Judgment S.N.Pathak, J. 1. This appeal has been preferred by convicts Kamleshwari Paswan and Manoj Paswan, who were convicted under Sec. 307, I.P.C. and sentenced to undergo R.I. for five years. They were further convicted under Sec. 447, I.P.C. and sentenced to undergo R.I. for three months. 2. The case of the prosecution in a nut shell, as per the fardbeyan of Narsing Paswan is to the effect that on 3.6.85 at about 10-11 a.m., accused Kamleshwari and Manoj along with others were plucking mango fruits from the orchard of the informants brother, Amrit Paswan. Amrit Paswan and informant Narsing Paswan went to the orchard and protested to the Act of the accused, whereupon the predator abused the informant and his brother. Manoj Paswan at the instigation of Thakur Paswan, assaulted the informant Narsing Paswan with spade from its blade portion. The informant sustained injury on his head. Subsequently, he was also subjected to assault by other members of the accused party with fists and he was also kicked. The informants brother, Amrit Paswan, was assaulted by Kamleshwari Paswan with spade by its blade portion. When alarm was raised Burhan Paswan and Kachauri Paswan gathered, which made the accused-persons flee away the scene of occurrence. 3. The defence of the accused-appellants through their own fardbeyan was to the effect that there was litigation between themselves and the informant party for which they came to his house, on the same day and pressed for withdrawing those cases. When Kamleshwari did not comply with the request. Kamleshwari Paswan and Muneshwar Paswan were subjected to assault with farsa. One Yogendra Paswan assaulted Muneshwar Paswan, son of Kamleshwari Paswan with lathi. Kamleshwari Paswan was further assaulted with lathi by Yogendra, Perma and Kanist Paswan. Villagers gathered and then the informant party took to their heels. This story of defence was contained in the fardbeyan of Muneshwar Paswan, son of appellant Kamleshwari Paswan, the certified copy of which was exhibited as Ext. A. 4. Some other accused-persons were facing trial along with appellants Kamleshwari and Manoj, but the learned lower Court acquitted them, finding that there was no offence of 147 or 148, I.P.C. on the basis of evidence adduced. Hence, these appellants have come before this Court in appeal. 5. I find that in the lower Court all together seven witnesses were examined. P.W. 7 was the villager named Kachauri Paswan. Hence, these appellants have come before this Court in appeal. 5. I find that in the lower Court all together seven witnesses were examined. P.W. 7 was the villager named Kachauri Paswan. P.W. 6 was Sukhdeo Paswan. Both these witnesses were declared hostile, because they failed to support the occurrence of assault on the informant and his brother at the hands of accused-appellants. In their cross-examination, these two P.Ws. admitted that family of the accused and the informant were joint P.W. 5 was the doctor who examined the injuries on the person of Narsingh and Amrit Paswan. P.W. 4 was Narsingh Paswan, the informant of this case. P.W. 3 was Amrit Paswan and P.W. 2 was Bosan Paswan. This witness spoke of the occurrence of exchange of hot words between the informant and accused party but he failed to support the occurrence of assault. In cross-examination by accused, he said that he heard of the occurrence of assault, he had also seen the injury on the person of Narsing and Amrit. He had further learnt that Muima and Kamli had also received injuries. He further made significant statement that there was no occurrence of marpit in the concerned orchard. This witness was not declared hostile. P.W. 1 was the son of the informant. 6. From the above resume of evidence, it is apparent that only three witnesses, P.Ws. 1, 3 and 4, who are kith and kin of the informant were there to support the occurrence of assault. The I.O. was not examined. 7. Before I proceed to discuss the evidence and its special feature, I would like to refer to the order of conviction recorded by the learned trial Court. I find that the doctor, P.W. 5 had found all lacerated injuries both on the person of Amrit and Narsing and he had opined that all these injuries were possible by hard and blunt substance. Learned trial Court held that since the doctor stated that those injuries found on the person of Narsing and Amrit could result into death, if tetanus and infection might have developed. On this basis, learned Sessions Judge held that it was a case under Sec. 307, I.P.C. I fail to understand the rationale behind the opinion of the learned trial Court and the opinion of the doctor has also to be viewed with suspicion. On this basis, learned Sessions Judge held that it was a case under Sec. 307, I.P.C. I fail to understand the rationale behind the opinion of the learned trial Court and the opinion of the doctor has also to be viewed with suspicion. No opinion regarding nature of the injury can be given on hypothesis and on future development. Even very minor injury may develop in something serious if not properly treated but that in itself will not render the injury concerned as grievous or serious. So the doctors opinion in this connection was perhaps a tainted one and the reliance of the learned trial Court on the basis of doctors opinion was also not proper because admittedly the spade injury on either of the victims of the case was neither repeated nor injury in themselves were found to be serious or grievous. More significant was the description of the injury by the doctor which he described as simple and caused by hard and blunt substance. In such a circumstance, the conviction of the appellants under Sec. 307, I.P.C. was not legally proper. In the aforesaid background, I shall discuss the salient features of the record. 8. In the first place, non-examination of the I.O. has failed to fix the P.O. in its proper perspective. The accused-appellant had filed a particular deposition of Amrit Paswan, one of the injured of this case, in which he had admitted that his father Nand Kishore Paswan along with Kamleshwari had purchased 12 Katlias of land jointly, 7 Kathas of the same were now in possession of the family of this witness and 5 Kathas were in possession of Kamleshwari and his family members. This Amrit in his deposition (Ext. B) admitted further that he could not give time of partition between the family, specially with respect to this 12 Kathas of land, which was orchard. In view of this deposition of Amrit Paswan made on 1st day of December 1987, perhaps in a case under Sec. 145, Cr.P.C., could make it incumbent on the prosecution party to fix the P.O. of this case. In view of this deposition of Amrit Paswan made on 1st day of December 1987, perhaps in a case under Sec. 145, Cr.P.C., could make it incumbent on the prosecution party to fix the P.O. of this case. In the fardbeyan of Narsing Paswan, it has not specifically been mentioned as to what was the orchard, which was the subject-matter of theft of mango fruits, whether it was situated near the house of informant Narsingh Paswan or near the house of accused Kamleshwari or at any other place, The non-examination of the I.O. in this connection, would be a serious lacuna of the prosecution case and hence the P.O. exactly has not been fixed in the instant case. In view of the evidence of the hostile witnesses to the effect that family of the accused and the informant both ware still joint would also make it necessary to fix the P.O. orchard, in view of the fact that Amrit Paswan in Ext. B had denied that any occurrence of marpit took place in side the orchard on 12 Katha of land. There was admittedly a counter-case pending between the parties and in that case the place of occurrence was the house of Kamleshwari Paswan. So, I am of the opinion that the P.O. in this case, has not been properly and exactly fixed. 9. Next comes the manner of occurrence. It is the specific case of the informant Narsingh Paswan in his fardbeyan that accused Kamleshwari and Manoj both had assaulted himself and his brother Amrit with plade portion of Kudal. In the evidence also, P.Ws. 1, 3 & 4 spoke in a positive statement that they were assaulted with blade portion of the Kudal. Learned trial Court referred to this discrepancy on account of loss of memory by the witnesses, but I think that this opinion of the learned trial Court is neither here nor there because the informant had specifically stated in the fardbeyan as also in his evidence that he and his brother were assaulted with blade portion of Kudal. Therefore, there was no question of any loss of memory on his part or on the part of other witnesses who were all his kith and kin. The doctors evidence in this connection is, therefore, quite inconsistent with the ocular evidence. 10. There is one more infirmity in the prosecution case which is worth notice. Therefore, there was no question of any loss of memory on his part or on the part of other witnesses who were all his kith and kin. The doctors evidence in this connection is, therefore, quite inconsistent with the ocular evidence. 10. There is one more infirmity in the prosecution case which is worth notice. In the fardbeyan (Ext. 4), it was stated that there were some persons in the orchard, who had indulged in assault upon Narsingh and so there was charge under Sec. 147, I.P.C. but the learned trial Court did not find the offence of unlawful assembly under Secs. 147 & 148, I.P.C. proved and hence, he acquitted the rest of the accused-persons. Thus, part of the case and evidence in this case was disbelieved. This will also affect the prosecution evidence to some extent, so much for the manner of occurrence. 11. There are some more lacunae in the evidence of the prosecution, which will also require proper attention. It is apparent that independent witnesses, who were examined in this case, failed to support the prosecution case and they rather stated that both family of the accused and, informant were still joint. In this view of the matter, interestedness of the P.Ws. have some significance and so non-support of the prosecution case by the independent witnesses throw doubts to the veracity of the prosecution case and its evidence. Admittedly, both the informant and accused were of the same family and in view of the evidence of the prosecution witnesses themselves they were perhaps still joint because Amrit Paswan and Narsingh Paswan failed to give time of participation, though they claimed that they were separate. In this view of the matter, plucking of mango by the accused-persons would not amount to any kind of high-handedness on their part and, therefore, it could not give the informants party a plausible cause for protest and hence motive for the alleged occurrence would also be weakened to a great extent. 12. There is one more significant aspect of the prosecution evidence worth further notice, Both Narsingh Paswan and Amrit Paswan, as P.Ws. 4 and 3, stated that blood had oozed from the injured portion of the body, it had also fallen on the ground. Their clothes were also drenched in blood. 12. There is one more significant aspect of the prosecution evidence worth further notice, Both Narsingh Paswan and Amrit Paswan, as P.Ws. 4 and 3, stated that blood had oozed from the injured portion of the body, it had also fallen on the ground. Their clothes were also drenched in blood. Amrit Paswan has stated that he was clad in Lungi and Ganji when he reached the P.O. but before going to the P.O., he had put off Lungi and came there only clad in underwear and Ganji, He produced the so called blood-stained Ganji in Court at the time of his deposition but he said that he had produced the same before the police, but this was not received. P.W. 4 Narsingh Paswan also said that he was wearing Ganji and Dhoti, which were blood-stained. He also produced the Ganji containing blood stains and produced the same in Court at the time of his deposition. The production of these blood-stained clothes in Court much after the injuries sustained by these victims makes it abundantly clear that they were trying to support the alleged occurrence by manufacturing some kind of evidence to establish the claim of assault; otherwise there is no explanation as to why these clothes were not produced before the police. Non-examination of the I.O., in this connection, is also significant because the police officer could have supported the evidence of the P.Ws. that they had produced their blood-stained clothes before the police. It is also a bit surprising and fantastic circumstance that when Amrit Paswan (P.W. 3) could be hearing Lungi and Ganji, he would rush to the P.O. after putting off the Lungi and only being clad in underwear. Amrit Paswan produced his blood-stained Ganji on further examination by the prosecution on 7.6.88. In his earlier examination on 6.6.88, he had failed to produce the blood-stained Ganji. The aforesaid circumstances also throw doubt about the correctness of the prosecution case and its evidence. 13. As a result of discussion of the entire evidence on record, I am of the opinion that the accused-appellants deserve benefit of doubt. This appeal is, accordingly, allowed and the order of conviction and sentence is hereby set aside. The appellants shall stand discharged from the liability of bail-bonds, if any.