JUDGMENT : Appellants Lorik Yadav and Rajendra Yadav @ Jharkhandi have been found guilty for an offence punishable under Section 325/34 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for two years by the Presiding Officer, Additional Court No.2, Fast Track, Patna in Sessions Trial No.28 of 1991/228 of 2001. 2. The factual matrix of the prosecution case as is evident from the fard-bayan (Exhibit-2) of Amrit Gope (PW-3) having recorded on 03.10.1989 at about 7.30 p.m. while he was admitted at State Dispensary, Masaurhi is that on the same day at about 6.00 p.m. while he was at his house, he perceived sound of uproar coming towards house of Sarjug Gope whereupon he rushed. As soon as he reached in front of house of Sarjug Gope, Lorik Yadav, Madhesh Yadav, Rajendra Prasad @ Jharkhandi, who were standing since before on the road being armed with lathi, came near him and began to assault on account of which, his hand got fractured as well as injuries were caused over head. His family members lifted him to hospital where he came to know that the accused persons also assaulted Sarjug Gope, who was also admitted in the same hospital. The motive for the occurrence has been disclosed as inmates of both the families have quarrelled over she-buffalo. 3. Masaurhi P. S. Case No.177 of 1989 was registered under Sections 323, 325 and 307/34 of the I.P.C. whereunder chargesheet was submitted after completion of investigation followed with order of cognizance and consequent thereupon, the trial commenced before the Court of Sessions which ultimately met with the result, adverse to the interest of the appellants, subject matter of instant appeal. 4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Further, it has been stated that on the alleged date and time of occurrence, the prosecution party caused murder of Ramdeo Yadav and for that, Masaurhi P. S. Case no.176 of 1989 was registered on the fard-bayan of Shyam Nandan and just to make out the defence case in order to save their skin, instant case has been filed with false and frivolous allegation. 5. During course of trial, prosecution had examined altogether four PWs out of whom, PW-1 is Dr. 5. During course of trial, prosecution had examined altogether four PWs out of whom, PW-1 is Dr. Satya Narain Singh, who had examined PW-2 Sarjug Yadav as well as Amrit Gope, PW-3 (informant) on 03.10.1989 itself at Masaurhi Police Station and recorded his finding as is evident there from. The learned lower Court had also taken note of and that being so, the presence of injuries over the person of both two injured PW-2 and PW-3 is out of controversy. Apart from this, it is also evident from his evidence that defence had not questioned the same. The crucial aspect happens to be that PW-2 Sarjug Yadav was examined by him at 7.30 p.m. while PW-3-informant, Amrit Yadav was examined by him on 7.45 p.m. that means to say, they were examined before recording of Exhibit-2, the fard-bayan. The remaining witnesses are PW-2, Sarjug Yadav, PW-3 Amrit Yadav and PW-4 Rakesh Ranjan, the I.O. 6. While going through the evidence of PW-2, Sarjug Yadav and PW-3 Amrit Gope, it is evident that both two have sustained injuries at two different places at two different times. According to evidence of PW-3, he was assaulted on 03.10.1989 at about 7.00 p.m. at which time, he was at road near house of PW-2 Saryug Yadav by Madhesh Yadav, Lorik Yadav and Rajendra Prasad @ Jharkhandi in a lane lying by the side of field of Sarjug Yadav by lathi. During course of cross-examination at Para-6, he had stated that he was assaulted indiscriminately by the accused persons after arrival near the house of Sarjug Yadav. They left after arrival of the police. In Para-7, he had stated that blood had fallen on the ground. He had further stated that his sons arrived from Patna after 8.00 p.m. and then, was lifted to hospital. Then at Para-8, had stated that he was lifted to Patna for treatment where he had recorded his statement. 7. On the other hand, PW-2, Sarjug Yadav had stated that on 03.10.89 at about 7.30 p.m. while he was in a way to his house from Taregna Station and as soon as reached at Tin Muhani ‘more’ West to railway line, Doman Yadav, Ganauri Yadav, Madhesh Yadav, Lorik Yadav and Jharkhandi, who were armed with lathi as well as stick, began to assault and gave indiscriminate blow over his head as well as other parts of the body. He regained sense at hospital where he gave his statement. Then, had disclosed the motive as there was quarrel amongst the female folk of both the houses. During cross-examination, he had admitted that Ramdeo was murdered on same day for which, Shyam Nandan instituted a case wherein he along with his family members are accused. In Para- 9, he had stated that road lies in front of his house. He is not aware with the fact where marpit took place. In Para-12, he had shown his ignorance that he was arrested at Masaurhi hospital itself, but he had narrated that when he came from hospital to Patna, police was along with him. In Para-16, there happens to be contradiction and for that, an explanation has been furnished at his end that he was not fully conscious at the time of statement. Therefore, some sort of deformity might have in his previous statement. 8. PW-4 is the I.O. Rakesh Ranjan. He had stated that he had recorded the fard-bayan of Amrit Gope at the hospital and accordingly, exhibited the same. He had further stated that he took up investigation, inspected P.O. and submitted chargesheet. In Para-4, he had stated that first P.O. happens to be portion of land of Siya Sharan Yadav lying East to house of Sarjug Yadav. In Para-5, he had shown second place of occurrence to be Tin Muhani lying at Masaurhi Bazar. During course of cross-examination, he had admitted that he also happens to be Investigating Officer of the counter-case. He had further admitted that he had not found blood stain at the respective place of occurrence. He had further stated that while he had proceeded in investigation of Masaurhi Case No.176 of 1989, then he came to know. He had further stated that time of both the cases happens to be the same. He had further stated that in the fard-bayan of Masaurhi P.S. Case No.176 of 1989, it was specifically mentioned that deceased was armed with lathi and he defended himself with the same. In Para-9, there happens to be contradiction relating to witness Sarjug Yadav. 9. He had further stated that time of both the cases happens to be the same. He had further stated that in the fard-bayan of Masaurhi P.S. Case No.176 of 1989, it was specifically mentioned that deceased was armed with lathi and he defended himself with the same. In Para-9, there happens to be contradiction relating to witness Sarjug Yadav. 9. The learned lower Court had convicted the appellants in the background of the fact that in his opinion as enumerated under Para-37 of the judgment, commission of murder of deceased of counter-case bearing Masaurhi P. S. Case No.176 of 1989, did not take place during course of same occurrence and on account thereof, the prosecution was not under obligation to explain the same. From the evidence of PW-4, the I.O., it is apparent that the time of both two cases happens to be the same, which the witnesses also admitted and so, both two cases were counter to each other. The learned lower Court also dealt with the defence evidence in similar faction like prosecution case while rejecting the post mortem on account of non-examination of Doctor which, in the facts and circumstances of the case, whereunder prosecution witnesses themselves admitted the event, would not have. Apart from this, after going through the evidence of PW-2 and PW-3, it is evident that they both had sustained injuries at two different places, the first one at Village Malkana and the second one Masaurhi Bazar. The distance in between neither been disclosed either by PW-2 or PW-3 nor by the I.O., PW-4. So, whether there was any possibility in having presence of appellants at two different places is another circumstance, which the prosecution was to explain. In the similar way, the source of identification relating to the second place of occurrence where, if the prosecution’s narration is accepted, PW-2 was unaware regarding presence of these appellants including others covering such long distance in order to assault the PW-2. Not only this, if the evidence of PW-1 is taken altogether with the evidence of PW-2 and PW-3 coupled with the Exhibit-2, the fard-bayan, it is apparent that PW-1 had not spoken a word with regard to mental condition of PW-2 as well as PW-3 to the extent that at the time of their examination, both two were unconscious and further, regained sense after treatment. Apart from the fact that they were brought at the hospital in unconscious state. That being so, having disclosure at the end of PW-3 that he subsequently came to know regarding assault over Sarjug Yadav, cast a doubt over genuineness of the assertion which has purposely been introduced in the background of presence of counter-case bearing Masaurhi Case No.176 of 1989, which was for the murder of Ramdeo Rai and further, for that, whole family of Saryug Yadav were arrayed as accused. Apart from this, the genuineness of fardbayan also came suffered from suspicion as, as per evidence of PW-3 his statement was recorded at Patna, while according to PW-4, no recorded fardbayan at Masaurhi hospital. 10. So, from perusal of the evidence as discussed above, it is apparent that the manner of occurrence as flashed by the prosecution became doubtful, more particularly in the background of the fact that at the same time, at the same place Ramdeo Rai was caused to murder which the prosecution failed to explain. That being so, the judgment of conviction and sentence recorded by the learned lower Court would not survive and is accordingly, set aside. Appeal is allowed. Both the appellants are on bail, hence are discharged from its liabilities.