JUDGMENT : Aditya Kumar Trivedi, J. On repeated call, none appears on behalf of appellants, on account thereof, Sri Arun Kumar Tripathi, learned counsel has been requested to assist the Court as an Amicus Curiae. 2. Both the appellants namely Ganesh Pandit and Mahesh Pandit have been found guilty for an offence publishable 447 of the I.P.C. and sentenced to undergo S.I. for three months, under Section 323 of the I.P.C. and sentenced to undergo S.I. for one year, while appellant Ganesh Pandit has been found guilty for an offence punishable under Section 324 of the I.P.C. and sentenced to undergo R.I. for one year, Mahesh Pandit has been found guilty for an offence punishable under Section 324/34 I.P.C. and sentenced to undergo R.I. for one year with a further direction to run the sentences concurrently with a further direction that the period having undergone during course of trial will be set off vide judgment of conviction as well as order of sentence dated 06.11.2008 passed by the Additional Sessions Judge, Fast Track Court No.Vth, Vaishali at Hajipur in Sessions Trial No.131 of 1990. 3. Sudama Devi (PW-8) gave her fard-beyan on 02.09.1988 at about 3 A.M. at her Darwaza disclosing therein that in the preceding night while they were sleeping at their house, her husband Prashadi Pandit was sleeping in a hut outside the house, her son Ramesh Pandit was sleeping in a room inside the house, other sons Raj Kumar Pandit and Sanjay Kumar Pandit were sleeping over Oshara outside her house, she along with her daughter Kanchaniya Devi were sleeping in a room inside the house, they woke up after hearing alarm of Prashadi Pandit, 'do not kill him, do not kill him', whereupon all of them rushed. They have seen three persons engaged in assaulting her husband. In torch light she has seen two persons armed with Chhura while one was armed with lathi. She identified one of them as Dashrath Pandit as her co-villager. Then thereafter, the person, who was carrying lathi, began to assault her as well as her daughter and all the three sons. They also raised hue and cry, whereupon her neighbour Mahesh Singh, Chandeshwar Singh, Binod Singh, Gopal Singh, Ramji Pandit and Others came, seeing whom, all the accused persons ran away therefrom. Then thereafter, the person, who was carrying lathi, began to assault her as well as her daughter and all the three sons. They also raised hue and cry, whereupon her neighbour Mahesh Singh, Chandeshwar Singh, Binod Singh, Gopal Singh, Ramji Pandit and Others came, seeing whom, all the accused persons ran away therefrom. She further disclosed that the persons, who came, have disclosed that they have identified Ganesh Pandit and Mahesh Pandit amongst them while her son Ramesh Pandit has identified all of them as Dashrath Pandit, Ganesh Pandit and Mahesh Pandit. Her husband as well as her son have been taken away by the villagers to Hajipur for treatment. They have sustained superficial injury on account thereof, they remained at the house. She has further disclosed that all the accused persons have indulge in criminal activity with an intention to kill her husband. The motive for occurrence has been shown as since three years, her son Ramesh Pandit and Dashrath Pandit are on strained relationship. 4. Bidupur P.S. Case No.160 of 1988 was registered followed with an investigation as well as submission of chargesheet facilitating the trial meeting with the conclusion, 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 further been pleaded that land of the appellants lies by the side of the house of the prosecution party and on account thereof, they are eager to take forceful possession, which always been foiled by the appellants and in the aforesaid background, this case has been instituted purposely, intentionally, malafidely, maliciously in order to coerce the appellants to give up resistance at their end. Oral evidence in order to substantiate the same, have also been adduced. 6. Prosecution has examined altogether 11 PWs., who are PW-1, Mahesh Singh, PW-2 Anil Kumar Singh, PW-3 Ram Prasad Pandit, PW-4 Ramesh Pandit, PW-5 Raj Kumar Pandit, PW-6 Vinod Singh, PW-7 Mahendar Baitha, PW-8 Sudama Devi, PW-9 Satendra Choudhary, PW-10 Dr. Subash Chandra Sharma and PW-11 Rajendra Prasad Singh. Side by side, has also exhibited, Exhibit-1, signature of the police official over formal F.I.R., Exhibit-2, injury report relating to Ram Prasad Pandit and Exhibit-3, fard-bayan. Subash Chandra Sharma and PW-11 Rajendra Prasad Singh. Side by side, has also exhibited, Exhibit-1, signature of the police official over formal F.I.R., Exhibit-2, injury report relating to Ram Prasad Pandit and Exhibit-3, fard-bayan. Defence has also examined four DWs, DW-1, Shankar Razak, DW-2, Bindeshwar Pandit, DW-3, Shyam Bahadur Pandit and DW-4, Jaswant Kumar Singh as well as has also exhibited Sale deed dated 17.08.1988 as Exhibit-A. 7. Pw-10 is the doctor, who had examined Ram Prasad Pandit on 02.09.1988 at about 1.35 A.M. (overwriting) and found the following injuries:- 1. Incised wound on the right leg10" below the knee joint "x " x " deep. 2. Incised wound on the right foot (dorsame) extending from middle finger to the little finger 3" x 1" x muscle deep. 3. Incised wound on the left leg on the shin of the tibia 2" x 1" x muscle deep. 4. Incised wound on the palmer surface of the little finger of the right hand 1" x " x muscle deep. 5. Absence of the premolar tooth of the lower jaw on the left side margin of the socket lacerated blood and blood clots present in the socket " x " x " deep. 6. Absence of the canine tooth of the lower jaw on the left side, margin of the socket lacerated blood and blood clots present in the socket " x " x " deep. 7. Swelling and abrasion of the lower lip 2" x 1". All the injuries within 12 hours, nature of the injury nos.1 to 4 are simple. Injury nos. 5 and 6 (overwriting) grievous. Injury nos.1 to 4 are caused by sharp cutting weapon, while injury nos.5 and 6 by hard and blunt substance. No finding with regard to injury no.7 has been given. 8. Coming to the nature of the oral evidence, it is evident that same suffers with some sort of peculiarity. Though, at an earlier occasion, the informant has not claimed herself to have identified these two appellants rather, she had disclosed that the villagers, who came on hue and cry as well as her son Ramesh Pandit had identified all the three accused namely Dashrath Pandit (since deceased), Mahesh Pandit and Ganesh Pandit. Though, at an earlier occasion, the informant has not claimed herself to have identified these two appellants rather, she had disclosed that the villagers, who came on hue and cry as well as her son Ramesh Pandit had identified all the three accused namely Dashrath Pandit (since deceased), Mahesh Pandit and Ganesh Pandit. Although, the development having been made during course of trial by the witnesses over manner of occurrence have been disbelieved by the learned lower Court, but as is evident, the aforesaid development completely changed the scenario adversely affecting the fate of the prosecution and when the same is taken together properly identifying the status of the witnesses along with non-examination of the I.O., it is evident that prosecution case would not survive. 9. Now, coming to the evidence of PW-1, he had stated that after hearing hue and cry, when he rushed at the place of occurrence, he had seen four persons running there from, out of whom, he had identified only Ganesh Pandit. From his cross-examination, he had admitted that the so alleged injured Ram Prasad Pandit, Ganesh Pandit, Mahesh Pandit and Others to be cousin brothers. In Para-2, he had further admitted that he had instituted a case against Ganesh Pandit in which Ram Prasad Pandit is the witness, whereupon in this case, he stood as a witness on his behalf. Apart from this, from his earlier statement as confronted, he does not happen to be an witness to the occurrence. 10. Pw-3 is the injured. During his examination-in-chief, he had stated that Ganesh Pandit, Mahesh Pandit and Dashrath Pandit came and asked for key of the house. On denial, Ganesh Pandit gave Chhura blow causing injury over his hand as well as leg. Ganesh Pandit, Mahesh Pandit and Dashrath Pandit assaulted him with danda over his mouth as a result of which, his tooth broken down. They have also assaulted all his three sons and a daughter. Then thereafter, they have gone inside his house, lifted a box and took it away. He was taken to hospital where police came and recorded his fard-beyan over which, he put his L.T.I. During cross-examination at para-1, he had admitted Ganesh Pandit and Mahesh Pandit to be his cousin brother. He had also admitted presence of litigation since before amongst them. He had also admitted houses of both the parties lying adjacent to each other. He was taken to hospital where police came and recorded his fard-beyan over which, he put his L.T.I. During cross-examination at para-1, he had admitted Ganesh Pandit and Mahesh Pandit to be his cousin brother. He had also admitted presence of litigation since before amongst them. He had also admitted houses of both the parties lying adjacent to each other. He had also admitted that accused persons happen to be on litigating term with Ghurkheli and Sakal Pandit with whom, he has soft corner. In para-2 he had stated about 5-6 persons have come to murder him. He had not seen, who was possessing what arms. They all came, demanded key. Then again corrected, Ganesh Pandit and Others woke him up and then, asked for key of a room. Then had said that Ganesh took it out from his pocket then gone inside the house and taken away the box. They have taken away the ornaments, which was kept in the box. First of all, he was assaulted and then, Ganesh Pandit and Dashrath Pandit took away the box. Ganesh was armed with danda as well as chhura. Ganesh had assaulted him with chhura and lathi. Both Ganesh and Dasharath Pandit pounced upon him and then assaulted. Again corrected only Ganesh had pounced upon him. 11. Pw-4 is Ramesh Pandit, one of the sons of the PW- 3. He had stated that at the time, he was sleeping at his darwaza. After hearing uproar, he woke up and had seen 4-5 persons engaged in assaulting his father with lathi and chhura, out of whom, he identified Mahesh Pandit, Ganesh Pandit, Dashrath Pandit. Ganesh Pandit assaulted with chhura, rest assaulted with lathi. He raised alarm over which Ganesh Pandit and Mahesh Pandit slipped to his house. Again said that Ganesh made house trespass and then took away a box. During cross-examination, he had stated that he is not on litigating terms with Ganesh Pandit and Mahesh Pandit. He had further stated that police had not recorded his statement. He had further stated that during course of occurrence, firing was also made. At Para-3, he had stated that Ganesh had given blow over chest of his father. All the three accused persons made house trespass out of whom, Ganesh took away box. 12. He had further stated that police had not recorded his statement. He had further stated that during course of occurrence, firing was also made. At Para-3, he had stated that Ganesh had given blow over chest of his father. All the three accused persons made house trespass out of whom, Ganesh took away box. 12. Pw-5 is another son of PW-3, who had stated that on the alleged date and time of occurrence, while he was sleeping at his Darwaza, he woke up after hearing sound of uproar and then, had seen Mahesh Pandit, Ganesh Pandit and Dashrath Pandit were assaulting his father and during course thereof, Ganesh Pandit inflicted Chhura blow. They have identified the accused in torch light flashed by his mother. Accused persons taken away box after making house trespass. Ganesh had also assaulted his sister Kanchania Devi. In Para-1 of his cross-examination, he had stated that his father was sleeping at the Sahan of his house while he along with Sanjay Kumar Pandit was sleeping at the darwaza. When they came near his father, at that very time, Ganesh was assaulting his father with Chhura and Mahesh and Dashrath with lathi. None of the villagers came at his darwaza. After assault, the accused persons gone inside the house. Accused persons indulged in an altercation with his mother and brother over which, they took out revolver. They gone inside his house after opening the door and then, gone inside room wherein his Bhabhi was and took away a box there from. He had stated that earlier house of Ganesh Pandit was situated at 20 laggi, but he shifted there from and became his next door neighbour. Ganesh Pandit is his Gotia. They are descendants of common ancestor. They have got land dispute. The accused persons have assaulted his father as well as his brother and for that, they have gone to hospital for treatment. 13. Pw-6 is a hearsay witness and further, declined to say, who assaulted whom and in likewise manner, status of the accused persons. PW-7 is a F.I.R. attesting witness, who had not supported the case of the prosecution and on account thereof, was declared hostile. 13. Pw-6 is a hearsay witness and further, declined to say, who assaulted whom and in likewise manner, status of the accused persons. PW-7 is a F.I.R. attesting witness, who had not supported the case of the prosecution and on account thereof, was declared hostile. PW-8 is the informant, who had stated that on the alleged date and time of occurrence, while she was sleeping in her house, her one son was also sleeping in the house while other sons were sleeping at verandah outside the house. Her husband was sleeping in a hut outside the house. After hearing cry of her husband, she came out from the house and had seen Ganesh Pandit was assaulting with Chhura while Mahesh Pandit and Dashrath Pandit were assaulting with lathi. When she intervened, she was assaulted by Ganesh with lathi, her daughter was also assaulted by Ganesh with lathi. She had identified the assailant. After assault, accused persons fled away, police came and recorded her fard-bayan. During cross-examination, she had stated that Ramesh was sleeping in a room while she along with her daughter was sleeping in another room. Her husband was sleeping outside the house in a hut having southern face. In Para-10, she had stated that she along with sons had gone near her husband. It was dark night. Her husband was unconscious. She had seen injuries over his person. Blood was oozing out from the injuries. Then thereafter, he was lifted to hospital. In Para-13, she had stated that she had accompanied the injured to Hajipur. In Para-14, she had stated that police had not come at hospital. When she returned back on the following day, then police had come. In Para-15, she has stated that she had not met with the police. Again said that she had made statement on the date of occurrence itself. In Para-17, there happens to be contradiction relating to fard-bayan with regard to Ganesh Pandit and Mahesh Pandit. She had further stated at Para-18 that she had shown the place of occurrence to police. PW-9 is another F.I.R. attesting witness, who had not spoken anything over occurrence and that being so, was declared hostile. PW-11 is the formal in nature. 14. From the evidence as available on the record, it is apparent that there happens to be inconsistency amongst the witnesses with regard to genesis as well as manner of occurrence. PW-9 is another F.I.R. attesting witness, who had not spoken anything over occurrence and that being so, was declared hostile. PW-11 is the formal in nature. 14. From the evidence as available on the record, it is apparent that there happens to be inconsistency amongst the witnesses with regard to genesis as well as manner of occurrence. Apart from this, it is also evident that irrespective of the fact that both the parties are Pattidars, they are on litigating terms since before, having houses adjacent to each other, then in that circumstance, manner whereunder mode of identification has been presented that too, by procuring presence of only those witnesses whose activity appears to be reciprocal, cast a doubt. Apart from this, from the evidence of PW-3, it is evident that his fard-bayan was recorded at hospital, has been suppressed by the prosecution, which happens to be earliest version as PW-8, informant had said that she returned back from Hajipur on the following day and then, bayan was recorded. In the aforesaid background, non-examination of the I.O. has cast severe dent over prosecution case. Not only this, from the evidence of PW-8, it is evident that they are not at all consistent over place of occurrence. So, non-examination of I.O. appears to be severe jolt to the prosecution. That being so, finding having been recorded by the learned lower Court did not find favour. Consequent thereupon, same is set aside. Appeal is allowed. Appellants are on bail, hence are discharged from its liability. The first and last page of the judgment be handed over to the learned Amicus Curiae for needful.