Criminal Appeal (SJ) No.85 OF 1996 *** Against the judgment and order of conviction dated 03.04.1996 passed by the 1st Additional Sessions Judge, Arunagabad, in Sessions Trial No.172 of 1990 / 79 of 1992. *** 1. BINOD SINGH son of Dewan Singh, resident of village-Akorha, Police Station- Daudnagar, District- Aurangabad & 2. Arjun Singh, sonof Late Ramdhayan Singh, resident of village- Nadpura, Police Station- Kurtha, District- Jehanabad …. Appellants Versus THE STATE OF BIHAR …Respondent *** For the appellants : Mr. Ramashish, Advocate. For the State : Mr. U.S.P. Singh, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The appellants have been convicted under sections 323 and 452 Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and three years respectively but later on the appellants were directed to execute a bond of Rs.20,000/- with two sureties of the like amount each under the Probation of Offenders Act to maintain the peace for a period of three years in lieu of the sentences and alternatively they would be called to serve out the sentence awarded to them by the 1st Additional Sessions Judge, Aurangabad, in Sessions Trial No.172 of 1990/ 79 of 1992, by his judgment dated 3rd April, 1996. 2. The case of the prosecution is that on 16.05.1988, the accused persons started to demolish the boundary wall of the informant which they have claimed as having been received in partition and assaulted the informant. 3. During trial, the prosecution examined seven witnesses, out of whom, P.W. 1, 2, 3 and 5 are the eye witnesses to the occurrence and related inter - 2 - se, whereas, P.W. 4 and 6 have been declared hostile, P.W. 7 is the Investigating Officer. The Doctor has not been examined by the prosecution. 4. On going through the evidence of the informant, I find that admittedly, the appellant no.1 was his brother and there was serious land dispute between them on account of which this occurrence had taken place. I also find that the doctor has not been examined by the prosecution and Investigating Officer has merely proved the injury report which is not substantive evidence. In absence of injury report, it is difficult to accept the prosecution case that the two witnesses have been assaulted by the accused persons. In view of such, the appellants are acquitted of the charge under section 323 Indian Penal Code. 5. Further in view of the fact that the land on which disputed boundary was being built was claimed by both the parties, this Court is not inclined to accept that the prosecution has proved the case of house trespass and, therefore, they are also acquitted of the charge under section 452 Indian Penal Code. Both the appellants are also discharged from the liabilities of their respective bail bonds. 6. In the result, the appeal is allowed. (Anjana Prakash,J.) Patna High Court Patna Dated the 12th May, 2011 NAFR / JA/-