ADITYA KUMAR TRIVEDI, J.:–Appeal has been called out. Learned counsel Sri Krishna Prasad Singh has appeared and submitted that client had taken away brief from him. So, he shown his helplessness in arguing this appeal. Sri Mithilesh Kumar Singh, learned counsel, who is present, has been requested to assist the Court as an Amicus Curiae. 2. Appellants Jawaher Giri and Sharma Nand Giri have been found guilty for an offence punishable under Sections 307, 341/ 34 of the I.P.C. and each one has been sentenced to undergo R.I. for 10 Years under Section 307 I.P.C. and S.I. for one month under Section 341/ 34 of I.P.C. and further, appellant, Jawaher Giri has been found guilty for an offence punishable under Section 326 I.P.C. and sentenced to undergo R.I. for 10 Years as well as to pay fine appertaining to Rs.1,000/- and in default thereof, to undergo S.I. for one month with a further direction to run the sentences concurrently so far appellant Jawaher Giri is concerned, with a further direction to set off the period having undergone during course of trial in accordance with Section 428 of the Cr.P.C. vide judgment of conviction dated 17.12.2014 and order of sentence dated 22.12.2014 passed by the 9th Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No.72 of 1996. 3. Anup Deo Giri (PW-6 while was admitted at Referral Hospital Areraj on 28.12.1994 gave his fard-bayan at about 1.00 p.m. alleging inter alia that on the same day at about 10.00a.m., accused Jawaher Giri, Sharma Nand Giri, Upendra Giri and Jitendra Giri armed variously were constructing Nad over his land, which he had protested on account thereof, first spear (bhala) blow was given by Jawaher Giri causing injury over his right Panjara (inter-coastal space) followed by Sharma Nand Giri, causing injury over left wrist. Blood came out. At that very moment, Upendra Giri and Jitendra Giri were inciting to commit murder. Yogi Giri (not examined), Madan Giri (PW-5) were cited as an eye witness. Punya Deo Giri (not examined) stood as an attesting witness. The motive for the occurrence has been shown as long standing land dispute. 4. Blood came out. At that very moment, Upendra Giri and Jitendra Giri were inciting to commit murder. Yogi Giri (not examined), Madan Giri (PW-5) were cited as an eye witness. Punya Deo Giri (not examined) stood as an attesting witness. The motive for the occurrence has been shown as long standing land dispute. 4. On the basis of the aforesaid fard-bayan, Govindganj P. S. Case No.123 of 1994 was registered followed with an investigation and after concluding the same, chargesheet was submitted under Sections 447, 341, 307, 326/ 504 of I.P.C. whereunder cognizance was also taken and as the offences being exclusively triable by the Court of Sessions, lend trial by the Court of Sessions after having the case committed to the Court of Sessions which met with ultimate finding, the subject matter of instant appeal. 5. 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. It has also been pleaded that no such type of occurrence had ever taken place rather the prosecution party illegally blocked ingress and outgress of the appellants/ accused by erecting a hut over road, which was protested at the end of the accused during course thereof, the prosecution party brutally assaulted for which, on the fard-bayan of accused Sharma Nand Giri, Govindganj P. S. Case No.124 of 1994 was registered wherein during course of conduction of trial of present case, the prosecution party were already convicted and sentenced for. Only to save their skin, this counter-version has been purposely introduced. 6. In order to substantiate its case, prosecution had examined altogether seven PWs, who are PW-1 Maheshwar Narayan Giri @ Mahesh Narayan Giri, PW-2 Mohan Kumar Giri, PW-3 Lal Deo Giri, PW-4 Baijnath Giri, Pw-5 Madan Giri, PW-6 Anup Deo Giri and PW-7 Nawal Kishore Thakur. PW-1 to PW-6 are members of one family while PW-7 is a formal witness, who had exhibited the fard-bayan on account of non-examination of the I.O. Doctor during course of trial could not be examined, however, were allowed to be examined under the garb of Section 311 of the Cr.P.C. as CW-1 Dr. Suresh Lal and CW-2 Dr. Md. Jahir. PW-1 to PW-6 are members of one family while PW-7 is a formal witness, who had exhibited the fard-bayan on account of non-examination of the I.O. Doctor during course of trial could not be examined, however, were allowed to be examined under the garb of Section 311 of the Cr.P.C. as CW-1 Dr. Suresh Lal and CW-2 Dr. Md. Jahir. Prosecution had also exhibited the document, which are marked as Exhibit-1 signature of informant over fard-bayan, Exhibit-1/1 signature of attesting witness Punya Deo Giri, Exhibit-2 fard-bayan, Exhibit-3 injury report issued by CW-1, Exhibit-3/1 injury report issued by one Dr. M. Kumar, Exhibit-4 outdoor register of referral hospital, Areraj. Side by side, defence had also exhibited, which are marked as Exhibit-A, judgment of Govindganj P. S. Case No.124 of 1994, Exhibit-B injury report of accused / appellant Sharma Nand Giri issued by CW-1 Dr. Suresh Lal. 7. Because of the fact that there happens to be an admission at the end of the prosecution party regarding presence of counter-case as well as having been convicted therefor, on account of non-examination of I.O. virtually put the Court in dark with regard to actual place of occurrence. From the evidence of the respective witnesses, it is evident that they are inconsistent in their stand. To appreciate the evidence of the PWs, first of all, evidence of PW-6, informant is taken on priority basis. PW-6 had deposed that on the alleged date and time of occurrence, he was at his Darwaza. When he had gone over his land lying West to his house, he saw Jawaher Giri, Sharma Nand Giri, Upendra Giri and Jitendra Giri, who were engaged in constructing Nad, forcibly. He obstructed, whereupon Jawaher Giri gave spear blow causing injury over his right side of inter-coastal region (Panjar). Then thereafter, Sharma Nand Giri gave spear blow as a result of which, he sustained injury over his left wrist. At that very moment, Upendra Giri and Jitendra Giri were provoking them to cause murder. Villagers have seen the occurrence. Then had stated that he was taken to hospital where police came and recorded his fard-bayan in presence of his brother Punya Deo Giri, Exhibit-1. Identified the accused. During cross-examination at Para-9, he had admitted that accused Jawaher Giri happens to be his cousin brother. In Para-13 and 14, he had given typography of the land, houses of both the parties. Identified the accused. During cross-examination at Para-9, he had admitted that accused Jawaher Giri happens to be his cousin brother. In Para-13 and 14, he had given typography of the land, houses of both the parties. In Para-15, he had stated that West to his house and East to the house of accused, open land bearing 15 hands in length approximately lies South to the road. The aforesaid land does not belong to accused rather to them. Then had stated that only that Kachchi road is the source of outgress and ingress of the accused. In Para-16, he had admitted that if they would construct hut North to his house, West to pitch road, then in that circumstance, ingress and outgress of accused will be closed. In Para-17, he had denied that they by way of constructing a hut over the road obstructed ingress and outgress of the accused and for that, a protest was made at the end of the accused whereupon they were assaulted by them (prosecution party). In Para-18, he had further stated that total number of accused were four while they were eight in number. The P.O. happens to be near the road lying 25 yards away West to his house. Then had confined the same that the occurrence took place at Southern flank of the road. At that very place, the width of the road 4-5 hands. At that very time, 7-8 persons were standing. They have tried to pacify the dispute. In Para-20, he had admitted presence of counter-case, but shown his ignorance with regard to ultimate result. This at Para-21, 22, he had narrated the event of assault. Then had denied that in order to save skin from counter-case, this false case has been instituted. 8. PW-5 is another witness, who happens to be an accused in the counter-case. He had deposed that on the alleged date and time of occurrence, after hearing uproar, he had gone to the place of occurrence and found Jawahar Giri, Upendra Giri, Jitendra Giri engaged in constructing Nad. One more person was there, but he is unable to disclose his name. Anup Deo Giri (PW-6) forbidden them, but the accused did not pay heed to him. Subsequently thereof, Jawahar Giri gave bhala blow causing injury over right side of his stomach. One more person was there, but he is unable to disclose his name. Anup Deo Giri (PW-6) forbidden them, but the accused did not pay heed to him. Subsequently thereof, Jawahar Giri gave bhala blow causing injury over right side of his stomach. During course of cross-examination at Para-3, he had admitted presence of counter-case bearing Govindganj P. S. Case No.124 of 1994 as well as having been convicted against which, they have preferred an appeal. Then at Para-4, had shown the place of occurrence east to the house of Punya Deo Giri. He further disclosed that house of Sharma Nand Giri lies 15-16 hands west to the house of Punya Deo Giri. People used to go through the Sahan lying east to the house of Punya Deo Giri. The ingress and outgress of accused Sharma Nand Giri happens to be in same process. Punya Deo Giri and Sharma Nand giri are the Pattidar as well as co-sharer. One hut was constructed, just now over the Sahan land, whereupon ingress and outgress of Sharma Nand Giri was completely blocked, whereupon dispute arose. In Para-5, he had admitted that during course of statement before the police, he had stated that on account thereof, there was scuffle amongst both the parties and during course thereof, both the parties indulged in physical action. But he is unable to say how Sharma Nand Giri sustained injuries. He had further admitted that Sharma Nand Giri had sustained injuries and for that, he was treated. 9. PW-1 had deposed that on the alleged date and time of occurrence, he was at his Darwaza. After hearing hue and cry, he rushed to the place of occurrence where he saw Jawaher Giri, Sharma Nand Giri, Upendra Giri and Jitendra Giri, who were armed with bhala, lathi and were engaged in constructing Nad over the land which belongs to them. The land has been recorded in name of his uncle Punya Deo Giri, Anup Deo Giri, Bhukh Deo Giri (his father). Anup Deo Giri forbidden the accused persons, but accused persons did not pay heed to him. During said course, Jawaher Giri gave bhala blow over Anup Deo Giri as a result of which, he sustained injury at right inter-coastal region (Panjar), Anup Deo Giri fell down followed by another blow by Sharma Nand Giri causing injury over his left wrist. Anup Deo Giri forbidden the accused persons, but accused persons did not pay heed to him. During said course, Jawaher Giri gave bhala blow over Anup Deo Giri as a result of which, he sustained injury at right inter-coastal region (Panjar), Anup Deo Giri fell down followed by another blow by Sharma Nand Giri causing injury over his left wrist. During said course, Jitendra Giri and Upendra Giri were provoking to cause murder. Anyhow, the victim was lifted there from to hospital for treatment. Police came, recorded the fard-bayan of the victim. Seeing the condition, victim was referred to Sadar Hospital Motihari where his treatment was finally done. During cross-examination, he disclosed the family tree of both the parties. Bala Giri was the great grand father, who had two wives. Singhasan Giri begotten from his first wife while Nathuni Giri and Jangi Giri were from second wife. The prosecution party happens to be descendant of Singhasan Giri while accused persons happen to be descendant of Jangi Giri. It has further been disclosed that victim, Anup Deo Giri, Lal Deo Giri, Bhukh Deo Giri are full brothers. He along with Mohan Giri (PW-2) are full brothers and then, there happens to be disclosure with regard to other family members. He had completely denied with regard to presence of counter-case. Then had stated that the P.O. lies 25 yards west to his house. The Khata number happens to be 862, Khesra No.3476. Again corrected by stating that the land over which Nad was being constructed has got survey plot No.3477, corresponding to Khata No.737, Area 4 ½ Dhoor. Again disclosed that he is unable to disclose the exact area. Then had said that disputed area happens to be over Northern-Southern flank of Khesra No.3476 as well as 3477, on both survey plots are amalgamated. This plot happens to be their ancestral property. His father has got share of 2-2 ½ Kattha out of 12 ½ Kattha. Then had stated that out of 2-2 ½ Kattha, the dispute arose over 4 ½ Dhoor which happens to be in front of the house of the accused, whereupon accused persons forcibly constructed Nad, which was protested, whereupon this occurrence took place. Again had corrected by saying that these lands lie 20 meter away from the house of the accused. Then had stated that out of 2-2 ½ Kattha, the dispute arose over 4 ½ Dhoor which happens to be in front of the house of the accused, whereupon accused persons forcibly constructed Nad, which was protested, whereupon this occurrence took place. Again had corrected by saying that these lands lie 20 meter away from the house of the accused. Then there happens to be detailed description of the source of ingress and outgress of the accused. Then had denied that on the alleged date and time of occurrence, they have blocked outgress and ingress of the accused by way of erecting hut and for that, they have assaulted the members of the accused persons, when they protested. However, it has been admitted at his end that with regard to aforesaid land, the parties had faced Section 144 Cr.P.C. proceeding, 107 Cr.P.C. and Section 188 of I.P.C. He denied presence of Title Suit No.311 of 1996 relating thereto. However, he had admitted that at the time of occurrence, both the parties have indulged in brick-batting. He is unable to say whether both parties have any injury or not. He further stated that brick particles were seen by the police during course of inspection. Then there happens to be contradiction which, on account of non-examination of the I.O., could not be taken up. He had denied the suggestion with regard to presence of counter-case on account of injuries sustained by Sharma Nand Giri having inflicted at their end. 10. PW-2 is brother of PW-1. He had stated that on the alleged date and time of occurrence, he was inside his house. After hearing sound, he went back of his house, he gone to the place of occurrence and had seen Jawahar Giri, Sharma Nand Giri, Jitendra Giri and Upendra Giri armed with lathi, bhala, were constructing Nad over his land. His uncle Anup Deo Giri protested whereupon Jawaher Giri gave bhala blow causing injury over his right side of inter-coastal region (Panjar), as a result of which, he fell down, then Sharma Nand Giri gave another blow causing injury over wrist of his uncle. At that very time, Upendra Giri and Jitendra Giri were provoking to cause murder, when the people intervened, the accused persons fled away. Then thereafter, they lifted Anup Deo Giri to hospital where police came and recorded his fard-bayan. At that very time, Upendra Giri and Jitendra Giri were provoking to cause murder, when the people intervened, the accused persons fled away. Then thereafter, they lifted Anup Deo Giri to hospital where police came and recorded his fard-bayan. As his condition deteriorated, he was referred to Sadar Hospital, Motihari. During cross-examination at Para-9, he had stated that all the accused persons were conjointly putting Nad. Again said that it was cemented Nad, which was being affixed over by constructing the platform. The platform was two hands long, two hands width and 2-2 ½ hands in height. Platform was constructed within 5-7 minutes. From where they carry mud, he is unable to say. There was no spade, there was no brick. In Para-10, he had stated that Anup Deo Giri did not try to demolish the platform. At the time of occurrence, only his family as well as family of accused were present. Again said that 5-7 more persons were present, none came even after marpit was over. Then had said that Madan Giri, Yogi Giri, Baijnath Giri, Parma Giri, Lal Deo Giri, Mahesh Giri including he himself were present. In Para-11, he had stated that all the persons had assaulted Anup Deo Giri, again corrected that two persons gave bhala blow, remaining had not assaulted. During course of construction of the platform, only two persons were armed with bhala. They both gave single blow. Then at Para-13, 14 and 15, there happens to be contradiction and as I.O. has not been examined on account thereof, that remained non-recognized. 11. PW-3 had deposed that on the alleged date and time of occurrence, he was at his Darwaza. At that moment, he heard some sort of uproar from back of his house whereupon he gone there and found Jawahar Giri, Sharma Giri, Jitendra Giri, Upendra Giri armed with lathi and bhala. There happens to be litigation amongst them with regard to the land over which accused persons were constructing Nad. He along with Anup Deo Giri, Mahesh Giri, Mohan Giri, Pun Deo Giri were present. Anup Deo Giri forbidden the accused persons from constructing Nad over which Jawahar Giri gave bhala blow causing injury over right side of inter-coastal region (Panjar) as a result of which, he fell down. Then Sharma Giri gave another blow causing injury over left wrist, rest accused persons were provoking. Anup Deo Giri forbidden the accused persons from constructing Nad over which Jawahar Giri gave bhala blow causing injury over right side of inter-coastal region (Panjar) as a result of which, he fell down. Then Sharma Giri gave another blow causing injury over left wrist, rest accused persons were provoking. Then thereafter, they took Anup Deo Giri to Areraj hospital. Seeing the condition, Anup was shifted to Sadar Hospital Motihari. During course of cross-examination, he had stated that he happens to be full brother of informant, Anup Deo Giri. Both the parties are Pattidar. He had further stated at Para-12 that when he reached at the place of occurrence, there were 15 persons, out of whom, two were armed with bhala and two were armed with lathi. They were engaged in constructing platform. When he had seen, he found the platform was already erected. In Para-15, he had stated that marpit took place 2-3 hands north to the platform. Four persons were responsible for causing injury over Anup Deo Giri, then had corrected that he was not assaulted by lathi. Only bhala blow was given to him. However, none gave repeated blow. Then, there happens to be contradiction under Para-17, 18, 19, which remained idle on account of non-examination of I.O. 12. PW-4 had stated that while he was in his field, he heard sound of uproar, whereupon he came to west of the house of Pun Deo Giri where he had seen Anup deo Giri in an injured condition lying on the ground. He had seen Jawahar Giri running there from having bhala in his hand. He again stated that he had seen four persons while fleeing there from and named all of them. Para-4, 5, 6 happens to be contradiction. In Para-8, he had stated that when he reached at the P.O., he had seen the accused persons at a distance of 5-7 hands west to the P.O. None were chasing them. 5-7 persons were present since before. In Para-12, he had stated that Sharda Nand Giri and Paremeshwar Giri happens to be his brother. He is unable to say whether they are an accused in counter-case. In Para-13, he has said that he is not aware with regard to Parmeshwar Giri, being under custody. In Para-14, he had further stated that Maheshwar Giri is another brother happens to be doctor. 13. CW-1 is Dr. He is unable to say whether they are an accused in counter-case. In Para-13, he has said that he is not aware with regard to Parmeshwar Giri, being under custody. In Para-14, he had further stated that Maheshwar Giri is another brother happens to be doctor. 13. CW-1 is Dr. Suresh Lal, who had examined Anup Deo Giri on 28.12.1994 and found the following:— (i) opinion regarding details injury no.1, which is on the right lower chest is kept reserved as the patient has been referred to the Sadar Hospital, Motihari. (ii) incised wound 1” x ½” x skin deep over palmer surface of the left wrist joint caused by sharp cut weapon and simple in nature. He again stated that after receipt of opinion from Motihari, he had found injury no.1 as one incised wound on right lower chest 1 ½” x ½” cavity deep and found opening the cavity one penetrating injury, which has been found grievous in nature and dangerous to life caused by sharp cut weapon such as Bhala and then had exhibited the injury report. He had further stated that injury report, which has been referred from Sadar Hospital happens to be in pen of Dr. M. Kumar. During cross-examination, he had stated that although he was not in a position to record the dimension of injury no.1, which he had mentioned based upon finding that of Dr. M. Kumar. In Para-8 of his cross-examination, he had deposed regarding injury sustained by appellant Sharma Nand Giri and further, detailed the injury (exhibited). 14. CW-2 Dr. Md. Jahir, who had exhibited the injury report scribed by Dr. Maheshwar Kumar as one incised wound on right side of chest lower and lateral part, which is cavity deep. On opening the abdominal cavity one penetrating injury of ascending colour has been found, but during cross-examination, he fairly admitted that he was not at all concerned during course of aforesaid examination of the injured and so, he happens to be formal in nature. 15. From the evidence as available on the record, it is evident that witnesses are not at all consistent over the P.O. and so, presence of Nad, if any, by the accused/ appellants are not at all properly affixed. 15. From the evidence as available on the record, it is evident that witnesses are not at all consistent over the P.O. and so, presence of Nad, if any, by the accused/ appellants are not at all properly affixed. On the other end, from the evidence of PW-5, it has become crystal clear that a hut was erected at their end by which, ingress and outgress of Sharma Nand Giri was completely blocked and for that, an occurrence took place for which, counter-case bearing Govindganj P. S. Case No.124 of 1994 has been brought up at the end of the Sharma Nand Giri wherein they have been convicted and sentenced for, against which appeal was pending. Though some of the witnesses kept mum, but PW-1 had stated that there was brick-batting amongst both the parties. That being so, the manner of occurrence as flashed by the prosecution became doubtful, and in likewise manner, sustenance of injury by the injured. It is settled principle of law that whenever real genesis as well as manner of occurrence is found suppressed, then in that event, prosecution case is bound to fail. By way of admission at the end of prosecution regarding their activities, and in likewise manner, commission of occurrence in different manner, as projected by them, presence of counter-case, presence of injury over one of the appellants, then in that event, will cause severe dent to the prosecution case. 16. In Bhagwan Sahai and another Vs. State of Rajasthan reported in 2016 CRI.L.J. 3154, it has been held:— “8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case.” 17. That being so, in spite of the fact that PW-6, informant had sustained injury in terms of finding recorded by CW-1, will not give any kind of privilege to the prosecution in the background of infirmities found in the prosecution case as indicated above. That being so, the appellants are found entitled for benefit of doubt. Consequent thereupon, the judgment of conviction and sentence recorded by the learned lower Court is set aside. Appeal is allowed. Appellants are on bail. Hence, are discharged from its liabilities. The first and last page of the judgment should be handed over to the learned Amicus Curiae for the needful.