JUDGMENT : (Shree Chandrashekhar, J.) : Sewak Mahto, Sugiya Devi, Gyani Mahto and Rajendra Mahto faced the trial on the charge under sections 341/34, 323/34, 504/34, 506/34 and 307/34 of the Indian Penal Code. They have been found guilty of committing the offence under sections 341 and 323 read with section 34 of the Indian Penal Code and sentenced to SI for one month and a fine of Rs. 2,000/-each under section 341/34 of the Indian Penal Code and RI for six months and a fine of Rs. 5,000/-each under section 323/34 of the Indian Penal Code with default stipulations. The trial Judge has passed a further direction to pay the fine amount to the informant and his wife who are the victims. 2. The appellants were however acquitted of the charge under sections 307, 504 and 506/34 of the Indian Penal Code. 3. Khirodhar Mahto who is the informant of this case has filed Acquittal Appeal against the judgment of acquittal passed in S.T. No. 250 of 2017. 4. Barkagaon PS Case No. 179 of 2016 was registered on the basis of a written report given by Khirodhar Mahto to the officer-in-charge of Barkagaon police station making allegations of marpit and assault in the morning of 25th July 2016 by the above-named accused persons. The informant has stated that on his raising objection to Sewak Mahto who was encroaching upon his land by raising aal, the accused persons started marpit with him and when his wife intervened she was also assaulted by them and they snatched her golden earrings. On the basis of such allegation, a First Information Report was lodged on 28th July 2016 against them under sections 341, 323 and 379/34 of the Indian Penal Code and after investigation a charge sheet was laid in the Court for committing the offence under sections 341/34, 323/34, 504/34, 506/34 and 307/34 of the Indian Penal Code. 5. In the trial, the prosecution has produced six witnesses to prove the charge under sections 341/34, 323/34, 504/34, 506/34 and 307/34 of the Indian Penal Code which was framed against the accused on 18th January 2019. The injury reports of Jirwa Devi and her husband Khirodhar Mahto vide Ext. 2 and 2/1 were also laid in evidence by the prosecution. 6. The learned Additional Sessions Judge-VII, Hazaribag has held as under: “23. The injury reports of Jirwa Devi and her husband Khirodhar Mahto vide Ext. 2 and 2/1 were also laid in evidence by the prosecution. 6. The learned Additional Sessions Judge-VII, Hazaribag has held as under: “23. In the instant case 'out of prosecution witnesses 1 to 4 PW-1 and PW-2 are independent and hearsay witnesses whereas, PW-3 and PW-4 are the injured witnesses who are the husband and wife. In the fact and circumstances of the case they appears to be the natural witnesses and it has been held in catena of judgment of the Hon'ble Court that 'the testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence and therefore, the testimony of an injured witness is accorded a special status in law. Hence, I do not find any reason to disbelieve the testimony of PW-3 and PW-4 being related to each other. 24. Furthermore, though the counsel for the accused persons tried to convince the Court with regard to contradiction in the evidence of the eye-witnesses (PW 3 & 4) with respect to the manner in which the assault took place, such attempt remains futile and cannot be accepted, in as much as minor variations in the evidence of the witnesses are bound to occur in a case like the one on hand, wherein, four accused persons came and assaulted the informant and his wife who are illiterate rustic villagers at a time and there was no other witness except them. I do not find any major contradiction in the evidence of the eye-cum-injured witnesses. Their evidence is fully supported by their injury report (Ext 2 & 2/1) prepared by Dr. R.C Prasad who examined them in PHC, Barkagoan. It is also settled principle of law that sense of perceiving the facts defers from man to man and memory also sometimes play false with man and therefore minor contradictions are bound to occur in the statement of trustful witnesses. It is also general tendency of the independent witnesses specially in villagers that they often turn hostile because they do not want to depose against the accused of his village on the cost of bitter relationship. It is also general tendency of the independent witnesses specially in villagers that they often turn hostile because they do not want to depose against the accused of his village on the cost of bitter relationship. In the instant case although PW-1 Bishwanath Mahto and PW-2 Prakash Mahto are the hearsay witnesses but they have stated In their respective deposition that just after the occurrence they went to place of occurrence and saw injury near the eye and hand of the informant. Hence, their statements appears to be relevant u/s 6 of Indian Evidence Act. 25. In view of the fact circumstances of the case and also from the discussions made above the court comes to a conclusion that the prosecution has not been able to establish the charges u/s 307; 504; 506/34 of IPC but at the same time. the prosecution has been able to establish the charges u/s 341, 323/34 IPC beyond the shadow of all reasonable doubt against all accused persons. Therefore, the accused persons namely Sewak Mahto, Gyani Mahto, Rajendra Mahto and Sugiya Devi are hereby acquitted from the charges u/s 307, 504, 506/34 of IPC and they are found and held for the offence u/s 341, 323/34 IPC and accordingly they are convicted.......” 7. PW1 Bishwanath Mahto and PW2 Prakash Mahto are the independent witnesses who have stated in the Court that they did not see the occurrence and they were deposing in the Court on the basis of information received from others. PW3 Jirwa Devi and PW4 Khirodhar Mahto who are the injured persons have been projected as star witnesses for the prosecution. PW3 Jirwa Devi has deposed in the Court that Rajendra Mahto and Sugiya Devi assaulted her husband with Lathi. Similarly, PW4 Khirodhar Mahto has stated in the Court that Rajendra Mahto assaulted him with Lathi and Sewak Mahto hit him over his eyes with Kodi. He has further stated that the accused persons assaulted his wife on her back and head and Sewak Mahto and Sugiya Devi snatched her gold earings. PW3 and PW4 both have admitted in their cross-examination that the accused persons are their Gotiyas and there is a land dispute with the accused persons. As PW6, the investigating officer has tendered evidence in the Court that both parties are Gotiyas and there is a land dispute between them. 8. PW3 and PW4 both have admitted in their cross-examination that the accused persons are their Gotiyas and there is a land dispute with the accused persons. As PW6, the investigating officer has tendered evidence in the Court that both parties are Gotiyas and there is a land dispute between them. 8. PW3 is the wife of PW4 and their intimate relationship has been highlighted by the defence to challenge their testimony as laced with motive. The defence has also tried to support its stand with reference to delay of three days in lodging the First Information Report. 9. In “Dalip Singh and Others v. The State of Punjab”, AIR 1953 SC 364 the Hon'ble Supreme Court has held that a witness is normally considered independent unless it is demonstrated that the witness had a cause such as animosity to implicate the accused falsely in the case. This is also well-accepted that a related witness would be the last person to implicate an innocent person falsely in a criminal case. However, when a Criminal Court is required to scrutinize testimony of a related witness greater care and caution has been advised. 10. In “Masalti v. State of U.P.” AIR 1965 SC 202 the Hon'ble Supreme Court has held as under: “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …………… The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 11. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 11. No doubt there is delay of three days in making a report about the occurrence to the police, but then, every delay in lodging a First Information Report cannot be viewed in a pedantic manner. There may be situations and justifiable reasons why information to the police was not given immediately and it is only in a situation where the prosecution has completely failed to offer an explanation for delay in lodging the First Information Report the prosecution case would suffer a jolt. As observed by the Hon'ble Supreme Court in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 , the primary object behind prompt lodging of a First Information Report is to put the criminal justice system on motion. A First Information Report is not an encyclopedia of all the events which had happened on the date of occurrence and its utility is confined to confronting a witness during the trial. 12. Having examined the materials on record, we find that the delay in lodging the First Information Report in the present case has provided an opportunity to the informant to project an exaggerated version of the occurrence. However, exaggerations per se do not brittle the evidence and that is the reason it is the duty of the Court to eliminate chaff from the grain. The injury reports of PW3 and PW4 have been duly proved by Dr. Avinash Kumar who has been examined as PW5. He is the son of Dr. R.C. Prasad who clinically examined the injured witnesses on 25th July 2016. PW5 has stated in the Court that on 25th July 2016 he was working with his father at PHC, Barkagaon. 13. The evidence of an injured witness assumes significance in a criminal trial inasmuch as his testimony lends assurance to the Court that being a victim of the crime he would give correct and truthful description of the occurrence. 14. In “Balu Sudam Khalde v. State of Maharashtra” 2023 SCC OnLine SC 355 the Hon'ble Supreme Court has held as under: “26. 14. In “Balu Sudam Khalde v. State of Maharashtra” 2023 SCC OnLine SC 355 the Hon'ble Supreme Court has held as under: “26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind: (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.” 15. No doubt the prosecution has been able to establish that a quarrel took place between the informant and the accused persons and in the ensuing marpit Sewak Mahto has caused hurt to the informant and his wife but there is no reliable evidence against Sugiya Devi, Gyani Mahto and Rajendra Mahto to convict them with the aid of section 34 of the Indian Penal Code. But we need to keep in mind that section 34 of the Indian Penal Code envisages vicarious liability of others for the act of one accused which has been accomplished in furtherance of common intention of all. However, a common intention must be distinguished from the same or similar intention which the accused persons might have been carrying at the time of the occurrence. Therefore, it is necessary for the prosecution to establish that the act of one was in furtherance of common intention of all. 16. As we have already held, delay in lodging the First Information Report provided an opportunity to the informant to implicate others as accused by giving an exaggerated version of the occurrence. Therefore, it is necessary for the prosecution to establish that the act of one was in furtherance of common intention of all. 16. As we have already held, delay in lodging the First Information Report provided an opportunity to the informant to implicate others as accused by giving an exaggerated version of the occurrence. The role played by Sugiya Devi, Gyani Mahto and Rajendra Mahto in the occurrence is not clearly brought out during the trial and their participation in the occurrence seems to be doubtful. According to the informant, it was Sewak Mahto who was trying to encroach upon his land and when he raised an objection he attacked him with kodi. There was one mark of injury over occipital region of PW4 in the nature of haematoma as observed by Dr.R.C. Prasad but this injury has been sought to be explained by the learned counsel for the convicts with reference to cross-examination of PW5, that in a scuffle if a person falls on a hard surface he may suffer such injuries on his head. This is also quite apparent that the injury caused over the right cheek of PW4 has been exaggerated by both the witnesses by assigning contradictory role to Sewak Mahto and Rajendra Mahto. 17. This is thus apparent that there are discrepancies in the narration of the occurrence as described by the informant in the First Information Report and when he was tendering evidence in the Court. PW3 who is the wife of the informant has also tendered evidence which is not corroborating the version of occurrence described by her husband. Above all, the medical evidence does not support the allegation of assault by Sewak Mahto on the occipital region near left eye of the informant with Kodi. 18. Mr. Kumar Nischay, the learned counsel for the appellants-convicts has therefore contended that inconsistencies and contradictions in evidence of PW3 and PW4 go to the extent of making them unreliable and untruthful witnesses. To lay support to this submission, Mr. Kumar Nischay, the learned counsel for the convicts has referred to the evidence of PW3 and PW4 and tried to demonstrate from the medical evidence that there is serious inconsistency in the ocular and the medical evidence. 19. To lay support to this submission, Mr. Kumar Nischay, the learned counsel for the convicts has referred to the evidence of PW3 and PW4 and tried to demonstrate from the medical evidence that there is serious inconsistency in the ocular and the medical evidence. 19. PW3 has stated in the Court that Sewak Mahto assaulted her husband with kodi and Gyani Mahto assaulted him with rod which caused cut injury near his left eyes due to which blood started oozing out. She has further stated that her husband's left hand was also fractured in the occurrence. According to PW4, Gyani Mahto assaulted him with iron rod which caused injuries on his head and the back. He has further stated that Rajendra Mahto has assaulted him with lathi on his back. 20. However, Dr. R.C. Prasad has recorded in the injury report vide Ext.2 that (i) there was huge swelling over dorsum of left hand of the size of 3”x 2”x1” (ii) there was fracture of shaft of fifth metacarpal bone and (iii) laceration over right cheek of the size of 2”x1”x1”. The medical evidence therefore does not indicate any bleeding incised wound near the eyes or any mark of assault on the back of PW4. 21. In the background of the aforesaid medical evidence, referring to the evidence of PW3 who has stated in the Court that Sewak Mahto assaulted her husband with kodi on his back and Gyani Mahto assaulted him with iron rod which caused bleeding injury below his left eye, the learned counsel for the convicts would submit that both the PW3 and PW4 have suppressed real version of the occurrence. 22. Mr. Abhishek Kumar Dubey, the learned counsel for the informant has however contented that minor inconsistencies in the testimony of a witness and particularly the nature of inconsistency/omission in the present case is not such to doubt the presence and participation of the convicts in the occurrence. The learned Court has relied on “A. Shankar Vs. State of Karnataka” (2011) 6 SCC 279 wherein the Hon'ble Supreme Court has held as under: “22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.” 23. In view of the inconsistencies in the prosecution evidence, we are inclined to give benefit of doubt to Sugiya Devi, Gyani Mahto and Rajendra Mahto and, accordingly, their conviction and sentence for the offence under sections 341/34 and 323/34 of the Indian Penal Code are set-aside. 24. Mr. Abhishek Kumar Dubey, the learned counsel for the informant has contended that in a concerted assault by the accused persons which has caused serious injury over the head of PW3 and PW4 as observed from the medical evidence would establish the intention and knowledge of the accused persons that they attempted murder of the informant. 25. The offence under section 307 of the Indian Penal Code reads as under : “307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.” 26. The offence under section 307 of the Indian Penal Code is accomplished when it is established that the accused had such intention and knowledge that if the offending act been accomplished he would have been liable for murder. The offence under section 307 of the Indian Penal Code is accomplished when it is established that the accused had such intention and knowledge that if the offending act been accomplished he would have been liable for murder. Not only there is no evidence to fasten criminal liability upon three of the appellants, the assault by Sewak Mahto which was not on a vital part of the body cannot constitute the offence under section 307 of the Indian Penal Code. 27. The first appellate Court and the High Court while dealing with an appeal against the judgment of acquittal is entitled to scan through and reappreciate the entire evidence and arrive at a conclusion one way or the other. Therefore there is no limitation on the powers of the appellate Court to review the evidence upon which the judgment of acquittal is rendered but cogent and adequate reasons must be given to set-aside the judgment of acquittal. In “Ghurey Lal v. State of U.P” (2008) 10 SCC 450 the Hon'ble Supreme Court has held that where the trial Court has ignored the evidence or misread the material evidence or ignored a material document like dying declaration the appellate Court shall be competent to reverse the decision of the trial Court. The test which has been applied to interfere with the judgment of acquittal is whether there are compelling and substantial reasons for doing so and one such example would be where the judgment under challenge is clearly unreasonable. 28. In our opinion, the trial Judge has rightly held that the prosecution has failed to establish the charge under sections 504/34, 506/34 and 307/34 of the Indian Penal Code. Therefore, we are not inclined to entertain Acquittal Appeal No. 25 of 2022 (DB) and would approve the acquittal of the accused persons for the offence under sections 504/34, 506/34 and 307/34 of the Indian Penal Code. 29. This is the prosecution's own evidence that the accused and the informant are gotias, there was a land dispute between the parties and the incident has happened on a trivial issue. This is also not in dispute that there was no repeated blow by Sewak Mahto on the vital part of the body of the informant. 29. This is the prosecution's own evidence that the accused and the informant are gotias, there was a land dispute between the parties and the incident has happened on a trivial issue. This is also not in dispute that there was no repeated blow by Sewak Mahto on the vital part of the body of the informant. We, therefore, find that the trial Judge has failed to exercise the powers vested in him and erroneously refused to extend the benefit of the Probation of Offenders Act. 30. Section 361 of the Code of Criminal Procedure provides that the Criminal Court is under a duty to give reasons why benefit of the Probation of Offenders Act cannot be given to the accused who have committed the offence of the nature as described under section 360 of the Code of Criminal Procedure. 31. In “Om Prakash v. State of Haryana” (2001) 10 SCC 477 the Hon’ble Supreme Court has observed as under: “4. When the case came up for admission before this Court, the learned counsel for the appellants raised the contention that the provisions of Section 360 CrPC have not at all been looked into and we, therefore, issued limited notice as to why the said provisions will not be attracted to the facts and circumstances of the present case. The provisions of Section 360 CrPC are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of Section 360 CrPC is being denied. In view of the peremptory nature of the language of provisions of Section 361, the Magistrate as well as the Court in appeal and revision not having indicated as to why the provisions of Section 360 CrPC have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the Code have not been complied with.” 32. In summation, while upholding conviction of Sewak Mahto under sections 341/34 and 323/34 of the Indian Penal Code, we set-aside the sentence awarded to him in S.T. No.250 of 2017 and grant him benefit under section 4 of the Probation of Offenders Act. In summation, while upholding conviction of Sewak Mahto under sections 341/34 and 323/34 of the Indian Penal Code, we set-aside the sentence awarded to him in S.T. No.250 of 2017 and grant him benefit under section 4 of the Probation of Offenders Act. 33. Sewak Mahto who is the appellant No.1 in Cr. Appeal (DB) No. 903 of 2023 shall execute a bond in Form-13 under Schedule-II of the Code of Criminal Procedure of Rs. 10,000/-with an undertaking that he shall maintain good conduct and behaviour in the next two years and on executing such a bond, he shall be discharged from the liabilities of bail-bonds furnished by him pursuant to the order dated 15th December 2022 passed by this Court. 34. Sugiya Devi, Gyani Mahto and Rajendra Mahto are discharged from the liabilities of bail-bonds furnished by them pursuant to the order dated 15th December 2022 passed by this Court. 35. In the result, Acquittal Appeal No. 25 of 2022 (DB) is dismissed and Cr. Appeal (DB) No. 903 of 2023 is partly allowed.