JUDGMENT : RAJEEV RANJAN PRASAD, J. Heard Mr. Rohit Kumar, learned counsel for the appellant, Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State and Mr. Ritesh Kumar, learned counsel for Respondent Nos. 2 to 6. 2. By filing this appeal, the informant-appellant has challenged the judgment dated 31.07.2024 (hereinafter referred to as the ‘impugned judgment’) passed by learned Additional Sessions Judge-10 th , East Champaran at Motihari (hereinafter referred to as the ‘learned trial court/trial court’) in Sessions Trial No. 432 of 2011, CIS No. 8022 of 2015 arising out of Raxaul P.S. Case No. 189 of 2009 to the extent that the impugned judgment has acquitted Respondent Nos. 2 to 6 of the charges punishable under Sections 324, 325 and 307 of the Indian Penal Code (in short ‘IPC’). Prosecution Case 3. The prosecution case is based on the fardbeyan of Nandu Mahto (PW-7) recorded by Z.N. Khan, S.I. of Raxaul Police Station at Primary Health Centre on 20.11.2019 at 11:15 hours. In his fardbeyan, he has stated that in the morning of 20.11.2009 when he was present in his house, all the accused persons, namely, (1) Nawal Kishore Thakur, (2) Brij Kishore Thakur, (3) Awadh Kishore Thakur, (4) Raj Kishore Thakur & (5) Shyam Kishore Thakur tried to uproot the Naad (feeding utensil for cattle) and also untied the buffalo from the khutta and attempted to take away the buffalo. All the five accused persons are neighbours of the informant. On seeing their act, the informant came running and tried to prevent them from doing the same then Nawal Kishore Thakur armed with lathi instigated his brothers to kill Nandu Mahto (the informant) and said that as long as Nandu Mahto is alive, he would never allow them to have possession over the land. Thereafter, all five persons went to their home and came back armed with farsa, sword and lathi. As soon as they returned, Raj Kishore Thakur armed with farsa with an intention to kill gave farsa blow to Nandu Mahto. Nandu Mahto somehow tried to save himself still got head injury and fell on the ground. When he fell down, Nawal Kishore Thakur and Brij Kishore Thakur started beating Nandu Mahto with lathi. Again Raj Kishore Thakur gave farsa blow to Nandu Mahto but saved himself. Nandu Mahto somehow tried to save himself still got head injury and fell on the ground. When he fell down, Nawal Kishore Thakur and Brij Kishore Thakur started beating Nandu Mahto with lathi. Again Raj Kishore Thakur gave farsa blow to Nandu Mahto but saved himself. When the informant Nandu Mahto started shouting, his brother Bindeshwary Mahto, wife Gyatri Devi, daughter Kavita Kumari came running from his house to protect him, then Nawal Kishore Thakur assaulted his wife with lathi. His wife attempted to obstruct the lathi blow with her left hand and in the process, she suffered injury on her hand. His brother Bindeshwari Mahto was assaulted by sword blow of Shyam Kishore Mahto and his daughter was slammed down to the ground by Nawal Kishore Mahto. When one co-villager Parmanand Mahto came to save them, he was also beaten up as a result of which his ear started bleeding. Other co-villagers, namely, Dinesh Mahto, Lakhraj Mahto, Gaurishankar Mahto started to assemble there. On seeing people coming all the five accused fled away from the place of occurrence to their house. While running away, Shyam Kishore Thakur snatched the gold chain of the informant’s wife. On reaching home, the accused persons started pelting stones and bricks on the informant and his family. The reason of dispute is the seven dhurs of land lying in front of the house of the informant which the accused persons wanted to take possession of. Thereafter, the informant and his family members were taken to the Primary Health Centre for treatment. 4. On the basis of the fardbeyan of the informant, Raxaul P.S. Case No. 189 of 2009 dated 20.11.2009 was registered for the offences punishable under Sections 341, 323, 324, 307, 379, 337, 504/34 IPC. Upon investigation, a chargesheet bearing no. 76/10 dated 14.04.2010 was submitted against the five above named accused persons for the offences under Sections 341, 323, 324, 325, 307, 504/34 IPC. On the basis of this chargesheet, learned S.D.J.M., Raxaul took cognizance vide order dated 25.09.2009 of the offences under Sections 341, 323, 324, 325, 307 and 504/34 IPC. On finding that the case is triable by the Court of Sessions, the records were committed to the court of Sessions vide order dated 11.07.2011. Thereafter Sessions Trial No. 432 of 2011 was registered. On finding that the case is triable by the Court of Sessions, the records were committed to the court of Sessions vide order dated 11.07.2011. Thereafter Sessions Trial No. 432 of 2011 was registered. Charges were read over and explained to the accused-respondents in Hindi which they denied and claimed to be tried. Accordingly, learned trial court framed charges against Shyam Kishore Thakur under Sections 307, 325 and 341 IPC, against Raj Kishore Thakur under Sections 307, 341 and 324 IPC, against Nawal Kishore Thakur, Awadh Kishore Thakur and Brij Kishore Thakur under Sections 307, 323 and 341 IPC vide order dated 26.08.2011. 5. In course of trial, the prosecution examined altogether seven witnesses and no documentary evidences were adduced in course of trial. The list of the prosecution witnesses is mentioned hereunder in tabular form:- List of Prosecution Witnesses PW-1 Gauri Shankar Mahto PW-2 Lakhram Mahto PW-3 Kavita Kumari PW-4 Umesh Mahto PW-5 Gayatri Devi PW-6 Bindeshwari Mahto PW-7 Nandu Mahto Findings of the Learned Trial Court 6. Learned trial court after analysing the oral evidences of the informant and other witnesses found that both the parties are not patidars and there is a dispute with regard to the land. Learned trial court found that PW-3 is the daughter of the informant and PW-5 is the wife of the informant. Both the witnesses are interested witnesses. 7. Learned trial court found that in the present case, the Doctor was not examined as also there is no medical report on the record, hence, learned trial court opined that though there are oral evidences of occurrence of injuries but there is inherent absence of the evidence that the injury had really been caused. Learned trial court in absence of medical evidence acquitted all the five accused-respondents of the charge under Section 307 IPC, acquitted Raj Kishore Thakur of the charge under Section 324 IPC and acquitted Shyam Kishore Thakur of the charge under Section 325 IPC. 8. Learned trial court further found that the bone of contention between the parties was a definite piece of land which the informant claims to have purchased, however, the accused persons claim that the sale had been made by Heeralal who is a rightless person, hence, both the parties have made an attempt to restrain the other from entering into the said disputed land. The presence of ‘naad/khuta’ at the place of occurrence provided the accused with an opportunity to commit the offence, hence, the chain of circumstances that point only at the accused is complete. So, the learned trial court held the accused Nawal Kishore Thakur, Brij Kishore Thakur, and Awadh Kishore Thakur guilty under Sections 323 and 341 IPC. Further, learned trial court held the accused Raj Kishore Thakur and Shyam Kishore Thakur guilty under Section 341 IPC. But learned trial court ordered the convicts to be released giving them benefit of Section 3 of the Probation of Offenders Act. Submissions on behalf of the Appellant 9. Learned counsel for the appellant submits that from the reasoning and rationale provided in the impugned judgment, it would appear that the learned trial court acquitted Respondent Nos. 2 to 6 for the reason stated in paragraph ‘19’ of the impugned judgment. It is submitted that the trial court observed that the Doctor has not been examined in this case and the medical report is also not on the record, so, though there are oral evidences of occurrence of injuries but there is inherent absence of the evidence that the injury had really been caused by such instrument, which is spoken of by Sections 324 and 325 IPC. In the absence of medical evidence, the learned trial court has held that Respondent Nos. 2 to 6 are held not guilty under Sections 307, 324 and 325 IPC. 10. It is submitted that in the present case, the Investigating Officer (in short ‘I.O.’) has also not been examined. 11. The grievance of the appellant is that despite there being no service report of summons upon the I.O. and the Doctor, the learned trial court did not exhaust the procedures established by law and no process such as bailable warrant or non-bailable warrant were issued against the official witnesses. 12. It is submitted that on perusal of the order dated 22.06.2023, it would appear that on the said date, the Public Prosecutor presented Xerox copy of the notices which were sent to the official witnesses. It was not a proof of service of notice and the learned trial court did not satisfy itself as to whether the notice has been duly served upon the official witnesses. 13. It was not a proof of service of notice and the learned trial court did not satisfy itself as to whether the notice has been duly served upon the official witnesses. 13. Learned counsel further submits that from the order dated 22.06.2023, it would further appear that the learned trial court has recorded that for production of the witnesses, all the processes have been issued but they have not appeared. The submission is that this is not a fact appearing from the record, the learned trial court had not exhausted all the processes and the entire order-sheets of the learned trial court would not show that at any stage either the satisfaction with regard to service of summons has been recorded or steps have been taken by issuing bailable warrant or non-bailable warrant to procure the appearance of the official witnesses. 14. Learned counsel has relied upon a judgment of this Court in the case of Brajesh Patel and Others Vs. The State of Bihar reported in 2008 (1) PLJR 492 to submit that in the said case, the Hon’ble Division Bench of this Court having found that the learned trial court did not take care to ensure that non-bailable warrants etc. should have been issued and executed against the I.O. as well as the Doctor held that the learned trial court had committed irregularity, illegality and impropriety. In the present case, it is submitted that because the learned trial court did not ensure that non-bailable warrants etc. should have been issued and executed against the I.O. as well as the Doctor, all the possible evidence of the prosecution could not come on the record and the Respondent Nos. 2 to 6 could easily get acquitted of the charges under Sections 324, 325 and 307 IPC. Submissions on behalf of the Respondents 15. Learned Additional Public Prosecutor for the State as well as Mr. Ritesh Kumar, learned counsel for the Respondent Nos. 2 to 6 have jointly opposed the appeal. It is submitted that in the present case, the occurrence took place in the year 2009. Submissions on behalf of the Respondents 15. Learned Additional Public Prosecutor for the State as well as Mr. Ritesh Kumar, learned counsel for the Respondent Nos. 2 to 6 have jointly opposed the appeal. It is submitted that in the present case, the occurrence took place in the year 2009. There is a case and counter-case between the parties and in both the cases, the learned trial court has held the accused persons of the respective cases guilty under Sections 323, 341 and 504/34 IPC and in absence of cogent medical evidence, the three accused persons Nandu Mahto, Bindeshwari Mahto and Narendra Mahto of the counter-case have got acquittal under Sections 324, 325 and 307 IPC. It is submitted that Nandu Mahto who is Accused No. 1 in the counter-case i.e. Raxaul P.S. Case No. 190 of 2009 is the appellant before this Court. 16. Learned counsel informs this Court that for the present, the Respondent Nos. 2 to 6 have not preferred any appeal against the judgment in Sessions Trial No. 433 of 2011 arising out of Raxaul P.S. Case No. 190 of 2009 but the appeal is in process of filing. 17. Learned counsel further submits that the trial of the case remained pending for about 15 years in the learned court below and this itself is a punishment for the Respondent Nos. 2 to 6 who were made to contest the case in the trial court for 15 years. In such circumstances, it is submitted that this Court may not interfere with the impugned judgment to the extent the Respondent Nos. 2 to 6 have been acquitted. In his submissions, the Public Prosecutor was given more than sufficient opportunities to produce the witnesses and only at his instance when he failed to produce the official witnesses, the trial court closed the evidence of the prosecution. It is not a case decided in haste, hence what has been observed by the Hon’ble Division Bench of this Court in case of Brajesh Patel (supra) would not help the appellant. Consideration 18. We have heard the rival submissions at the Bar. It is an admitted position emerging from the records that the I.O. and the Doctor who are the two official witnesses in this case did not appear to depose in course of trial. Consideration 18. We have heard the rival submissions at the Bar. It is an admitted position emerging from the records that the I.O. and the Doctor who are the two official witnesses in this case did not appear to depose in course of trial. Learned Public Prosecutor got issued summons to the official witnesses through the court but on record, there is nothing to show that the summons were duly served upon the official witnesses. All that is stated and recorded in the order dated 22.06.2023 of the learned trial court is that the Public Prosecutor filed Xerox copy of the notices sent to the official witnesses. There is no whisper in the order of the learned trial court that the notices have been duly served upon the official witnesses, therefore, this Court finds that the learned trial court has not satisfied itself with regard to service of notices upon the official witnesses and proceeded to record that sufficient time has been given to the prosecution to produce the witnesses but they have failed to do so. 19. In our considered opinion, it was incumbent upon the learned trial court to record its satisfactions based on the materials on the record as to whether the notices were duly served upon the official witnesses. If, despite the service of notices on the official witnesses, they chose not to appear in the trial court, it was open to the trial court to proceed ahead by issuing processes such as bailable warrant, non-bailable warrant etc. and the trial court should have ensured execution of the warrants. Instead of issuing processes against the official witnesses, the learned trial court committed an error of record in its order dated 22.06.2023 wherein the court recorded that all processes have been issued against the witnesses. 20. In paragraph ‘19’ of its judgment, the learned trial court has recorded as under:- “19. In the present case, Doctor was not examined. Medical report is also not on the record. 20. In paragraph ‘19’ of its judgment, the learned trial court has recorded as under:- “19. In the present case, Doctor was not examined. Medical report is also not on the record. So, though there are oral evidences of occurrence of injuries but there is inherent absence of the evidence that the injury had really been caused by such instrument, which is spoken of by section 324 & 325 of I.P.C. So, in absence of Medical evidence, the accused persons, Nawal Kishore Thakur, Brij Kishore Thakur, Awadh Kishore Thakur, Raj Kishore Thakur & Shyam Kishore Thakur are held not guilty u/ss- 307 of the I.P.C. Raj Kishore thakur is held not guilty u/ss 324 of I.P.C. & Shyam Kishore Thakur is held not guilty u/ss 325 of I.P.C.” 21. The aforesaid views expressed by the learned trial court is to be considered keeping in view the order dated 22.06.2023 in Sessions Trial No. 432 of 2011. We reproduce the order dated 22.06.2023 hereunder:- ^^22@06@2023 lHkh 5 vHkh;qDrksa dh gktjh gSA iqdkj ij cpko i{k ds fo}ku vf/koDrk ,oa fo}ku vij yksd vHkh;kstd mifLFkr gq,A cpko i{k ds fo}ku vf/koDrk dk dguk gS fd vfHk;kstu dks lk{; izLrqr djus gsrq i;kZIr le; fn;k x;k ysfdu vHkh;kstu lk{; izLrqr ugha fd;s tcfd vHkh;kstu dh vksj ls vkWQhlh;y lk{kh dks Hksts uksVhl dk Xerox Copy nk[khy djrs gq, dgk x;k fd lk{kh dks mifLFkfr gsrq uksVhl Hksts x;s ysfdu lk{; gsrq mifLFkr ugha gq,] vr% tks mfpr dne gks mBk;k tk,A lquk okn dk voyksdu fd;k voyksdu ls fofnr gksrk gS fd vHkh;kstu dks lk{; izLrqr djus gsrq i;kZIr le; fn;k x;k ysfdu lk{kh mifLFkr ugha gq,A vHkh;kstu dh vksj ls Hksts x, uksVhl dk Xerox Copy nk[khy fd;k x;k pqafd lk{kh dks izLrqr djus gsrq lkjs izkslsl tkjh fd;s x;s ysfdu mifLFkr ugha gq, vr% U;k;fgr esa vHkh;kstu lk{; can fd;k tkrk gSA lHkh vHkh;qDr viuk c;ku ntZ djsaA** 22. As discussed above, the order dated 22.06.2023 do not contain any satisfaction of the learned trial court with regard to service of notices upon the official witnesses and at the same time, it records an incorrect fact that all processes have been issued for production of the witnesses. 23. As discussed above, the order dated 22.06.2023 do not contain any satisfaction of the learned trial court with regard to service of notices upon the official witnesses and at the same time, it records an incorrect fact that all processes have been issued for production of the witnesses. 23. In the case of Brajesh Patel (supra), while considering a similar fact situation where the I.O. and the Medical Officer had not appeared to support the prosecution case and as a result thereof, the Hon’ble Division Bench of this Court found that there was no legal evidence to sustain the conviction of the three appellants in the said case, the Hon’ble Division Bench while setting aside the judgment of conviction and the order awarding sentences remitted the matter back to the learned trial court for proceeding further with the trial by issuing bailable as well as non- bailable warrants against the I.O. as well as the Doctor. What has been held in paragraph ‘6’ of the judgment in case of Brajesh Patel (supra) is being reproduced hereunder for a ready reference:- “6. We appreciate the anxiety of the trial court for expeditious disposal of the criminal case of serious nature but certain aspects of the matter were not kept in mind otherwise the learned trial court would have taken greater care to ensure that non-bailable warrants etc. should have been issued and executed against the IO as well as the Doctor in a serious case of present nature. In not keeping such important aspect of the case in mind, the learned trial court, in our view, committed irregularity, illegality and impropriety. All the possible evidence of the prosecution could not come on record on account of such hasty action of the trial court in closing the case without taking effective steps to secure presence of the IO and the Doctor for deposition as a witness. On that account the trial itself got vitiated resulting into the impugned judgment of conviction without any legal evidence worth the name.” 24. Having regard to the entire facts and circumstances and the materials which have been placed before this Court, we have no iota of doubt that the learned trial court was required to take appropriate steps in accordance with law to procure the appearance of the I.O. as well as the Doctor. Having regard to the entire facts and circumstances and the materials which have been placed before this Court, we have no iota of doubt that the learned trial court was required to take appropriate steps in accordance with law to procure the appearance of the I.O. as well as the Doctor. It is crystal clear from the observations of the learned trial court in paragraph ‘19’ of the impugned judgment that due to non-appearance of the Doctor, the medical evidence could not come on the record and that has caused serious prejudice to the prosecution. 25. We, therefore, set aside the impugned judgment to the extent it has acquitted Respondent Nos. 2 to 6 of the charges under Sections 324, 325 and 307 IPC. The matter is remitted back to the trial court for proceeding further with the trial. The learned trial court shall take further steps, if required by issuing bailable as well as non-bailable warrant against the I.O. as well as the Doctor and by giving them sufficient time to appear on the date fixed in the matter, the trial court shall proceed further. 26. We would follow the views expressed by this Court in the case of Brajesh Patel (supra) by recording that the learned trial court shall give dates which should not be less than four weeks gap between the date for the I.O. and the Doctor. The Superintendent of Police, East Champaran is also directed to render all assistance to the trial court and for this purpose, he is personally made responsible to ensure execution of warrants of arrest to secure presence of the I.O. and the Doctor for the trial. 27. The Respondent Nos. 2 to 6 shall appear before the learned trial court on or before 27 th March, 2025 and on their appearance, learned trial court will be at liberty to call upon the Respondent Nos. 2 to 6 to furnish bail bonds to the satisfaction of the learned trial court and release them on bail. In case, they do not surrender/appear in the court below within the prescribed date, the trial court shall take appropriate coercive action to procure their appearance. 28. This appeal is allowed. 29. The trial court records be sent back to the trial court immediately.