ORDER : 1. This appeal is directed against the judgment of conviction dated 13.08.2003 and order of sentence dated 14.08.2003 passed by the learned Additional District & Sessions Judge, Fast Track Court-II, Chatra in Sessions Trial Case No. 221 of 1996 which arose out of Tandwa P.S. Case No. 06 of 1995 whereby and whereunder the appellants Md. Israil Mian @ Md. Israil Ansari and Md. Abbas Ansari @ Abbas Mian have been convicted for the offences punishable under sections 307, 323, 448/34 of IPC and sentenced to undergo Rigorous Imprisonment for 7 years and in addition to pay a fine of Rs. 1,000/- each and in default of payment of the fine, they were further directed to undergo simple imprisonment for 3 months u/s 307 IPC and sentenced to undergo R.I. for 1 year each u/s 323 of IPC and u/s 448 of IPC. Both the sentences were, however, directed to run concurrently. Prosecution Story 2. The prosecution arose in the wake of statement dated 16.2.1995 of Quresha Khatoon wife of Maksud Mian resident of Kasiyadih P.S. Tandwa District Chatra before the Officer In-charge Tandwa Police Station which is as under: The informant Quresha Khatoon stated that on the last night (15.02.1995) when she had retired to bed with her two minor daughters after taking dinner at about 10-11 p.m. at night, her agnates (gotias), namely, Israil Mian and Abbas Mian (both appellants) entered into her house and caught her hands. With the help of a lamp, she had seen that Abbas Mian was holding a knife whereas Israil Mian was holding an Iron rod. By the time, the informant asked the above persons as to why they had entered into her house, she was pinned down on the ground by the Israil Mian whereas Abbas Mian started inflicting blows with Chura, upon the informant and as a result of which she sustained injuries on her nose, forehead, head and on back on the body. The Informant was badly injured and at the time of assault, she was begging for mercy and simultaneously, she was raising hullah. The assailants above named fled away. Thereafter, the informant closed her house from inside, went to the roof and started raising alarm. Many persons from the neighborhood came and bandaged her wounds. The Informant was badly injured and at the time of assault, she was begging for mercy and simultaneously, she was raising hullah. The assailants above named fled away. Thereafter, the informant closed her house from inside, went to the roof and started raising alarm. Many persons from the neighborhood came and bandaged her wounds. The cause of occurrence has been stated in the statement of the informant that the mother-in-law of the informant was mentally sick, her husband was residing at Kolkata where he was working as a labourer. Before, the marriage of the informant, the appellants as they belong to the same family, used to cultivate the lands which fell in the share of the informant’s husband. But, after the marriage of the informant, she had taken her share and started cultivating, but, the appellants on the other hand wanted to eliminate the informant by committing her murder so that they could grab the share of the informant. It is alleged that for the aforesaid reasons, the appellants had committed the above offence by illegally entering into her house. Since, the informant could not find any communication to go to the Police Station in the same night, as such, on the following morning i.e. on 16.02.1995, the matter could be reported with the police. 3. A case was registered on the basis of aforesaid statement of the informant (PW-5) and a formal FIR was drawn and the said informant PW-5 was sent to the hospital for her treatment and the injury report has also been submitted which is Ext.3. 4. After completion of the investigation the charge sheet was submitted against both the appellants for the offences punishable u/s 326, 307, 448 /34 IPC and thereafter, the case was committed to the Court of Sessions for trial. 5. The learned trial court after framing the charges against both the appellants u/s 307/448 r/w section 34 of IPC on 01.05.1998 conducted the trial and after conclusion of the trial, the learned trial court passed the impugned judgment of conviction and order of sentence which is under challenge. 6. Heard Mr. Navin Kumar Jaiswal, learned counsel for the appellants and Mr. Vishwanath Roy, learned A.P.P. for the State. Argument on behalf of the appellants: 7. 6. Heard Mr. Navin Kumar Jaiswal, learned counsel for the appellants and Mr. Vishwanath Roy, learned A.P.P. for the State. Argument on behalf of the appellants: 7. Learned counsel for the appellants assailing the impugned judgment of conviction and order of sentence submitted that the evidence of the informant has not been corroborated by a single witness of the locality and all the injuries found in the body of the informant, by the doctor, was simple in nature. All these facts have not been appreciated by the learned trial court and hence, there were no legal grounds to convict the appellants for the offence punishable u/s 307 IPC. It has further been argued on behalf of the appellants that the learned trial court has failed to appreciate that the doctor, who examined the injuries on the person of informant, has not been produced by the prosecution in the court as a witness during the course of the trial and the injury report of the injured informant was simply proved by the doctor Shyam Nandan Sinha (PW-7) and clearly stated in his cross examination that at the time of treatment of the injured PW-5 the injury report was not prepared by him nor the concerned doctor had signed in his presence nor he had examined the injured informant and thus it is submitted on behalf of the appellants that the said injury report Ext.3 is not legally admissible evidence. It has also been argued on behalf of the appellants that there was a dispute between the informant at one hand and the appellants on the other hand, in the matter of partition of family property and as such there was a grudge and enmity between the parties and, therefore, the chance of false implication of the present appellants cannot be ruled out. The learned trial court has committed the error in the law as well as in facts by ignoring the evidence of PW-2 Fannu Miyan, PW-3 Mujawar Miyan and PW-4 Rahim Miyan and only on the ground they have been declared hostile and ignoring the fact that the testimony of PW-5 has not been corroborated by any of the independent witness, specifically when there is a previous enmity between the parties and thus, the trial court has failed to appreciate the evidences in totality and pass the impugned judgment of conviction and order of sentence against the weight of evidence adduced during the trial by the prosecution and as such they are not sustainable in the eyes of law and fit to be set aside. Argument on behalf of the State: 8. On the other hand, learned A.P.P. appearing for the State vehemently opposed the contentions raised on behalf of the defense counsel and submitted that there is a clear cut deposition of the informant PW-5 coupled with injury report in order to sustain the conviction of the accused appellants for the offence punishable u/s 307 of IPC. It has been submitted on behalf of the State that it is sufficient to convict the accused on the solitary eye witness if the same is corroborated by the medical evidence and in support of his contention the learned A.P.P. has relied upon the ruling of the Hon’ble Supreme Court reported in Vahula Bhushan alias Vahuna Krishnan vs. State of Tamil Nadu, 1989 AIR SC 236. Learned A.P.P. further submitted that even if the injuries are simple in nature it is not by itself self-sufficient to take out the act of the accused appellants out of purview of the section 307 of IPC and also pointed out that the long passage of time per se is not the ground for the reduction of the sentence and the learned A.P.P. has relied upon the ruling of the Hon’ble Apex Court as reported in State of Madhya Pradesh vs. Kedar Yadav, (2009) 17 SCC 280 . Further the learned A.P.P. has contended in order to hold the guilt of the accused-appellants for the offence punishable u/s 307 r/w section 34 IPC it is sufficient to appreciate the evidences adduced on behalf of the prosecution including the weapons used, part of the body chosen for assault and the nature of injury caused and in the present case there is evidence that deadly weapon has been used on the vital part of the body and the injuries have been inflicted and therefore, it is submitted on behalf of the prosecution that the learned trial court has rightly appreciated the evidences and passed the impugned judgment of conviction and order of sentence. The learned A.P.P. has relied upon the ruling of the Hon’ble Supreme Court as reported in Sadakat Kotwar and Another vs. State of Jharkhand, 2021 Live Law (SC) 643. Accordingly, it is submitted that there is no legal point to interfere in the impugned judgment of conviction and order of sentence passed by the learned trial court. FINDINGS: 9. Having heard the learned counsel for the parties, perused the record including the lower court record. 10. It appears that it is an admitted case of the prosecution that both the parties including the prosecution party and the accused-appellants are gotias (Agnats) as they are descendants of the common ancestor and there had been family dispute regarding partition of ancestral landed property as the informant PW-5 Quresha Khatoon stated in the FIR itself that the appellants wanted to grab their share of land. Thus the informant PW-5 Quresha Khatoon is admittedly inimical witness, therefore the testimony of this inimical witness PW-5 is to be examined with due caution and diligence. Hon'ble Supreme Court has repeatedly held that the testimony of the witnesses cannot be rejected merely on the point of inimical background. But since the reliability of inimical witness is tainted by bias and interested witnesses, their testimony is warily evaluated. Their testimony is corroborated with evidence, judged with great caution and diligence and in absence of reassuring factors, the evidence is eschewed. In a very lucid language the Hon'ble Supreme court has observed as under in Akalu Ahir and Others vs. Ramdeo Ram, (1973) 2 SCC 583 : “Enmity as usual is a double edged weapon, providing motive both for the offence as well for false implication. In a very lucid language the Hon'ble Supreme court has observed as under in Akalu Ahir and Others vs. Ramdeo Ram, (1973) 2 SCC 583 : “Enmity as usual is a double edged weapon, providing motive both for the offence as well for false implication. The evidence in such case, has therefore, to be scrutinized with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis.” In view of the above well settled law on the point of enmity as prevailing admittedly in the present case, this Court proceeds to examine the testimony of inimical witness PW-5 (injured/informant) with due caution and diligence as the there is no independent witness examined on behalf of the prosecution. The three named witnesses PW-2, PW-3, PW-4 in the FIR have turned hostile. The PW-1 & PW-6 are the formal witnesses who have proved the formal FIR and the statement of the informant PW-5 recorded in the FIR vide Ext.1 & Ext.2. In such a situation this Court goes to make a deeper probe and scrutinize the evidence of the doctor PW-7 vis-a-vis testimony of PW-5 with more than ordinary care. 11. In the present case from the deposition of the informant PW-5 Quresha Khatoon vide Paras 1, 2 and 3 it is well founded that apart from the informant PW-5 Quresha Khatoon, her two minor children aged about three years and six years were also inside the house, but, none of the children has been examined as both the children must have become eleven years and fourteen years at the time of trial of this case in the learned court below. 12. Further, it is also admitted case of the prosecution that this occurrence has taken place on 15.02.1995 at about 10-11 pm at night. The case of the prosecution is that she was not taken to the hospital immediately for the treatment when there was an allegation of ruthless assault by the knife and iron rod. 12. Further, it is also admitted case of the prosecution that this occurrence has taken place on 15.02.1995 at about 10-11 pm at night. The case of the prosecution is that she was not taken to the hospital immediately for the treatment when there was an allegation of ruthless assault by the knife and iron rod. Rather on the next day i.e. on 16.02.1995 and that too, at first she had been taken to the police station along with chahera bhaisurs (elder cousin brother-in-law) Rahim Miyan, Mujawar Miyan both son of Kabir Mian and chachera devar Fannu Miyan (cousin brother-in-law) where her statement was recorded by Tandwa police station and thereafter it appears that she was taken to the hospital by the Tandwa police whose requisition and the injury report (Ext.3) have been brought on record by PW-7 Doctor Shyman Nandan Singh who has proved the injury report. From the perusal of the injury report Ext.3 it is not found that at what time she had gone under treatment for the injuries alleged to have been inflicted upon her and thus the gravity and seriousness of alleged injuries get diminished in view of the fact the time elapsed in her treatment. It is a normal course of a prudent person to go at first to a doctor for the treatment of alleged brutal injuries but allegedly after receiving injuries said to have been inflicted by Knife and iron rod by the accused-appellants at first she goes to Police station to institute FIR along with FIR named persons PWs. 2, 3, 4 who did not support the case of the prosecution and then she goes along with police to Public Health Center (PHC). Further, time to bring in the hospital has neither been mentioned nor given in the injury report Ext.3 although the report is stated to have been prepared at 6.45 am on 16.02.1995 i.e. a day after the alleged occurrence. From the perusal of the injury report (Ext.3), it is further found that the nature of the injuries with respect to 2, 3, 4, 6 are simple in nature and the nature of injury with respect to injuries no. 1 and 5 were kept reserved. But, neither the I.O. of this case has collected the subsequent report in order to ascertain the nature with respect to injuries nos. 1 and 5 were kept reserved. But, neither the I.O. of this case has collected the subsequent report in order to ascertain the nature with respect to injuries nos. 1 and 5 nor brought into evidence during the course of trial. From the perusal of the injuries of 1 and 5 they are lacerated wound size 1” x 1/4” x scalp deep red in colour situated in left parietal region of scalp of head and further incised penetrating wound size 1” x ¼” x muscle deep red in colour situated on the left lumber region of abdomen. The opinion with respect to the nature of these two injuries 1 and 5 have been kept reserved, but, the report which was reserved has never been brought into record as evidences. It appears that the injury no. 1 and the injury no. 5 apart from injuries nos. 2, 3, 4 and 6 were not vital and falling in line with the injury nos. 2, 3, 4 and 6 which are as under: (i) Lacerated wound size 1” x 1/4” x scalp deep red in colour situated on the left parietal region of scalp of head. (ii) Incise wound size ¼” x 1/8” x skin deep red in colour situated on the left eye brow about the lateral angle of left eye. (iii) Incised wound size ¼” x 1/8” x skin deep red in colour situated just above the medial angle of right eye. (iv) Incised wound size ½” x 1/4” x skin deep red in colour situated on just below the root of nose. (v) Incised penetrating at wound size 1” x 1/4” x muscle deep red in colour situated on the left lumber region of abdomen. (vi) Incised wound size ¼” x 1/8” x skin deep. Red in colour situated on the Palm surface of middle phalanx of ring finger of right hand. (3) Injury no. 2, 3, 4 and 6 are simple in nature and caused by sharp cutting substance like knife. (4) Injury no. 1 regarding nature of injury, opinion is reserved because X-ray is advised and patient is referred to Sadar Hospital, Hazaribagh for X-ray, treatment, opinion and report it is caused by any hard and blunt object. (5) Injury no. 2, 3, 4 and 6 are simple in nature and caused by sharp cutting substance like knife. (4) Injury no. 1 regarding nature of injury, opinion is reserved because X-ray is advised and patient is referred to Sadar Hospital, Hazaribagh for X-ray, treatment, opinion and report it is caused by any hard and blunt object. (5) Injury no. 5 regarding nature of injury, opinion is reserved as X’ Ray is advised as patient is referred to Sadar Hospital Hazaribagh for X ray, further treatment, opinion and report. It is caused by sharp pointed with cutting edged weapon. Time of report is 6.45 am date of report is 16.02.1995 age of injury within 24 hours. 13. And, therefore, from the perusal of the injury report (Ext.3) including the nature of injuries and the place where the injuries were inflicted were not grievous nor it was fatal in the ordinary course of nature to cause death nor intention or knowledge of committing murder is inferred within the meaning of section 307 of IPC as no grievous injuries have been caused in any vital part of the body and as such the offence punishable under section 307 of IPC is not attracted at all and a case of voluntary causing hurt within the meaning of section 324 IPC is made out. In view of these evidences the rulings relied upon by the learned APP as reported in Vahula Bhushan alias Vahuna Krishnan vs. State of Tamil Nadu, 1989 AIR SC 236 is not applicable in view of aforesaid evidences. 14. Further, the version of PW-5 is found inconsistent with the medical evidence. The injury report Ext.3 does not get corroborated with the sole testimony of PW-5 Quresha Khatoon who is highly interested witnesses and not supported from any of the independent witnesses examined on behalf of the prosecution as emanating from the evaluation of the testimonies of witnesses in following paragraphs. 15. It is admitted case of the prosecution that the injured PW-5 does not go to the hospital immediately for treatment after receiving the injuries and next day of occurrence, the injured PW-5 along with her three close relatives, namely, Chachera Bhaisurs Rahim Mian, Mozawar Mian and chachera Devar Fannu Mian goes at first to the police station to record the FIR and then to the doctor. And these close relatives have been examined as PW-2 Fannu Mian, PW-3 Mojawar Mian and PW-4 Rahim Mian. All these three witnesses PW-2, PW-3 and PW-4 have been declared hostile. From, the perusal of the testimony of PW-2 it appears that he categorically stated in examination-in-chief that he did not know about the person who had inflicted injury upon the informant Quresha Khatoon. Thus this witness does not support the case of the prosecution. Similarly PW-3 Mujawar Mian who has also been declared hostile stated that he could not see as to who had assaulted informant- Quresha Khatoon and he is impartial witness as related to both the sides. Further PW-4 Rahim Mian examined by the prosecution has been declared hostile and in his examination-in-chief he stated that he could not see the person who assaulted the Quresha Khatoon. From the deposition of the aforesaid three witnesses namely PW-2, PW-3 and PW-4 although they were declared hostile in the cross examination conducted on behalf of the prosecution, nothing has been elicited to support the case of the prosecution. Rather they are supporting the defence taken on behalf of the appellants that the deposition of the informant is inimical in view of the admitted fact that there had been a long dispute between the parties for the landed properties and there had been a case and counter case as also the PW-5, the informant herself had admitted in her version in Para 12 that mother of Israil Mian had instituted a case about committing theft of 5 quintals of corn crops apart from admittedly there was a landed properties dispute as disclosed by the injured PW-5 in FIR itself and subsequently in her deposition categorically, therefore, the possibility of false implication for committing the offence cannot be ruled out in absence of a slightest corroborative evidence. There is no evidence in the testimony of the doctor PW-7 before whom any weapon has been shown to corroborate the version of PW-5 that knife and iron rod had been used to inflict injuries. Nor the I.O. in this case has been examined nor any material exhibits of alleged weapons used in the commission of the offence has been brought in evidence to substantiate the case of the prosecution. Nor the I.O. in this case has been examined nor any material exhibits of alleged weapons used in the commission of the offence has been brought in evidence to substantiate the case of the prosecution. Therefore, the non-examination of I.O. in the present case has seriously prejudiced to the accused-appellants as the testimonies of FIR named witnesses PW-2, PW-3 and PW-4 have not supported the case of the prosecution as they have been declared hostile and PW-5 is highly interested witnesses whose deposition is not in conformity with case made out in the FIR and also not falling in line with medical evidence Ext.3 as discussed above. Further, the non examination of the Investigating Officer is fatal for the prosecution as the accused appellants were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police, and as such the appellant had suffered serious prejudice in the present case when the witness PW-5 is interested witness and PW-2, PW-3 and PW-4 have become hostile therefore under these facts, the authorities relied upon by the learned APP is not supportive to the case of prosecution as enunciated in State of Madhya Pradesh vs. Kedar Yadav, (2009) 17 SCC 280 and Sadakat Kotwar and Another vs. State of Jharkhand, 2021 Live Law (SC) 643. 16. Having taken into consideration the entire circumstances as discussed in the holistic manner it is inferred that there is no iota of evidence to corroborate either intention or knowledge to kill the informant in order to constitute the offence punishable u/s 307 IPC. 17. In view of the aforesaid findings, it is found that the trial court failed to appreciate the testimony of the victim PW-5 vis-a-vis the nature of the injuries sustained by PW-5 and the opinion of the Doctor PW-7 (the injury report Ext.3) in order to come to the conclusion that in no circumstances the offence u/s 307 IPC is established rather it is a case u/s 324 along with 448 of IPC inasmuch as the facts that the injured witness-informant (PW-5) had sustained simple injuries which are inflicted by the accused-appellants without any intention or knowledge to kill her after entering into her house at about 10-11 pm at night where her two children were also there as found in the aforesaid discussed evidences is candidly established. 18. 18. Further, it is also not convincing from the contents of the FIR as stated by the PW-5 that at the time of occurrence 15.02.1995 at 10-11 pm when she was being assaulted brutally by iron rod and knife, none of them had come to their house. Although, it has been stated that some people had come on raising hulla and they had bandaged her wound but further none of the witnesses deposed to that effect rather all named witnesses, as mentioned in the FIR, have falsified the involvement of the accused-appellants in the commission of the offence. It shows that the wound as alleged is not very serious and grievous in nature which might be fatal in ordinary course of nature. 19. Accordingly, in the backdrop of the aforesaid findings, the impugned judgment of conviction for the offence punishable u/s 307/323 IPC are not substantiated and the guilt of the accused appellant for the offences punishable under section 324/448/34 IPC is proved and hence, they are found guilty and convicted for the offences punishable therein. 20. Further, it is found that in this case Investigating Officer has not been examined and, it has caused serious prejudice to the defence of the accused-appellants inasmuch as the weapons which are alleged to have been used have not been brought on record to substantiate the case of the prosecution and further to show the alleged weapons to the doctor to ascertain as to whether the injuries caused are inflicted by such weapon are grievous or not in order to infer the offence punishable under section 307 of IPC and, therefore, the accused appellants did not have any occasion to defend themselves for want of weapons which are alleged to have been used by the accused appellants in inflicting injuries upon the victim, thus the weapon used remained uncorroborated. Further, the place of occurrence and the date of occurrence have also not been corroborated by the I.O. in this case. In this manner, non-examination of I.O. caused prejudice to the accused appellants and that too for the serious offence punishable u/s 307 IPC. This Court finds that in the present case non-examination of the I.O. is fatal for prosecution. Further, the place of occurrence and the date of occurrence have also not been corroborated by the I.O. in this case. In this manner, non-examination of I.O. caused prejudice to the accused appellants and that too for the serious offence punishable u/s 307 IPC. This Court finds that in the present case non-examination of the I.O. is fatal for prosecution. Taken into consideration that it is the case of an attempt to commit the murder and neither the weapon nor the seizure list nor any blood stained cloth nor any other corroborative facts have been brought on record for want of examination of I.O. which is fatal to the case of prosecution because the accused-appellants have been debarred from bringing out the contradictions of the witnesses examined by I.O. during the course of the investigation under section 161 of Cr.P.C. Further, the three important witnesses named in FIR PW-2, PW-3 and PW-4 have been declared hostile and, therefore, the case of the prosecution particularly with respect to 307 IPC is totally abolished and not proved and on the basis of remained evidence as discussed in foregoing paragraphs and hence, the accused-appellants are found guilty for the offence punishable under sections 324 & 448 r/w section 34 of IPC and consequently they are convicted for the offences punishable under sections 324 & 448 r/w section 34 of IPC. It appears that both the appellant have already spent in jail for 7 months and there is nothing on record about their criminal history. It is also an admitted case of the prosecution that both are the gotias and they had been in dispute with respect to the landed properties and also in this view of the matter no useful purpose would be served to send these appellants again in jail and accordingly both the appellants are sentenced to the period already undergone under both the counts for the offences punishable u/s 324 and 448/34 IPC. 21. Accordingly, the judgment of conviction dated 13.08.2003 and order of sentence dated 14.08.2003 passed by the learned Additional District & Sessions Judge, (FTC-II), Chatra in Sessions Trial Case No. 221 of 1996 are set aside and modified as above 22. In the result, this appeal is partly allowed. 23. Since the appellants of this appeal are on bail, they are discharged from the liabilities of their bail bonds in this case. 24. In the result, this appeal is partly allowed. 23. Since the appellants of this appeal are on bail, they are discharged from the liabilities of their bail bonds in this case. 24. Let the Lower Court records be sent back to the Court concerned forthwith, along with a copy of this judgment.