JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Appellants, Ashok Kumar and Shekhar Prasad @ Chandra Shekhar Prasad have been found guilty for an offence punishable under Section 148, 324, 307 IPC and each of them has been directed to undergo R.I. for one year, R.I. for one and half year, R.I. for five years respectively, while appellants Sheonath Nonia, Nandu Prasad, Chokat Prasad, Lachhuman Prasad, Ram Nath Singh, Pramod Prasad, Keshav Prasad @ Keso Chandra Prasad have been found guilty for an offence punishable under Sections 147, 323, 307/149 of the IPC and each of them has been directed to undergo R.I. for six month, R.I. for six month, R.I. for five years respectively with a further direction to run the sentences concurrently vide judgment of conviction dated 30.11.1994, sentence dated 01.12.1994 passed by Second Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No.321 of 1988, the subject matter of instant appeal. 2. PW-10, Vijay Kumar one of the injured gave his fardbeyan on 31.10.1988 at MJK Hospital, Bettiah where he was admitted in injured condition alleging inter alia that on 30.05.1988 at about 09:00 A.M. he had come to Bettiah. During course of returning he gone to Paknaha at about 06:00 P.M. to get daughter of Harendra Prasad treated by a doctor. At that very moment, he came to know that his wife Dharamsheela Devi and his son Shashi Bhushan were assaulted by his brothers, Ashok Prasad, Shekhar Prasad, Pramod Prasad and Keso Chandra with iron rod as well as Farsa and on account thereof, they became injured. On getting this information, he rushed towards his house. When he came at his Darwaja along with daughter of Harendra Prasad, Ashok Prasad, Shekhar Prasad, Pramod Prasad, Keshav Prasad, Ramchandra Nonia, Sheonath Nonia, Nandu Prasad, Chokat Prasad, Lachhuman Prasad, Ram Nath Singh surrounded him and began to inflict iron rod blow as well as Farsa blow and at that very moment they have also said that he should be murdered. He became unconscious and fell down on the ground. So many persons of the locality including his family members have seen the occurrence. 3. It has further been disclosed that he happens to be Section Officer at Bokaro Steel Plant and used to reside along with his family members at Bokaro. Occasionally he visits his parental house and on account thereof, his brothers are adamant to digest his share. So many persons of the locality including his family members have seen the occurrence. 3. It has further been disclosed that he happens to be Section Officer at Bokaro Steel Plant and used to reside along with his family members at Bokaro. Occasionally he visits his parental house and on account thereof, his brothers are adamant to digest his share. In the aforesaid background they have caused murderous assault over him as well as his wife, son whereupon they have been admitted at MJK Hospital, Bettiah. As he was unconscious so he was unable to give his fardbeyan on earlier. He had also mentioned, Ram Lakhan Mahto, Harendra Prasad, his daughter Vidyashree Kumari, Subhash Kumar, Bimal Prasad, Kumar Ravi Bhushan to be an eyewitness to occurrence. Harendra Prasad, Subhash Kumar and Ram Lakhan Mahto stood as FIR attesting witness. 4. On the basis of the aforesaid fardbeyan, Bairia P.S. Case No.36/1988 was registered followed with investigation and after completing the same charge sheet was submitted whereupon the trial commenced and concluded in a manner as referred above which has been challenged on behalf of appellant / convict under present appeal. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence. It has also been submitted that prosecution party might have sustained injury in some different manner at some different place but in the background of prevailing animosity they have been falsely roped in. Moreover, DW-1, Binod Prasad, full brother of both the parties has been examined as having no exhibit. 6. In order to substantiate its case the prosecution had examined altogether twelve PWs out of whom PW-1 is Subash Kumar, PW-2 is Dr. Sunil Kumar, PW-3 is Ram Lakhan Mahto, PW-4 is Md. Noor Ali, PW-5 is Harendra Prasad, PW-6 is Kumar Shashi Bhushan, PW-7 is Ravi Bhushan Prasad, PW-8 is Ranju Kumari, PW-9 is Dharamsheela Devi, PW-10 is Vijay Kumar, PW-11 is Ramadhar Pandey, PW-12 is Gopal Prasad. 7. Side by side also exhibited Ext.-1 Series- Injury Report, Ext.-2- FIR, Ext.-3- Signature of FIR attesting witness Harendra Prasad, Ext.-4 Series- Discharge Certificate, Ext.-5 – Prescription issued by Dr. K.K. Singh, Ext.-6– Discharge Certificate in the pen of Dr. S. Sarkar, Ext.-7-Fardbeyan, Ext.-8-Endorsement over fardbeyan. 7. Side by side also exhibited Ext.-1 Series- Injury Report, Ext.-2- FIR, Ext.-3- Signature of FIR attesting witness Harendra Prasad, Ext.-4 Series- Discharge Certificate, Ext.-5 – Prescription issued by Dr. K.K. Singh, Ext.-6– Discharge Certificate in the pen of Dr. S. Sarkar, Ext.-7-Fardbeyan, Ext.-8-Endorsement over fardbeyan. The prosecution had also exhibited material exhibit as Exhibit-I Bed Sheet, Exhibit-II Bandage, Exhibit-III-Trouser (Fullpant), Exhibit-IV- Shirt, Exhibit-V-Towel, Exhibit-VI-Vest. 8. Contrary to it defence had also examined DW-1, Binod Prasad however having no exhibit. 9. The learned counsel for the appellant fairly submitted that both the parties happens to be full brothers and on account of some sort of personal grudge and vendetta unfortunately got involved in the present episode, therefore, appellants be released modifying the sentence period already undergone. 10. It has been submitted on behalf of learned Additional Public Prosecutor assisted by learned counsel for the informant that from the evidence of injured inconsonance with the injury report, appellants did not warrant any sort of leniency. Consequent thereupon, the finding recorded by the learned trial court along with the sentence so inflicted be maintained. 11. PW-10 is the informant himself. From the fardbeyan, it is evident that on 30.05.1988 at 09:00 AM he had gone to Bettiah. In fardbeyan he had not disclosed whether Harendra Prasad had accompanied him along with his daughter or he was so instructed /informed by Harendra Prasad to come to Paknaha to facilitate medical check up of his daughter. Therefore, appearance of informant at Paknaha to have medical check up of daughter of Harendra Prasad is a matter of concern. In likewise manner, it is also apparent from the fardbeyan that he had not mentioned the source how he came to know with regard to assault over person of his wife as well as his son Shashi Bhusan. 12. During course of his evidence as PW-10, the informant had stated that on 30.05.19888 at about 05:30 PM he had gone to Paknaha to have medical check up of daughter of Harendra. At that very moment, his son Kumar Ravi Bhusan came and disclosed that Ashok Kumar began to quarrel with his mother as well as assault having been made by Ashok, Shekhar, Keshav and Pramod along with their wives. At that very moment, his son Kumar Ravi Bhusan came and disclosed that Ashok Kumar began to quarrel with his mother as well as assault having been made by Ashok, Shekhar, Keshav and Pramod along with their wives. Ashok had assaulted with the back portion of Farsa on account of which his wife had sustained facture injury over her head while remaining three have assaulted with iron rod. On this information, he rushed to his village. He came at his Darwaja and while he was parking his motorcycle near mango tree Ashok Prasad, Shekhar Prasad, Keshav Chand Prasad, Pramod, Ramnath Singh, Chokat, Lachhuman, Vishwanath, Ramchandra, Nandu began to inflict indiscriminately by Farsa as well as iron rod. He had further asserted that Ashok and Shekhar had given Farsa blow over his head on account of which he sustained cut injury over his head. He became unconscious and fell down. However, he regained sense for a short time and during course thereof, Keshav Chand, Pramod, Ramnath, Chokat, Lachhuman, Sheonath, Ramchandra, Nandu have assaulted him with iron rod. He was lying in injured condition whereupon he was shifted to Bettiah Hospital. He regained sense on the following day. He further stated that he regained little sense and during course thereof, he had given his fardbeyan before the police. He had further stated that to digest his share, the accused persons attempted upon his life. He had further stated that he was referred for better treatment from Bettiah Hospital whereupon he had gone to Patna, got treated and then was referred to Ranchi. His wife was also treated at Patna. Then had exhibited the discharge certificate granted by respective doctors in his favour as well as in favour of his wife. He was examined at Ranchi by Dr. K.K. Sinha and got prescription of Dr. K.K. Sinha exhibited. Thereafter he was referred to Dr. G.K. Prusti, Bokaro who also treated him and exhibited relevant prescription. He had also stated that he was confined to bed for three months. He had also exhibited material exhibits as the police did not oblige him. 13. During cross-examination at para-18, he had stated that he came to know regarding quarrel at Paknana. At that very time, Harendra and his younger daughter was along with him. His son Ravi Bhushan had informed him. He had proceeded therefrom on motorcycle along with Harendra, his daughter and Ravi. 13. During cross-examination at para-18, he had stated that he came to know regarding quarrel at Paknana. At that very time, Harendra and his younger daughter was along with him. His son Ravi Bhushan had informed him. He had proceeded therefrom on motorcycle along with Harendra, his daughter and Ravi. In para-19, he had stated that first blow was given by Ashok followed by Shekhar. He had further stated, he had not fallen on the assault made by Ashok as well as Shekhar. Then thereafter others have assaulted with rod and due to aforesaid assault he fallen down. He had further stated that Farsa blow was inflicted. Both the Farsa was inflicted from front side. He had not became unconscious after sustaining Farsa injury, however he became unconscious after sustaining assault. He had further stated that he had tried to escape and during said course he was again assaulted. He was brutally assaulted. He had sustained injury over his face as well as whole body. In para-20, he had stated that he began to recover on following day at Bettiah hospital. He had further stated that at the time of fardbeyan he was not at all fully conscious. But was in a position to give statement. He had further stated that he was referred by the doctor on the following day. He had further stated that as he was unconscious therefore he was unable to say whether he was discharged from Bettiah Hospital or not. He had further stated that he had not talked with anybody else even his family members save and except Darogaji. He further stated that he was unaware with the fact that his family members forcibly took him away to Patna. He had further stated that he regained sense at Patna but how many days he can’t say. At para-24 as well as 25 there happens to be contradiction with regard to the statement relating to fardbeyan. 14. PW-9 is Dharamsheela Devi, his wife. She had stated that on the alleged date and time of occurrence she was at Dumariya where an altercation took place in between her as well as wife of Ashok concerning some articles over which Ashok, Shekhar, Pramod and Keshav Chand came. Ashok and Shekhar were armed with Farsa. Pramod and Keshav were armed with iron rod. Ashok gave blow from back portion of Farsa. Ashok and Shekhar were armed with Farsa. Pramod and Keshav were armed with iron rod. Ashok gave blow from back portion of Farsa. Shekhar had also inflicted back portion of Farsa. Pramod and Keshav assaulted with iron rod over her both hands and body. She sustained injury over her head. She became unconscious on account of assault however just after 10-15 minutes she regained sense and heard sound of motorcycle. Her husband had come she rushed and gone near him and found that while he was parking the motorcycle, Ashok and Shekhar began to inflict Farsa blow one by one on account of which her husband sustained cut injury over his head. Pramod, Keshav, Nandu, Sheonath, Ramchandra, Chokat, Lachhuman, Ram Nath Singh began to assault with iron rod. Thereafter, her husband was taken to Bettiah for treatment. During cross-examination at para-12, 13, 14 (wrongly numbered as 15 & 16) there happens to be contradiction. In para-19, she had stated that at the time of assault over her, her children along with Ranju were present. In para-20, she had stated that while an altercation was going on, all the accused began to assault. She was assaulted outside the room. Both of them gave Farsa blow but there was only one cut injury. First blow was given by Ashok and then by Shekhar. Copious blood had fallen. In para-21, she had stated that during course of assault by rod she was standing. They were taken to hospital at 08:00 P.M. In para-24, she had stated that as soon as her husband came and was taken out the key, the accused persons came and began to assault him. First of all both of them gave Farsa blow. First blow was given by Ashok. Her husband fell down. He was not in a position to escape therefrom. People have surrounded from all side when he was restless at that very time he was assaulted by iron rod. Eight persons have assaulted him with iron rod. She is not remembering the exact location. He was assaulted 2-4-5 minutes. She tried to rescue him but on account of assemblage of people she could be not able to go there. So many villagers were present. None had dared to snatch iron rod as well as Farsa. They were just witnessing the occurrence. She had not seen whether any person on her side came forward or not. 15. She tried to rescue him but on account of assemblage of people she could be not able to go there. So many villagers were present. None had dared to snatch iron rod as well as Farsa. They were just witnessing the occurrence. She had not seen whether any person on her side came forward or not. 15. PW-6 is another injured, Kumar Shashi Bhushan. He had stated that on the alleged date and time of occurrence he was at his house. There was dispute amongst his aunt as well as mother. Ashok, Shekhar, Pramod and Keshav Chand began to assault his mother. Ashok, Shekhar were armed with Garasa. Pramod and Keshav Chand were armed with iron rod. His father was informed regarding occurrence. His father along with Harendra Prasad, Ravi Bhushan came. They have also assaulted his father. His father became unconscious after sustaining injury and was rushed to Bettiah for treatment. During cross-examination at para-4, he had stated that at the time when quarrel began his father had gone to Paknaha. The dispute was relating to share. He had said to his mother that let father come and then the issue will be finally settled over which her mother became silent. After five minutes, again dispute cropped up. Marpit took place. From his side only he along with his brother and mother were present while from accused side there were ten persons, namely, Ashok Prasad, Shekhar Prasad, Pramod, Keshav Chand, Chokat, Lachhuman, Ramnath, Nandu, Shayam Bihari, Ramchandra, who were duly armed. Ashok, Shekhar were armed with Farsa while rest were armed with iron rod. He along with his mother was assaulted. Her mother did not become unconscious. At para-6, he had stated that he was assaulted by four persons. He was given back of Farsa blow as well as rod blow and then had detailed under para-6 and 7 regarding occurrence. In para-8 he had further stated that only two persons sustained injury inside house. He had further stated that his brother had gone to Paknaha over bicycle. In para-10, he had stated that at the time of arrival of his father accused persons were standing at Darwaja since before. His father was assaulted just after arrival. Harendra tried to prevent and during course thereof, he was also assaulted. First of all Harendra was assaulted. He was given iron rod blow. In para-10, he had stated that at the time of arrival of his father accused persons were standing at Darwaja since before. His father was assaulted just after arrival. Harendra tried to prevent and during course thereof, he was also assaulted. First of all Harendra was assaulted. He was given iron rod blow. He was not inflicted by Garasa and then thereafter Harendra escaped therefrom and got hidden behind Subhash’s house came after the occurrence. One Lakhan Mahto, friend of his father was also present there but he had not tried to intervene. In para-11, he had stated that first of all Farsa blow was given over his father. First blow was given by Ashok over which his father fell down follwed by Shekhar. His father was also given rod blow by Pramod, Keshav, Ramnath, Luchhaman, Chokat, Nandu, Shayam Bihari and Ramchandra. In para-17 happens to be the contradiction. 16. PW-2 is the doctor, who had examined Dharamsheela Devi as well as Vijay and issued the injury report relating to injuries found over their persons. Dharamsheela Devi i. One lacerated injury on scalp, bleeding ½ x ¼” x ¼” caused by hard and blunt substance. Simple. ii. One lacerated swelling on the left arm 1 ½” x 2”, Simple caused by hard and blunt substance. iii. One lacerated swelling on right arm 1” x 1”. Simple. Caused by hard and blunt weapon. Time of Exam.- Time 9-10 P.M. Duration within 4 hours approximately. Opinion:- The injuries may be caused by lathi also. Bijay Kumar – Patient was semiconscious position with vomiting and sign at menegeal irritation. i. The cut injury on scalp in middle, bleeding dimension 2” x ¼” x ¼” on scalp caused by sharp cutting weapon. ii. One cut injury on scalp left side dimension 1” x ¼” x ¼” caused by sharp cutting weapon. iii. One bruise 2” x 1” left side of face caused by hard and blunt substance. Nature of Injury:- Injury No. 1 & 2 – Opinion is reserved as patient has been transferred for the PMCH for further treatment. Injury No.3 – Simple in nature. Duration – With 4 hrs. approx. Exam- Time – 9 PM. Injury No.1 & 2 may be caused by sharp cutting weapon as Farsa. Nothing substantial has been procured during course of cross-examination to disbelieve the injury report. 17. Injury No.3 – Simple in nature. Duration – With 4 hrs. approx. Exam- Time – 9 PM. Injury No.1 & 2 may be caused by sharp cutting weapon as Farsa. Nothing substantial has been procured during course of cross-examination to disbelieve the injury report. 17. Now come to rest PWs, PW-1, happens to be hostile while PW-4 and PW-12 happens to be formal in nature. PW-3 is Ram Lakhan Mahto, who had arrived at the house of informant on an information given by Ravi and seen wife of Ashoka quarreling with wife of informant. Thereafter, Ashok, Shekhar, Pramod, Keshav indulged in assaulting Shashi as well as wife of informant. He had also disclosed that Shekhar had assaulted over head of Vijay’s wife with iron rod and in likewise manner Ashok also assaulted wife of Vijay with iron rod. When Vijay came, Ashok and Shekhar gave Garasa blow over his head. Pramod, Keshav, Ramnath, Chokat, Nandu Ramchandra, Sheonath also assaulted. After sustaining injuries Vijay fell down and became unconscious. Then thereafter he was taken to hospital. In para-11 he had admitted to be convict of a Dacoity case as well as also admitted that he looks after affair of informant. He had also admitted that Harendra happens to be his nephew who was also inside jail in connection with Dacoity case. Paragraph 19, 20, 21, 22, 23, 25, 26 happens to be contradiction and in para-24 he had stated that he had gone inside the Aagan while altercation was going on. He tried to pacify. In para-32 he had stated that at the time of arrival of Viajy at his Darwaja about 50-60 persons were present since before. 18. PW-5 had stated that on the alleged date he had gone to Paknaha along with Vijay Kumar where his son Ravi Bhushan came and informed that Shekhar, Ashok, Pramod were assaulting his mother over which both of them came over motorcycle. As soon as they reached, Ashok, Shekhar, Pramod, Keshav, Nandu, Ramchandra, Shivnath, Chokat, Luchhuman, Ramnath surrounded him as well as Vijay Kumar. Since the Vijay got down from motorcycle, Ashok and Shekhar gave Farsa blow over his head, rest have assaulted with iron rod. Vijay fell down and became unconscious. Then thereafter they have lifted the Vijay to Hospital. He had also seen injury over person of Dharamsheela. He had also sustained injury. Since the Vijay got down from motorcycle, Ashok and Shekhar gave Farsa blow over his head, rest have assaulted with iron rod. Vijay fell down and became unconscious. Then thereafter they have lifted the Vijay to Hospital. He had also seen injury over person of Dharamsheela. He had also sustained injury. During course of cross-examination at para-7, he had admitted that he has been identified by two witnesses in course of Test Identification Parade relating to Dacoity case. In para-9, he had further stated that his house lies 1 KM away from the P.O. At para-10, he had further stated that they have received information from Ravi Kumar at 07:00 P.M. at Paknaha. Police outpost is there, but they have not gone to inform. In para-11, he had stated that when he reached at the house of Vijay Kumar, he found wife of Vijay as well as his son in the injured condition. At that very time so many persons were present. In para-13, he had stated that Vijay had sustained injury near about mango tree. He had further stated that no sooner than his arrival he was assaulted and on account thereof fell down. First of an Garasa blow was given on account of which he fell down and then he was assaulted by others with rod. He is unable to say the exact location of the body where blows were given. In para-14, he had also stated that blood had fallen down over earth. He had further detailed the occurrence in para-20 of his cross-examination. 19. PW-7 is Ravi Bhushan Prasad, he had deposed that on the alleged date and time of occurrence while he was at his house a quarrel had erupted in between his mother as well as wife of Ashok relating to partition whereupon Ashok, Shekhar, Pramod and Keshav began to assault his mother. At that very time, Ashok was armed with Farsa while Shekhar, Pramod and Keshav were armed with rod. Keshav had given Farsa blow from its back side over his mother while Pramod, Shekhar and Keshav assaulted with iron rod. His brother Shashi Bhusan intervened on account of which he was also assaulted. Then, thereafter he had gone to inform his father at Paknaha over which he along with his father and Harendra Prasad came over motorcycle. As soon as they arrived, Ashok Prasad gave Farsa blow over head of his father. His brother Shashi Bhusan intervened on account of which he was also assaulted. Then, thereafter he had gone to inform his father at Paknaha over which he along with his father and Harendra Prasad came over motorcycle. As soon as they arrived, Ashok Prasad gave Farsa blow over head of his father. Shekhar Prasad had also given Farsa blow over head of his father. Pramod, Keshav Chand, Ramnath, Chokat, Lachhuman, Nandu, Sheonath and Ramnath have assaulted his father with rod. His father fell down. Subsequently thereof, his father was lifted hospital. Para-10, 11, 12, 13 happens to be contradiction. In para-17, he had stated that talk relating to partition had continued in his presence for ten minutes over which his mother had said that after arrival of her husband the matter will be discussed. Just ten minutes thereafter the assault took place. Accused began to assault. Accused have assaulted his mother as well as brother. He also tried to intervene but was threatened. Then thereafter, he proceeded therefrom. His mother was given single farsa blow. In para-18, he had stated that he took 25 minutes to arrive at Paknaha by bicycle however he returned back over motorcycle. Cycle was left at the place of doctor. At para-19, he had stated that all the accused persons were standing near mango tree, no talk held in between his father as well as accused persons before the occurrence. First farsa blow was given by Ashok. They have gone to prevent. They were standing. Harendra was also standing. He was also chased but was not assaulted. Harendra hidden behind house of Subhash. In para-20, he had stated that Ashok had given one farsa blow. Shekhar had also given Farsa blow. Then had detailed the physical feature of Farsa. Rest assaulted with iron rod. In para-22, he had stated that his father had regained sense at hospital on the following day. Again at para-28, he had detailed about occurrence. 20. PW-8 is Ranju Kumari who happens to be daughter of one Chandrika Prasad. She had stated that on the alleged date and time of occurrence she was at the house of Vijay Kumar. There was quarrel in between wife of Ashok as well as Viajy whereupon Ashok and Shekhar have assaulted her (wife of Vijay) with Farsa while Pramod and Keshave assaulted her with iron rod. She had stated that on the alleged date and time of occurrence she was at the house of Vijay Kumar. There was quarrel in between wife of Ashok as well as Viajy whereupon Ashok and Shekhar have assaulted her (wife of Vijay) with Farsa while Pramod and Keshave assaulted her with iron rod. After sustaining injury wife of Vijay fell down and became unconscious. Shashi Bhushan rushed who was also assaulted. Another son of Vijay gone to inform Vijay. Vijay came and was assaulted by Shekhar, Pramod, Ashok and Keshav Chand, Nandu, Ramchandra, Lachhuman, Ramnath, Chokat. During said course Ashok and Shekhar had given Farsa blow and rest have assaulted with iron rod. Subsequently, thereof, Vijay was lifted to hospital. During cross-examination at para-6, she had stated that her father happens to be friend of Vijay Babu. Earlier she was residing at Banka however now a days she is residing at Bokaro. In para-11, she had stated that they have gone to Bettiah where stayed whole night, as the doctor referred, shifted to Patna. Vijay Babu gained sense intermittently but again became unconscious. They have left Bettiah Hospital at 06:00 A.M. for Patna. Harendra had gone along with Vijay. She along with his wife, daughter, Shashibhushan, Ravi Bhushan also joined. They arrived at 10:00 A.M. till then Vijay Babu was unconscious. He continued with same status for two or three days. Vijay Babu had given his statement at Patna after regaining sense. In para-12, there happens to be contradiction. In para-13 she had stated that first of all wives of Vijay and Ashok indulged in fray. There was push and pull and during course thereof, wife of Ashok threw her on the ground Ashok, Pramod, Keshav and Shekhar arrived at that very moment. Instead of intervening into the matter, they assaulted. Assault was made from back side of Farsa. Two persons Ashok and Shekhar have inflicted Farsa blow. At that very time wife of Vijay was lying. She sustained injury over head and became unconscious. In para-15, she had stated that when she came out she found Vijay Babu lying and was unconscious. She along with his wife and daughter have gone to Vijay Babu. People were present. She had further stated that she had seen the occurrence but again stated that assault was not made in his presence. 21. PW-11 is the Investigating Officer. In para-15, she had stated that when she came out she found Vijay Babu lying and was unconscious. She along with his wife and daughter have gone to Vijay Babu. People were present. She had further stated that she had seen the occurrence but again stated that assault was not made in his presence. 21. PW-11 is the Investigating Officer. He had stated that on 03.06.1988 he was Officer-in-charge of Bairia Police Station. On that day he received fardbeyan of Vijay Kumar from town P.S. and on the basis thereof, case was instituted. He took up investigation. Recorded statement of witnesses. He had visited the place of occurrence on 06.06.1988 which happens to be residential house of informant facing north. He had further detailed the topography of the house. He had also visited the second place of occurrence which happens to be mango tree standing in front of house of informant. He had found the tramping mark as well as scratching mark suggesting removal of blood. Received the injury report of the injured and after completing investigation submitted charge sheet. At para-6, the statement of PW-1 (hostile) was also drawn up. During course of cross-examination at para-9, he had stated that he had found so many marks of foot print. In para-10, he had found the blood scratched. Some blood spot was visible hither and thither but he had not seized those spots as it was in small area. He had fairly admitted that he had not mentioned those things in the case diary. In para-11, he had disclosed that he had mentioned the fact in the case diary that accused persons are absconding but have not specified by name. In para-13, he had stated that he had not asked for clarification from the doctor regarding the injury. Paragraph 15, 16 happens to be contradiction relating to witness, Ram Lakhan (PW-3). Paragraph 19 happens to be relating to witness Shashibhushan (PW-6). Paragraph-20 relates with witness Ravi Bhushan (PW-7). Para-21 relates with witness, Ranju Kumari (PW-8). Para-22 relates with Dharamsheela (PW-9). 22. PW-12 happens to be formal in nature who had exhibited the fardbeyan in the pen of S.I., I. Miaz who was posted at Bettiah Town Police Station. 23. DW-1 is Binod Prasad, full brother of both sides. He had admitted that dispute on account of partition still survives. Para-22 relates with Dharamsheela (PW-9). 22. PW-12 happens to be formal in nature who had exhibited the fardbeyan in the pen of S.I., I. Miaz who was posted at Bettiah Town Police Station. 23. DW-1 is Binod Prasad, full brother of both sides. He had admitted that dispute on account of partition still survives. He had further stated that occurrence did not took place as per narration given by Vijay, however is found controverted from para-3 of his cross-examination wherein he had stated that there was no litigation amongst the brothers before this incidence. 24. After having conjoint reading of the evidence of all the witnesses in consonance with the evidence of Investigating Officer PW-11, it is evident that there happens to be embellishment as well as development which the witnesses made during course of their evidence during trial as is evident from the evidence of I.O. If the evidence of PW-8, Ranju Devi is taken into consideration (PW-11) then in that event the authenticity of the present FIR has come under suspicion because of the fact that as per her evidence before recording of aforesaid fardbeyan victim had already left for Patna as referred by the doctor and further, the injured had given his fardbeyan at Patna. 25. Furthermore, she also disowned to be an eye witnss of assault over person of Vijay. In likewise manner happens to be evidence of PW-3 as well as PW-5. 26. Then coming to the status of injured, at least as per evidence ofPW-2, the doctor informant and his wife were the injured. From the evidence ofPW-2, it is apparent that there happens to be total failure on the part of appellant to credit his evidence so far nature of injury over persons of injured are concerned. And on this score when the evidence of both the injured along with Shashi Bhushan is gone though it is evident that all the three are consistent over manner of occurrence as well as nature of occurrence. 27. Furthermore, even though during course of argument, appellants have raised objection over its genuineness by elaborately referring the admitted position of prosecution that the informant had made statement while was in semi-conscious state, and on account thereof, the allegation cannot be accepted because it could not be seen beyond illusion, however, appears to be mere a ground for argument. 27. Furthermore, even though during course of argument, appellants have raised objection over its genuineness by elaborately referring the admitted position of prosecution that the informant had made statement while was in semi-conscious state, and on account thereof, the allegation cannot be accepted because it could not be seen beyond illusion, however, appears to be mere a ground for argument. When the evidence on this score has been gone through, it is evident that PW-2, doctor was not at all cross-examined on that score nor the informant PW-10 save and except under para-20, which too not specific. As such appellant is precluded to raise the issue. 28. Now coming to the objective finding of the Investigating Officer regarding the place of occurrence in the facts and circumstances of the case that does not bear much importance in the background of the fact that the FIR was registered after receipt from the Bettiah police as well as having presence of Investigating Officer at the place of occurrence on 06.06.1988 after having a long gap. However again the cross-examination of injured witnesses did not yield favour because of the fact that they also happens to be consistent over place of occurrence supported by Shashi Bhushan as well as Ravi Bhushan. 29. Then coming to the evidence, from PW-2, the doctor, PW-9 and PW-10 were examined by him while they were admitted at Bettiah Hospital. Again that part of story is found unshaken. In similar way happens to be with regard to injury sustained by Vijay Kumar who had took her injury over the scalp 2” x ¼” x ¼”, ½ x ¼” x ¼” along with one more bruise 2” x 1”. With regard to injury no.1 & 2 the opinion was reserved. It is further evident from the evidence of PW-2 that the patient was referred to PMCH but there is absence on which day he left for PMCH. At the present moment, the relevancy of other injury report being 4, 4A & 5, 6 have gone out of consideration because of the fact that the concerned doctor have not been examined and on account thereof, its connectivity with the occurrence so alleged is found unchained. 30. With regard to appreciation of evidence of injured witness law is very much clear. 30. With regard to appreciation of evidence of injured witness law is very much clear. It should not be brushed aside in usual manner because of the fact that on account of presence of injury, presence of injured at the place of occurrence is found and in case there happens to be consisting version with regard to manner of occurrence then in that event, there is no difficulty in accepting their version that they have sustained the injury in a manner as deposed by them. PW-10 and PW-9 are the injured. PW-9 had sustained injury at an earlier count than PW-10 and for that, as is evident found supported with from the evidence of PW-6 her son Shashi Bhushan as well as Ravi Bhushan, who supported the same. In likewise manner there happens to be the evidence of PW-10, the informant as well as injured which is found supported with the evidence of PW-9 as well as PW-6 and 7. Even discarding the evidence of PW-3, PW-5 who are uncle and nephew and whose presence at the place of occurrence appears to be doubtful. 31. Now coming to applicability of the sections, it is evident that PW-9 was assaulted by the back of Farsa along with iron rod. In likewise manner Vijay was also assaulted with Farsa but without repetition although there was no intervening circumstance. Furthermore, there happens to be allegation against others save and except Ashok and Shekhar that they have repeatedly made indiscriminate blow over Vijay but from the evidence of PW-2 in consonance with the injury report Ext.1/A such activities are not found corroborated with. It is further apparent that apart from having the injury 2” x ¼” x ¼” , ½ x ¼” x ¼” over head of Vijay caused by sharp cutting weapon, only one injury caused by hard and blunt substance was found by the PW-2. Furthermore, the nature of injury regarding injury no.252 never been disclosed by the prosecution. 32. From plain reading of Section 307 of the IPC, it is evident that presence of injury is immaterial for attracting Section307 of the IPC. Any act committed with an intention or knowledge which may cost life of victim is found punishable under Section 307 of the IPC however for the purpose of sentencing, it is found bifurcated under two parts. From plain reading of Section 307 of the IPC, it is evident that presence of injury is immaterial for attracting Section307 of the IPC. Any act committed with an intention or knowledge which may cost life of victim is found punishable under Section 307 of the IPC however for the purpose of sentencing, it is found bifurcated under two parts. The first one, where hurt is found and the second one where hurt is absent. hurt is defined under Section 319 of the IPC and for that nature of injury is found immaterial. 33. However, adjudicating upon action of accused while considering applicability of Section 307 of the IPC is to be gathered from the conduct of the accused. The conduct is to be gathered by the weapon which the accused was carrying at the time of commission of occurrence, its application, location of body, whether repetition was made or not even in absence of any sort of intervening circumstance. While considering the evidence of informant PW-10 injured PW-9 as well as PW-2 the doctor along with injury report Ext.1/A it is apparent that single farsa blow was given by Ashok as well as Shekhar without any repetition although there was no intervening circumstance. The location of the body happens to be head. Although the nature of the injuries never came up from the prosecution size but the side of the injury suggest otherwise 2” x ¼” x ¼” as well as ½ x ¼” x ¼”. Furthermore, it is evident from the consistent version of prosecution witnesses that parties were not inimical term save and except having dispute over partition. It is also evident from the evidence that the parties have got no grievance since before the occurrence. It is also evident that dispute arose on account of quarrelling which unfortunately took place amongst PW-9, Dharamsheela Devi with the wife of Ashok whereupon push and pull was which sparked and on account thereof, one could not infer that appellants were carrying an intention or knowledge to commit murder of Vijay which could have justified application of Section 307 of the IPC. 34. On account thereof, the conviction and sentence recorded by the learned court to the extent of Section 307 as well as 307/149 of the IPC is set aside while confirming the remaining part of finding in consonance with the sentence so inflicted therefor. 34. On account thereof, the conviction and sentence recorded by the learned court to the extent of Section 307 as well as 307/149 of the IPC is set aside while confirming the remaining part of finding in consonance with the sentence so inflicted therefor. As such, the appeal is dismissed with the aforesaid modification. Appellants are on bail, hence their bail bonds are cancelled with a direction to surrender before the learned lower court to serve out the remaining part of sentence.