Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 16.07.1992 of the 2nd Additional Sessions Judge, Siwan passed in S.T. No. 254 of 1980 whereby appellant Prahlad Mishra has been convicted under Ss. 307, 324, 435 and 447 of the Indian Penal Code with respective sentences or R.I. for five years, R.I. for one year, R.I. for three years and S.I. for one month. Each of the remaining three appellants, namely, Basistha Mishra, Byas Mishra and Sheo Kumar Mishra has been convicted u/s. 447 of the Indian Penal Code and sentenced to S.I. for one month. 2. The prosecution case, as per the fard beyan (Ext-3) of the informant Jagdish Mishra (P.W. 5) recorded on 20th May, 1979 at 6:30 P.M. in Mairwa Govt. Hospital where he was lying for treatment is that on that day (20.5.1979) at about 4:00 P.M. while he (the informant) and his father Budhisagar Mishra were guarding their two Khalihans, appellant Prahlad Mishra and Basishtha Mishra carrying respectively Farsa and Lathi came there. They hurled abuses to informants father and Prahlad Mishra, took out a match and lighted it and set 40-50 bundles of wheat crops on fire in the Khalihan. When the appellants were setting the bundles on fire, the Informant and his father rushed to the safety of their another adjacent Khalihan where 150-175 wheat crop bundles had been stacked. In the mean time the appellants Vyas Mishra and Sheo Kumar Mishra also came to the bigger Khalihan. The informant and his father rushed whereupon Prahlad Mishra gave three Farsa blows, two on the neck and one on the head of informants father (Budhi Sagar Mishra) and Bashistha Mishra assaulted him (Budhi Sagar Mishra) with Lathi. Thereafter Sheo Kumar Mishra ordered to assault whereupon Prahlad Mishra gave two Farsa blows on his (informants) head. The informant tried to flee away at which time, Byas Mishra fired pistol but nobody was hit. Thereafter Sheo Kumar Mishra threw two bombs continuously which exnpoded there. Sheo Kumar Mishra was also throwing bombs but at the time of throwing the 3rd bomb, he fell down and the bomb exploded and Sheo Kumar Mishra himself became injured due to explosion of the 3rd bomb. The informant stated that several persons of the village had assembled and had seen the occurrence. Sheo Kumar Mishra was also throwing bombs but at the time of throwing the 3rd bomb, he fell down and the bomb exploded and Sheo Kumar Mishra himself became injured due to explosion of the 3rd bomb. The informant stated that several persons of the village had assembled and had seen the occurrence. Out of the witnesses Algu Chaudhary (P.W. 1) and Ram Charan Pandey (P.W. 2) were named in the fard beyan. About the cause of occurrence the informant admitted that he had purchased land from his cousin grand-father Ram Chandra Mishra and due to the accused-appellans having their share in that land, there was dispute between them and the appellants had threatened the informant due to this. 3. The appellants took a defence that it were the prosecution party itself that they assaulted the appellants for which the appellant Sheo Kumar Mishra lying in injured condition in the Emergency Ward of Siwan Hospital had lodged the FIR for the offences under Ss. 147, 148, 324, 325, 307, 435, 427 of the Indian Penal Code and 3/5 of the Explosive Substances Act against informant Jagdis Mishra, Budhi Sagar Mishra (P.W. 4) and six others under Guthani P.S. Case No. 4 of 1979, The FIR and the fard beyan of that case was proved by the defence as Exts.-A & B. The defence also proved the injury certificates vide Exts.-C, C/1 & C/2 with regard to the injuries on Sheo Kumar Mishra, Vyas Mishra and Basistha Mishra (appellants) with regard to the injuries caused on them as per defence version. The defence also examined D.W. 1 Vijay Kumar Singh who had proved Exts.-A & B, D.W. 2 Ram Kishun Prasad, examined by the defence stated that the prosecution and the defence both sides are Pattidars and land dispute is going on between them. D.W. 3 Dr. Dina Nath Srivastava, the Deputy Superintendent of Sadar Hospital Siwan is the Doctor who has proved the injuries on appellants vide Exts.-C, C/1 and C/2, D.W. 3 deposed that he had examined Shiv Kumar Mishra (appellant) on 20.05.1979 and found the following injuries on his person: (i) One lacertated injury over the lower half region of right thigh (in front) with powder burn mark 12" x 10" blowing of the skin and the muscle partially within the area with fracture of lower part of the femur just above condyl. (ii) Lacerated wound over the left hand between the little and ring finger 2" x 1/2" x 1" with multiple abrasions with powder burn mark in front and back of all fingers of left hand. Size varrying from 3/4" to 1/2". Also one abrasion injury with powder burn mark over the distal part of the left hand 4/ 4" x 1/2" palmer aspect. (iii) Abrasions with powder burn mark size 1/6" x 1/6" to 1/6" x 1/4" over the anterior aspect of right forearm above wrist joint. (iv) Abrasion with powder burn mark above the left waist posterior 1.1/2" x 1/2". (v) Diffused swelling with tenderness over lower half region of left forearm 2.1/2" x 2.1/2". (vi) Multiple abrasions with powder burn mark 1/6" x 1/6" to 1/4" x 1/4". 4. All the injuries were caused by explosive substances like bomb except injury no. (v) which had been caused by hard blunt substance like Lathi. Injury no. (i) wasgrievous in nature and the rest were simple in nature. 5. The doctor had also examined on the same day appellant Byas Mishra and had found bruises and swellings all 5 in number. The Injuries were simple in nature and caused by hard blunt substance, may be Lathi. The doctor had also examined Bashistha Mishra (appellant) and had found bruise and abrasion and lacerated wound six in number. Three of the injuries were caused by explosive substance like bomb and three other injuries were caused by hard blunt substance like Lathi. 6. As many as seven witnesses were examined by the prosecution. P.W. 1 Algu Chaudhary and P.W. 2 Rain Charan Pandey were examined as eye witnesses to the occurrence. P.W. 3 Dr. K.P. Sinha was the doctor who examined the informant, Jagdish Mishra (P.W. 5) and Budhi Sagar Mishra (P.W. 4) and proved their injury certificates respectively as Ext-2 and Ext-1, P.W. 4 Budhi Sagar Mishra and P.W. 5, Jagdish Mishra were the injured, P.W. 7 Vishwa Nath Prasad Gupta is the I.O. who had inspected the P.O. and had conducted the investigation. P.W. 6 Md. Mohim is also the I.O. who conducted the investigation in latter portion and took statement of some witnesses and submitted charge-sheet in this case. 7. P.W. 6 Md. Mohim is also the I.O. who conducted the investigation in latter portion and took statement of some witnesses and submitted charge-sheet in this case. 7. The Doctor (P.W. 3) deposed that he examined injured Budhi Sagar Mishra (P.W. 4) on 20.05.1979 and found the following injuries on his person: (i) Incised wound 4" x 1/4" bone deep on the back of head near to left ear. It was simple and caused by sharp cutting weapon. (ii) Incised wound 4" x 1/4" x bone deep on the back of head. Nature simple and caused by sharp cutting weapon. (iii) Incised wound 3" x 1/4" bone deep on front of head. Simple in nature caused by sharp cutting weapon. (iv) Dislocation of 2nd left incisor tooth. Nature grievous and caused by hard blunt substance. (v) Swelling with abrasion 4" x 3" on left arm. Simple, caused by hard blunt substance. (vi) Swelling with abrasion of whole left wrist. Simple caused by hard blunt substance. (vii) Swelling of whole left thigh. Simple in nature and caused by more than one Lathi blows. (viii) Swelling with abrasion 5" x 2" on left leg. Nature simple, caused by hard blunt substance. (ix) Bruise 6" x 2" on left buttock. Simple, caused by hard blunt substance. (x) Bruise 5" x 2" on left arm. Simple, causd by hard blunt substance. (xi) Bruise 4" x 2" on right forearm. Simple caused by hard blunt substance. (xii) Bruise 5" x 2" on right side of buttock. Simple, caused by hard blunt substance. Injury Nos. (ii) to (iii) are posible by Farsa and rest by Lathi. He has proved this injury report as Ext-1. 8 The doctor further deposed that he had examined the injured informant Jagdish Mishra and had found the following injuries on his person: (i) Incised wound 3.1/2" x 1/4" x bone deep on head. Right side of vertex. Simple in nature and caused by sharp cutting weapon. (ii) Swelling 3" x 3" on head near right side substance. (iii) Bruise with abrasion 5" x 2" on back left scapular region. Simple, caused by hard blunt substance. (iv) Bruise with abrasion 8" x 2" on back right scapular region. (v) Bruise with abrasion 6" x 2" on the right buttock. (vi) Bruise with abrasion 5" x 2" below right scapular. (iii) Bruise with abrasion 5" x 2" on back left scapular region. Simple, caused by hard blunt substance. (iv) Bruise with abrasion 8" x 2" on back right scapular region. (v) Bruise with abrasion 6" x 2" on the right buttock. (vi) Bruise with abrasion 5" x 2" below right scapular. (vii) Bruise with abrasion 2" x 1" on abdominal wall left side lower part. (viii) Three abrasions of irregular size on right arm. Injury Nos. (iii) to (iv) are simple, caused by hard blunt substance. (ix) Incised wound 4" x 1/2" x 2" on right foot, simple caused by sharp cutting weapon. 9. Injury Nos. (i) and (ix) are possible by Farsa and the rest are possible by Lathi. The injury report was proved as Ext-2. 10. P.W. 7 Vishwa Nath Prasad Gupta, the I.O. of the case deposed that on the basis of the FIR (Ext-2/1) case was registered at the P.S. and he had conducted the investigation of the case. At Para-2 of his evidence, he stated that he had inspected the P.O. which was a Khalihan situated in north portion of the orchard and in the northern side of the Khalihan at about 2 dhurs of land, the ashes of burnt wheat crops were found. At Para-5 of cross-examination, he confirmed that the burnt Khalihan situated in an orchard but the branches and the leaves of the tree in the orchard were not found burnt. He also deposed that he did not find any sign/mark of explosion of bomb in that Khalihan and he also did not find any mark of blood there. 11. P.W. 6 Md. Isha who had conducted the latter part of investigation and had submitted charge-sheet deposed that he had taken statement of witness Budhi Sagar Mishra (P.W. 4), Algu Chaudhary (P.W.7) Ram Charan Pandey (P.W. 2) and Jagdish Mishra (P.W. 5) and he had submitted charge-sheet in this case. At Para-3 of his examination he also deposed that a counter case with regard to the occurrence had been instituted under Guthali P.S. Case No. 4(5) 79 under Ss. 307, 325 and 435 of the Indian Penal Code had been instituted and he had conducted investigation into that case and had also submitted charge-sheet in that case. Thus, he says that in the counter case also filed by the accused-appellants charge-sheet has been submitted after investigation. 12. 307, 325 and 435 of the Indian Penal Code had been instituted and he had conducted investigation into that case and had also submitted charge-sheet in that case. Thus, he says that in the counter case also filed by the accused-appellants charge-sheet has been submitted after investigation. 12. After discussion of the evidence, as adduced by the doctor and the Investigating Officer it is relevant to discuss the evidence of the informant, injured and the eye witnesses. The informant (P.W. 5) deposed that on 20.05.1979 at about 4:00 P.M. while he was guarding his Khalihan, appellant Prahlad Mishra and Bashistha Mishra came there and abused him and on being objected Prahlad lighted match and set the wheat crop bundles on fire, Thereafter the informant and his father rushed to their another Khalihan nearby in order to protect other wheat crop bundles kept there but all the four appellants followed there. Prahlad Mishra gave farsa blows on the head and neck of his father and Bashistha Mishra assaulted his father with Lathi. He also deposed that Prahlad Mishra did also assault him (informant) twice with Farsa on head and Bashistha Mishra gave him Lathi blows. At Para-3 of his evidence, he stated that about 50 bundles of crops were burnt in the Khalihan. Here it has to be mentioned that the informant says about Farsa injury caused on the neck of his father (P.W. 4) but the doctor has not found any injury on his neck. As per the evidence of the informant, the Khalihan, where the crop bundles were kept situated in the orchard and that 50 crop bundles were burnt in arson. The I.O. has found some ashes in the Khalihan but also stated that he did not find any mark of burning of the branches and the leaves of the trees under which the Khalihan situated. The learned counsel for the appellants argued that ashes were subsequently kept in order to fix the P.O. He also argued that when 50 bundles of crop would burn below trees, flames would rise high and there must be mark of burn on the branches and the leaves of the trees but no such burn mark was found by the I.O. The non-finding of any mark of burn on the branches and leaves of trees goes to affect the case of the prosecution adversely. 13. 13. At Para-7, the informant admitted that the appellants had filed a counter case in which he, his father (P.W. 4) Algu Chaudhary and Ramayan Pandey (P.W. 2) are accused. It has to be noticed here that in this case only the informant, his father (P.W. 4) and P.Ws. 1 and 2 have been examined on the point of occurrnce. All these four persons are accused in the counter case filed by the defence. It is relevant to mention here that the informants father (P.W. 4) has deposed at Para-43 of his cross-examination that as many as eleven villagers had assembled at the time of occurrence but none of them, excepting P.Ws. 1 & 2 who are accused in the counter case has been examined by the prosecution. No reason has been assigned for non-prosecution of other nine witnesses who could be impartial and independent witnesses. The non-examination of such impartial and independent witnesses also goes to adversely affect the case of the prosecution. 14. P.W. 4 who is said to be injured in the occurrence has deposed that while he alongwith his son (P.W. 5) was guarding the Khalihan appellant Prahaiad Mishra and Bashistha Mishra carrying respectively Farsa and Lathi came there and abused them. Prahlad lighted match and set the bundles of wheat crop on fire. Seeing the bundles of crop on fire, they rushed to the nearby Khalihan where other bundles were kept, but the appellants also came there. He also deposed that Prahlad Mishra gave three Farsa blows hitting on his head and neck and Bashistha Mishra armed with Lathi hit on his back and thigh. Thus, according to this witness, he had received injury on back and thigh by means of Lathi but the doctors evidence shows as many as 8 swellings and bruises out of which only one lies on the thigh. There are 8 other injuries which are not stated to have been caused, according to the evidence of this witness in Para-4. There is no explanation for this, and it would go to indicate that the injuries as stated by this witness does not commensurate with the number of injuries as found by the doctor. There are 8 other injuries which are not stated to have been caused, according to the evidence of this witness in Para-4. There is no explanation for this, and it would go to indicate that the injuries as stated by this witness does not commensurate with the number of injuries as found by the doctor. Besides this, it has also to be noted that the doctor found dislocation of 2nd left incisor tooth which was of grievous nature caused by hard blunt substance but this witness who is the injured himself does not even say to have received any such injury. The absence of such injury in his evidence makes the assault and the injuries highly doubtful. 15. At Para-9 of his cross-examination, P.W. 4 has accepted that accused-appellant lay their claim over the Khalihan. It has to be remembered that in the FIR itself, the informant has stated that he has purchased the land from his cousin grand-father Ram Chandra Mishra and the accused appellants have share in the land. At Para-9 of his cross-examination, this witness has also deposed that he has land dispute with the accused-appellant and that previously partition suits were filed between them and subsequent to those suits criminal cases have been filed. Thus there appears to be dispute regarding partition of land and the dispute over possession of the land between the prosecution party and the appellants. 16. At Para-53 of his cross-examination P.W. 4 deposed that three bombs were thrown in the Khalihan and they had exploded there. He also deposed at Para-50 of his evidence that on the place of occurence, where he had received injuries blood had fallen and that when he stood up after receiving injuries blood had further dropped there from his body. In this context the evidence of the I.O. at Para-5 of his evidence is relevant where he has deposed that on inspection of the P.O. he had not found any blood mark nor he had found any mark/sign of explosion of bomb. The prosecution has its definite case that blood had fallen at the P.O. and bomb had also exploded there but the I.O. does not find any blood mark or any mark of explosion of bomb at the P.O. which makes the site of P.O. as stated by the prosecution highly doubtful. The prosecution has its definite case that blood had fallen at the P.O. and bomb had also exploded there but the I.O. does not find any blood mark or any mark of explosion of bomb at the P.O. which makes the site of P.O. as stated by the prosecution highly doubtful. The learned A.P.P. tried to improve the position of the prosecution saying that in the counter case also, the defence has stated about the P.O. being the Khalihan. But the manner of occurrence is quite different in the counter case. Moreover, the prosecution, in such case, cannot take advantage of the lacuna in the case of defence and it has to stand on its own legs. Thus, considering this position and also considering that the I.O. also did not find any burn mark on the branches and leaves of trees, I find that the prosecution has not been able to prove beyond doubt its case, as stated by it. 17. P.W. 4 at Para-43 of his cross-examination has stated that at the time of occurrence, 10-15 villagers had assembled there. Out of them, he has specifically named Ram Briksha Singh, Chandra Shekhar Mishra, Kishundeo Mishra, Shiv Dayal Mishra, Parmeshwar Mishra, Ramayan Pandey (P.W. 2), Algu Chaudhary (P.W. 1), Budhandeo Mishra, Mithilesh Mishra, Badri Mishra and Raju Kishore Mishra. It has to be noticed here that out of these eleven witnesses, only Ramayan Pandey and Algu Chaudhary who are accused in the counter case filed by the appellants have been examined. No other witness who could have been impartial and competent witnesses to say about the truth have been produced in support of prosecution case. Thus leaving of impartial witnesses and examining only two witnesses who are accused in the counter case affects the case of the prosecution in most adverse manner and, therefore, the credibility of the witnesses examined is not acceptable. 18. P.W. 2 Ram Charan Pandey deposed about the assault on P.Ws. 4 and 5 and he admitted at Para-11 of his cross-examination that regarding the occurrence Sheo Kumar Mishra appellant had filed a counter case with the allegation of assault and arson and that he is an accused in that case. He also admitted at Para-9 that Jagdish Mishra (P.W. 5) stated that the Khalihan was his and the accused-appellants stated that the Khalihan belonged to them. He also admitted at Para-9 that Jagdish Mishra (P.W. 5) stated that the Khalihan was his and the accused-appellants stated that the Khalihan belonged to them. Thus, according to this witness, both the parties were claiming Khalihan and therefore there was dispute regarding claim over the land. At Para-2 of his evidence, he deposed that after causing assault, the accused-appellants fled away from the P.O. In this context the evidence of the defence witnesses i.e. D.W. 3 Dr. Dina Nath Srivastava, who examined appellant Sheo Kumar Mishra is relevant. The Doctor found lacerated injury over the lower half region of right thigh in front portion with burn mark 12" x 10" blowing off the skin and muscle partially witnin the area with fracture in the lower part of famur joint above condyle. Considering the nature of his injury which was grievous in nature and which involved the fracture of femur joint and blowing off the muscle of thigh, it does not appear possible that the accused appellant Sheo Kumar Mishra with such grievous injury could have been able to flee away from the P.O. where he is said to have received such grievous injury. Thus, according to the evidence of this witness that accused persons fled away after causing assault does not appear to be true and the manner of occurrence in this regard becomes doubtful. Besides this, when any person with such grievous injury falls on the ground, blood would necessarily fall on the land and the pieces of flesh blown off would be found there but the I.O. did not find anything like such and this further makes the site of the occurrence doubtful. It has to be further mentioned that P.W. 1 at Para-6 has deposed that only he (P.W. 1) had come to the P.O. and besides him, no other witness had come there. Thus, according to the evidence of P.W. 1 the presence of this witness (P.W. 2) becomes doubtful at the time of P.O. and, therefore, he is not fit to be accepted as competent witness to the occurrence. 19. P.W. 1 Algu Chaudhary accepted at Para-2 of his evidence that he is accused in the counter case filed by appellant Sheo Kumar Mishra. He further admitted at Para-5 of cross-examination that the informant and appellants are Pattidars and that both sides lay their claim over the Khalihan. 19. P.W. 1 Algu Chaudhary accepted at Para-2 of his evidence that he is accused in the counter case filed by appellant Sheo Kumar Mishra. He further admitted at Para-5 of cross-examination that the informant and appellants are Pattidars and that both sides lay their claim over the Khalihan. At Para-6 of his evidence he deposed that only he had come to the P.O. and that no person other than him had come to the P.O. as witness. At Para-8 of his cross-examination, this witness deposed that there were 5-6 persons from the side of Budhi Sagar Mishra (P.W. 4) and that out of those 5-6 persons, he identified only Budhi Sagar Mishra (P.W. 4) and Jagdish Mishra (P.W. 5) and he could not identify the remaining persons. According to the case of the prosecution there were only two persons, namely, P.Ws. 4 and 5 from the side of the prosecution at the P.O. but P.W. 1 says that there were 5-6 persons from the side of the appellant. The prosecution does not explain about the presence of other 3-4 persons who were from the side of the informant and the activities done by those persons during the occurrence. Due to this reason, the manner of occurrence as stated by the prosecution becomes highly doubtful. This witness (P.W. 1) has stated about the assault on the P.Ws. 4 & 5 at Para-11 of his evidence. He further deposed that he had not seen the Lathi, Farsa and bomb which had been used during the occurrence. This witness states about the manner of asssault by stating who of the accused-appellants assaulted whom of the injured with what weapon but his evidence in Para-11 of his cross-examination that he had not seen the Lathi, Farsa and Bhala used in the occurrence makes his claim of identification as eye witness devoid of any credence and in such view of the matters, he cannot be accepted to be a competent witness to the occurrence. 20. All the four witnesses examined by the prosecution have accepted that both sides are Pattidar and they lay their claim over the Khalihan. In such circumstances, there appears to be a bona fide land dispute. 21. 20. All the four witnesses examined by the prosecution have accepted that both sides are Pattidar and they lay their claim over the Khalihan. In such circumstances, there appears to be a bona fide land dispute. 21. Learned counsel for the appellants argued that the appellants have been convicted u/s. 447 of the Indian Penal Code and when there is bona fide land dispute, the appellants cannot be convicted of such offence of trespass. This submission of the learned counsel carries substantial reasons and it is acceptable. In such view of the matters the conviction of the appellants u/s. 447 of the Indian Penal Code cannot be sustained in law. 22. Thus, considering the facts and circumstances of the case and the evidence on record, as discussed above, I find that there is bona fide land dispute. Moreover, the P.O. and the manner of assault has not been proved beyond doubt. Therefore, I find that the prosecution has failed to prove the charges beyond shadows of doubt. Therefore, the appellants cannot be convicted of the charges levelled on them. Hence, they are acquitted of all the charges. Accordingly, the conviction and sentence as passed by the learned trial court is hereby set aside. The appellants are discharged of the bail bonds executed by them.