PW-1 was assaulted by sword on his head and on his left hand. Informant further stated that Bhuneshwar Modi PW-3 was assaulted by sword on his head and on his mouth by tangi as a result his front teeth was broken. Prayag Modi PW-1 was assaulted by sword on his head and on his left hand. Informant further stated that Bhuneshwar Modi PW-3 was assaulted by sword on his head and on his mouth by tangi as a result his front teeth was broken. Chotu Modi PW-2 was assaulted on his left hand by tangi as a result his hand was cut, by sword on his left arm and by stick on his whole body. Informant further stated that Mahadeo Modi PW-4 was assaulted by sword, tangi and stick.Likewise,PW-1 Prayag Modi stated in his evidence that he was assaulted by sword on his head and with stick as a result his hand was broken.Further,PW-2 Chotu Modi stated that he was assaulted by tangi on his left hand and stick of barchha on his leg. PW-3 Bhuneshwar Modi stated that he was assaulted by accused persons with sword on his head,by by tangi on his mouth,by sitick portion of barchha on his hand, by lathi on his leg and several other place and by tangi on his leg.PW-4 Mahadeo Modi further stated in his evidence that he sustained injury at five places on his person. He was assaulted with sword on his right arm and right thigh and by with back side of tangi on his right shoulder.PW-6 Bedo Modi stated in his evidence that he was assaulted with the stick part of barchha and with sword on the left portion of his neck. (ii) The prosecution case is that about six persons from the informant side PW-1, PW-2, PW-3, PW-4, PW-6 and PW-7 were injured and too by tangi,barchha and sword like dangerous weapon and multiple injuries were caused to each injured and that too on vital parts of their body. (iii) Now question arises, can oral testimony of prosecution witnesses as to assault inflicted on them by the appellants can be relied upon. In this case neither doctor has been examined nor injury report of the injured has been exhibited. Hence, it would not be safe to rely merely on the oral testimony of prosecution witnesses as to assault made on them in absence of evidence of doctor and absence of injury reports of the injured prosecution witnesses. 18. Further in the case in hand FIR lodged by the informant side is Birni P.S. Case no. 7 dated 26-6-1980. Hence, it would not be safe to rely merely on the oral testimony of prosecution witnesses as to assault made on them in absence of evidence of doctor and absence of injury reports of the injured prosecution witnesses. 18. Further in the case in hand FIR lodged by the informant side is Birni P.S. Case no. 7 dated 26-6-1980. Before lodging this FIR by the informant side Birni P.S. Case no. 6 dated 26-6-1980 (Ext-E) was lodged by the appellants side.So,this is a matter of case and counter case. As investigating officer of this case has also not been examined and hence due to non-examination of investigating officer place of occurrence could not be proved and consequently which of the two parties were the aggressor cannot be determined. 19. In the finding part of the impugned judgment at para-35, learned trial court has taken recourse to case diary and gave finding that accused parties were aggressor. Section 172 of Cr.P.C lays down that police officer making an investigation shall enter his proceedings in a diary which may be used at trial or inquiry not as an evidence in a case but to aid the court in such inquiry or trial. In the case in hand learned trial court has used the content of diary as evidence which is not permissible in law. 20. The appellants are acquitted of the charges leveled against them and giving benefit of doubt. In the result, the impugned judgment of conviction and order of sentence dated 6.9.2002 passed by 1st Additional Sessions Judge, Giridih in S.T. No. 189 of 1982 cannot sustain and is set aside. Appellants are discharged from the liabilities of their respective bail bonds. 21. Accordingly, the appeal is allowed. 22. We appreciate the assistance rendered by Mr. Bibhash Sinha, the learned Amicus. The Secretary, Jharkhand High Court Legal Services Committee shall pay the remuneration to the learned Amicus as per the rules.