D.K. Sinha, J.

1. The present appeal has been directed against the judgment of conviction and order of sentence passed by the Sessions Judge, East Singhbhum, Jamshedpur in S.T. No. 47 of 1993 whereby and whereunder the appellant: was convicted under Section 326 of the Indian Penal Code and sentenced to undergo R.I. for a period of three years.

2. The prosecution story is in a narrow compass. The statement of the informant PW 1 Uday Narayan Singh was recorded at Government Hospital, Sakchi, Jamshedpur on 4.9.1987 at 1.30 a.m. who narrated that in the night of 3.9.1987 at about 11.30 p.m. when he, after washing his face, went to answer the call of nature, there started brick-batting from the eastern side of his house. He warded off first stone pelted from outside but second one hit him on his neck and there started bleeding. He identified the assailant Trivedi Gour and another boy whom the informant could not identify. On his alarm there being raised his younger brother Satyendra Kumar Singh, Kishore Kumar Singh, Paramjeet Singh (witnesses) and his father Ram Naresh Singh appeared at the scene of the occurrence. He further alleged that the appellant, Shankar Gour dealt a farsha blow on the head of the younger brother of the informant, Satyendra Kumar Singh and in attempt to word off such blow of farsha Satyendra Singh sustained injury in his left arm causing bleeding. It was further alleged that he along with other witnesses chased them to some distance but the accused by shooting arrows and pelting stones on them ultimately escaped. The informant admitted previous enmity with the appellants on account of blocking rain water flow on the road. There was an altercation between the villagers and the accused persons which was pacified with the intervention of the father of the informant. It was also alleged that three she-buffalos of the informant were missing and his father had enquired about the missing of she- buffalos from the co-accused Bisheswar Gour and for such reason the accused persons had anguish against the informant and his family members and the occurrence was given effect to in sequel.

3. The police upon the statement of the informant registered a case under Section 341/324/323/336/307/34 of the Indian Penal Code and accordingly, charge- sheet was submitted against accused persons including the appellant, Shankar Gour and two accused persons Trevedi Gour and Bisheswar Gour. Charge against all the accused persons were framed only under Section 307/34 of the Indian Penal Code to which accused persons pleaded not guilty.

4. Upon full trial the accused Sanjay Gour and Bisheswar Gaur were acquitted from the charge framed against them but the appellant Shankar Gour was convicted under Section 326 of the Indian Penal Code though charge was framed under Section 307, IPC and he was punished for substantive sentence of three years rigorous imprisonment.

5. The learned Counsel appearing for the appellant submitted that the conviction and sentence of the appellant is unsustainable in view of the fact that for same set of charge and same set of evidence produced and adduced on behalf of the prosecution, the other two accused persons were acquitted. Advancing his argument the learned Counsel submitted that in course of trial the prosecution examined as many as five witnesses out of whom PW 1 is the informant. PW 2 (Kishore Kumar Singh) is the brother of the informant. PW 3 is the father of the informant, PW 4 Medical Officer who had examined the injured and proved the injury report (Ext. 2) and Ext. 2/1 and PW 5 Satyendra Kumar Singh (injured). The Investigating Officer of the cast; could not be examined by the prosecution and for such reason the defence of the appellant has been highly prejudiced.

6. The learned Counsel further submitted that the previous enmity between the parties have been admitted in the statement of the informant before the police at the outset and only partitioned witnesses have been projected as the w