JUDGMENT Appellants, Awadhesh Tiwary @ Vishwanath Tiwary, Sita Ram Tiwary, Amrendra Tiwary, Tribhuwannath Tiwary, Sri Kirshna Tiwary, Visheshwar Kamkar and Gauri Shankar Tiwary have been found guilty for an offence punishable under Sections 147 IPC, 323 IPC and each one has been fined of Rs. 250/- under both heads independently, appellant, Amrendra Tiwary has further been found guilty for an offence punishable under Sections 379 IPC and fined of Rs. 5000/- vide judgment of conviction and sentence dated 19.01.2002 passed by 1st Additional Sessions Judge, Buxar in Sessions Trial No. 8/86. However, the judgment impugned did not contain the clause that in default of payment of fine whether all the appellants will suffer imprisonment if so for what period. 2. Amarnath Tiwary (PW-5) gave his Fard-e-beyan on 26.03.1985 at about 4:30 p.m. alleging inter alia that he along with Anant Narayan Tiwary, Rabindra Nath Tiwary and Ram Kumar were proceeding towards their house from Arrah and as soon as came near their wheat field, was seen by his Pattidars, whereupon Tribhuwan, Amrendra, Awadhesh @ Vishwanth armed with lathi came near him and on an exhort made by Sita Ram Tiwary, all of them began to assault, on his alarm. Anant, Rabindra came who were assaulted by Umashankar Tiwary, Sri Kishun Tiwari, Bisheshwar Kamkar, Gaurishankar by means of Lathi. His father, Ram Kumar came who was assaulted by Sitaram and Tribhuwan. Land dispute happens to be motive of occurrence. They also took away cash and wrist watch. 3. On the basis of the aforesaid Fard-e-beyan, Brahampur P.S. Case No. 38/85 was registered and after completing investigation, charge-sheet was submitted whereupon the appellants faced trial and met with ultimate result, the subject matter of instant appeal. 4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that no such type of occurrence had ever taken place rather the prosecution party illegally made criminal trespass upon their land which was protested by the appellants and on account thereof, prosecution party brutally assaulted for which Brahampur P.S. Case No. 37/85 was registered. To support the same, also exhibited relevant documents. 5. Learned APP has been heard in absence of learned counsel for the appellants. To support the same, also exhibited relevant documents. 5. Learned APP has been heard in absence of learned counsel for the appellants. In view of direction of The Hon’ble Apex Court as reported in 2013 (2) PLJR 276 (SC), the instant appeal is being disposed of without appointing any Amicus Curiae and after going through the records minutely. 6. The lower court record suggests that there was presence of case and counter case. Both the cases were compromised. Because of the fact that the case instituted by the appellants contained the Sections triable by the court of magistrate, therefore, on the basis of compromise, prosecution parties were acquitted vide judgment dated 04.04.1987 (Ext-A). However, getting their acquittal, the prosecution party betrayed and contested the present case which was taken into account by the learned trial court also. The record further reveals that there happens to be admission on the part of all the witnesses regarding institution of the case at the end of appellants. Furthermore, PW-6 had admitted that there was free-fight amongst the parties wherein both the parties had sustained injuries and in the aforesaid background it was incumbent upon the prosecution to explain the injuries sustained by the appellants apart from the fact which of two was aggressor. Next, the record transpires that on account of non examination of Investigating Officer, appellants’ interest is found badly prejudiced because of the fact that for want of examination of Investigating Officer, neither the defence could have been able to substantiate his version along with place of occurrence, manner of occurrence. 7. It is further apparent from the record that there happens to be free-fight amongst the parties, then in that event, it was incumbent upon the prosecution to divulge that it was the accused who were aggressors. Keeping mum on that very score is another circumstance which could adversely affect upon the prospect of prosecution case. 8. Apart from this, the lower court record also suggests that in the background of dubious character of prosecution and further having the conviction under Sections 147, 323 and 379 of the IPC one has to see the lingering of instant appeal since 1985. 9. 8. Apart from this, the lower court record also suggests that in the background of dubious character of prosecution and further having the conviction under Sections 147, 323 and 379 of the IPC one has to see the lingering of instant appeal since 1985. 9. On the other hand, learned APP supported the finding arrived at by the learned trial court and submitted that whatever character the prosecution has during lanductran of trial has got no bearing on the merit of the case as the same has to be decided on the basis of the evidence adduced during course of trial. 10. In order to substantiate its case, the prosecution had examined altogether eight PWs out of whom PW-1 is Suraj Singh (Formal), PW-2 is Anant Narayan Tiwary (injured), PW-3 is Rabindra Nath Tiwary (injured), PW-4 is Ram Kumar Tiwary (injured), PW-5 is Amar Nath Tiwary (injured), PW-6 is Nagina Rai (an independent witness) and PW-7 is Hirdayanand Choudhary (tendered) and PW-8 is Dr. Jai Prakash Singh. Side by side also exhibited Ext-1, Formal First Information Report, Ext-2 Series, signature of informant as well as FIR attesting witness, Ext-3 series happens to be the injury report of respective injured. The defence has also exhibited Ext-A, CC of judgment. 11. From the evidence of doctor (PW-8) following injuries have been found over the person of respective injured:- Amarnath Tiwary (i) Cut injury 1” into scalp (ii) Bruise on left thigh 3”x1” (iii) Bruise of simple size 3”x1” on the right thigh (iv) Three bruises were found in limbo sacral region of back. Size 1”x1”. (v) Two bruises were also found in posterior aspect left forearm of the size 2”x1/4”. Rabindra Nath Tiwary (i) Bruise on right forearm posterior aspect of size 3”x1/4”. (ii) Bruise on posterior aspect of left forearm of size oval of 2” diameter. (iii) Bruise over right aspect of thigh of size 2 ½”x ½”. Anant Narayan Tiwary. (i) An abrasion was found in scalp of size 2”x1/4”. Ram Kumar Tiwary. (i) An abrasion was found in scalp of size 2”x1/4”. 12. Therefore, injury on the person of respective injured did suggest to be superficial in nature, and the doctor (PW-8) also suggested the same. 13. Now coming to material witness, first of all, evidence of PW-6, Nagina Rai is taken. During examination-in-chief, he had supported the case of the prosecution. (i) An abrasion was found in scalp of size 2”x1/4”. 12. Therefore, injury on the person of respective injured did suggest to be superficial in nature, and the doctor (PW-8) also suggested the same. 13. Now coming to material witness, first of all, evidence of PW-6, Nagina Rai is taken. During examination-in-chief, he had supported the case of the prosecution. However, in course of cross-examination, he had admitted that counter case is also there wherein Gauri Shankar Tiwary was an injured. He had further changed the place of occurrence and shown it near a graveyard. He had further stated that he rushed to the place of occurrence after hearing alarm. At the time of his arrival at the place of occurrence, Maar-Peet was over and he saw both the parties in injured condition. He had further stated that counter case had already been compromised. 14. PW-5 is the informant. During examination-in-chief, he had reiterated his earlier version. However, in para-6 of his cross-examination, he had admitted that he happens to be an accused in counter case. He had further stated that at the time of occurrence, there was no quarrel amongst the parties. In para-8, he had further admitted that counter case also relates with Maar-Peet. He had gone through the allegation. P.O. is the same. He had further disclosed that the land of the accused persons lies by the side of his land. In para-19, he had further admitted that he had put his signature over compromise petition in the counter case. So far occurrence is concerned, in para-12, he had disclosed that accused persons were proceeding towards southern direction while he was proceeding towards northern direction. At the time of provoking for assault accused persons were 15-20 yards away from him. He tried to escape therefrom but could not succeed and the accused persons began to assault. In para-13, he had stated that he was firstly assaulted with Lathi over his head and then thereafter, he was brutally assaulted by them. He has further asserted in para-14 that after his assault, his brothers were assaulted. 15. PW-5 is another injured who had stated that at the time of occurrence, he was at his Darwaza. He heard the sound of Amarnath Tiwary and then rushed to the P.O. where he found the accused persons indulged in assaulting Rabindra and Anant Tiwary. He has further asserted in para-14 that after his assault, his brothers were assaulted. 15. PW-5 is another injured who had stated that at the time of occurrence, he was at his Darwaza. He heard the sound of Amarnath Tiwary and then rushed to the P.O. where he found the accused persons indulged in assaulting Rabindra and Anant Tiwary. Tribhuwan was engaged in twisting the neck of Amarnath. Amrendra had taken away Rs. 5000/-. Sitaram and Tribhuwan had assaulted him with Lathi. In para-5 of his cross-examination, there happens to be material contradiction which could not be brought up on recorded for want of examination of I.O.. In para-7, he had further disclosed that till his arrival at the place of occurrence, his family members had already sustained injuries as well as money was already taken out. In para-8, he had stated that there was counter case wherein he was also one of the accused. The case was compromised. 16. PW-3, Rabindra Nath Tiwary is another injured. He had stated that on the alleged date and time of occurrence, he along with Amarnath Tiwary and Anant Narayan were coming from Arah. When they came near their field they found the accused armed with Lathi. Sitaram Tiwary was exhorting from his Darwaza whereupon, Amrendra, Tribhuwan, Awadhesh @ Vishwanath began to assault his brother. When he intervened, he along with Anant were assaulted by Sri Krishna, Gauri Shankar, Uma Shankar, Bisheshwar. Sitaram and Tribhuwan assaulted his father Sri Ram Kumar Tiwary. 17. In para-9, he had stated that counter case was instituted by Gauri Shankar Tiwary wherein, he also stood one of the accused. He had further admitted that counter-case was compromised and during course thereof, he had also put his signature. In para-13 of his cross-examination, he had disclosed that at the time of assault over Amarnath, he along with Anant Narayan was 10-15 yards north to him. Amarnath was assaulted 12-13 lathi blows and then thereafter, they both were assaulted. 18. PW-2 is Anant Narayan Tiwary who had stated that on the alleged date and time of occurrence, he along with his brother Rabindra and Amarnath were coming from Ara. When they reached at their field, on an order of Sitaram, Tribhuwan, Amrendra, Vishwanath assaulted. On his alarm, he along with Rabindra had gone to rescue him and during course thereof Gaurishankar, Bisheshwar, Sri Krishna assaulted him. When they reached at their field, on an order of Sitaram, Tribhuwan, Amrendra, Vishwanath assaulted. On his alarm, he along with Rabindra had gone to rescue him and during course thereof Gaurishankar, Bisheshwar, Sri Krishna assaulted him. Tribhuwan began to twist the neck of Amarnath. Amrendra took away Rs. 5000/- Ram Kumar was assaulted by Sita Ram. Wrist watch of Rabindra was taken away by accused as well as his writ watch was also snatched away. During cross-examination in para-12, he had stated that partition had already taken place with the accused in the year 1910. In para-15, he had stated that when he along with his brother had gone to place of occurrence, at that very time, Sitaram Tiwary at his Darwaza. Sitaram had exhorted. At that very time, he had proceeded ahead of his field. He had gone towards northern direction. He had further stated that accused persons were coming from south to north while they were going from north to south. He had further stated that accused persons have not said anything to them. In para-16, he had stated that Tribhuwan had assaulted Amarnath. Then thereafter, others have also assaulted. He had further stated that while Amarnath was being assaulted, Rabindra was also assaulted. At that very time, Amarnath and Ravindra were at the distance of 6-7 yards. In para-18, he had stated that he was also assaulted in the same sequence. He had also admitted in para-21 that Gaurishankar had also instituted a case for the same occurrence wherein he along with Amarnath along with others were accused. In that case, compromise was filed on the basis thereof, they were acquitted. In para-22, he had also admitted that on earlier occasion, he had filed the case against accused persons wherein police reported for prosecution under Section 182, 211 IPC. 19. The case and counter case is admitted. The counter case had ended in acquittal on the basis of compromise which had already been admitted by the prosecution party as well as also found supported with Ext-A. From evidence of PW-6, an independent witness, a theme of free-fight was disclosed wherein both the parties sustained injuries. He had also changed the place of occurrence near graveyard. 20. Now coming to the evidence on record, all the injured witnesses, who are the only witnesses, have clearly disclosed land dispute amongst the parties persisting since before. He had also changed the place of occurrence near graveyard. 20. Now coming to the evidence on record, all the injured witnesses, who are the only witnesses, have clearly disclosed land dispute amongst the parties persisting since before. The most crucial aspect which has got bearing on the prospect of ultimate result of instant appeal is that injured, Ram Kumar was not at all accompanying the other three injured, namely, Anant Narayan Tiwary, Rabindra Tiwary and Amarnath Tiwary. From the evidence of Anant, Rabindra and Amarnath, it is apparent that they were proceeding towards north while the accused persons were coming towards south. Anant and Rabindra were proceeding ahead but they were not assaulted by the appellants who had gone to Amarnath who was 10-15 yards behind Anant and Rabindra. So, had there been truthfulness in the assertion of the prosecution, then in that event, first of all, Anant as well as Rabindra would have fallen victim at the hands of accused persons. Not only this, if the version of prosecution is admitted, Sitaram was exhorting from his Darwaza, they have seen the accused coming towards them duly armed with lathi then in that event, at least Amarnath had ample opportunity to escape therefrom. In likewise manner, Anant and Rabindra had an opportunity to intercept the accused before assaulting Amarnath. This improbability in the background of presence of counter-case more particularly, taking into account, evidence of PW-6 probability of both the parties indulging in free-fight appears to be plausible and in the aforesaid background, the prosecution happens to be under obligation to explain who was the aggressor. After all, it is bounded duty of the prosecution to have his case proved away from blemish. From the conduct of the prosecution it is evident that it has not come up with the clean hands so far manner of occurrence as well as genesis of occurrence is concerned. 21. It is not a case wherein non explanation of injury by the prosecution was found fatal to the prosecution case because of the fact that by consistent judicial pronouncements, it has been held that if the prosecution witnesses are found consistent with its version then in that event, the non explanation of injury sustained by the accused will not dent upon the prosecution version. In likewise manner, the evidence of injured witness has to be accepted in the background of the fact that by presence of injury, his presence at the place of occurrence happens to be. In similar way, authenticity in his evidence has to be reposed as being an injured, he was quite competent to explain the occurrence as well as his assailant. But is a case where improbability in the prosecution case has been perceived regarding manner of occurrence and that has been taken into account in the background of evidence of prosecution witness itself (PW-6) and its conjoint effect has also been seen on account of presence of counter case. 22. Meeting with Anant Narayan and Rabindra Tiwary before approaching Amarnath without any harm caused to them by the appellants is a serious sequence perceived during appreciation of prosecution evidence, moreover, presence of other accused, regarding whom the prosecution was completely silent at an earlier occasion. According to prosecution at first part of occurrence, only, Tribhuvan, Amrendra and Awadhesh @ Vishwanath were found. 23. Thus, after making analytical approach of the evidences produced by the prosecution along with improbability persisting in the prosecution case and further having severe jerk on account of non examination of I.O., it looks unsafe to rely upon the prosecution witnesses, even being injured one and on account thereof, the judgment of conviction and sentence rendered by the learned trial court is set aside. 24. The appeal is allowed. Appeal allowed.