ADITYA KUMAR TRIVEDI, J.

1. At an initial stage, both the convicts namely Bakrid Mian @ Bakridan Dhobi and Hasnain Mian were the appellants, out of whom, on account of death of Bakrid Mian @ Bakridan Dhobi, instant appeal has been perceived abated vide order dated 16.02.2015 with regard to Bakrid Mian @ Bakridan Dhobi and on account thereof, instant appeal remains alive relating to sole appellant Hasnain Mian, who has been found guilty for an offence punishable under Section 326 of the I.P.C. and sentenced to undergo R.I. for four years as well as to pay a fine appertaining to Rs. 1,000/- and in default thereof, to undergo R.I. for six months under Section 341 I.P.C. and directed to undergo R.I. for six months with a further direction to run the sentences concurrently vide judgment of conviction and sentence dated 12.12.2001 passed by the Presiding Officer, 1st Additional Sessions Judge, Fast Track Court, Siwan in connection with Sessions Trial No. 24 of 1992/10 of 2001, hence this appeal.

2. Injured Ali Hussain (who has been examined as CW-1) gave his fard-beyan at Sadar Hospital, Siwan/where he was admitted on 21.05.1991 at about 7.00 p.m. disclosing therein that he happens to be three brothers. Eldest is Bakrid Mian, youngest is Hasnain Mian while he happens to be in middle. He had further stated that all the three brothers had jointly purchased 11 dhoors of land about 15-20 years ago. Today, Panches were requisitioned for partition. His share has been carved out. Accordingly, he dug foundation and was putting brick particles therein. At about 4.00 p.m., Bakrid Mian and Hasnain Mian came at that very place and further, inquired from him why he had dug foundation without their permission, over which he replied as per verdict of the Panches, he has been engaged in such activity. During course thereof, his elder brother caught hold him and Hasnain pierced ‘Chhura’ in his stomach on account of which he became injured. Blood oozen out. He had fallen over ground. On hue and cry, Gutan Mian, Munna Mian came who have had seen the occurrence. Thereafter, Nemajuddin Mian as well as his wife Sahiba Khatoon lifted him to hospital where he was being treated.

3. The aforesaid fard-beyan was transmitted to the local police station and on account thereof, Aandar P.S. Case No. 50 of 1991 was registered followed with investigation as well as submission of charge sheet. Cognizance was taken and on account of offences being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions where trial held and concluded in a manner, subject matter of instant appeal.

4. Appellant/accused had pleaded innocence as well as false implication in his defence as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr. P.C.

5. In order to substantiate its case, prosecution had examined altogether five PWs, out of whom PW-1 Sahiba Khatoon, wife of injured and who also deposed on material aspect while PW-2 Dinesh Kumar Singh is a formal witness, PW-3 Basiran Khatoon, PW-4 Gultan Mian, PW-5 Nemajuddin were declared hostile. After closure of the prosecution case, a prayer was made on behalf of prosecution and on account thereof, informant/ injured was examined as CW-1 while Dr. Anil Kumar, who had examined the injured, has been examined as CW-2. Raghav Singh formal in nature has been examined as CW-3. Prosecution had also exhibited the document as Exhibit-1, formal F.I.R., Exhibit-2 injury report, Exhibit-3 Fardbeyan, Exhibit-4 charge-sheet. Neither any DW nor any kind of document has been exhibited on behalf of accused.

6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that all the material witnesses gone adverse to prosecution and on account thereof, PW-3, PW-4, PW-5 have been declared hostile. That being so, the evidence happens to be that of wife and husband. When the evidence of injured CW-1 along with fard-beyan is ta