Initially, appellant Munna Pandey @ Jai Kumar Pandey, Gangadhar Pandey were the appellants, however, during course of pendency of instant appeal, Gangadhar Pandey died, on account thereof, instant appeal stood abated against him vide order dated 08.01.2015 however, remained alive concerning Munna Pandey @ Jai Kumar Pandey.

2. The instant appeal has been filed against judgment of conviction and sentence dated 29.08.2002 passed by Additional District and Sessions Judge, FTC- Bhagalpur in Sessions Trial No. 485/1994/25/2002 whereby and whereunder, appellants Gangadhar Pandey (since deceased), Munna Pandey @ Jai Kumar Pandey have been found guilty for an offence punishable under Sections 324/34 and 307/34 IPC and each one has been directed to undergo RI for seven years under Section 307/34 IPC while no separate sentence was passed with regard to 324/34 IPC.

3. Hare Krishna Jha (PW-5) gave his Fard-e-beyan at State Dispensary, Kahalgaon on 26.04.1993 at about 1:20 p.m. before ASI, Kahalgaon PS. Disclosing therein that on the same day, at about 12:00 noon, while he was engaged in repairing boundary wall of his kitchen garden, his co-villagers, Chunna Pandey armed with Bhala, Gangadhar Pandey armed with Bhala and Munna Pandey armed with Garasa came, out of whom on an order of Gangadhary Pandey, Chunna Pandey gave Bhala blow striking over his stomach with an intention to kill. He became injured and fell down. On his alarm, his co-villagers, Gauri Shankar Jha, Sonelal Jha, Dayashankar Jha, Ram Kumar Jha along with others came and took him to hospital. Land dispute has been shown to be the motive for commission of occurrence. After registration of Kahalgaon P.S. Case no. 114/1993, investigation commenced and concluded leading to trial which culminated in a manner as indicated above, hence this appeal.

4. Defence, as is evident from the mode of cross-examination as well as statement recorded under Section 313 Cr.P.C., is of complete denial of occurrence as well as of false implication in the background of prevailing animosity. However, neither any DW nor any document has been exhibited.

5. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellants that the main accused, Chunna Pandey had already died during course of conduction of trial. In likewise manner, the order giver Gangadhar Pandey had also died during pendency of the instant appeal. So far, appellant, Munna Pandey @ Jai Kumar Pandey is concerned, it has been submitted that though his presence has been alleged but without any overt act and on account thereof, one could fairly infer that at the relevant moment, even considering the prosecution version, he was not carrying intention and being so, the conviction and sentence inflicted by the learned trial court in terms of Section 307/34 IPC, 324/34 IPC is non attractable.

6. It has further been submitted that in the Fard-e-beyan itself, there happens to be specific disclosure that while informant was engaged in getting his boundary wall repaired, there happens to appearance of three accused out of whom Chunna Pandey inflicted Bhala blow on an order of Gangadhar Pandey, however, us found completely soaked with falsehood during course of evidence. Furthermore, PW-8, Shakuntala Devi, who was not at all an eyewitness to occurrence at the initial stage transposed herself as an eyewitness and in the aforesaid background, as well as in the background of conduct of the informant having a static approach during course of evidence examination of Investigating Officer was necessary which, on account of non examination, had caused prejudice. As such, judgment of conviction and sentence is fit to be set aside.

7. On the other hand, learned APP submitted that the evidence which has been deposed before the Court of justice is the substantial evidence whereupon reliance could be placed. Injured PW-5 as well as his wife PW-8 Shankuntala Devi have categorically supported the version relating to assault b