JUDGMENT : Aditya Kumar Trivedi, J. Appellant Mahender Mehata has been found guilty for an offence punishable under Section 307/ 149 of the I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs. 5,000/-, having no default clause by the judgment of conviction dated 05.05.2015 and order of sentence dated 12.05.2015 passed by the Additional Sessions Judge-2nd, Supaul in Sessions Trial No.172 of 2009. 2. Mishri Lal Mehata (PW-7) gave his fard-bayan on 09.11.2008 (overwriting) at about 10.00 P.M. at Bhimnagar Hospital where he was being treated disclosing therein that Yesterday, i.e. on 06.11.2008, the Amin and the villagers got partitioned effected amongst the Pattidars. In the aforesaid background, on 07.11.2008, his bhabhi Ramwati Devi said to Mahender Mehta to remove the thorns having kept over the road in the background of aforesaid Panchayati, which was declined by Mahender Mehta, whereupon his bhabhi reacted. Mahender Mehta began to abuse his bhabhi and then, assaulted her with fists and slaps. He intervened, whereupon Mahender Mehta also abused him and also assaulted him with fists and slaps. During midst thereof, Sanju Mehta, Ram Chandra Mehta, Gopal Mehta, Mod Lal Mehta armed with lathi and fatta came and Sanju Mehta gave lathi blow over his head as a result of which, he fell down. Then thereafter, others assaulted him with lathi and fatta. It has also been disclosed that Laxmi Devi and Ram Devi also joined them armed with fatta and assaulted him. Thereafter, Sanju Mehta took away one Nokia Mobile, cash appertaining to Rs. 1200-1300 while Mahender Mehta snatched away chain (silver) and bangle (silver). On hue and cry, villagers began to assemble seeing whom, accused persons fled away. Then thereafter, villagers took him to hospital over tractor. 3. As is evident from the record, after registration of Birpur (Bhimnagar) P.S. Case No.165 of 2008, investigation was taken up and after concluding the same, at an earlier occasion, chargesheet against accused Gopal Mehta, Mod Lal Mehta, Ram Chandra Mehta was submitted, (outcome thereto is not known). The second chargesheet has been submitted against the appellant Mahender Mehta keeping investigation pending against Sanju Mehta, Laxmi Devi and Ram Devi. Accordingly, trial commenced and concluded in a manner, subject matter of instant appeal. 4. The second chargesheet has been submitted against the appellant Mahender Mehta keeping investigation pending against Sanju Mehta, Laxmi Devi and Ram Devi. Accordingly, trial commenced and concluded in a manner, 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. It has also been pleaded that on account of illegal activity of the prosecution party whereunder they tried to pounce upon their land illegally, which was resisted, this false case has been instituted taking the police/ doctor in his collusion. However, nothing has been adduced in defence. 5. In order to substantiate its case, prosecution had examined altogether eight PWs, who are PW-1, Moti Lal Mehta, PW2, Raghunandan Mehta, PW-3, Laxhman Sharma, PW-4, Reta Devi, PW-5, Ramawati Devi, PW-6, Dr. Shailender Kumar Gupta, PW-7, Mishri Lal Mehta and PW-8, Md. Ekbal. Side by side, had also exhibited as Exhibit-1 series, injury reports, Exhibit-2, signature of informant over fard-bayan, Exhibit-3, fard-bayan and Exhibit-4, chargesheet have not been marked Exhibit-5, endorsement over the fard-bayan and Exhibit-5/1, formal F.I.R. As stated above, nothing has been adduced on behalf of defence. 6. It has been submitted on behalf of learned counsel for the appellant that the judgment of conviction and sentence recorded at the end of the learned lower Court is not at all sustainable in the eye of law, because of the fact that there happens to be no ingredients of any kind of offence is surfacing on the record from the evidences having adduced on behalf of prosecution. In order to justify the same, it has been submitted that from the evidence available on the record, it is apparent that it was not the appellant rather Ram Chandra Mehta, who had come to say something commanding the situation, whereupon there happens to be disclosure and during course thereof, appellant had assaulted Ramwati Devi and informant, who came in rescue by means of fists and slaps. There happens to be no disclosure at the end of the prosecution that anybody had handed over any kind of weapon in his hand what to talk about lathi nor there happens to be evidence with regard to subsequent activity of the appellant, leaving the place, going to his house coming with lathi joining with mob, assaulting the victim and the manner whereunder assault was made did not depict either intention or knowledge in order to kill Mishri Lal Mehta, informant. Being an empty hand at the spot without having any kind of specific allegation against the appellant could not attract his culpability with the aid of Section 149 of the I.P.C. as in spite of presence of the mob, he was not at all carrying, sharing common object with them. That being so, appellant could not be convicted and sentenced for Section 307 of the I.P.C. with the aid of Section 149 of the I.P.C. 7. It has further been submitted that although during course of conduction of trial, there happens to be some sort of slackness at the end of the appellant whereunder PW-1 has not been cross-examined and further, I.O. has also not been cross-examined over overwriting visualizing on the fard-bayan nor informant has been cross-examined, but from perusal of the fard-bayan (an exhibit), it is evident that it speaks otherwise negativating the allegation, more particularly manner as flashed by the prosecution during course of trial. Because of the fact that the fard-bayan happens to be part and parcel of the record, on account thereof, the same could be taken into consideration. 8. It has further been submitted that although the wife of the informant (PW-4), bhabhi Ramawati Devi (PW-5) and informant (PW-7) had said that on account of assault having over the person of PW-7, informant, some sort of deficiency has been persisted and to justify the same, PW-6, the doctor, had issued supplementary injury report identifying the head injury to be grievous on account of fracture would not be accepted rather it suggests collusiveness amongst each other as during examination of PW-7, the Court had not opined over demeanour of the PW-7 and in likewise manner, the injured as per evidence of PW-6, was examined on 07.11.2008 while the C.T. Scan allegedly done over the PW-7 received at the end of PW-6 on 05.12.2008. There happens to be no explanation at the end of the prosecution on that very score, whereupon the injury report having issued by the PW-6 could not be taken into consideration. 9. Be that as it may, from the nature of the evidence as has been adduced on behalf of prosecution, no offence under Section 307 I.P.C. is made out against the appellant and so, the judgment impugned is fit to be set aside. 10. On the other hand, the learned Additional Public Prosecutor while refuting the submission has submitted that there happens to be consistent evidence of the witnesses, more particularly PW-5 and PW-7 over the manner of occurrence, genesis of occurrence and further, is found corroborated with the evidence of PW-6, the doctor. In the aforesaid facts and circumstances of the case, the judgment of conviction and sentence recorded by the learned lower Court is fit to be affirmed. 11. It is needless to say that both parties are agnate to each other. It is needless to say that there happens to be uniformity amongst the evidence of the witnesses over genesis of occurrence and the same happens to be with regard to removal of thorns having kept by the appellant Mahender Mehta over the road since before, which was directed to be removed in the background of Panchayati having a day prior to the alleged occurrence. In order to ascertain whether the genesis of occurrence is probable or not, first of all, the evidence of the I.O. (PW-8) Md. Ekbal is to be seen. In Para-2, he had stated that he had inspected the place of occurrence. The place of occurrence happens to be the road lying in front of house of Gopal Mehta at village-Lalpur. He had identified the boundary as North-land of Gosai Mehta, South-house of Gopal Mehta, West-village road and Eastvillage Lalganj. He had not shown presence of thorns over the road nor he had found the road duly blocked nor he had found the road lying in between the houses of all the Pattidars. He had identified the boundary as North-land of Gosai Mehta, South-house of Gopal Mehta, West-village road and Eastvillage Lalganj. He had not shown presence of thorns over the road nor he had found the road duly blocked nor he had found the road lying in between the houses of all the Pattidars. That means to say, the place, which was to be converted at road to be used by all the Pattidars and for that, the allegation has been attributed having been closed on account of keeping of thorns, thereupon since before was not at all seen by the I.O. On that very score, the evidence of the witnesses have been gone through, it transpires that none of them had said that they have shown the place to the I.O. In the background of aforesaid deficiency now the other evidences are to be seen. 12. Pw-6 is the doctor, who as deposed, had examined the informant (PW-7) Mishri Lal Mehta on 07.11.2008 and found the following:- i. Abrasion 1½" x ½" x left side scalp with weakness in right hand and advised for C.T. Scan of head. Nature of Injury-opinion reserved till the report come. ii. Diffuse swelling on right scapular region. iii. Abrasion ¼" x ¼" on left side posterior. iv. Swelling 1" x 1" on right side scalp. v. Abrasion 1" x 1" on left knee. Nature of Injury Nos.(ii) to (v) are simple in nature and caused by hard and blunt substance, within six hours. Report of C. T. Scan done on 10.11.2008 at Virat Nursing Home at Virat Nagar, Nepal and received the report on 05.12.2008. On the basis of said C.T. Scan Report, made a report related to injury of Mishri Lal Mehta. The opinion in connection with injury no.(i), which was abrasion on 1½" x ½" left side scalp with weakness of right hand. C. T. Scan report shows:- I. Extra-admal Haematoma left parietal region. II. Contusion left parietal lobe. III. Linear fracture left temporal bone. Nature of injury is grievous in nature and caused by hard and blunt substance, within six hours. During cross-examination, nothing substantial has been taken at the end of the appellant. C. T. Scan report shows:- I. Extra-admal Haematoma left parietal region. II. Contusion left parietal lobe. III. Linear fracture left temporal bone. Nature of injury is grievous in nature and caused by hard and blunt substance, within six hours. During cross-examination, nothing substantial has been taken at the end of the appellant. However, when Exhibit-1 the original injury report and supplementary injury report Exhibit-1/1 has been gone through, it is evident that aforesaid documents are photo copy of the original without having any kind of certification that it was prepared from original, compared. For want of aforesaid certificate at the end of the competent person as well as having absence at the end of the doctor (PW-6), it could not be treated as secondary evidence and as it appears that learned lower Court while dealing with the evidence of PW-6 at Para-10 of his judgment had completely ignored regarding nature of the document as well as its admissibility in the eye of law. 13. Now, coming to ocular evidence, PW-1 had shown the date of occurrence as 09.11.2008. He had further stated that on the alleged date and time of occurrence while he was at his house, he rushed to the place of occurrence after hearing alarm where he saw Mahender Mehta engaged in assaulting Ramwati Devi, Mishri Lal Mehta came in rescue, whereupon Mahender Mehta, Ram Chandra Mehta, Gopal Mehta, Mod Lal Mehta, Sanju Mehta, Rama Devi, Laxmi Devi all began to assault. Then thereafter, Mahender Mehta snatched away ornaments from Ramwati Devi. He had further stated that Sanju Mehta had assaulted over head of Mishri Lal Mehta with fatta having edged side as a result of which, injury has been caused over head of the Mishri Lal Mehta. Sanju Mehta took away mobile. Injured was taken to hospital. This witness was not at all cross- examined. 14. Pw-2 had stated that the occurrence is of dated 07.11.2008 at about 5-6 P.M. He was at his house, he rushed to the place of occurrence where he saw Ramwati Devi and Mahender Mehta abusing each other, during midst thereof, Mishri Lal Mehta came. Mahender, Ram Chandra, Gopal, Mod Lal Mehta, Sanju Mehta, Laxmi Devi, Rama Devi came armed with lathi and fatta, out of whom, Sanju Mehta came with fatta, having edged core gave blow over head of Mishri Lal Mehta as a result of which, he sustained injury. Mahender, Ram Chandra, Gopal, Mod Lal Mehta, Sanju Mehta, Laxmi Devi, Rama Devi came armed with lathi and fatta, out of whom, Sanju Mehta came with fatta, having edged core gave blow over head of Mishri Lal Mehta as a result of which, he sustained injury. Ramwati Devi was assaulted by Mahender Mehta and then, Mahender Mehta took away ornaments from Ramwati Devi. Sanju Mehta took away mobile, cash Rs. 1200-1300. Then injured was taken to hospital over tractor. He had further stated that after falling of Mishri Lal Mehta, other accused persons also assaulted. During cross-examination in Para-9, there happens to be disclosure with regard to inter se relationship with the prosecution party as well as accused persons being cousin brother. He had further stated that dispute is not with regard to land rather with regard to passage. For the last 7-8 years, dispute is going on. In Para-10, he had admitted that the aforesaid land belongs to accused persons. In Para-12, he had further stated that at an earlier occasion, their ingress and outgress was through the aforesaid passage, but in due course of time, same has been closed. Dispute arose over closure of the aforesaid passage. In Paras-13 and 14, he had stated that they (prosecution) were insisting upon to open the passage. In Para-16, he had stated that it was fenced by thorns. They have not tried to remove the thorns. It was kept north to the house of Gopal Mehta. In Para-18, he had stated that dispute arose over main road. In Para-19, he had stated that Ramwati Devi was insisting upon to open the passage while the accused persons were saying that they would not allow. When altercation took place for half an hour, people assembled, then occurrence took place. In Para-21, he had stated that he reached at the spot from the time of abusing and remained there till the end. In Para-22, he had stated that accused persons were on road. Marpit began after his arrival, first of all, Ramwati Devi was assaulted by the accused persons. She was assaulted by fists and slaps. All the seven accused persons have assaulted her for about two minutes, during midst thereof, Mishri Lal Mehta came. At Para-25, he had further stated that while Ramwati was being assaulted, none of the accused persons was armed with any weapon. She was assaulted by fists and slaps. All the seven accused persons have assaulted her for about two minutes, during midst thereof, Mishri Lal Mehta came. At Para-25, he had further stated that while Ramwati was being assaulted, none of the accused persons was armed with any weapon. In Para-26, he had stated that when Mishri Lal Mehta intervened, engaged in altercation with Mahender Mehta. He had further stated that while Mahender Mehta was assaulting Ramwati, none other accused persons were present. In Para-27, he had stated that at the time when Mishri Lal Mehta and Mahender Mehta were engaged in altercation at that very moment, Ramwati Devi was lying over the ground. He had not tried to intervene. In Para-28, he had stated that while altercation took place with Mahender Mehta and Mishri Lal Mehta, during midst thereof, Sanju Mehta came followed by Ram Chandra, Gopal, Laxmi Devi, Mod Lal Mehta, Rama Devi. In Para-29, he had stated that as soon as accused persons came, all of them began to assault. They were armed with lathi and fatta. In Para-30, he had stated that after sustaining first blow at the end of Sanju Mehta, Mishri Lal Mehta fell down and then thereafter, others have assaulted with lathi. In Para-36, he had stated that police had come, but he (Mishri Lal) was not in a position to make statement as was unconscious. Then police returned back. Police had not taken statement from them. In Paras-39, 40, there happens to be contradiction. 15. Pw-3 is Laxman Sharma, who had stated that on the alleged date and time of occurrence while he was returning, heard alarm, gone there where he had seen bhabhi of Mishri Lal Mehta was being assaulted by Mahender, Mod Lal, his wife and others. Altogether seven persons were engaged in assaulting. Mishri Lal came, he was assaulted by Mahender with fatta, Mishri Lal fell down. Then thereafter, people lifted him to hospital. During cross-examination, he had stated at Para-6 that he met with the persons while in a way to place of occurrence. It was soling road. He stayed there only for five minutes, children were present there. Apart from the accused persons, when he reached there, he had seen Mishri Lal in unconscious condition lying over the road where his bhabhi was also present, who was conscious and standing. It was soling road. He stayed there only for five minutes, children were present there. Apart from the accused persons, when he reached there, he had seen Mishri Lal in unconscious condition lying over the road where his bhabhi was also present, who was conscious and standing. In Para-9, he had stated that he raised alarm attracting the persons and then, instructing them to carry the injured to hospital, left the place. 16. Pw-4 is the wife of the informant, who had stated that on the alleged date and time of occurrence, she was cooking. After hearing sound of uproar, came out and gone to the place of occurrence. She had further stated that one day prior to the occurrence, there was Panchayati with regard to allowing passage wherein accused persons conceded. Only to remove the thorn having been kept by the accused persons, Ramwati Devi had said over which Mahender Mehta, Gopal Mehta, Sanju Mehta, Ram Chandra Mehta, Mod Lal Mehta, Rama Devi, Laxmi Devi began to assault her with fatta. All of them assaulted her. She was also assaulted. Mishri Lal Mehta came in rescue of Ramwati Devi, who was also assaulted as a result of which, Mishri Lal became unconscious. Mishri Lal Mehta was assaulted by Mahender Mehta, Sanju Mehta, Ram Chandra Mehta, Gopal Mehta, Mod Lal Mehta, Rama Devi, Laxmi Devi. He was treated at Virat Nagar, he became deaf. In Para-5, she had disclosed the inter se relationship. In Para-9, there happens to be contradiction relating to her assault. In Para-10, she had stated that her husband was knowing with regard to her assault. In Para-12, she had stated that she was alone in her courtyard. There was uproar over the road, whereupon she came out, so many persons were there. As it was dark on account thereof, she was not in a position to identify the persons having assembled there. In Para-13, she had stated that she had inquired from her family members (only females) regarding uproar over which, they disclosed that quarrel is going on. In Para-14, she had stated that she reached there, she had seen her husband lying over the road. She had not seen other persons in an injured condition. Her husband was unconscious, she tried to lift him, but having failed, raised alarm for help. When her husband fell down, then thereafter, accused persons fled there from. In Para-14, she had stated that she reached there, she had seen her husband lying over the road. She had not seen other persons in an injured condition. Her husband was unconscious, she tried to lift him, but having failed, raised alarm for help. When her husband fell down, then thereafter, accused persons fled there from. In Para-15, she had stated that Ramwati was present since before. 17. Pw-5 is Ramwati Devi. She had disclosed that on the alleged date and time of occurrence, she was at her house. She had gone to say Mahender to remove thorn from the passage, whereupon he began to abuse and chased her to assault, he assaulted her. Her brother-in-law (Dewar) Mishri Lal came, whereupon Mahender, Ram Chandra, Gopal, Mod Lal, Sanju Mehta, Rama Devi, Laxmi Devi assaulted him. On account of assault, he fell down. She came in rescue, whereupon Mahender assaulted her with lathi over her right hand. Sanju Mehta snatched away Nokia Mobile set from Mishri Lal Mehta. Her bangle (silver) has also been snatched away by the accused persons. On account of assault by Sanju Mehta, her brother-in-law (Dewar) became deaf. Police came. In Para-4, she had stated that there was Panchayati a day prior to the occurrence, but accused persons had not obeyed the resolution of the Panchayat as in the evening hour, they indulged in quarrel. During cross-examination at Para-6, she had stated that Mahender Mehta happens to be her brother-in-law (Bhainsur). She had further stated that she had gone to his darwaza, she again corrected, she had gone in front of his darwaza to instruct him to remove the thorns from the passage. In Para-7, she had stated that he had put thorn after Panchayati. Panchayati was held a day prior, Panchayati was convened by her with regard to passage only as Mahender Mehta had blocked the passage. In Para-8, she had stated that at the time of dispute, Raghunath, Moti Lal along with 4-8 persons have come, when they came, she along with her brother-inlaw had already fallen over the ground. She was conscious while her Dewar was unconscious. In Para-10, she had stated that they had fallen at the same place at a distance of one hand, 3-4 hands away from thorns having kept in order to block the passage. Witnesses have lifted them and taken her Dewar to hospital. She was conscious while her Dewar was unconscious. In Para-10, she had stated that they had fallen at the same place at a distance of one hand, 3-4 hands away from thorns having kept in order to block the passage. Witnesses have lifted them and taken her Dewar to hospital. There was injury over the person of Mishri Lal Mehta. In Para-13, he had stated that he remained unconscious for 15-20 days. She again clarified that till her presence at Bhim Nagar Hospital, he remained unconscious. As he had not regained sense, on account thereof, he was taken to another hospital. In Para-14, he had stated that Mahender, Ram Chandra, Sanju Mehta, Gopal, Mod Lal, Rama Devi, Laxmi Devi were armed with lathi and fatta. They all came conjointly and made indiscriminate assault. She along with her Dewar were assaulted. First of all, she was assaulted and then, her Dewar. She was assaulted at her right hand, back. In Para-17, she had stated that she is unable to say, who participated during course of Panchayati. Panchayati held on the road. Occurrence took place over the said road. That road lies East to her house at a distance of 4-5 lagga. That happens to be government road. In Para-20, she had stated that Mahender is not acceding with their grievance. He is not inclined to give share relating to the properties left by her father-in-law and the dispute relates with the same. Panchayati was also convened for the same. In Para-21, she had stated that in Panchayati, Mahender accepted the same, but subsequently he is not inclined to accept the same. 18. Pw-7 is the informant. He had stated that on 07.11.2008 at about 7.00-7.30 P.M., he was at his courtyard. He heard alarm, whereupon came over the road where he saw Mahender Maheta engaged in assaulting his bhabhi and his other family members were also present. He rushed to rescue his bhabhi and during course thereof, Mahender Mehta, Ram Chandra Mehta, Mod Lal Mehta, Gopal Mehta, Sanju Mehta, Rama Devi, Laxmi Devi began to assault him. They assaulted with lathi and fatta. Then thereafter, Sanju Mehta took away Nokia Mobile from his pocket and Rs. 1200-1300. Mahender snatched away chain, bangle from his bhabhi. Then had stated that on account of assault given by Sanju Mehta with lathi, there was haematoma over his head. They assaulted with lathi and fatta. Then thereafter, Sanju Mehta took away Nokia Mobile from his pocket and Rs. 1200-1300. Mahender snatched away chain, bangle from his bhabhi. Then had stated that on account of assault given by Sanju Mehta with lathi, there was haematoma over his head. People of the surroundings came seeing whom, accused persons fled away. He became unconscious, he was taken to hospital where fard-bayan was recorded (Exhibited). He was being treated even today, his right thumb has been damaged. As referred by the doctor, he was also treated at Virat Nagar. C.T. Scan was also done. During cross-examination, he had stated that land amongst them have already been partitioned and then, there happens to be eventuality relating to mutation before the Circle Officer. In Para-15, he had stated that one year after partition, the passage has been closed. Panchayati was convened three days prior to the occurrence. In Para-16, he had stated that all the Pattidars including Mahender Mehta are inclined to have passage opened. In Para-17, he had stated that Gopal Mehta, nephew of Mahender Mehta is not interested in getting the passage opened. He had further stated that Gopal also happens to be his nephew as well as nephew of Ramwati. In Para-18, he had stated that none had gone to uproot the thorns. In Panchayati, it was directed to remove the thorns and as it was not removed, so his bhabhi had gone to say Mahender. At that very time, he was at A.T.M. Chowk, when he returned there from and was at his darwaza, he heard uproar. His mother, wife and bhabhi were at their darwaza. In Para-20, he had stated that his bhabhi was shouting to remove the thorns. Then had stated at Para-21 that when he reached, all the accused persons were assaulting his bhabhi with lathi and fatta. In Para-22, he had stated that she was being assaulted over the road in front of the place where thorns were affixed. Then had corrected that marpit was being done at the main road. In Para-23, he had stated that his bhabhi was lying on the ground. He was empty hand. When he came in rescue, he was assaulted by all of them. He tried to push all of them and during course thereof, he was assaulted. Then at Para-24, he had stated that all of them had assaulted him. In Para-23, he had stated that his bhabhi was lying on the ground. He was empty hand. When he came in rescue, he was assaulted by all of them. He tried to push all of them and during course thereof, he was assaulted. Then at Para-24, he had stated that all of them had assaulted him. After sustaining lathi blow by Sanju Mehta over his head, he became unconscious. 19. Pw-8 is the Investigating Officer. He had stated that after coming to know regarding admission of the informant at hospital, he rushed thereto, recorded fard-bayan and then, sent the fard-bayan to Birpur P.S. for its registration. After registration, he was entrusted with the investigation. He took up investigation, recorded statement of the witnesses, further statement of the informant, visited the place of occurrence (detailed already discussed). Then after getting supervision note, submitted chargesheet. During cross-examination at Para-8, he had stated that he is not remembering the exact time when F.I.R. was recorded. He had gone to the P.O., recorded statement of the witnesses. He had not gone to Birpur along with fard-bayan rather somebody else had gone and he is not remembering the same. He denied the suggestion on that very score. 20. As stated above, it is apparent that photo stat copy of the injury report/ supplementary injury report have been made an exhibit without having any certificate nor there happens to be disclosure at the end of the PW-6, on that very score. Therefore, the Exhibit-1 series, loose its sanctity even as a secondary evidence. Now, coming to oral evidence available on the record, there happens to be inconsistency in between all the witnesses over manner of occurrence, as some had said that Mahender was empty hand, with whom bhabhi indulged in an altercation followed by assault with fist and slap, intervened by Mishri Lal, who was also assaulted by fists and slaps, then was joined by the others armed with lathi, who assaulted wife, bhabhi, and Mishri Lal, while some others controverted the same divulging assault by lathi and fatta since before. Furthermore, the wife whose presence is not at all as an injured also claimed to be. Furthermore, there also happens to be contradiction over manner of assault amongst PW-5 and PW-7. Furthermore, the wife whose presence is not at all as an injured also claimed to be. Furthermore, there also happens to be contradiction over manner of assault amongst PW-5 and PW-7. Furthermore, from the evidence of the informant himself, it is evident that Mahender was himself inclined to have the passage opened, but his nephew, who also happens to be his nephew Gopal Mehta was not interested therein. In the aforesaid background, the activity so alleged against the appellant Mahender Mehta became doubtful. When the evidence of PW-5 is properly considered, then in that circumstance, the fard-bayan became doubtful. Giving overall appreciation of the facts and circumstances, so emerging out, it does not look prudent to concede with the finding recorded by the learned lower Court. 21. Consequent thereupon, judgment of conviction and sentence recorded by the learned lower Court is set aside. Appeal is allowed. Appellant is on bail, hence is discharged from its liability.