DHARNIDHAR JHA, J.:–The present appeal arises out of judgment dated 05.07.2002 passed by the learned Presiding Officer, Fast Track Court No.IV, East Champaran at Motihari in Sessions Trial 285 of 1987 by which the appellants were acquitted of the charges under Sections 341, 235 and 307/34 of the IPC but were convicted of different offences. Appellants Sheo Balak Raut and Siyaram Raut were held guilty of committing offences under Sections 447 and 324 IPC and they were directed to suffer simple imprisonment for three months and two years respectively. Likewise, appellant Nand Kishore Raut was also convicted under Sections 447 and 323 IPC and was directed to suffer simple imprisonment for three years and six months respectively on the two counts.

2. It appears that the appellants and the informant were residing in the same Angan and it appears further from the evidence as also from the first information report that when the informant was feeding his animal at his Darwaja accused Radhe Shyam Raut who was also convicted for the offences, came and started digging up a Nala for flowing water which was objected to by the informant upon which the accused persons came there. Appellant Sheo Balak Raut was armed with a bhala, appellant Siyaram Raut was carrying a farsa whereas appellant Nand Kishore Raut had a lathi in his hand. Accused Radhe Shyam Raut was carrying a Kudal. It was stated that as soon as the accused persons reached there appellant Sheo Balak Raut dealt blows with bhala on the right palm and right leg of the informant whereas appellant Siyaram Raut assaulted him with farsa on the head causing bleeding injury to him. Appellant Nand Kishore Raut gave a lathi blow whereas accused Radhe Shyam Raut also assaulted the informant with the handle of Kudal on his both hands and the left leg.

3. Ram Swroop Rai (P.W.2) rushed there to save the informant and he was caught by convicted accused Radhe Shyam Raut and was assaulted by him also. It was alleged that appellant Sheo Balak Raut dealt a bhala blow to P.W.2 Ram Swroop Rai, as a result of which he was injured in his left hand. The witnesses came and saw the occurrence.

4. The informant and another injured P.W.2 were brought to the hospital where they were hospitalized and the statement of the informant was reduced into writing and was also incorporated into Station Diary Entry No.513 dated 29.06.1986 and after obtaining the injury certificates Exts-1 and 1/A, the FIR of the case was drawn up on 30.06.1986 at 6 P.M. The investigation was proceeded with and ultimately the three appellants along with convicted accused Radhe Shyam Raut were sent up for trial, which ended in their conviction by the impugned judgment.

5. During the course of the hearing of the present appeal, Sri Animesh Kumar Mishra, the learned Amicus Curiae took me through the evidence of witnesses and submitted that there were many discrepancies in their statements and non-examination of the I.O. was a material defect in the prosecution case. Submission also was that some part of the evidence was in excess of the earliest version of the prosecution case rendering the witnesses not acceptable. It was also contended that the evidence of P.W.1 was not admissible under Section 33 of the Evidence Act as was held by the learned trial Court.

6. Sri Sujit Kumar Singh, learned A.P.P has submitted that the witnesses were consistent on the manner of occurrence and they had no reason to falsely implicate the accused persons and as appears from the evidence the judgment does not require any interference from this Court.

7. As appears from the record of the case, the investigating officer was not examined and six witnesses were produced by the prosecution in support of the charges, out of whom, P.W.6 Ganesh Sah was a witness of formal character who had brought on record the FIR of the case as Ext-2. P.W.5 Dr.Brahmeshwar Nath Gupta had examined P.W.1 (Chhathu Raut) and P.W.2 (Ram Swroop Rai) and had issued the injury certificat