JUDGMENT : Appellant Kameshwar Sahani has been found guilty for an offence punishable under Section 307 I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs. 10,000/- and in default thereof, to undergo S.I. for three months, additionally, under Section 323 I.P.C. and sentenced to undergo S.I for six months with a further direction to run the sentences concurrently vide judgment of conviction dated 29.05.2015 and order of sentence dated 04.06.2015 passed by 7th Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 517 of 1987/1995 of 2014. 2. Nagendra Sahani (not examined on account of his murder) gave his fard-beyan while was admitted along with the wife Punkali Devi at P.H.C., Deokulia on 30.04.1995 alleging inter alia that on 28.04.1995, Mangar Sahani, Banarsi Sahani,, Bindeshwari Sahani and Kameshwar Sahani, in his absence cut down his palm tree in spite of protest having made by the female members. When he returned back at evening time, his family members disclosed the event, whereupon he had gone to Mangar Sahani and inquired why they have cut down the palm tree. Mangar Sahani instructed to get the land measured and in case, palm tree is found within his land, then in that circumstance, he may take away the same. Then thereafter, he got his land measured and during course thereof, palm tree was found within his land. Irrespective of the same, today at about 4 A.M., they began to remove the piece of palm tree, whereupon he protested. In the aforesaid background, Mangar Sahani directed his son Banarsi Sahani to assault, whereupon, Banarsi Sahani armed with lathi directed his brother and Pattidar to come duly armed and cut him in pieces. During midst thereof, Banarsi Sahani gave lathi blow over his right temporal region as a result of which, blood began to ooze out from his ear. Bindeshwari Sahani assaulted his mother over her back, waist with bamboo. Kameshwar Sahani rushed to his house along with farsa and assaulted his wife with farsa over her head causing injury thereupon. He raised alarm for rescue, whereupon Jayram Sahani came with lathi and assaulted him. During midst thereof, Deonandan Sahani also came with lathi and assaulted his brother Harendra Sahani. Bharat Rai, Deonath Rai, Bhikhari Sahani along with others came and rescued them. 3. He raised alarm for rescue, whereupon Jayram Sahani came with lathi and assaulted him. During midst thereof, Deonandan Sahani also came with lathi and assaulted his brother Harendra Sahani. Bharat Rai, Deonath Rai, Bhikhari Sahani along with others came and rescued them. 3. After registration of Phenhara P.S. Case No. 10 of 1995, investigation proceeded and after completing the same, accused persons were charge-sheeted. It is also evident that during course of trial, Mangar Sahani died and by the judgment impugned, accused Banarsi Sahani, Bindeshwari Sahani and Kameshwar Sahani have been found guilty for an offence punishable under Section 323 of the I.P.C. and further, Banarsi Sahani and Bindeshwari Sahani were let off on due admonition while appellant has been found guilty apart from Section 323 I.P.C., under Section 307 I.P.C. for which, he has been sentenced in a manner as indicated above, 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 further been pleaded that palm tree was standing over their plot, which was illegally claimed by the prosecution party and for that, this case has falsely been filed putting false and frivolous allegation. In order to substantiate the same, apart from oral evidence, sale deed relating to the land has also been made an exhibit. 5. The prosecution in order to substantiate its case had examined altogether eight PWs, who are PW-1, Harendra Sahani, PW-2, Bhikhari Sahani, PW-3, Bharat Rai, PW-4, Ramchandra Bhagat, PW-5, Sunaina Devi, PW-6, Punkali Devi, PW-7, Punjabi Baitha and PW-8, Deonath Rai. Side by side, had also exhibited as Exhibit-1, fard-beyan, Exhibit-2 series, injury report of Harendra Sahani, Sunaina Devi, Punkali Devi and Nagendra Sahani respectively, Exhibit-3, formal F.I.R. In likewise manner, defence had also examined one DW, DW-1, Binod Paswan and had also exhibited sale deed dated 25.10.1962 as Exhibit-A. 6. While assailing the judgment of conviction and sentence, it has been submitted at the end of the learned counsel for the appellant that though the learned lower Court had properly appreciated the defects, infirmities, lapses, weakness in the prosecution case, whereupon, disbelieved the other parts of allegation. While assailing the judgment of conviction and sentence, it has been submitted at the end of the learned counsel for the appellant that though the learned lower Court had properly appreciated the defects, infirmities, lapses, weakness in the prosecution case, whereupon, disbelieved the other parts of allegation. However, found the appellant along with others guilty for an offence punishable under Section 323 of the I.P.C. and further, appellant to be guilty under Section 307 of the I.P.C., which ought not to be as once the reliability of witnesses have been doubted, then in that circumstance, it should not have been in piecemeal manner, rather in totality of and by adopting such approach, should have rejected the evidence in its totality. 7. It has also been submitted at the end of the learned counsel for the appellant that there happens to be an admission at the end of the PW-1, who happens to be the brother of informant as well as one of the injured that palm tree was standing over Survey Plot No.136, which happens to be the land of the appellant and that being so, the subsequent activity at the end of the prosecution party is found ul troneous with unwarranted activity whereunder, they advanced illegally their claim over the palm tree and further, resisted. Furthermore, it has also been submitted that when prosecution party have got no right over the palm tree on account thereof, were not in a position to forbid and so, whatever eventuality, they have exposed, is not at all found sufficient to attract conviction of the appellant apart from others. In this regard, it has also been submitted that neither the doctor has been examined nor the investigating officer. In the facts and circumstances of the case, where the status of the prosecution party is found under controversy as they were suggested to be ‘pichhlagua’, whereupon were not at all entitled to claim share and further, considering the admission of PW-1, no case is made out. Apart from this, it has also been submitted that appellant remained under custody for nine months, during pre-conviction stage, which could be found to be sufficient to justify in case, the prosecution case is found to be proved. 8. Apart from this, it has also been submitted that appellant remained under custody for nine months, during pre-conviction stage, which could be found to be sufficient to justify in case, the prosecution case is found to be proved. 8. On the other hand, the learned Additional Public Prosecutor stoutly objected the submission having made on behalf of appellant and submitted that had there been an occurrence at the place of occurrence, it would have been given another thought, but running to the house of the informant and then, giving farsa blow over the head of the wife of the informant namely Punkali Devi (PW-6) is a circumstance, which did not attract interference in the finding having recorded by the learned lower Court irrespective of the fact that neither doctor nor I.O. has been examined. Furthermore, it has also been submitted that Section 307 I.P.C. is bifurcated in two parts. The first part speaks with regard to non-presence of hurt over the victim, suggests that any activity having at the end of an accused with an intention to commit murder or knowing that his activity will ultimately cause murder, will attract application of Section 307 I.P.C. The evidence as has been adduced on behalf of prosecution consistently conclusively against the appellant to be assailant of Punkali Devi by means of farsa, a dangerours weapon, on account thereof, the finding with regard to Section 307 of the I.P.C. is found completely justifiable. 9. It is an admitted fact that neither I.O. nor doctor has been examined. The paraphernalia on that very score, has been completed by examining formal witnesses, which did not find to be in accordance with law and so, irrespective of the fact that injury reports have been an exhibit of the record, same cannot be looked into. In likewise manner, there happens to be status of the other documents, which was required to be exhibited at the end of the I.O. 10. Now, coming to the status of the witnesses, it is apparent that PW-3, PW-4 and PW-8 have been declared hostile while PW-7 happens to be formal in nature. So, the prosecution case rests upon the shoulder of PW-1, Harendra Sahani, PW-2, Bhikhari Sahani, PW-5, Sunaina Devi and PW-6, Punkali Devi, out of whom, PW-1, PW-5 and PW-6 are the injured. Now, coming to the status of the witnesses, it is apparent that PW-3, PW-4 and PW-8 have been declared hostile while PW-7 happens to be formal in nature. So, the prosecution case rests upon the shoulder of PW-1, Harendra Sahani, PW-2, Bhikhari Sahani, PW-5, Sunaina Devi and PW-6, Punkali Devi, out of whom, PW-1, PW-5 and PW-6 are the injured. It is needless to say that the evidence of an injured lies on upper pedestal and unless and until, there happens to be cogent reason to disbelieve their testimony, ordinar ily, their evidences are to be accepted. PW-2 has shown himself to be an independent witness, but during course of his evidence had shown is interestedness with the prosecution party. 11. PW-1, during course of his examination-in-chief, had stated that while he along with his brother Nagendra Sahani had gone to Madhuban Bazar on 24.04.1995 and returned back at evening hour, his mother and bhabhi disclosed that Mangar Sahani, Banarsi Sahani, Bindeshwari Sahani, Kameshwar Sahani cut down the palm tree and then, seven logs have been prepared in order to facilitate its removal. On this, both of them gone to the place of Mangar Sahani and inquired why they have cut down the palm tree, whereupon he said that got the land measured and in case, it happens to be your tree, he will leave it. When they demanded cost of expenses, he refused. On 29.4.1995, they got the land measured and the palm tree found to be over their land. Accordingly, it was resolved that tomorrow palm tree will be taken away by them. During midst thereof, in the night of 30.04.1995, the accused persons intentionally, stealthily began to remove the palm logs. At about 4.00 A.M., Mangar Sahani, Bindeshwari Sahani, Kameshwari Sahani and Banarsi Sahani indulged themselves in lifting the logs. His mother came out and had seen the same, whereupon his mother returned and informed, whereupon both the brothers came and protested. Accused persons began to abuse. During course thereof, Bindeshwari Sahani gave phatta blow causing injury over his hand, causing fracture. Banarsi Sahani gave bamboo blow over his back. His brother Nagendra Sahani was assaulted by Kameshwar Sahani with fatta over his temporal region. Accused persons began to abuse. During course thereof, Bindeshwari Sahani gave phatta blow causing injury over his hand, causing fracture. Banarsi Sahani gave bamboo blow over his back. His brother Nagendra Sahani was assaulted by Kameshwar Sahani with fatta over his temporal region. He rushed there from raising an alarm, whereupon so many persons came including Bhikhari Sahni, Devnath Rai and Bharat Rai, who had seen the injury over them as well as had also seen the assailant. He came back and then, had seen injury over head of his Bhabhi, who was lying over the ground and was unconscious at the P.O. itself. After regaining sense, his bhabhi had disclosed that Kameshwar Sahni had assaulted her. Then thereafter, they lifted his bhabhi to hospital over cot where she was treated. Police had recorded his statement, identified the accused. During cross-examination at Para-3, he had stated that informant happens to be his full brother. They reside in a common house, but are separate in mess and business. In Para-6, he had stated that Kameshwar Sahni is his uncle according to village custom. Then had denied the suggestion that his father was ‘Pichhlagua’ of aunt of Kameshwar Sahni. In Para-8, he had identified the place of occurrence as North-Kameshwar Sahni, South-Nagendra Sahni, East-Bilas Paswan, West-Nagendra Sahni. In Para-10, he had stated that Khesra number of P.O. happens to be 136 having an area of eight dhoor. The P.O. land has been purchased and the sale deed stood in name of Nagendra Sahni. Then had stated that palm tree was not standing over the same. Palm tree was standing North to that plot, which belonged to accused Mangar Sahni. This land lies at a distance of four lagga from the P.O. land. Then had disclosed that Ram Chandra Bhagat had measured the land four days prior to the alleged occurrence. In Para-11, he had stated that accused Kameshwar Sahni also claims the palm tree. In Para-12, he had stated that at the time of removal of piece of palm tree, he was present and during course thereof, marpit took place. Then volunteered, three pieces were taken away while two pieces remained to be removed. At that very time, only he and accused were present. After sustaining injury, he had not fallen down rather he rushed there from raising alarm, whereupon four co-villagers came seeing whom, the accused persons fled away. Then volunteered, three pieces were taken away while two pieces remained to be removed. At that very time, only he and accused were present. After sustaining injury, he had not fallen down rather he rushed there from raising alarm, whereupon four co-villagers came seeing whom, the accused persons fled away. He had further stated that accused persons have not chased him. In Para-14, he had further admitted that the disputed land has been sold away by Mosmat Reshmi in favour of accused Mangar Sahni vide sale deed dated 25.10.1962. Then he denied the suggestion that land happens to be in exclusive possession of Mangar Sahni rather he claimed possession over the same. 12. PW-2 had stated that on the alleged date and time of occurrence, Kameshwar Sahni, Banarasi Sahni, Bindeshwar Sahni and others were engaged in removing the palm tree, whereupon there was uproar. Nagendra Sahni, Harendra Sahni, mother Sunaina Devi and wife of Nagendra Sahni, Punkali Devi were assaulted by Kameshwar Sahni, Banarsi Sahni, Bindeshwar Sahni, Mangar Sahni, Shiv Nandan Sahni, Jairam Sahni. He had gone over the place of occurrence and had seen the accused persons engaged in assaulting the members of the prosecution party with lathi and fatta. Then had stated that Kameshwar Sahni had inflicted farsa blow over Punkali Devi causing injury over her head. Nagendra Sahni sustained injury over his ear as well as leg. Injured were taken to hospital. He had also accompanied, identified the accused. He had further stated that police had come during course of investigation and had seized palm tree for that, prepared seizure list, whereupon he had also put his signature. During cross-examination at Para-11, he had stated that both the parties are Pattidar having their separate residence. In Para-12, he had further stated that both the parties have quarreled at an earlier occasion also over possession of palm tree as land of both the parties lies by the side of the palm tree. Both the parties were claiming the palm tree. In Para-13, he had stated that no measurement was done at an earlier occasion. In Para-14, he had stated that there was dispute after cutting of palm tree, whereupon accused persons directed prosecution party to get the land measured and accordingly, measurement was done. In Para-16, he had stated that while accused persons were carrying the palm tree, there was dispute followed with marpit. In Para-14, he had stated that there was dispute after cutting of palm tree, whereupon accused persons directed prosecution party to get the land measured and accordingly, measurement was done. In Para-16, he had stated that while accused persons were carrying the palm tree, there was dispute followed with marpit. In Para-18, he had stated that when he reached at the P.O., he had seen blood coming out from the ear and leg of Nagendra Sahni, who was lying south to the palm tree. Even at that very time, accused persons were standing. He had talked with accused persons. Then had stated that on a threatening given by the accused persons, he fled away there from towards his house and during course thereof, had raised alarm. At that very moment, people began to assemble, whereupon accused persons fled away. In Para-24, he had stated that wife of Nagendra Sahni was taken to hospital by ten persons. He had informed the police. In Para-25, he had stated that he took away wife of Nagendra Sahni to police station, who was not fully conscious. Nagendra Sahni was in full sense, both of them conjointly gone to hospital. He had also accompanied them. In Para-26, he had stated that when police came to inspect the P.O., he was present. In Para-27, he had stated that he had shown the blood stain over the P.O. In Para-29, he had admitted that he happens to be son of Fufa of Nagendra Sahni that means to say, he happens to be cousin (Fufera brother). 13. PW-3 had stated that on the alleged date and time of occurrence, there was quarrel amongst Banarsi Sahni and others as well as Kameshwar Sahni and others. He had not seen the quarrel. Dispute was with regard to palm tree. Then had stated that the palm tree was in the land of Mangar Sahni, but he came to know that it had fallen under the share of Nagendra Sahni after measurement. In Para- 4, he had stated that when he reached at the P.O., quarrel was over. He had not seen anything. He had seen Nagendra Sahni, Harendra Sahni and their mother, wife of Nagendra Sahni in an injured condition. He had seen injury over body of Nagendra Sahni. He had also seen injury over head of wife of Nagendra Sahni and then, he was declared hostile. 14. He had not seen anything. He had seen Nagendra Sahni, Harendra Sahni and their mother, wife of Nagendra Sahni in an injured condition. He had seen injury over body of Nagendra Sahni. He had also seen injury over head of wife of Nagendra Sahni and then, he was declared hostile. 14. PW-5 is the mother, who had deposed that on the alleged date and time of occurrence, she had gone behind her house after hearing murmuring and then, saw Bindeshwari Sahni, Kameshwar Sahni, Banarsi Sahni and Mangar Sahni, who were preparing to remove the palm tree. Her son Nagendra Sahni and Harendra Sahni gone to protest. Accused persons were armed with lathi and farsa, who began to assault. Kameshwar Sahni was armed with farsa, Banarsi Sahni was armed with bamboo, Bindeshwari Sahni and Mangar Sahni were armed with lathi. She along with her daughter-in-law Punkali Devi began to forbid them, whereupon they assaulted her, her daughter-in-law, her son Nagendra Sahni, who became unconscious. Punkali Devi sustained farsa blow over her head by Kameshwar Sahni. She was assaulted with lathi and bamboo. When Punkali Devi became unconscious, then Devnath Rai, Bharat Rai and Bhikhari Rai lifted her to Deokulia Hospital where she was treated. She was assaulted by Kameshwar and Bindeshwari Sahni with lathi. During cross-examination at Para-6, there happens to be contradiction. In Para-8, she had stated that she is not at all related with Mangar Sahani. At Para-10, she had stated that on the alleged date and time of occurrence, it was dark night. At the time of quarrel, only members of prosecution party as well as accused persons were there, none of the villagers were present. In Para-11, she had stated that both the parties are claiming palm tree. In Para-12, she had stated that after sustaining of injury by her sons, villagers came. She also rushed to P.O. and found her son lying west to the palm tree in an injured condition. At that very time, she had seen accused persons fleeing towards Eastern direction. In Para-13, she had stated that I.O. came at the P.O. after four days. She was present there. She had shown P.O. There was blood spot. I.O. had seized palm tree, but had not lifted the blood stained earth. 15. PW-6 is Punkali Devi. She had deposed that on the alleged date and time of occurrence, she was at her house. She was present there. She had shown P.O. There was blood spot. I.O. had seized palm tree, but had not lifted the blood stained earth. 15. PW-6 is Punkali Devi. She had deposed that on the alleged date and time of occurrence, she was at her house. Mangar Sahni, Banarsi Sahni, Bindeshwar Sahni, Kameshwar Sahni cut away palm tree, which was standing in her field. When she had gone to forbid them, they abused. At that very time, her husband had gone to Madhuban Bazar. After his returning, she had disclosed the incident, whereupon her husband had gone to inquire from the accused persons. Accused persons had instructed him to get the land measured. After measurement, Amin had found palm tree in her land. On the following day, after the measurement, accused persons began to lift the piece of palm tree, whereupon her husband as well as she herself arrived. Seeing them, Mangar Sahni ordered to assault. Jairam Sahni assaulted her husband, Harendra Sahni her Dewar was assaulted by Shiv Nandan Sahni. She was assaulted by Banarsi Sahni, Bindeshwar Sahni with lathi and fatta, she was also assaulted by Kameshwar Sahni by farsa over her head. Her mother-in-law Sunaina Devi was assaulted by Bindeshwari Sahni. Devnath Rai, Bharat Rai, Bhikhari Sahni and others rescued them. Then thereafter, they were taken to hospital where they were treated, fard-bayan of her husband was recorded in her presence. In Para-5, she had further stated that her husband has been murdered wherein three accused of this case are also accused, identified. During course of cross-examination at Para-7, she had stated that she is in possession of the sale deed relating to the land over which, palm tree was standing. She had shown the boundary of the land as North-MangarSahni, South-land of herself, East-Sri Narayan Tripathi and again corrected Ganesh Paswan, West-Sri Narayan Tripathi having an area of eight dhoor. Then had denied the suggestion that aforesaid land was purchased by Mangar Sahni in the Year 1962 from Mosmat Reshmi. In Para-8, she had admitted the relationship and further, her father-in-law was ‘Pichhlagua’ of grandfather of the accused. In Para-9, she had shown her ignorance whether her father-in-law was entitled to have share in the property or not. In Para-10, she had stated that Amin had prepared the trace map for measurement, which happens to be in her possession. In Para-8, she had admitted the relationship and further, her father-in-law was ‘Pichhlagua’ of grandfather of the accused. In Para-9, she had shown her ignorance whether her father-in-law was entitled to have share in the property or not. In Para-10, she had stated that Amin had prepared the trace map for measurement, which happens to be in her possession. In Para-2, she had stated that her husband was lying over the palm tree, blood was coming out from the injury over his temporal region, but she is unable to say on which side whether right or left temporal region. At that very moment, she had not seen minutely, on which part of body, he had sustained injury. On hue and cry, villagers came. In Para-4, she had stated that accused persons have given indiscriminate lathi blow. Then specified three accused had assaulted with lathi. At least, ten blows were given over her. She had sustained injury over her back, waist, head. She had not became senseless. Just after sustaining injury, her mother-in-law, Dewar came. She is unable to disclose how many lathi blows were given over her husband and Dewar and in likewise manner, she had stated with regard to assault relating to her mother-in-law. In Para-5, she had disclosed that her husband was in sense. Para-9, 10 happens to be contradiction. In Para-11, she had denied the suggestion that being ‘Pichhlagua’, her husband has managed the things in order to grab the property. 16. Defence had also examined one DW, through which exhibited the sale deed of the Year 1962 as Exhibit-A, having in their favour. 17. Gone through the evidence available on the record, from the evidence of PW-1, it is found that P.O. has been shifted to two places, the first one Khesra No.136 belonging to the accused, whereupon palm tree was standing and the second place where prosecution party were assaulted. When the evidences of remaining witnesses that means to say, PW-2, PW-5 and PW-6 have been gone through, it is apparent that they have not substantiated the same. When the evidences of remaining witnesses that means to say, PW-2, PW-5 and PW-6 have been gone through, it is apparent that they have not substantiated the same. From the evidence of PW-1, it is evident that he had admitted presence of palm tree over Khesra No.136 belonging to the accused and the same land was purchased by Mangar Sahni in the Year 1962 from Mosmat Reshmi and for that, the sale deed has been Exhibited as Exhibit-A. While PW-5 and PW-6 have claimed the aforesaid land to be their land and for that, claimed that the sale deed is in their possession. However, nothing has been adduced. With regard to measurement, although PW-6 had stated that the trace map having prepared by the Amin is in her possession, but again same has not been produced during course of evidence. That has got relevancy in the background of the fact that PW-4, alleged Amin had not supported the case of the prosecution during course of his evidence and on that very score, he was declared hostile. Apart from this, though on account of death of Nagendra Sahni (informant), he has not been examined, but initial version as the fard-bayan happens to be exhibit of the record, happens to be that Kameshwar Sahni had gone to the house of the informant armed with farsa where he gave stroke over head of Punkali Devi. That means to say, the initial version with regard to assault over Punkali Devi by Kameshwar Sahni happens to be at the house, which during course of evidence is found duly shifted to the place of occurrence. Furthermore, it is evident that from the evidence of PW-6, Para-4 that she had shown to be assaulted only by lathi and further, sustaining of injury over her head. When the evidence of PW-1 as well as PW-5 has been taken on that very score, their status as an eye witness became doubtful, though claimed to be injured. In the background of inconsistency coupled with non-examination of the I.O., in whose absence the rival claim with regard to the palm tree whether it was standing in the plot belonging to the prosecution party or the appellant/accused persons could be conclusively ascertained and further, in the background of admission at the end of the PW-1, it looks unsafe to concur with the finding having recorded by the learned lower Court. 18. 18. That being so, the 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.