JUDGMENT : (RAMESH CHAND MALVIYA, J.) Heard Mr. Harsh Anuj, learned counsel for the appellants assisted by Mr. Mithilesh Kumar and Mr. Rajesh Kumar and Mr. Abhay Kumar, learned APP for the State. 2. The present appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction and order of sentence dated 22.03.2013 passed in Sessions Trial No. 325 of 1998 in connection with Maharajanj P.S. Case No. 07 of 1994 passed by the learned Adhoc Additional District and Sessions Judge-III, Siwan, whereby and whereunder the appellant no.1 has been convicted for two years rigorous imprisonment for the offence punishable under Section 148 of the Indian Penal Code, two years rigorous imprisonment for the offence punishable under Section 324 of the Indian Penal Code, two years rigorous imprisonment for the offence punishable under Section 379 of the Indian Penal Code and one month rigorous imprisonment for the offence punishable under Section 447 of the Indian Penal Code. Appellant no. 2 has been convicted for the offence punishable under Sections 324 and 149 of the Indian Penal Code, two years rigorous imprisonment for the offence punishable under Section 379 of the Indian Penal Code and one year rigorous imprisonment for the offence punishable under Section 147 of the Indian Penal Code and six months rigorous imprisonment for the offence punishable under Section 323 of the Indian Penal code and one month rigorous imprisonment for the offence punishable under Section 447 of the Indian Penal Code. Appellant nos. 3, 4, 5, 6 and 7 have been convicted for the offence punishable for one year rigorous imprisonment under Section 147 of the Indian Penal Code and six months rigorous imprisonment for the offence punishable under Section 323 of the Indian Penal Code and one month rigorous imprisonment for the offence punishable under Section 447 of the Indian Penal Code and two years rigorous imprisonment for the offence punishable under Sections 324/149 of the Indian Penal Code and all the sentences shall run concurrently. 3. 3. As per the allegation in the FIR, the informant Manohar Singh on 20.01.1994 at about 12:00 AM reached at the house of his cousin brother Binay Singh and saw that in front of his house, work of deposition of soil was in progress and all the seven appellants along with two other persons were present there armed with lathi, kudali and farsa. At his arrival all the persons surrounded him and started assaulting him. Appellant no. 1 inflicted two Farsa blows on his head by which he became injured and fell down. Appellant no. 2 inflicted kudali blow on his back and when he fell down appellant nos. 6 and 7 caught hold of his hand and appellant no. 1 took his wrist watch and appellant no. 2 snatched Rs. 1,000/- from his pocket. The present occurrence took place on the point of showing the documents of the land. Informant was taken to Government Hospital, Basantpur for his treatment where his fardbeyan was recorded at 4’0 clock in the evening. 4. On the basis of aforementioned fardbeyan, at about 6:30 PM, police lodged the case i.e., Bhagwanpur P.S. Case No. 07 of 1994 under Sections 148, 149, 323, 324, 307, 379 and 447 of the Indian Penal Code and submitted chargesheet against all the accused persons/appellants. After due commitment the trial was initiated by the learned Adhoc Additional District and Sessions Judge-III, Siwan. 5. The prosecution examined altogether six witnesses to substantiate the charges levelled against the appellants, out of them PW-1 Shiv Nath Singh (villager), PW-2 Binay Kumar Singh (informant’s cousin brother), PW-3 Manohar Singh (informant/victim), PW-4 Baijnath Singh (formal witness), PW-5 Bhanu Pratap Singh (Second Investigating Officer) and PW-6 Dr. Ram Naresh Pathak (expert witness). PW-4 states that Dr. Ejaz Ahmad is dead and has identified the handwriting and signature of Dr. Ejaz Ahmad in the injury report. 6. No evidence has been produced by the defence. Assistant Sub Inspector Usman Ghani, the first Investigating Officer D.P. Sadab and the investigating officer R.D. Prasad who submitted the chargesheet have not been examined. The witnesses named in the chargesheet, Jyotsna Devi, Parma Singh and Suresh Singh have also not been produced for examination during the course of trial. 7. PW-1 Shiv Nath Singh states that he was at his door and on hearing the noise, he went to the place of occurrence and saw the occurrence. The witnesses named in the chargesheet, Jyotsna Devi, Parma Singh and Suresh Singh have also not been produced for examination during the course of trial. 7. PW-1 Shiv Nath Singh states that he was at his door and on hearing the noise, he went to the place of occurrence and saw the occurrence. Soil was being filled in the courtyard in front of the house of PW-2 and he was present at the place of occurrence from the beginning. The appellants have suggested that he was not present at the time of the incident and to escape from the counter case filed by Raghunath, he in collusion with Manohar Singh got a false medical report prepared and filed a false case and his statement is completely false. 8. PW-3 is the informant and injured of the incident. His presence at the scene of the incident is self- proven. He stated that it is wrong that he had no relation with the land regarding the place of occurrence and due to his cordial relations with the family of Binay Kumar Singh, he has given false testimony in the Court to falsely implicate the accused. The only accused Raghunath Prasad has said in his statement under section 313 Cr.P.C. that he was innocent and the land next to his belongs to Jyotsna Devi. He has no land dispute. There is an illicit relationship between Manohar Singh and Jyotsna. Manohar Singh is from another village and panchayat. He has no dispute with Manohar Singh. Manohar Singh had dispute with his guru. He used to go to Guruji's place, so Manohar Singh implicated him in this case. 9. PW-4 states that Dr. Ejaz Ahmad is dead, but he has said in cross-examination that the injury report was not written in front of him. He had no correspondence with the doctor earlier. The witness has not stated as to how he has been familiar with the handwriting and signature of Dr. Ejaz Ahmad. Hence, the injury report cannot be admitted in evidence on the basis of the statement of the formal witness of the Injury Report [Exhibit-2]. 10. PW-6 Dr Ram Naresh Pathak has given his opinion regarding the injury report issued by the deceased Dr. Ejaz Ahmed and has admitted in his cross-examination that he has never worked with Dr Ejaz Ahmed. This witness has not even claimed to identify the handwriting of Dr. 10. PW-6 Dr Ram Naresh Pathak has given his opinion regarding the injury report issued by the deceased Dr. Ejaz Ahmed and has admitted in his cross-examination that he has never worked with Dr Ejaz Ahmed. This witness has not even claimed to identify the handwriting of Dr. Ejaz Ahmed. The evidence of a doctor regarding injuries can be admitted in two ways. Firstly, that he himself saw the injuries and mentioned it. This may be admissible under Section 60 of the Indian Evidence Act. Secondly, the statement of the doctor regarding the nature of the injuries, opinion about the weapon used, the condition of the injured etc., the opinion given in the injury report can be accepted as given by an expert witness under Section 45 of the Indian Evidence Act. 11. Learned counsel for the appellants at the outset, submits that the trial Court erred in convicting the appellants for the charges levelled against them, in-spite of having no materials available on record, except for the oral evidence of the prosecution witnesses. He further submits that no independent witness has been examined in this case and the doctor who prepared the injury report of the injured is dead. Further investigating officer has not stated in the diary whether blood was found at the place of occurrence or not. Further, he did not search for the weapons used neither received the weapons used in the altercation. Further he submitted that the presence of the weapons like farsa and kudali have only been mentioned to enhance the severity of the incident. It is further submitted that injuries caused by a kudali or farsa would be sharp and penetrating in nature and as stated by the doctor all the injuries to all the injured persons are from hard and blunt substance. Moreover, there is no recovery/ seizure of any weapon, not even lathi, used in the occurrence. He further submits that Maharajganj P.S. Case no. 07 of 1994 was lodged by PW-3 (informant) with ulterior motives since he is not resident of village Chaurasi and he is not the cousin brother of PW-2 which become quite evident from the deposition of PW-3 from para- 9, 10 and 11. He further submits that Maharajganj P.S. Case no. 07 of 1994 was lodged by PW-3 (informant) with ulterior motives since he is not resident of village Chaurasi and he is not the cousin brother of PW-2 which become quite evident from the deposition of PW-3 from para- 9, 10 and 11. He further submits that PW-3 admitted the fact in para-15 that on the date and time of occurrence the appellant no-1 was present in his school which is situated in Bahura Math, Chapra and the place of occurrence is of Siwan. Hence, the prosecution has failed to prove their case beyond all reasonable doubts despite that the trial Court has convicted them, therefore, prayed to set aside the conviction and sentence of the trial Court and to acquit the accused extending benefit of doubt. 12. On the other hand, learned Additional Public Prosecutor has vehemently opposed this appeal and submits that there is direct allegation against the present appellants, for assaulting the informant. In view of the aforesaid statements and the evidence on record, learned trial Court has rightly convicted the appellants and the present appeal should not be entertained. 13. At this stage, I would like to appreciate the relevant extract of entire evidence led by the prosecution and defence before the Trial Court. 14. Having deeply studied and scrutinized the facts of the case and the materials available on record, it is noted that there are material inconsistencies in the deposition of the witnesses and the alleged doctor who examined the injured Manohar Singh, Dr Ejaz Ahmed, is dead and no other witness has claimed that Dr. Ejaz Ahmed had seen the injuries of the injured in his presence. No witness has also said that he identifies the writings and signatures on the injury report written by Dr. Ejaz Ahmed because of being familiar with him earlier. In such a situation, there is no evidence on record of the doctor having seen the wounds of the injured. The statement of any other doctor or employee of Government Hospital Basantpur has not been recorded so that it can be ascertained whether Dr. Ejaz Ahmad was on duty on the date of the alleged examination and whether the injury report available on record is in his handwriting or not. The statement of any other doctor or employee of Government Hospital Basantpur has not been recorded so that it can be ascertained whether Dr. Ejaz Ahmad was on duty on the date of the alleged examination and whether the injury report available on record is in his handwriting or not. Therefore, no opinion can be made on the basis of injury report [Exhibit-2] and the evidence of PWs- 4 and 6. PW- 1, 2 and 3 have stated that accused Raghunath Prasad inflicted two injuries on the head of informant Manohar Singh with a farsa and other accused beat him with sticks. Prosecution cannot get benefit from the deposition made by the PW-6 (Expert Opinion) as he has not worked with Dr. Ejaz Ahmad who has prepared the injury report marked as exhibit-2 in para 3 of his deposition. The statement of any other doctor or employee of the hospital has not been recorded so that it can be ascertained whether Dr. Ejaz Ahmad was on duty on the alleged date of examination and whether the injury report available on record is in his handwriting or not. Therefore, no opinion can be made on the basis of injury report and deposition of PW’s- 4 and 6. Pw’s- 1, 2 and 3 have stated that accused/appellant namely Raghunath Prasad inflicted two injuries on the head of the informant Manohar Singh with a farsa and other co-accused assaulted him with lathi. As the injury report is not properly placed on record and PW-4 who proved the injury report is an advocate clerk, whose deposition is not reliable to be true so the benefit can not be given to the prosecution as it does not prove that informant Manohar Singh sustained any injury by farsa, kudali or lathi. Further, the fardbeyan has also not been proved by the prosecution and investigating officer has not disclose anything related to filling of soil as the genesis of the case is that accused/appellants were filling soil at the place of occurrence. So, the genesis of the case is also not proved by the prosecution. Considering these facts, prosecution has failed to established this case beyond shadow of all reasonable doubt, therefore, in such circumstances, it may not be proper to convict the appellants/accused on the materials available on record. So, the genesis of the case is also not proved by the prosecution. Considering these facts, prosecution has failed to established this case beyond shadow of all reasonable doubt, therefore, in such circumstances, it may not be proper to convict the appellants/accused on the materials available on record. Hence the judgment of conviction and order of sentence in this present matter is fit to be set aside. 15. Hence, the judgment of conviction and order of sentence dated 22.03.2013 passed in Sessions Trial No. 325 of 1998, arising out of Maharajganj P.S. Case No. 07 of 1994 by the learned Adhoc Additional District and Sessions Judge- III, Siwan, is set aside and the appellants are acquitted from all the charges levelled against them. As the appellants are on bail, they are discharged from liability of their bail bonds. 16. Accordingly, the appeal stands allowed.