ADITYA KUMAR TRIVEDI, J.:–In spite of repeated calls, none turns up to represent the appellant. However, Shri Mrityunjay Kumar, learned Advocate has volunteered himself to assist the Court as Amicus Curiae and is acclaimed.

2. Sole appellant, Ram Dayal Rai has been found guilty for an offence punishable under Sections 148 IPC, 323/149 IPC, 448/149 IPC, 379/149 IPC, 307 of the IPC and 27 of the Arms Act and sentenced to undergo RI for one year, RI for six months, RI for six months, RI for one year, RI for seven years as well as fined of Rs. 5000/- in default thereof, to undergo RI for six months additionally, RI for five years as well as fined Rs. 2000/- in default thereof, to undergo RI for three months respectively with a further direction to run the sentences concurrently vide judgment of conviction dated 17.01.2012 and sentence dated 21.01.2012 passed by 1st Additional Sessions Judge, Banka in connection with Sessions Trial No. 390/1999, challenged the same under present appeal.

3. PW-6, Vijay Rai who also happens to be an injured gave his Fard-e-beyan on 19.06.1996 while he was admitted at Sub-Divisional Hospital, Banka alleging inter alia that in the preceding night while he along with Narayan Rai, Guru Chanran Rai and Rajendra Rai were sleeping at their Darwaza, appellant, Ram Dayal Rai and his brother-in-law (Bahnoi), Kuldeep Rai along with 5-6 other unknown persons came, apprehended, abused and began to assault. They had also tethered the remaining persons. Thereafter, all of them dragged him inside his house where also he was assaulted and then thereafter, all of them looted away his belongings. At the time of departure, they tied him also and then fired from gun causing injury.

4. The motive for occurrence has been shown on account of land dispute in between him as well as Ram Dayal Rai in the background of the fact that uncle of Ram Dayal Rai namely, Mangru Rai had kept him as his Gharjamai which was not liked by appellant as after death of Mangru Rai, he inherited the property.

5. The defence as is evident from mode of cross-examination as well as from statement recorded under Section 313 of the Cr.P.C. is that of false implication in the background of land dispute.

6. Numerous points have been raised by learned Amicus Curiae during course of assailing the judgment of conviction and sentence. It has been argued that land dispute amongst the parties surviving since before is an admitted fact. Houses of both the parties are adjacent to each other is also an admitted fact. Inter se relationship is also there. In the aforesaid background, having disclosure by the prosecution witnesses that all the accused were carrying unveiled face is indigestible in the background of the fact that no one could volunteer to get himself identified, moreso, being so close to each other.

7. Apart from this, in continuation of his argument, he has submitted that prosecution witnesses themselves admitted that it was a dark night. There happens to be no source of identification and in likewise manner none of the prosecution witnesses averred that they had identified the appellant on the basis of gait, voice and appearance. In likewise manner, from the evidence of PW-6, the informant it is apparent that none had gone to the house of appellant on the day of occurrence itself to see whether appellant was present in the house or not.

8. Further elaborating his submission on this score, it has been submitted by the learned Amicus Curiae that from the evidence of PW-6, the informant it is apparent that wife, mother-in-law along with cousin mother-in-law of informant, all were inside the room having properly locked which was opened by the wife of informant. Then in that circumstance, their non examination happens to be vital in the back ground of inter se relationship coupled with prevailing animosity at least over identification.

9. Now coming to the merit of the case, again it has been submitted that the prosecution case suffers from improbab