ORDER : Anubha Rawat Choudhary, J. Heard Md. Imtiaz Khan, the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Sanjay Kumar Srivastava, the learned A.P.P. appearing on behalf of the Opposite Party-State. 3. The present criminal revision petition is directed against the Judgment dated 06.09.2013 passed by the learned Additional Sessions Judge-II, Sahibganj in Criminal Appeal No. 34/2012 whereby and whereunder the learned appellate court confirmed the Judgment of conviction of the petitioner under Sections 323, 447 and 448 of the Indian Penal Code and also upheld the order of release of the petitioner on admonition extending the benefit of Section 3 of the Probation of Offenders Act passed by the learned trial court and dismissed the criminal appeal. 4. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of release on probation dated 03.03.2012 passed by the learned Juvenile Justice Board, Sahibganj in P.C.R. Case No. 46 of 2004 / E. No. 15 of 2012 whereby and whereunder the petitioner was convicted under Sections 323, 448 and 447 of the Indian Penal Code and was released with admonition for his act that he would keep good behaviour and his parents would keep him away from criminal activities. Arguments on behalf of the Petitioner 5. Learned counsel for the petitioner submitted that there were altogether four accused in the present case and out of them, only the petitioner was a juvenile and accordingly, his case was taken up by the learned Juvenile Justice Board, Sahibganj. Learned counsel for the petitioner also submitted that so far as other accused persons are concerned, they were tried by regular court and they have been acquitted giving the benefit of doubt. He referred to the judgment of acquittal of the other three co-accused persons as contained in Annexure-1. 6. Learned counsel further submitted that so far as the petitioner is concerned, no specific allegation has been levelled against him. He referred to the evidence of C.W.-3 and submitted that C.W.-3 has not even specifically named the petitioner in the commission of offence. 6. Learned counsel further submitted that so far as the petitioner is concerned, no specific allegation has been levelled against him. He referred to the evidence of C.W.-3 and submitted that C.W.-3 has not even specifically named the petitioner in the commission of offence. He further referred to Para-17 of the appellate court judgment to submit that the appellate court while sustaining the conviction of the petitioner found that it is true that the accusation has not been explained read with Section 34 of I.P.C, but from the material on record, it is apparent that all the accused persons including the appellant (petitioner herein) had attacked the Complainant and his brother conjointly and had made entry in the house also and thereafter, they had run away from there. The learned counsel submitted that the persons with whom the petitioner was said to have acted conjointly have already been acquitted by the learned regular trial court as per Annexure-1 and in such circumstances, the petitioner is also entitled to benefit of doubt and accordingly, the petitioner may be acquitted. 7. The learned counsel for the petitioner also submitted that there was a counter case arising out of the same incident and the Complainant of the present case namely, Amaduddin Md. Atta has been convicted in the counter case. In course of hearing through video conferencing, the learned counsel for the petitioner placed a copy of the Judgment dated 21.04.2015 passed by the learned Assistant Sessions Judge-I, Sahibganj in Sessions Case No. 162/2005 which was filed through e-mail of this Court and is tagged with the records of this case. Arguments on behalf of the Opposite Party-State 8. Learned A.P.P. appearing on behalf of the Opposite Party-State, on the other hand, did not dispute the fact that other three co-accused persons have been acquitted in criminal trial and so far as present petitioner is concerned, no specific allegation as such has been levelled against him. Learned A.P.P. also did not dispute the fact that C.W.-3 has not specifically taken the name of the petitioner in the commission of offences. He further did not dispute the fact that the Complainant of the present case has been convicted in the counter case arising of the same incident. Findings of this Court 9. Learned A.P.P. also did not dispute the fact that C.W.-3 has not specifically taken the name of the petitioner in the commission of offences. He further did not dispute the fact that the Complainant of the present case has been convicted in the counter case arising of the same incident. Findings of this Court 9. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case based on the Complaint presented by the Complainant namely, Amaduddin Md. Atta on 05.03.2004 before the learned Chief Judicial Magistrate, Sahibganj alleging inter-alia is that on 05.03.2004 at about 08:00 A.M., when the Complainant was doing the work of levelling the government road situated in front of his house, (1) Md. Ajharul Islam (Master) armed with pistol, Md. Najirul Islam armed with lathi, (3) Md. Amiruddin Ansari armed with country-made pistol and (4) Md. Latifur Rahman Ajhar (petitioner herein) armed with iron rod came there and started scuffling with the Complainant and assaulted him and his younger brother namely, Mohiuddin Md. Gilani and took both of them inside the house and they again assaulted them by means of lathi and fists and slaps. It was further alleged that Md. Ajharul Islam on the point of pistol asked the Complainant not to whisper the incident to anyone, otherwise he would kill them and Md. Amiruddin Ansari on the point of the pistol also threatened the Complainant and fired in air. 10. The learned Chief Judicial Magistrate, Sahibganj transferred the case record to the learned Sub-Divisional Judicial Magistrate, Sahibganj for enquiry and disposal under Section 190(2) of Cr.P.C. 11. After examining the Complainant on solemn affirmation and recording the statements of the enquiry witnesses, the learned Sub-Divisional Judicial Magistrate, Sahibganj, vide order dated 17.01.2005, found a prima facie case under Sections 323, 448 and 447 of the Indian Penal Code against Md. Ajharul Islam (Master), Md. Najirul Islam, Md. Amiruddin Ansari and the petitioner and summons were issued to them. 12. On 01.05.2010, the learned Sub-Divisional Judicial Magistrate, Sahibganj declared the petitioner to be a juvenile and separated his case and sent the case record of the petitioner to the learned Juvenile Justice Board, Sahibganj. 13. Ajharul Islam (Master), Md. Najirul Islam, Md. Amiruddin Ansari and the petitioner and summons were issued to them. 12. On 01.05.2010, the learned Sub-Divisional Judicial Magistrate, Sahibganj declared the petitioner to be a juvenile and separated his case and sent the case record of the petitioner to the learned Juvenile Justice Board, Sahibganj. 13. On 23.08.2010, the substance of accusation for the offences under Sections 323, 447 and 448 of the Indian Penal Code was explained to the petitioner in Hindi to which they pleaded not guilty and claimed to be tried. 14. In course of trial, the Complainant examined altogether 04 witnesses in support of his case. C.W.-1 is Amaduddin Mohammad Atta who is the Complainant of the case, C.W.-2 is Abdulla Mohammad Hazi, C.W.-3 is Mohiuddin Mohammad Gilani and C.W.-4 is Abdul Rahman Mohammad Jamin. C.W.- 2, C.W.-3 and C.W.-4 are the brothers of the Complainant. The Complainant exhibited the C.C. of F.I.R. of Kotwali University P.S. Case No.841/2010 as Exhibit-1 and C.C. of Charge-sheet of Kotwali University P.S. Case No.841/2010 as Exhibit-1/1. 15. On 02.02.2012, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he simply denied the incriminating substances put to him and claimed to be innocent. No oral evidence was adduced on behalf of the petitioner, but some documentary evidences were filed in his defence which were marked as exhibits without objection on behalf of the Complainant. The certified copies of the F.I.R. and Charge-sheet in Borio (Jirwabari) P.S. Case No.35/2003 were marked as Exhibits-A and A/1 respectively, certified copies of the F.I.R. and Charge-sheet in Borio (Jirwabari) P.S. Case No.31/2004 were marked as Exhibits-B and B/1 respectively, certified copy of deposition of P.W.-2 in Sessions Case No.162/2005 was marked as Exhibit-C and certified copies of depositions of witnesses in P.C.R. No.46/2004 were marked as Exhibits- C/1, C/2, C/3 and C/4 respectively. 16. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the Complainant, the documentary evidences filed on behalf of the petitioner and also the arguments advanced on behalf of the parties and recorded its findings in Para-15 of its Judgment. 16. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the Complainant, the documentary evidences filed on behalf of the petitioner and also the arguments advanced on behalf of the parties and recorded its findings in Para-15 of its Judgment. The learned trial court recorded that C.W.-1, Complainant has stated that on 05.03.2004, the occurrence took place on the government road and in his courtyard and at about 08:00 P.M., all the accused persons had come there armed with pistol, rod and lathi and had assaulted him and his brother and he has further stated that Mohiuddin Ansari and Md. Ajharul Islam were armed with pistol and rest were armed with rod and lathi. The learned trial court further recorded that C.W.-2, C.W.-3 and C.W.-4 have fully supported the evidences of C.W.-1 and the occurrence stated in the Complaint. The learned trial court further recorded that all the prosecution witnesses have conjointly adduced evidence that the petitioner alongwith the other accused persons committed the occurrence of assaulting the Complainant on the road and in the house of the Complainant. The learned trial court recorded that from perusal of the evidence in cross-examination of C.W.-1 and Exhibits-A, A/1, B, B/1, C and C/4, it is found that several cases are pending between the Complainant, his father and the witnesses of the case on one side and the family of the petitioner on the other side which establishes previous enmity between them, but on the basis of previous enmity, the entire prosecution case cannot be doubted. The learned trial court further recorded that the documents filed on behalf of the Complainant i.e., Exhibits-1 and 1/1 which are certified copies of the F.I.R. of Kotwali University P.S. Case No.841/2010 and the related Charge-sheet are irrelevant in the facts and circumstances of the present case and therefore, it was not appropriate to consider the same. 17. At the appellate stage, the learned appellate court also considered the oral and documentary evidences adduced on behalf of the Complainant, the documentary evidences filed on behalf of the petitioner and also the arguments advanced on behalf of the parties and recorded its findings in Paras-12 to 18 which read as under : “12. On careful scrutinization and meticulous appreciation of evidences available on the record, it is apparent that the complainant Amaduddin Md. On careful scrutinization and meticulous appreciation of evidences available on the record, it is apparent that the complainant Amaduddin Md. Atta (CW-I) has consistently stated corroborating the factum of allegation and incident of Mar-Pit as contained in the complaint that on the relevant day and time of occurrence, all the accused persons including the appellant armed with pistol, rod and lathi came to him when he was engaged in expanding the road lying in front of his house and assaulted him and his brothers. His evidence is also to the effect that the accused persons firstly committed Mar-Pit on the road and thereafter also in his courtyard and threatened to kill. This witness has also added specifying the weapons held by the accused persons at the time of incident in a very clear manner clarifying that accused Mohiuddin Ansari and Ajrul Islam were armed with pistol whereas the rest two were held rod and lathi. Rest three witnesses, being the brothers of the complainant (CW-1), have also deposed in the similar way giving vivid description of the occurrence and carrying weapons by the accused persons including the appellants, particularly with respect to the occurrence of assault and injuries sustained by CW-1 and CW-3, all these witnesses have specifically stated that at the time of incident, the appellant namely, Latifur Rahman Ajhar was involved armed with rod and in association with other accused persons, committed Mar- Pit and therefore, they had sustained injuries in the alleged incident. However, these witnesses have been cross examined at length, but nothing has been elicited, so as to create doubt over the authenticity of complainant case. 13. However, there is no medical report available on the record to denote the seat of injuries sustained by the complainant and his brother, but the testimony of all the witnesses are so consistent and convincing that conclusively points towards the guilt of the accused persons including the appellant disclosing that on the relevant day of occurrence, the appellant alongwith other accused had participated in the act of Mar-Pit armed with weapons, in which this appellant was armed with iron rod. Further the presence of the appellant at the scene of occurrence, has also been established from the testimony of all the witnesses who have come forward to say that this appellant armed with iron rod was seen while committing Mar-Pit to the complainant and his brother (C.W.-3), and further nothing has been brought on the record on behalf of the appellant, on the basis of which, his presence can be doubted in the facts and circumstances of the case. 14. It is true that both the parties to the case are on litigating terms and due to that several litigations are pending between them as is evident from Ext-A to C/4, so it is undoubtedly clear that they are on inimical terms, but on that score alone, the case of complainant cannot be brushed aside in view of the consistent and reliable testimony of the witnesses who are the natural and competent witnesses of the occurrence and had got occasion to see the occurrence. Besides this, it is also evident that the occurrence of Mar-Pit had taken place in front of the house of the complainant and also in his courtyard i.e. inside the house. Hence, the presence of his brothers, the witnesses, at the scene of occurrence, cannot be doubted in the facts and circumstances of the case. 15. An argument has been advanced on behalf of the appellant that the witnesses of this case, are closely related to each other and their depositions are full of infirmities and discrepancies, hence, no reliance can be placed on their testimony as they are also on inimical terms. In this respect, I would like to refer here that from careful scanning of the evidences available on the record, it is manifest that though there is some discrepancy and infirmity appearing in the testimony of these witnesses with respect to the place of occurrence, but the same is not of such a magnitude to create doubt over the authenticity of the prosecution case which is otherwise proved from the testimony of natural and competent witnesses of the occurrence. 16. So far as attracting the guilt U/Ss. 16. So far as attracting the guilt U/Ss. 447, 448 and 323 of I.P.C. is concerned, there is overwhelming evidence on record which conspicuously goes to show that this appellant alongwith his associates (co-accused persons) armed with deadly weapon had entered the house of complainant which was in his conscious possession and that entry was made with an intent to commit offence and the very building or house of the complainant was used as human willing. Hence, the guilt of the appellant can well be attracted within the mischief of Section 447 and 448 of the IPC. Similarly, from the evidence on the record, it also appears that after making the unlawful entry in the house of the complainant, they also committed Mar-Pit with him conjointly, though there is no clear out evidence available on the record regarding seat of injuries, but the provisions relating to causing simple hurt as envisaged U/s 319 of the IPC clearly denotes that even the bodily pain, disease or infirmity is sufficient to cause simple hurt. Therefore, it is not necessary that there should be visible injury caused on the person of the victim/complainant, nor it is necessary that injuries should be received by the physical contact causing pain by any voluntarily act is sufficient to constitute the offence under the section. Therefore, non-availability of the medical report does not ipso facto affect the case of complainant with respect to voluntarily causing hurt to him and his brother by the appellant, and his associates, which is otherwise proved from the evidence of competent witnesses. Therefore, he cannot absolve also of the liability made U/s 323 of the I.P.C. 17. It is true that accusation has not been explained read with Section 34 of the I.P.C, but from the material on record, it is apparent that all the accused persons including the appellant had attacked on the complainant and his brother conjointly and made entry in the house also and thereafter, ran away from there conjointly. Therefore, from the circumstances referred to above, the guilt of the appellant can well be deduced to have been committed in furtherance of common intention. So in that view of the matter, the appellant is liable both individually and vicariously for the acts committed by other co- accused persons. 18. Thus, on anxious consideration of the evidences on record in its entirety and having heard the Ld. So in that view of the matter, the appellant is liable both individually and vicariously for the acts committed by other co- accused persons. 18. Thus, on anxious consideration of the evidences on record in its entirety and having heard the Ld. Counsel for the parties, it is manifest that the evidence on record is so clinching and convincing which irresistibly and undoubtedly points towards the guilt of the appellant and therefore, in that view of the matter, it has to be held that the Ld. Court below has rightly found the appellant guilty and convicted him and his judgment of conviction and order of release on Probation is so sound and cogent that do not require any sort of interference to be made therein. Accordingly, the same requires to be affirmed.” 18. On careful scrutiny of the evidences of the witnesses adduced on behalf of the Complainant, this Court finds that four persons namely, Md. Ajharul Islam (Master), Md. Najirul Islam, Md. Amiruddin Ansari and Md. Latifur Rahman Azhar @ Shahroz were arrayed as accused in the present case and out of them, the petitioner, after having been declared juvenile, faced trial before the learned Juvenile Justice Board, Sahibganj and the rest three accused persons faced trial before the regular court of the learned Sub-Divisional Magistrate, Sahibganj in P.C.R. Case No.46/2004 (T.R. No.69/2012). 19. In course of the trial of the petitioner before the learned Juvenile Justice Board, Sahibganj, P.W.-1 who is the Complainant of the case deposed that Mohiuddin Ansari and Ajharul Islam were armed with pistol and the rest were armed with rod and lathi and all the accused persons committed marpit with him and his brother on the road as well as inside the house. P.W.-2 deposed that all the accused persons had come to his house armed with weapons and they had assaulted him and the Complainant (C.W.-1) and Ajmal had pointed pistol on the Complainant and Amiruddin was also having weapon and had fired and the petitioner was having iron rod in his hand and Najirul had lathi in his hand. P.W.-3 has deposed that Amirul and the petitioner were armed with lathi and all the accused persons had committed mar-pit. P.W.-4 deposed that all the four accused persons committed mar-pit and the petitioner was having iron rod in his hand and the rest were armed with pistol and lathi. P.W.-3 has deposed that Amirul and the petitioner were armed with lathi and all the accused persons had committed mar-pit. P.W.-4 deposed that all the four accused persons committed mar-pit and the petitioner was having iron rod in his hand and the rest were armed with pistol and lathi. It transpires that all the witnesses have deposed that all the accused persons had committed the occurrence of marpit with the Complainant and his brother. It further transpires that no injury report of the Complainant or his brother has been brought on the records of this case. 20. From perusal of Para-14 of the judgment dated 01.08.2012 passed by the regular court of the learned Sub-Divisional Magistrate, Sahibganj in P.C.R. Case No.46/2004 (T.R. No.69/2012) (Annexure-1), it transpires that the other three accused persons of the case namely, Md. Ajharul Islam, Md. Najirul Islam and Md. Amiruddin Ansari, who alongwith the petitioner were said to have committed the occurrence conjointly, have been acquitted from the charges under Section 323, 447 and 448 of the Indian Penal Code giving benefit of doubt to them on the basis that previous enmities exist between two sides of the case, independent witnesses are not examined, injuries caused are not mentioned in the evidences of the witnesses and there is reliable evidence on the point that Md. Amiruddin Ansari was in hospital for treatment after the occurrence of Borio (Jirwabari) P.S. Case No.31/2004 on the same date. 21. This Court further finds that vide judgment of conviction and the order of sentence dated 21.04.2015 passed in Sessions Case No. 162/2005 (arising out of the counter case i.e. (Jirwabari) P.S. Case No.31/2004 lodged by Amiruddin Ansari), (1) Md. Jalaluddin Ansari, (2) Shibali Ansari @ Nuruddin Md. Raja (3) Jilani Ansari @ Mohiuddin, (4) Christi Ansari @ Amaduddin Md. Ata (Complainant of the present case) and (5) Kudshi Ansari @ Salauddin Md. Fajal were convicted under Sections 341 and 323 of the Indian Penal Code. 22. This Court is of the view that when the other three coaccused persons, with whom the petitioner was alleged to have committed the occurrence in furtherance of common intention, have been acquitted after full-fledged trial, the provision under Section 34 of the Indian Penal Code would not be applicable in the case of the petitioner. 22. This Court is of the view that when the other three coaccused persons, with whom the petitioner was alleged to have committed the occurrence in furtherance of common intention, have been acquitted after full-fledged trial, the provision under Section 34 of the Indian Penal Code would not be applicable in the case of the petitioner. This Court further finds that no finding has been recorded either by the learned trial or by the learned appellate court as to what specific evidence is on record to establish that the petitioner assaulted the Complainant or his brother and what injuries were sustained by the Complainant or his brother at the hands of the petitioner. Accordingly, the conviction of the petitioner for his individual acts and his conviction with the aid of section 34 of Indian Penal Code cannot be sustained in the eyes of law and he is entitled to benefits of doubt. 23. As a cumulative effect of the aforesaid findings, this Court is of the considered view that this is a fit case for exercise of revisional power in order to prevent failure of justice. 24. Accordingly, both the impugned judgments are hereby set aside and the petitioner is acquitted from the accusation thereunder giving benefit of doubt and he is discharged from the liability of his bail bond. As a result, the present criminal revision petition is hereby allowed. 25. Pending interlocutory application, if any, stands disposed of as not pressed. 26. Office is directed to send back the lower court records to the learned court concerned. 27. Let a copy of this Judgment be communicated to the learned court concerned through FAX/e-mail. Application allowed.