JUDGMENT : A.K. Trivedi, J. - Petitioner Motilal Sah, has challenged the judgment dated 19.7.2001 passed by Sri Krishna Kumar Dwivedi, Judicial Magistrate, Sadar, East Champaran at Motihari in Complaint Case No. 1295 of 1999, Sadhu Sharan Bhagat v. Motilal Sah & Ors. whereby and whereunder he along with others were found guilty for an offence punishable under Sections 147 and 323 of the Indian Penal Code while Prabhu Sah was found guilty for an offence punishable under Sections 148/324 of the Indian Penal Code and petitioner Motilal Sah was further found guilty for an offence punishable under Section 325 of the Indian Penal Code whereupon petitioner Motilal Sah was directed to undergo R.I. for three months under Section 147 of the Indian Penal Code as well as under Section 323 of the Indian Penal Code respectively while R.I. for two years under Section 325 of the Indian Penal Code with a further direction to run the sentences, concurrently against which Cr. Appeal No. 91 of 2001/10 of 2003 was filed which too was dismissed vide judgment dated 28.2.2003 passed by VIth Additional Sessions Judge, East Champaran at Motihari with a modification in sentence with regard to Section 325 of the IPC reducing it to R.I. for ten months. 2. It has been submitted on behalf of petitioner that the successive judgments are wrong and erroneous and is mere swage over the evidence available on the record. It has further been submitted that there happens to be inordinate delay in filing of complaint petition. The date of occurrence has been alleged as 1.10.1994 at 6:30 a.m. while the date of filing of complaint happens to be 30.11.1994 and whatever explanation happens to be, that is not appreciable in the background of evidence of Kamod Prasad, the Officer-in-charge of Turkaulia Police Station who has been examined as CW-1. In the present context, it has been submitted that from the evidence of CW-1, Kamod Prasad as well as Dr. Dhruv Prasad Gupta (PW 4), it is apparent that petitioners side were also assaulted having presence of injuries over their person at the end of prosecution and only to put safeguard against the case instituted by the petitioner's side, instant case has been filed. Non-explanation of injuries having over the person of accused side is another circumstances axing upon prosecution version over its reliability. 3. Non-explanation of injuries having over the person of accused side is another circumstances axing upon prosecution version over its reliability. 3. It has also been submitted that the place of occurrence has been shown over an area of 1/4, dhur of land of khesra No. 1851, khata No, 72 which, according to prosecution, happens to be in their possession and for that the vendor of the petitioner had filed a suit which was dismissed and on account thereof, the aforesaid area has been considered to be under exclusive possession of prosecution. From the exhibits made on behalf of respective arties, it is apparent that for the aforesaid area both the parties are at loggerheads. It has also been submitted that vendor of petitioner might have lost game, but at shorts the factum of possession is still under controversy. It has further been submitted that though in complaint petition the aforesaid area has been identified by a boundary, North-Pir Mahmad, South-Sadhu Sharan Bhagat, East-Mani Sah, West-Satyadeo , Prasad, however, is not at all found supported by the witnesses during course of evidence. It has further been submitted that PW 4 been had completely changed the place of occurrence and on account thereof, one could infer that it was the prosecution party who were aggressor and if any injury was caused to the prosecution party it was due to exercise of right of private defence. 4. It has further been submitted that 'in the aforesaid background, the conclusion arrived at by the successive Courts are not at all appreciable consequent thereupon is liable to be set aside. 5. At the other hand, the learned Additional Public Prosecutor refuted argument raised on behalf of petitioner and submitted that in all cases the non-explanation of injuries sustained by the accused is not going to dent upon prosecution case if the prosecution has succeeded in proving its case by consistent, cogent, reliable evidence. It has further been submitted that mother (PW 1) and daughter Kushum (since deceased) got injured during course of assault at the hands of petitioner including others while having gone to protest over illegal act of accused who were indulged in cutting jackfruit tree standing over khesra No. 1851. 6. It has further been stated that all the witnesses, PW 1, PW 2 PW 3, PW 4 have supported the same and is found corroborated by PW 5 the doctor. 6. It has further been stated that all the witnesses, PW 1, PW 2 PW 3, PW 4 have supported the same and is found corroborated by PW 5 the doctor. CW -1, Officer-in-charge of Turkaulia Police Station had during course of examination explained the cause of delay in getting the complaint filed before the Court. 7. It has further been submitted that when there happens to be successive finding based upon appreciation of evidence, then, in that event, revisional power should not be exercised for the purpose of disturbing the concurrent finding. 8. PW 3, Sadhu Sharan Bhagat had filed complaint petition on 30.11.1994 against altogether eight accused persons including the petitioner disclosing the fact that on 1.10.1994 at about 6:30 a.m. while the accused persons armed variously came over his land and began to cut jack-fruit tree, his wife and daughter gone to protest over which Motial had assaulted over left hand of his wife causing fracture thereof. She fell down. Then, Prabhua Sah pierced "bhala" at her left palm. Rest accused also assaulted with fist and slap as well as "lathi'. His daughter intervened into the matter and during course thereof, she was also assaulted. When he rushed in their rescue, Prabhu Sah gave "bhala" blow on account of which he sustained sharp cut injury over palm. Rest also assaulted with lathi, fist and slap. Then Motilal Sah began to assault after throwing him on the ground. Even during course of intervention by the witnesses, Motilal Sah began to press his neck. 9. Then, thereafter, he along with his wife and daughter came to Turkaulia Station from where they were sent to Primary Health Centre. His fardbeyan was recorded by the Officer-in-charge. His wife was referred to Motihari, where her X-ray was conducted and fracture of her hand was detected. During midst thereof, he rushed so many times to inquire about the case but he could not get any clue. He had further disclosed that in Title Suit No. 206/1961 the suit was decreed in his favour and the same was confirmed in Title Appeal No. 117/ 1964-65 vide judgment dated 25.11.1969. He had also stated that he got possession under D.P. 10. During course of trial PW 1 Kanti Devi (an injured), PW 2 Rajendra Sah, PW 3 Sadhu Sharan Bhagat (complainant), PW 4 Jungi Sah and PW 5 Dr. He had also stated that he got possession under D.P. 10. During course of trial PW 1 Kanti Devi (an injured), PW 2 Rajendra Sah, PW 3 Sadhu Sharan Bhagat (complainant), PW 4 Jungi Sah and PW 5 Dr. Dhruv Prasad Gupta were examined as well as eight exhibits have been brought up on record on behalf of complainant. At the other hand, the petitioner had also examined one witness as well as ten exhibits have been brought up on record on his side. CW-l, Kamod Prasad has been examined at the behest of Court. 11. PW 5 is the doctor who had examined the injured on 1-10-1994 at 8:05 a.m. and found the following injury :- (a) Relating to Pusam Kumari (since deceased) (i) Pain all over the body. (ii) Scratch 1/4' x 1/5' x skin thickness over left forearm caused by scratching with rough object. Simple in nature. (b) Sadhu Sharan Bhagat (i) Incised cut 2'x1/4'x1/4' over left palm medium side. (ii) Body pain Injury No. (i) caused by sharp weapon. Both the injuries simple in nature. (c) Kanti Devi (i) Fracture of left upper arm found, advised for X-ray. It shows fracture of left upper arm caused by hard and blunt weapon, Nature-grievous. (ii) Body pain simple. (iii) Lineal in side cut 1/2'x1/5'x skin thickness over the left palm caused by sharp weapon. Nature simple. 12. During cross-examination the doctor had disclosed that injuries can be manufactured in rare circumstance. In para-12 he had admitted that on 1.10.1994 he had also examined Motilal Sah, Prabhu Sah, Laxminiya Devi. He had found injury at the right hand of Motilal Sah caused by sharp cut weapon along with three other injuries while a sharp cut injury over parietal bone of Prabhu Sah along with sharp cut injury and found fracture over Laxminiya Devi and those injuries report are under Exhibit-"G" Series which also speaks regarding presence of grievous injury at the side of accused. 13. At the present moment, the evidence of CW-1, Kamod Prasad is to be taken into account who had stated that on 1.10.1994 at about 7:00 a.m. he had recorded fardbeyan of Sadhu Sharan Bhagat at Turkaulia Hospital, which he had exhibited as Exhibt-5 (ought not on account of his status as Court witness a separate exhibit list would have been prepared). He had also issued the injury report; On the basis of the aforesaid event was recorded under Sanha Entry No. 6 dated 1.10.1994. During cross-examination at para-3, he had stated that he had also taken statement of Motilal Sah and had also issued the injury report with respect to injured. In para-5 of his cross-examination, he had stated that he had not gone to place of occurrence. In para-5, he had stated that Sadhu Sharan Bhagat have not stated with regard to assault by "farsa". He had named Mannu, Mayalal and Subhash as a witness. He had further admitted that a proceeding under Section 107, Cr PC as well as 144, Cr PC was pending in between the parties since before the occurrence. So, from the evidence of doctor PW 5 as well as C.W., Kamod Prasad, it is abundantly clear that both sides have had sustained injury including grievous one. 14. In the aforesaid background, first of all the evidence of PW 3, complainant is to be seen. During his examination-in-chief, he had reiterated the narration of the complaint petition regarding manner of occurrence. He had also asserted that after occurrence they rushed to Turkaulia Police Station and from there they were sent to Turkaulia Hospital where they were examined and then his wife was sent to Motihari for better treatment. He had further stated that the jackfruit stood on 1/4, dhur of land of khesra No. 1851 which happens to be in his possession since the time of his grandfather for which Title Suit No. 206 of 1961 as well as Title Appeal No. 17/1964-65 was contested at the instance of Sheo Giri and Deo Kalo Giri which was decided in their favour. During cross-examination at paras-6 & 7 he had admitted that in a proceeding under Section 144, Cr PC the S.D.M. had passed order in favour of Motilal Sah. In para-8 he had .also admitted that Motilal Sah filed a case against them for the same occurrence. In para-9 he had admitted that accused persons have purchased land from Sheo Giri and on account thereof, they are over the land. He had further stated that on account of conviction in a case instituted by him the accused persons were on strain relationship. In para-9 he had admitted that accused persons have purchased land from Sheo Giri and on account thereof, they are over the land. He had further stated that on account of conviction in a case instituted by him the accused persons were on strain relationship. Then in para-11 have disclosed that the accused persons have got possession over remaining area of khesra No. 1851 excluding 1, dhur belonging to him on the basis of the sale-deed executed by Sheo Giri and Deo Kalo Giri. At paras-14, 15, 16 and 18 there happens to be detailed cross-examination over manner of assault having over PW 1, Kanti Devi, Rushum Devi (since deceased) as well as he himself. In para-19 he had stated that he had not sustained single Lathi blow. 15. PW 1 is another injured as well as wife of complainant, namely, Kanti Devi. During examination-in-chief she had supported the prosecution case. During cross-examination she had claimed the land to be ancestral one which they got on the basis of Court's order. At para-5 she had shown the boundary of the disputed area as North-Motilal Sah, South-She own, East-Motilal Sah, West-not knowing the name of landholder. In para-8 she had stated that accused persons are illegally claiming over the jackfruit. She had further stated that land of Motilal Sah lies North-East of the jackfruit. Then had stated that on an order of Court, pleader commissioner has come to measure the land. Then in para-10 she had narrated that there was litigation in between atithi at one side and their family at other side wherein decree was passed in her favour and then thereafter the accused persons purchased the land about 20 years ago. In para-12 she had stated that the accused persons have given 5-6 axe-blow till then she arrived and raised alarm on account thereof, the accused persons fled away. Kishori Sao was cutting root of the tree. Rest accused persons were armed with lathi, bhala and the female were armed with "mungari". At para-13, para-14, she had narrated the event of occurrence. 16. PW 2 had stated that after hearing uproar he rushed near jackfruit and found the accused persons indulged in cutting jackfruit tree. Motilal Sah was cutting the tree with axe. On protest made by Kanti Devi, Motilal Sah assaulted her on account of which she sustained fracture. She fell down. 16. PW 2 had stated that after hearing uproar he rushed near jackfruit and found the accused persons indulged in cutting jackfruit tree. Motilal Sah was cutting the tree with axe. On protest made by Kanti Devi, Motilal Sah assaulted her on account of which she sustained fracture. She fell down. Then Kushum rushed in rescue who was also assaulted. Sadhu Sharan came who was assaulted by Prabhu Sah with "bhala" as well as Motilal Sah. During cross-examination at para-5, he had stated that when he reached at the place of occurrence he saw fracture of hand of wife of Sadhu Sharan. He had also seen Kushum in an injured condition. He had seen that "bhala" had pierced at the hand of Sadhu Sharan. Then at para-7 had stated that Motilal Sah and other accused are illegally claiming the tree. He had further stated that the land of Motilal Sah lies East to jackfruit tree. He has further stated that a proceeding under Section 144, Cr PC as well as civil suit was in between party since before. In para-9 had stated that when he rushed at the place of occurrence one root of the tree was cut. In para-10 he had admitted that in counter case he happens to be an accused. In para-12 he had denied the defence version as well as presence of injury over the person of accused. 17. PW 4 Jungi Sah who had stated that apart from accused persons 3-4 more persons were there whom he had not identified when he reached at the place of occurrence after hearing alarm when he reached at the place of occurrence he saw wife of Sadhu Sharan lying and she was being assaulted with lathi by the accused persons. She had sustained fracture of hand. When daughter of Sadhu Sharan came in her rescue she was also assaulted with lathi, fist and slap. Kishori and Prabhu had given "bhala" blow over the wife of Sadhu Sharan. When Sadhu came in rescue he was assaulted. Prabhu Sah had given "bhala" blow causing injury over his hand. During cross-examination at para-7 he had disclosed that on query Sadhu Sharan had disclosed that on account of cutting of root of jackfruit tree by the accused persons, scuffle had taken place. In para-9 he had stated that he had seen the mark of axe over root which was being cut. During cross-examination at para-7 he had disclosed that on query Sadhu Sharan had disclosed that on account of cutting of root of jackfruit tree by the accused persons, scuffle had taken place. In para-9 he had stated that he had seen the mark of axe over root which was being cut. The jackfruit tree stands in the field of Sadhu Sharan and the root which was being cut was in the field of Motilal Sah. In para -10 he had stated that Motilal Sah is also claiming over the jackfruit. In para-11 he had stated that after measurement of the land by the Government Amin as well as Private Amin, they have directed both the parties to get it resolved through panchayati. He had further disclosed in para-13 that the root which has gone to the field of Motilal Sah has boundary South-Sadhu Sharan, East-Motilal Sah, West-Motilal Sah. In para-16, he had stated that both the parties are patidar. In para-17 he had stated that the disputed land happens to be possessed by Sadhu Sharan on the basis of Thika whereupon his house lies and he had also grown plant thereupon. 18. From oral evidence, it is evident that the land of accused lies at two sides of the jackfruit plant. It is also admitted fact that Motilal Sah had purchased khesra No. 1851 from its recorded owner. From Ext.-2 as well as 3, it is evident that Sheo Giri as well as others have filed suit for recovery of possession with regard to Schedule-II land which happens to be 1/4, dhur of Plot No. 1851 having boundary North-Pir Md. South-Sadhu Sah. East-Mani Sah, West-Satyadeo Prasad which they lost even up to appellate stage. It is also apparent from the evidence of PWs that accused persons were cutting the root of the jackfruit tree which had extended up to their field and naturally that was bound to affect the longevity of the jackfruit tree side by side it was bound to cause hurdle in proper farming over their plot by the accused persons. It is also apparent from the evidence of PWs that accused persons were cutting the root of the jackfruit tree which had extended up to their field and naturally that was bound to affect the longevity of the jackfruit tree side by side it was bound to cause hurdle in proper farming over their plot by the accused persons. In the aforesaid background when the evidence of PW 5 as well as CW -1 is gone through, it is apparent that on the alleged date and time of occurrence both the parties have sustained injuries extending to grievous one and for that both the parties have recorded their statement followed with filing of complaint case when police failed to take proper action thereupon as admitted by the complainant along with witnesses. It is also apparent from exhibit on behalf of both the parties that they are fighting tooth to nail on that very score. It is also evident from evidence of PW 4 that complainant had disclosed to him that a scuffle has taken place. In the aforesaid background, it could very safely be inferred that there happens to be free fight and on account of concealment by the prosecution, there has been suppression of material facts which is found sufficient to conclude that prosecution has not come with clean hand, although the witnesses have tried their best to support prosecution version. On account thereof, the successive judgments are set aside. Petition is allowed, petitioner is on bail, hence is discharged from its liability. Petition allowed.