Mohan Mandal vs The State of Bihar

1.Appellants Mohan Mandal and Sandeep Mandal @ Sandeep Kumar Mandal have been found guilty for an offence punishable under Section

307/34 of the I.P.C. and each one has been sentenced to undergo R.I. for three years as well as to pay fine appertaining to Rs.5,000/- and in

default thereof, to undergo S.I. for one year, additionally, vide judgment of conviction dated 28.04.2015 and order of sentence dated 30.04.2015

passed by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.51 of 2005.

PW-5, Ram Sewak Mandal while he along with his nephew Indrakant Mandal (PW-2) and Bhabho Fulo Devi (PW-3) were admitted at

P.H.C. Baheri gave his fard-bayan on 27.11.2003 at about 7.45 p.m. disclosing that on 26.11.2003, Ram Lakhan Mandal and his sons forcibly

ploughed the disputed land relating to which Title Suit was pending since before and for that, today at about 4.00 p.m., he had gone to the place of

Lakhan Mandal and enquired, when Title Suit is going on relating to the land then why he ploughed the same over which Ram Lakhan Mandal and

his sons Mohan Mandal and Sandeep Mandal attacked upon him to assault as well as also abused. He returned back to his house followed by

aforesaid three persons armed with lathi, farsa. He, seeing these persons coming to his place duly armed entered into inside his house in order to

take out a lathi to defend himself and during midst thereof, his nephew Indrakant Mandal and Fulo Devi, who were at the darwaza, were assaulted.

His Bhabho was assaulted with farsa over her leg and nephew Indrakant Mandal was assaulted over head. When he came out, Ram Ashish

Mandal, Fulo Devi wife of Lakhan Mandal, Mohan Mandal came with lathi and encircled him and then thereafter, began to assault him as well as

his nephew and Bhabho. On hearing hue and cry, Ram Prasad Mandal along with others came in their rescue. The motive for the occurrence has

been suggested as land dispute.

On the basis of the aforesaid fard-bayan, Baheri P. S. Case No.130 of 2003 has been registered followed with an investigation as well as

submission of chargesheet, happens to be the basis of trial, which met with ultimate conclusion, subject matter of instant appeal.

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. Furthermore, it has also been pleaded that no such kind of occurrence had ever taken place rather the prosecution party armed variously,

raided, assaulted and for that, on the fard-bayan of Lakhan Mandal, Baheri P. S. Case No.129 of 2003 was registered and only to defend

themselves, this case has been filed putting false and fabulous allegation. Furthermore, different exhibits have been brought up on record to

substantiate the same.

In order to prove its case, prosecution had examined altogether eight PWs i.e. PW-1, Radha Krishna Jha, PW-2, Indrakant Mandal, PW-3,

Fulo Devi, PW-4, Ramhit Mandal, PW-5, Ram Sewak Mandal, PW-6, Gopal Jha, PW-7, Anandi Mandal and PW-8, Rajeshwar Prasad Sinha.

Side by side, had also exhibited viz. Exhibit-1, signature of informant over fard-bayan, Exhibit-1/1, signature of PW-2 over the fard-bayan,

Exhibit-2 series, injury report of respective injured. Defence though had not adduced oral evidence, but exhibited the documents as Exhibit-A,

C.C. of FIR of Baheri P. S. Case No.129 of 2003, Exhibit-B, C.C. of chargesheet, Exhibit-C series, C.C. of injury report of respective injured

and Exhibit-D, C.C. of memo of appeal, wrongly mentioned as C.C. of judgment.

While challenging the finding recorded by the learned lower Court, it has been submitted by the learned counsel for the appellants that

prosecution case is suffering from severe infirmities, whereupon finding recorded by the learned lower Court would not survive. The first and

foremost argument happens to be that taking into account the inconsistency amongst the PWs with regard to place of occurrence as well as manner

of assault coupled with exaggeration on that very score, is found adverse to the prosecution in the background of the fact that I.O. has not been

examined. It not only caused prejudice to the interest of the appellants rather due to non-examination of the I.O. neither P.O. is found properly

identified nor the contradictions whatever been, could not be legally placed on record and that being so, the finding having been recorded by the

learned lower Court happens to be against the principle of the Criminal Jurisprudence and that being so, is fit to be set aside.

It has further been submitted that prosecution witnesses themselves admitted that there was free-fighting amongst both the parties relating to the

land and that being so, at least prosecution should have exposed the status of the appellants to be aggressor wherein they failed. That being so, the

aforesaid narration of the witnesses is bound to affect upon the prospect of the prosecution case as the aforesaid event suggests that prosecution

has not come forward with true version of the occurrence.

It has also been submitted that when the evidence of the witnesses, more particularly the injured PW-2, PW-3 and PW-5, is taken together in

consonance with the evidence of doctor (PW-8), it is evident that there happens to be inconsistency and finding of the doctor (PW-8) completely

demolished the allegation whatsoever been attributed at the end of the injured and that being so, the finding recorded by the learned lower Court

did not find support. So, the cumulative effect happens to be that the judgment impugned is fit to be set aside.

9.On the other hand, learned Additional Public Prosecutor while supporting the finding recorded by the learned lower Court has submitted that

evidence in its entirety is to be considered. The minor variance, like present one is but natural, more particularly in the background of the fact that

witnesses are being examined after lapse of so many years. So, it happens to be difficult to perceive and narrate in parrot like manner unless and

until being tutored and that being so, is not going to demolish the case of the prosecution. Apart from this, it has also been submitted that finding of

the doctor substantiate the allegation having been attributed by the injured. Furthermore, it has also been submitted that non-examination of the

I.O. has not caused dent in the prosecution nor caused prejudice to the interest of the appellants in the background of the fact that whatever been,

in the opinion of the learned counsel for the appellants a contradiction does not happen to be rather happens to be mere a omission without going

to root of the case and that being so, the judgment impugned is fit to be confirmed.

Although, Exhibit-C series, could not have been exhibited as it happens to be exhibit of the counter-case, which ought to have been on the

basis of the evidence of a witness concerned relating to original document. That being so, the evidence of that particular witness would have been

to exhibit the relevant document, or the deposition of that witness relating to counter-case would have been exhibited that too, being a public

document that happens to be also with regard to F.I.R. of the counter-case. Even admitting, considering the evidence of the PWs, who also

admitted presence of counter-case having instituted at the end of the appellants though denied any kind of injuries having over the person of

appellants, how it should be seen and to what extent, there happens to be an obligation over the prosecution to explain the injury having over

accused and if not, to what extent, it will adversely affect upon the prospect of the prosecution has been considered in detail in the case of

Rajendra Singh v. State of Bihar as reported in 2000 Cr.L.J. 2199, wherein it has been held by the three Hon�ble Judges� Bench of the

Hon�ble Apex Court, as follows:-

��3. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution

case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have

been caused in course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury

on one of the accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the

prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused

appellant Rajender had one penetrating wound, three incised wound and one lacerated wound and of these injuries the penetrating wound on the

left axillary area in the 5th inter costal space � x 1/3 x � was grevious in nature as per the evidence of doctor PW-3 who had examined him.

On the basis of the evidence of PW-3 as well as PW-11 the Courts have come to the conclusion that there is no room for doubt that the

appellants and their men had injuries on their person on the date of occurrence. The question, therefore, remains to be considered is whether non-

explanation of said injuries on accused appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai

and Bharath Rai vs. State of Bihar (1968) 3 SUPREME COURT REPORTS - 525, this Court had held that the failure of the prosecution to offer

any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or

at any rate not wholly true and further those injuries probabilise plea taken by the accused persons. But in Lakshmi Singh vs. State of Bihar (1976)

4 Supreme Court Cases (Crl.) 671, this Court considered Mohar Rai (Supra) and came to hold that non-explanation of the injuries on the accused

by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of

interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was

considered by a three Judge Bench of this Court in the case of Vijayee Singh vs. State of U.P. (1990) 3 Supreme Court Cases 190, and this

Court held that if the prosecution evidence is clear, cogent and creditworthy and the Court can distinguish the truth from the falsehood the mere

fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case

and much depends on the facts and circumstances of each case. In Vijayee Singhs case (supra) the Court held that non- explanation of injury on

the accused person does not affect the prosecution case as a whole. This question again came up before a three Judge Bench recently in case of

Ram Sunder Yadav and Others vs. State of Bihar (1998) 7 Supreme Court Case 365, where this Court re-affirmed the statement of law made by

the earlier three Judge Bench in Vijayee Singhs case(supra) and also relied upon another three Judge Bench decision of the Court in Bhaba Nanda

Sarma and Others vs. State of Assam (1977) 4 Supreme Court Cases 396, and as such accepted the principle that if the evidence is clear, cogent

and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. The High

Court in the impugned judgment has relied upon the aforesaid principle and examined the evidence of the four eye witnesses and agreeing with the

learned Sessions Judge came to the conclusion that the prosecution witnesses are trustworthy and, therefore, non-explanation of injury in question

cannot be held to be fatal, and we see no infirmity with the said conclusion in view of the law laid down by this Court, as held earlier. We,

therefore, are not persuaded to accept the first submission of Mr. Mishra, learned senior counsel appearing for the accused appellants.�

So, mere presence of counter-case as� well as� simple injury having over the person of the accused having not been properly acknowledged

at the end of the prosecution is not going to affect adversely. Had there been grievous injury or casualty at the end of the accused, then in that

circumstance, the non-explanation as observed would be hazardous to the prosecution. Moreover, the evidence on record has to be seen whether

such evidence, witnesses have supported the case of the prosecution.

Non-examination of the I.O. in each and every case is not at all found to be niggling, whereupon prosecution case could be thrown rather the

non-examination of the I.O. could be perceived by the Court after proper examination of the materials available on the record whether was

necessary or not and further, whether on account of non-examination of the I.O., the interest of the appellants/ accused has been found to be

adversely affected. In Lahu Kamlakar Patil and another vs. State of Maharashtra reported in (2013)6 SCC 417 , it has been held:-

��18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R.

but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason,

the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non -examination of the Investigating Officer is

not fatal to the prosecution case. In Behari Prasad v. State of Bihar[(2010) 6 SCC 1], this Court has stated that non-examination of the

Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v.

State of Bihar[(1996) 2 SCC 317], it has been opined that when no material contradictions have been brought out, then non-examination of the

Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It

is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a

perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to

think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile

and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in

Arvind Singh v. State of Bihar[(2000) 9 SCC 153], Rattanlal v. State of Jammu and Kashmir[(2001)6 SCC 407] and Ravishwar Manjhi and

others v. State of Jharkhand[(2007) 13 SCC 18], has explained certain circumstances where the examination of Investigating Officer becomes

vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non - examination

creates a lacuna in the case of the prosecution. �

12.� It is� needless� to� say that� minor� variance� in� the evidence of the witness is permissible as unless and until tutored,

there would not be parrot like statement. That being so, the evidence in its entirety is to be seen in order to perceive whether same happens to be

reliable or not. Before that, it is needless to remind as has been settled at rest that the evidence of the injured witness lies on upper pedestal

acknowledging their presence at the place of occurrence during course of which, they have sustained injuries. More recently in Chandrasekar and

another vs. State of Tamil Nadu reported in 2017(4) P.L.J.R. 220 (SC), it has been held:-

��10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was

speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm

Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follows: �28.Where a witness to the occurrence has himself been injured in the

incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his

presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.�

Krishnegowda and others vs. State of Karnataka by Arkalgud Police reported in 2017(3) P.L.J.R. 145 (S.C.), it has held:-

��20. Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap

between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind

of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such

evidence.�

Now, the evidence is to be seen. From the record, it transpires that PW-4 Ramhit Mandal, PW-6, Gopal Jha have not supported the case of

the prosecution and on account thereof, they were declared hostile. Even during course thereof, prosecution could not be able to explicit anything

in its favour.

PW-7 is the father of the informant, who had deposed that Ram Sewak Mandal happens to be his son, who had instituted this case.

Occurrence is about seven years ago. Lakhan Mandal, Sandeep Mandal and Mohan Mandal at one side and his son at other side, indulged into

scuffle. Marpit had taken place by means of lathi. Lakhan Mandal had assaulted his son Ram Sewak Mandal, identified the accused. During cross-

examination, he had stated that he had not seen, who assaulted whom. In Para-3, he had stated that case has been compromised. So, whatever he

had deposed is found duly influenced with the event of compromise.

Now, the evidence of remaining witnesses be tested and before that, the evidence of doctor (PW-8) is to be seen. He had examined all the

injured on 27.11.2003 at about 4.50 p.m. and onward and found the following:-

Fhulo Devi

�1)Incised� wound� under� surface� of� right� foot measuring� 1� ��� x� ��� caused� by� sharp

cutting weapon.

2)Bruise on back of left chest measuring �� x �� x �� caused by hard and blunt substance simple in nature within 24 hours.

Indrakant Mandal

1) Incised wound on the vault of scalp 3� x 1 �� caused by sharp cutting weapon.

2) Lacerated wound right side of vault of scalp 1� x �� x ��.

Injury no.1 was caused by sharp cutting weapon and injury no.2 caused by hard blunt substance simple in nature within 24 hours

Ram Sewak Mandal

1) Abrasion on back of left elbow joint caused by hard and blunt substance measuring 1� x ��.

2) Abrasion on back of left ear measuring �� x �� caused by hard and blunt substance simple in nature within 24 hours.

During cross-examination, the witness was confined mainly over whether injuries could be caused by sharp cutting weapon or not and lastly, he

had not found the injuries to be dangerous to life. So, presence of injuries have not been controverted at the end of the appellants nor challenged

the finding of the doctor.

PW-1 is Radha Krishna Jha, who had deposed that he knew both the parties. On the alleged date and time of occurrence, he was at his

house. After hearing alarm from the house of Ram Sewak Mandal, he had gone there and had seen Lakhan Mandal, Mohan Mandal, Sandeep

Mandal armed with lathi as well as farsa respectively. Mohan Mandal assaulted with farsa over head of Indrakant Mandal while Sandeep Mandal

assaulted Fulo Devi with farsa over her leg. Ram Sewak Mandal was assaulted with lathi by Ram Lakhan Mandal. During cross-examination at

Para-2, he had disclosed that his house as well as house of Ram Sewak Mandal is intervened by two houses belonging to Subodh and Gopal Jha.

He had further disclosed under Para-3 that the darwaza of Ram Lakhan Mandal and Rauti Mandal is common. It happens to be at Eastern side

having Eastern front having only Verandah. House of Ram Lakhan Mandal lies in front of darwaza. Both the parties are Pattidar and are on

strained relationship due to land dispute. He is unaware regarding specific instance and in likewise manner, is not knowing whether any Title Suit is

pending for the same. Both the parties have also fought at an earlier occasion and for that, cases were instituted. He had further stated that

Sandeep Mandal and other accused have also sustained injuries during course of the occurrence. They were also admitted at Baheri Hospital. He

is unaware with regard to presence of counter-case. In Para-4, he had stated that when he reached at the P.O., none other was present. When he

reached, accused persons were standing at the gate of the informant located at his darwaza where he had seen Indrakant Mandal, Ram Sewak

Mandal and Fulo Devi lying in an injured condition. He had not seen blood oozing out from the injuries of Ram Sewak Mandal. He had seen only

one cut injury over leg of Fulo Devi. He had not seen any other injuries over her person. In Para-5, he had further stated that so many persons

arrived after his arrival at the P.O., but he is not remembering their names. At Para-7, there happens to be contradiction and that relates with

specific part having played by each of the accused against the injured.

PW-2 is Indrakant Mandal, who is one of the injured. He had deposed that Ram Sewak Mandal happens to be his uncle, side by side, he also

knew accused Lakhan Mandal, Sandeep Mandal, Mohan Mandal. On 27.11.2003 at about 4.00 p.m., he was at his house. At that very moment,

Lakhan Mandal, Sandeep Mandal and Mohan Mandal made house trespass. At that very time, Lakhan Mandal was armed with lathi and Mohan

Mandal and Sandeep Mandal armed with farsa, respectively. Mohan Mandal gave farsa blow over his head. Mohan had also assaulted his aunt

Fulo Devi over her leg. Ram Lakhan was assaulted by Mohan Mandal and Sandeep Mandal. During cross-examination, he had admitted presence

of counter-case. He had further admitted presence of Section 144 Cr.P.C. proceeding as well as civil proceeding relating to the land which

belonged to one Meena Devi, wife of Baijnath Mandal, who after death of Baijnath Mandal, married with his uncle and during course thereof, she

had executed sale deed in favour of his uncle. He had denied the suggestion that there was marpit at the disputed land. He had denied the

suggestion that they quarreled over the disputed land. He had further admitted that he along with his uncle Ram Sewak Mandal had got common

house. He had further disclosed that marpit took place down his darwaza. Disclosed boundary of the P.O., East-Lakhan Mandal, West-Gopal

Jha, North-Kailkun Mandal, South-Lodo Mandal. Then had shown the dimension of the farsa. He was struck from front side. The first blow of

farsa was given over middle of his head while second blow was at the left side of his head covering half portion thereof. After sustaining first blow,

he fell down. Second blow was given while he was lying. Blood had spread over ground as well as over his cloth, which was shown to the police.

Fulo Devi was assaulted with farsa from left side. She sustained only one blow as a result of which, thumb of her right leg was cut. Fulo Devi had

not sustained other injuries. Ram Sewak Mandal was not assaulted by Garasa, he was assaulted by lathi, but he had not seen exact location. He

could not say relating to blow given by Ram Lakhan as welll as Sandeep Mandal. He had denied the suggestion that on the alleged date and time

of occurrence, they have assaulted Lakhan Mandal and other with lathi and farsa and for that, accused had instituted case and only to save their

skin, instant case has been instituted.

PW-3 is Fulo Devi, another injured. She had deposed that on the alleged date and time of occurrence, she was at Dalan where Mohan

Mandal, Lakhan Mandal, Sandeep Mandal came and were abusing. Lakhan Mandal was armed with lathi while Mohan Mandal and Sandeep

Mandal armed with farsa respectively. They began to assault her Jout namely Indrakant Mandal. Sandeep had inflicted Indrakant with farsa over

his head. She was assaulted by Mohan Mandal with farsa over her leg. Her Bhainsur was assaulted by Mohan Mandal, Lakhan Mandal and

Sandeep Mandal. During cross-examination, she had admitted presence of civil litigation relating to the land. No occurrence took place over the

dispute plot. Whatever occurrence had taken place that was at her Dalan. The disputed land happens to be East to the Dalan. She is unable to

disclose the area. The Dalan is contiguous to house. At the time of occurrence, apart from she, her Jout, Bhainsur were present, who were inside

the house. She is unable to say. Occurrence took place at Bathan then disclosed the boundary of the P.O. North-Lakhan Mandal, Rauti Mandal,

South-house of Gopalji Mandal, East-house of Thakko Mandal and West-house of Raudi Mandal. In Para-7, she had stated that neither accused

had sustained any injury nor they were treated. Accused persons have also instituted a case against them. Then had stated that informant was not

assaulted by farsa. He was assaulted by lathi by all the three accused persons, repeatedly. Indrakant Mandal was not assaulted by lathi. Indrakant

was assaulted with farsa by Mohan Mandal and Sandeep Mandal. Mohan gave farsa blow from behind. Sandeep had given two blows. She was

assaulted Mohan with farsa. Mohan Mandal forcibly gave blow over ground and by way of reflection, she sustained injuries. Then thereafter, none

was assaulted. Then, there happens to be contradictions relating to possession of weapon by the respective accused specifically as well as manner

of assault.

PW-5 is the informant/ injured, who had deposed that on 26.11.2003, accused persons (so named) forcibly ploughed the disputed land and

so, he had gone to enquire why they have ploughed even having pendency of the Title Suit and on account thereof, Lakhan armed with lathi,

Mohon armed with farsa and Sandeep armed with spear rushed to assault, whereupon he ran there from being chased by them. They came at his

house where Mohan gave farsa blow over his nephew Indrakant repeatedly causing injury over his head and then thereafter, he inflicted farsa blow

over his Bhabho causing injury over thumb of leg. Sandeep hurled Bhala causing injury over his shoulder, assaulted them with lathi over wrist.

Occurrence took place at his darwaza. Then thereafter, they were taken to hospital where police came, recorded his fard -bayan (exhibited).

During cross-examination at Para-1, he had admitted presence of counter-case and further, PW-2 Indrakant Mandal, one of the accused in the

aforesaid counter-case along with him. At Para-3, he had admitted that both the parties are on strained relationship on account of land dispute and

on that very score, there happens to be cross-examination up to Para-6. At Para-7, he had stated that accused persons have not entered inside his

house. They were assaulted at his Bathan. He was not assaulted by Garasa. He was assaulted by Bhala by Sandeep. Bhala blow was given from

front side causing injuries over his shoulder, left side. No repeated Bhala blow was given upon him. He sustained 5-6 lathi blow over his back,

both hands. There was swelling, some part also got fractured. In Para-8, he had stated that Indrakant was assaulted by lathi also. Sandeep,

Lakhan, Fulo, wife of Mohan Mandal had assaulted him over his leg, hand, back.

He was not assaulted in lying condition. Indrakant was assaulted with farsa by Mohan. He gave farsa blow from front side. He had sustained two

farsa blow by Mohan. None had given Bhala blow over Indrakant. In Para-9, he had stated that none had pierced Bhala to Fulo Devi. Fulo Devi

had sustained single farsa blow inflicted by Mohan. Aforesaid blow was given from front side as a result of which, injury was caused to her over

thumb. At Para-10, he denied the suggestion that any of the accused had also sustained injury. He denied that accused persons were also treated

for the injuries sustained by them. Then had denied the suggestion that they have brutally assaulted the accused persons and for that, they have

instituted a case and only save their skin, this case has been lodged.

From the evidence available on the record, it is evident that though there happens to be some sort of contradiction relating to part played by

the accused Sandeep Mandal during course of commission of occurrence, but So far involvement of remaining accused/ appellants Mohan Mandal

and Lakhan Mandal are concerned, the prosecution remained consistent.

Coming to other aspect, it is apparent that PW-2 and PW-5 happen to be consistent with regard to the P.O. which happens to be darwaza.

Although PW-2 and PW-3 were cross-examined over boundary of the P.O., but PW-5 was not at all. So far boundary of the P.O. given by PW-

2 is concerned, that has been disclosed as East-house of Lakhan Mandal, West-Gopal Jha, North-Kailkun Mandal, South-Lalo Mandal. While

PW-3 at Para-6 had disclosed the boundary of the P.O. as North-Lakhan Mandal, Rauti Mandal and others, South-Gopalji Mandal, East-

Thakko Mandal and West-Raudi Mandal. Furthermore, she had disclosed the P.O. to be the Dalan and in the same breath, she had again

disclosed that marpit took place at the Bathan. That means to say, PW-3 happens to be completely confused over proper identification of P.O.

When the evidence of PW-3 is taken together with the evidence of PW-5 as well as PW-2, it is apparent that so far PW-2 and PW-5 are

concerned, PW-2 had disclosed that they were living jointly in the same premises. But neither it has been tested nor suggested to the end of the

PW-3 whether she was living separately from these persons.

In the aforesaid background, though injuries over the person of respective injured have been substantiated, but considering the evidence of

injured with regard to manner of assault, at least PW-5 in consonance with the PW-2 and PW-3, as well as over the place of occurrence, coupled

with presence of counter-case and having admission at the end of prosecution witnesses that accused had also sustained injuries and were treated,

along with the fact that in the evidence of PW-2 and PW-3, there happens to be material contradiction relating to part played by the respective

appellants, the conjoint effort did inspire that prosecution has not come with clean hand. That means to say, place of occurrence, manner of

occurrence is found duly semirated.

That being so, it looks unsafe to concur with the finding having been recorded by the learned lower Court. Consequent thereupon, same is set

aside. Appeal is allowed. Appellants are on bail, hence are discharged from its liability.