JUDGMENT I.S. Shrivastava, J. 1. This appeal under Section 374 of Code of Criminal Procedure has been preferred being aggrieved by the judgment dated 24-10-2009 passed by Shri B.D. Rathi, Special Judge, Rajgarh Biora in Sessions Trial No. 3/00 by which the Appellant Chotudas has been convicted under Section 324 of the IPC and sentenced with RI of one year. 2. According to prosecution case on 22-6-99 at 7.00 a.m. when complainant Omprakash was going for labourship, as soon he came out of the house, accused Chotudas came with knife and abused him and said that your family members used to hear their talks by standing in the lane. Omprakash refused on this Chotudas assaulted him with knife which caused bleeding injury on right side of his head. On his cries, his sister Bhagwatibai came to his rescue then accused Balu assaulted her with knife in her left hand which caused bleeding injury. Gulabbai caught Bhagwatibai and after lying her on earth, assaulted her with kicks due to which she sustained injury in her stomach and she became unconscious. Chotudas again assaulted her by knife which caused injury in her left palm. Accused also abused them. Bhawarlal came and pacified the matter. Hence on report Crime No. 90/99 was registered at Police Station, Khujner Distt. Rajgarh Biora. After investigation challan was filed against Chotudas, Balu and Gulabbai. Balu and Gulabbai have been acquitted by the Trial Court and Appellant has been convicted as mentioned above; hence this appeal. 3. It has been argued on behalf of the Appellant that the statement of Omprakash (P.W. 2) about his injuries by knife, was not supported by medical evidence. Other witnesses have also not supported the fact that Chotudas assaulted by knife to Omprakash. There were material discrepancies in the statement of witness. Enmity in both the sides is admitted. The evidence has not been appreciated in the proper perspective. Hence appeal should be allowed. 4. It has been argued on behalf of the Respondent that case has been proved on the basis of evidence produced before the Trial Court. The appeal being devoid of merits, be dismissed accordingly. 5. Considered circumstances and record of the Trial Court perused. 6. According to Dr. M.K. Joshi (P.W. 1) after examination of Omprakash, he gave MLC report (Exh. It has been argued on behalf of the Respondent that case has been proved on the basis of evidence produced before the Trial Court. The appeal being devoid of merits, be dismissed accordingly. 5. Considered circumstances and record of the Trial Court perused. 6. According to Dr. M.K. Joshi (P.W. 1) after examination of Omprakash, he gave MLC report (Exh. P-4) and found incised wound in the back side of the head and below left axila and two abrasions one on right knee and other on left palm. 7. Omprakash (P.W. 2) has deposed that at the time of incident Chotudas was abusing in his house and came out with knife and assaulted him by knife at head, at shoulder and at palm and said you stayed to listen abuses. On his cries her sister Bhagwatibai came out from his house then accused pulled him down and assaulted his sister. In cross-examination he has stated that he does not know to whom he was abusing but he was not abusing him. The statement of this witness is against the FIR and his police statement in which he deposed that accused came with knife and said why he listens his talks by staying in the lane. In this way he has not supported the prosecution story. He has admitted the enmity with defence. 8. Omprakash (P.W. 2) has deposed that Gulabbai and Balu assaulted Bhagwatibai by kicks and fists and Chotudas assaulted her by knife. In cross examination he has deposed that he did not see that at the time of incident the Appellant assaulted by knife to his sister. He saw her injuries in hospital at Bhopal hence he can not say that who assaulted her sister and how many injuries were sustained by her. In the police statement, Omprakash (P.W. 2) has deposed that Balu assaulted by knife on the left fore arm of his sister and at the same time Gulabbai caught her sister and assaulted by kicks on her stomach and pushed her to earth. Chotudas assaulted her sister by knife causing injury on thigh by knife, is not supported by medical evidence. Hence statement of Omprakash (P.W. 2) is an improvement in police statement about injuries. Therefore, it cannot be said that Chotudas assaulted her sister Bhagwatibai by kicks. 9. Chotudas assaulted her sister by knife causing injury on thigh by knife, is not supported by medical evidence. Hence statement of Omprakash (P.W. 2) is an improvement in police statement about injuries. Therefore, it cannot be said that Chotudas assaulted her sister Bhagwatibai by kicks. 9. Bhawarlal (P.W. 6) deposed that Bhagwatibai was standing by the wall at that time Chotudas, Gulabbai and Balu assaulted her by kicks and fists on her stomach when he came to save her, they ran away. In cross examination he deposed that Chotudas did not assault Bhagwatibai by kicks and fists. He has changed place of incident and has deposed that the incident did not take place in the lane. Balu was not having a knife and did not assault Bhagwatibai. This fact in his police station (Exh. P- 2) was not told by him. Till the time Bhagwatibai was standing she was assaulted and when she fell down none assaulted her. While other witnesses have deposed that after pushing Bhagwatibai on earth, she was assaulted by the accused persons. In this way, this witness has given a different story about the incident. Hence statement of this witness Bhawarlal (P.W. 6) is not reliable in this matter. 10. As regards injuries to Omprakash (P.W. 2), statement of Bhawarlal (P.W. 6) is not reliable. Omprakash (P.W. 2) has deposed that when Bhawarlal (P.W. 6) came, he sustained injuries by knife and was lying on earth. In this way, Bhawarlal (P.W. 6) was not eye witness of this witness. They story which he (Bhawarlal) has narrated, is a different story from the facts of the case. From the spot map (Exh. P-10) the house of Bhawarlal is situated at different place from where the place of incident is not visible. Hence statement that he saw the incident from his house, is not believable. 11. Bhagwatibai (P.W. 5) has deposed that on the cries of her brother, she came out of her house and saw that Chotudas assaulted her brother on the head, in armpit and on legs. In cross examination she has deposed that when she reached the spot, her brother was lying on he earth and blood was oozing from his head and the whole body was smeared with blood and the accused persons were assaulting her brother in lying position. In cross examination she has deposed that when she reached the spot, her brother was lying on he earth and blood was oozing from his head and the whole body was smeared with blood and the accused persons were assaulting her brother in lying position. Chotudas was having a knife and she could not say that which accused assaulted her brother at which place. This shows that when this witness reached on the spot at that time Omprakash was lying on the earth and blood was oozing from his injuries. As regards assault at that time by knife, her statement is not in conformity with the statement of Omprakash. Omprakash (P.W. 2) has not deposed that accused Chotudas pushed him on earth and then assaulted him in the lying position. He has deposed that when his sister came then accused pushed him on earth and assaulted her sister with knife. Therefore, Bhagwatibai was not the witness of the incident but she reached lateron on the spot. Bhagwatibai (P.W. 6) is not eye witness of the incident as has been discussed above. 12. There is enmity in both the parties. This fact has been admitted by Omprakash (P.W. 2) that talking terms in both the parties are stopped for the last 6-7 years on a dispute about worship in the temple. Bhagwatibai (P.W. 5) has also confirmed the fact that there is a dispute on the point of worship in the temple in between both the parties. Bhawarlal (P.W. 5) has also confirmed the fact that there is a dispute on the point of worship in the temple in between both the parties. Bhawarlal (P.W. 6) has also confirmed the fact of dispute between both the parties. Hence there is enmity in between both the parties. 13. The knife with which Omprakash (P.W. 2) was assaulted, has not been seized during the investigation. The Investigating Officer Rajendra Prasad Sharma (P.W. 4) has not given any explanation that why the knife could not be seized. Therefore, the statement of Omprakash (P.W. 2) is not supported by the statement of Bhagwatibai (P.W. 5) and Bhawarlal (P.W. 6). Omprakash (P.W. 2) has changed the facts of the case. Enmity in both the parties is admitted. The Investigating Officer Rajendra Prasad Sharma (P.W. 4) has not given any explanation that why the knife could not be seized. Therefore, the statement of Omprakash (P.W. 2) is not supported by the statement of Bhagwatibai (P.W. 5) and Bhawarlal (P.W. 6). Omprakash (P.W. 2) has changed the facts of the case. Enmity in both the parties is admitted. Hence the sole statement of Omprakash (P.W. 2) was not reliable and does not inspire confidence and on the basis of it the Appellant was not liable to be convicted. 14. Therefore, on the basis of above discussion, I am of the opinion that Appellant Chotudas was not liable to be convicted. Hence this appeal deserves to be allowed. Appellant Chotudas is acquitted from the charges under Section of the IPC. His bail bonds are discharged. Fine if deposited, be returned to him.