ADITYA KUMAR TRIVEDI, J.:–Appellants, Md. Gaffar @ Md. Ghaffar, Md. Aziz, Md. Arif, Md. Shahbaz have been found guilty for an offence punishable under Section 323 IPC and sentenced to undergo R.I. for six months as well as fined of rupees five hundred, under Section 307/94 IPC and sentenced to undergo R.I. for ten years as well as fine of rupees ten thousand. In default of payment of fine to undergo S.I. for three months additionally under both heads vide judgment of conviction and sentence dated 18.02.2015 recorded by Third Additional Sessions Judge, Purnea in Sessions Trial No.1316/2006.

2. PW.8, Md. Moiz filed written report on 17.06.2006 divulging therein that on 16.06.2006 his children as well as children of Md. Aziz, Md. Gaffar @ Md. Ghaffar quarreled during course of play whereupon, he had scolded the children and then, took his children to his place. Today morning at about 07:00 A.M. Md. Aziz, Md. Gaffar @ Md. Ghaffar, Md. Arif, Md. Shahbaz armed with lathi, danda reached at his house and began to abuse. On protest made by him, all the four named above began to assault with lathi, danda indiscriminately as a result of which he sustained severe injury. His father came in rescue who was assaulted by Md. Gaffar and Md. Arif. His wife Afsana Khatoon came in rescue who was assaulted by Md. Aziz and Md. Shahbaz. On hue and cry, the persons of the surrounding came and rebuked the accused persons whereupon, they left the place. Then thereafter, he along with his wife, father, came to P.S. to file a case.

3. At an initial stage, case was registered under Sections 341,323,448,504/34 of the IPC however, first attempt was made by the I.O. to add Section 325, 307 of the IPC which was allowed vide order dated 21.06.2006. Subsequently thereof, vide order dated 22.06.2006 it was converted under Section 302 of the IPC wherein, after concluding investigation charge sheet was submitted. The trial commenced relating to murder of Rajjak along with along with murderous attack over informant Md. Moiz along with his wife Afasana Khatoon.

4. As prosecution had failed to examine doctor in likewise manner failed to exhibit the postmortem report, inquest report with regard to death of Rajjak over which appellants were acquitted for an offence punishable under Section 302 of the IPC. But, they have been found guilty for the offences as indicated above and sentenced therefore which has been assailed under 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 of the occurrence. It has also been pleaded that members of the prosecution party might have sustained injuries in different manner at different place and on account of dispute amongst the parties who are close agnate and are residing in the same house, this false case has been filed. However, neither any DW nor a chit of paper has been adduced in the case.

6. In order to substantiate its case prosecution had examined altogether nine PWs. PW.1 Md. Abbas, PW.2 Kalimuddin, PW.3 Md. Kailu, PW.4 Md. Azarul, PW.5 Kalamuddin, PW.6 Afsana Khatoon, PW.7 Dr. Rabindra Kumar Verma, PW.8 Moij Alam @ Md. Moij, PW.9 Gupteshwar Dubey. Prosecution had also exhibited Ext.1 Series-Injury Report. As stated above, appellants/accused did not enter into defense.

7. Learned counsel for the appellants while challenging the judgment impugned has submitted that the same has been passed in a mechanical manner without appreciating the evidences in its right perspective on account thereof, is fit to be set aside. To substantiate the same, it has submitted that in initial version the prosecution concealed the fact that both the parties are cousin brothers, uncle residing in the same house on account thereof, assertion of the informant that they have come duly armed from their houses and then occurrence took place happen to be palpably false apart from having adverse impact over manner as well as genesis of occurrence.

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