Judgment Binodanand Singh, J. 1. All the three appellants have been convicted under sec. 307 of the Indian Penal Code (hereinafter referred to as the Code) and sentence to undergo imprisonment for life and further to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for one year and the fine if realised to be paid to the victim i.e. (P.W. 3) Sheo Pujan Chaudhary. All the appellants have been further convicted under sec. 326 of the Code and sentenced to undergo rigorous imprisonment for ten years. It appears that these appellants alongwith another Mangal Chaudhary were tried and were also charged under sec. 364 of the Code, but Mangal Chaudhary, who is not an appellant has been acquitted of all the charges, whereas these appellants have also been acquitted for the offence under sec. 364 of the Code. At the very out set it may be mentioned that appellant No. 2 Siya Ram chaudhary and appellant No. 3 Ram Chandra Chaudhary are brothers, whereas appellant No. 1 Suresh Chaudhary is the son of appellant No. 3 (Ram Chandra Chaudhary). The victim of this case Sheo Pujan Chaudhary (P.W. 3) is the full brother of appellants Nos. 2 and 3. At this very stage it may also be stated that according to (Ext. 3) the F.I.R. case was instituted at Nokha Police Station on 22-4-1981 at 8.20 a.m. for an occurrence which took place on the same day at 7 a.m. at Village Ghatauna on the statement of one Ram Ekbal Chaudhary, the son of P.W. 11 the victim of this case). Although the F.I.R .of this case and signature of the informant have heed marked Exts. 4 and 3 respectively, the contents of this F.I.R. cannot be used in this case because the information Ram Ekbal Singh could not be examined in this case as a witness, since he died prior to the recording of evidence of witnesses. However, the prosecution case as disclosed from the evidence of (P.W 3) Sheo Pujan Chaudhary (victim of this case) appears to be that on the date of occurrence i.e. on 22-4-1981 at 7 a.m. Sheo Pujan Chaudhary (P.W. 3) was at his house when Gram Sevak Khelari Ram (P.W. 9) came to him to call him to attend a case at the place of Mukhia and Sarpanch at Mauja Ghatauna. He (P.W. 3) started from his house along with Khelari Ram, Gram Sevak (P.W. 9) and all soon as they reached near the house of Jugal Chaudhary, he (P.W. 3) saw Mangal Chaudhary (since acquitted) standing. Sahabuddin was also there. Mangal Chaudhary caught hold of him and he called the appellants. All the appellants came there empty handed and thereafter they threw P.W. 3 on the ground. P.W. 9 wanted to rescue him, but appellant Suresh Chaudhary gave a fist blow as a result of which he kept himself aloof. Thereafter, Mangal Chaudhary (since acquitted) and Gram Sevak (P.W. 9) went away. The female members of the house of P.W. 3 reached there and they tried to intervene and save P. W. 3 from being assaulted, but they were dragged by catching their hair. Thereafter, all the three appellants took (P.W. 3) Sheo Pujan Chaudhary (the victim) inside the Bailghara (place for trying cattle) the further case of the prosecution according to P.W 3 is that, thereafter appellant Ram Chandra Chaudhary sat on the chest of the victim and under his orders Suresh Chaudhary brought a Garasi and began to give Garasi blow on his legs. Appellant Suresh Chaudhary gave Garasi blows on both legs of (P.W. 3) Sheo Pujan Chaudhary. After giving Garasi blows on the legs of P.W. 3 Sheo Pujan Chaudhary and when the villagers began to assemble, the accused persons namely the appellants lifted the victim and threw him in the Gali (Lane). The female of the appellants washed the floor of the Bailghara by means of cow dung in order to conceal the blood stain. 2. The cause of this occurrence was that before the occurrence, the appellants and P.W. 3 (the victim) were chemical to each other and were also on litigating terms so much so that Title Suit proceeding under sec. 107 and proceedings under sec. 144 of the Code of Criminal Procedure were going on between them. It further appears from the materials on the record that P.W. 5 Ramayan Chaudhary, who has Mukhia of Bhaluahi Gram Panchayat was informed about this incident by the daughter of (P.W. 3) Sheo Pujan Chaudhary but the daughter of Sheo Pujan Chaudhary has not been examined. It further appears that he had sent the Gram Sevak i.e. (P.W 9) Khelari Ram, to called Sheo Pujan Chaudhary. It further appears that he had sent the Gram Sevak i.e. (P.W 9) Khelari Ram, to called Sheo Pujan Chaudhary. Gram Sevak Khelari Ram (P.W. 9) returned back to Mukhia (P W. 5) at 8 a.m. and thereafter, Mukhia (P.W. 5) sent Laloo Ram (P.W. 6) along with Ram Ekbal to Nokha Police Station for giving information regarding this occurrence. The report of the Mukhia has been marked as Ext. 2. Consequently both of them went to Noha Police Station and the F.I.R. (Ext. 4) as referred to above was drawn up on the statement of Ram Ekbal as already stated. 3. P.W. 8 Damodar Prasad Sharma, who was then posted as Officer-in-charge of Nokha Police Station, after instituting the ease took up investigation and he examined Ram Ekbal Chaudhary and Dalpati Laloo Ram (P.W 6) on the same day i.e. on 22-4-1981 and went to the place of occurrence at 9.30 a.m. and inspected the same in presence of the informant i.e. Ram Ekbal Chaudhary. The place of occurrence was a Kachcha rood, which was passing through the middle of the village and was running East to West. There was also one lane, east of the house of Jugal Chaudhary running from south to north. The houses of the accused persons were in this very lane at a distance of 10 yards from the lane. The house of the informant was situated towards east of the same gate P.W. 8 the Investigating Officer found dragging marks right from the corner of the house of Jugal Chaudhary up to the darwaja of the appellants, which were clearly visible. He (P.W. 8) found Sheo Pujan Chaudhary lying in injured condition in front of Darwaja of appellant Suresh at distance of 3 steps. His both legs were cut and Sheo Pujan Chaudhary (P.W. 3) was restless. The female folks of the house of the victim were weeping and he found some villagers assembled there. The frame of the Darwaja of Suresh Chaudhary was found full of blood. P.W. 8 went inside the Bailghara of the appellant. 4. On entering inside the Bailghara of the appellants P.W. 8 found that the floor of the Bailghara had been cleaned forcibly by using Mud and Cow dung on the walls of the Bailghara, he found blood marks. The frame of the Darwaja of Suresh Chaudhary was found full of blood. P.W. 8 went inside the Bailghara of the appellant. 4. On entering inside the Bailghara of the appellants P.W. 8 found that the floor of the Bailghara had been cleaned forcibly by using Mud and Cow dung on the walls of the Bailghara, he found blood marks. The house of the appellant No. 2 Siyaram Chaudhary was just by the side of the house of Ram Chandra Chaudhary (appellant No 3). P.W. 8, thereafter examined P.W. 3 Sheo Pujan Chaudhary and found injuries on his person and. He (P.W. 8) prepared injury report accordingly and sent P.W. 3 Sheo Pujan Chaudhary to Nokha State Dispensary. He (P.W. 8), there after examined witnesses He also searched the accused person namely the appellant as well as their houses. The accused persons namely the appellants were not found, they were found absconding. 5. P.W. 2 Bhuneswar Prasad Sharma, who was then posted as Medical Officer at Nokha State Dispensary examined the injuries on the person of (P.W. 3) Sheo Pujan Chaudhary on 22-4-1981 at 10 a.m. and found the following injuries: (i) Incised bleeding wound with compound fracture in right leg 8 c.m. x 2 c.m. x 4 c.m. (ii) Incised bleeding wound with compound fracture in left leg 7 c.m. x 2 c.m. x 4 c.m. According to the opinion of the doctor, both the injuries were grievous in nature and alleged to have been caused by sharp cutting Instrument, which may be Garasi and the age of the injuries within 24 hours from the time of examination. The injury report prepared by the Doctor has been marked as Ext. 11. It appears that P.W. 2 referred the injured Sheo Pujan Chaudhary (P.W. 3) to the Sadar Hospital, Sasaram for his treatment. The injured was subsequently referred to Patna Medical College Hospital for better treatment. From Ext 5 it would appear that Sheo Pujan Chaudhary (P.W. 3) was also treated at Patna by Dr. Janakdeo Prasad Sinha, but the said doctor has not been examined, however, the prescription of the aforesaid doctor has been formerly proved by P.W. 10 and has been marked (Ext, 10). From Ext 5 it would appear that Sheo Pujan Chaudhary (P.W. 3) was also treated at Patna by Dr. Janakdeo Prasad Sinha, but the said doctor has not been examined, however, the prescription of the aforesaid doctor has been formerly proved by P.W. 10 and has been marked (Ext, 10). The Investigating Officer after completing Investigation submitted charge sheet against these appellants and one Mangal Chaudhary and after commitment all the accused persons including these appellants were put on trial in the trial court all the four accused persons including these appellants were charged under three heads. First under sec. 364 of the I.P.C. for having abducted Sheo Pujan Chaudhary in order that he might be murdered or might be so disposed of as to be put in danger of being murdered. Secondly they were also charged under sec. 326 of the Code for having caused grievous hurt to Sheo Pujan Choudhary by means of any instrument of stabbing or cutting and Thirdly under sec. 307 of the Code for having committed an Act to hit voluntarily caused incised wound, under such circumstances, if by that act they had caused death of Sheo Pujan Chaudhary, they would have been guilty of the murder and they caused hurt to Sheo Pujan Chaudhary by the said Act. The accused persons, however, pleaded not guilty to the charges and the trial accordingly proceeded. In course of trial in all 10 witnesses were examined on behalf of the prosecution out of which P.W. 6 Laloo Ram. Dalpati of Gram Panchayat Was declared hostile. The accused persons including the appellants were examined under sec. 313 of the Code of Criminal Procedure. However no witness was examined on behalf of the defence. 6 From the statement of the appellants as well as the cross-examination of the witnesses, the case of the defence appears to be the total denial of allegations and further that the accused persons had been falsely implicated in this case due to enmity. At the conclusion of the trial, the learned trial court came to the finding that the charge under sec. 364 of the code has not been established by the prosecution and hence he acquitted all the appellant of this charge. The learned trial court further held that the appellants were guilty under sec. 307 of the Code as welt as under sec. 364 of the code has not been established by the prosecution and hence he acquitted all the appellant of this charge. The learned trial court further held that the appellants were guilty under sec. 307 of the Code as welt as under sec. 326 of the Code and it accordingly convicted and sentenced the appellants as stated above. 7. The learned counsel appearing for the appellants has first argued that the materials on the records were not properly examined and appreciated by the learned trial court and hence, the learned trial court came to the conclusion and held the appellants guilty under sections 307 and 326 of the Code. In this connection he argued that the prosecution allegations have not been established beyond reasonable doubt since no independent witness was examined in this case in order to prove the prosecution allegations. As already stated 10 witnesses have been examined in this case as behalf of the prosecution. As stated earlier P. W. 6 was declared hostile by the prosecution and has been cross examined. P.W. 10 is just a formal witness who has simply proved the report of the doctor Dr. J.P. Sinha Ext. 5). P.W. 1 Ramkeshawari Devi, wife of P.W. 3, the Victim. P.W. 3 Sheo Pujan Chaudhary (the victim) himself Sumitra Kumri the daughter of (P.W. 3) Sheo Pujan Choudhary, Ram Pravesh Chaudhary (P.W. 7), who is also son of Sheo Pujan Chaudhary are the witnesses of the occurrence. P.W. 9 Khelari Ram, Gram Sevak of Baluahi Gram Panchayat is a witness of part of occurrence. According to his evidence he was present at the place of occurrence at the initial stage. 8. The learned counsel appearing for the appellants has attacked the testimony of P.W. 1 Ramkeshwari Devi, (P.W. 4) Sumitra Kumari the daughter of victim (P.W. 3) and P.W. 7 Ram Pravesh stating that they are not trustworthy since they have made contradictory statements regarding the occurrence. 8. The learned counsel appearing for the appellants has attacked the testimony of P.W. 1 Ramkeshwari Devi, (P.W. 4) Sumitra Kumari the daughter of victim (P.W. 3) and P.W. 7 Ram Pravesh stating that they are not trustworthy since they have made contradictory statements regarding the occurrence. It has been rightly stated that the testimony of P.W. 7 should not be accepted in view of the fact that P.W. 1 Ramkeshwari Devi, the wife of P.W. 3 as well as P.W. 3 Sheo Pujan Chaudhary, the victim himself, have admitted that his two sons except the informant Ram Ekbal Chaudhary were not in the village at the time of occurrence hence on this admission the testimony of P.W. 7 Ram Pravesh Chaudhary should be rejected outright and the submission of the learned counsel appearing for the appellants in this regard is not without substance and fit to be accepted. No doubt P.W. 1, the wife of the victim P.W. 3 Sheo Pujan Chaudhary and P.W. 4 Sumitra Devi, the daughter of Sheo Pujan Chaudhary have made some contradictory statements, but their testimony can not be rejected on the basis of such minor contradictions. Be that as it may, the testimony of P.W. 3 Sheo Pujan Chaudhary, the injured himself, who is the victim of this occurrence is such which can not be rejected on any ground. The narration of the incidents as disclosed by P.W. 3 in court has already been stated above while stating the prosecution case and apart from this P.W. 3 is the best person to say as to how and by whom and in which manner he was assaulted and his testimony can not be discredited. At this very stage, it will not be out of place to mention that Mangal Chaudhary was rightly acquitted by the trial court. Since there is ample material on the record to show that the only part played by Mangal Chaudhary was that he had caught hold of P.W. 3 and, thereafter he went away along with Khelari Ram (P.W. 9). Since there is ample material on the record to show that the only part played by Mangal Chaudhary was that he had caught hold of P.W. 3 and, thereafter he went away along with Khelari Ram (P.W. 9). According to the statement of Sheo Pujan Chaudhary, who has given full narration of the Incident, he was caught hold by Mangal Chaudhary and, thereafter all the three appellants came and took him in their house and from there in the Bailghara, where Garasi blows were inflicted on both the legs of the victim by appellant No. 1 (Suresh Chaudhary). The story as disclosed by P.W. 3 is fully corroborated from the subjective find in, of the Investigating Officer (P.W.. 8) as well as from the evidence of (P.W. 2), the doctor, who found cut Injury on both the legs of P.W. 3 (Sheo Pujan Chaudhary). Thus from the evidence of P.W. 3 (P.W. 8) the Investigating Officer and that of P.W. 2, the doctor, who found injuries on the person of the victim fully established the prosecution llegations. Besides the evidence of P.W. 7, Sheo Pujan Chaudhary, as stated earlier P.W. 1 Ramkeshwari Devi and P.W. 4 Sumitra Kumari are also the eye-witnesses of the occurrence. Their presence cannot be doubted in view of the fact that the house of the victim P.W 3 is also quite close to the house of the accused person namely the appellants. Some minor contradictions in their statements appear to be quite natural in view of the fact that one is a village lady being the wife of the victim (P.W. 3) and other P.W. 4 is a village girl being the daughter of P.W. 3. Thus the evidence of P.W. 3 and other eyewitnesses supported by the finding of the I.O. and the opinion of the doctor the prosecution allegations are fully established the non-examination of the informant in this case was beyond human control since the informant Ram Ekbal Singh died prior to the recording of the evidence of the witnesses was taken up in this case. 9. Apart from that there is no reason as to why the testimony of P.W. 3 alone supported by the subjective findings of the Investigating Officer of the case and the opinion of the doctor (P.W. 3) should not be treated as sufficient for the purpose of this case. 9. Apart from that there is no reason as to why the testimony of P.W. 3 alone supported by the subjective findings of the Investigating Officer of the case and the opinion of the doctor (P.W. 3) should not be treated as sufficient for the purpose of this case. So far as the submission of the learned counsel appearing for the appellant that no independent witness has come forward to support the prosecution case is concerned, I find that P.W. 9 Khelari Ram, Gram Sevak, appears to be quite independent witness and he has supported the prosecution allegations regarding the occurrence at its initial stage. He has stated that these appellant had caught hold of the victim (P.W. 3) Sheo Pujan Chaudhary and were taking him inside. When he intervened, he was also assaulted and then he left the place of occurrence along with Mangal Chaudhary, another accused of this case. So the taking of P.W. 3 Sheo Pujan Chaudhary into the house of the appellants by them namely the appellants, is supported from the evidence of P.W. 9 Khelari Ram, who is quite Independent witness and there appears to be no reason as to why he will tell a lie. Regarding the prosecution case that it was the (P.W. 2), who had been sent by Mukhia of Baluahi Gram Panchayat, and Sheo Pujan Chaudhary was assaulted while he was proceeding to the gram panchayat is established from the evidence of P.W. 9. The absence of independent witnesses is quite natural In this case in view of the fact that the fight was between the two brothers. As already stated above, appellants, 1, 2, 3 and the victim (P.W. 3) Sheo Pujan Chaudhary are the full brothers. So I think that no villager will take upon himself to interfere with the mutual fight between the brothers and for this only they did not come forward to support the case. 10. Thus from the above discussions of the evidence led by the prosecution it would appear that the prosecution has been able to establish its case beyond all reasonable doubts. 11. Now coming to the liability of the accused persons in the crime in question I find that the submission of the learned counsel for the appellants that the conviction of the appellants for offence under section 307 of the Code is quite unjustified appears to be well founded. 11. Now coming to the liability of the accused persons in the crime in question I find that the submission of the learned counsel for the appellants that the conviction of the appellants for offence under section 307 of the Code is quite unjustified appears to be well founded. Since in this case from the evidence of witnesses, specially that of P.W. 3, it would appear that no attempt was made by any of the appellants to do away with the life of P.W. 3, although they had ample opportunity to till him, but they did not do so. Instead after inflicting two blows on both the legs they threw the Injured in the lane. This clearly goes to indicate that no attempt was made by any of the appellants to till P.W. 3. Hence the charge under section 307 of the Code must fail and the orders of conviction and sentence passed for this offence are quite unjustified which are accordingly set aside. All the appellants have also been convicted under section 326 of the Code and each of them have been sentenced as stated in the very beginning of the Judgment. But from the evidence of P.W. 3 (the victim) himself as well as other witnesses; it would appear that according to P.W. 3, the victim was taken inside the Bailghara by all the three appellants. Appellant No. 3 Ramchandra Chaudhary sat on the chest of P.W. 3 (Sheo Pujan Chaudhary) and P. W. 1 brought a Garasi and dealt Garasi blow on the legs of P.W. 3 (Sheo Pujan Chaudhary) causing him injuries on both the legs. No act of causing any injury either grievous or simple has been attributed to appellant No. 2 Siya Ram Chaudhary. Hence the conviction of appellant No. 2 Siya Ram Chaudhary directly under lection 326 of the Code also appears to be unjustified as stated above. Now regarding Ram Chandra Chaudhary (appellant No. 3) the evidence of P.W. 3 is that he sat on the chest of the victim (P.W. 3). He did not inflict any blow on the person of P.W. 3. Thus clearly appellant No. 3 also should not have been and can not be held guilty for the offence under sec. 326 of the Code. He did not inflict any blow on the person of P.W. 3. Thus clearly appellant No. 3 also should not have been and can not be held guilty for the offence under sec. 326 of the Code. Of course both these appellants, namely appellant No. 2 Siya Ram Chaudhary and appellant, No. 3 Ram Chandra Chaudhary had willfully aided in commission of the crime and thus they could have been held guilty for abetment, but since no such charge was framed for the abetment of the offence under section 326 of the Code by the learned trial court against these appellants and they had no knowledge of this charge at this state they can not be convicted of this offence since they did not get an opportunity to defend themselves on that charge. But so far as Suresh Chaudhary is concerned appellant No. 1, there is clear and cogent evidence that he inflicted two Garasi blows on both the legs of P.W. 3, Sheo Pujan Chaudhary, causing him grievous hurt and thereby ho has been rightly held guilty by the learned trial court for offence under sec. 326 of the Code. 12. For the reasons stated above, the orders of conviction and sentence passed by the learned trial court against appellant Nos. 2 and 3 convicting and sentencing them under sec. 326 of the Code arc quite unjustified, the same are hereby set aside. So far as the order of conviction passed against appellant No. 1 Suresh Chaudhary for offence under sec. 326 of the Code is concerned, it is hereby affirmed. Regarding the sentence awarded by the learned trial court to this appellant, we are of the view that he docs not deserve any sympathy in view of the fact that he caused such grievous injury to his own uncle making him disabled for the whole life. However, in view of the fact that the case is very old, since the occurrence took place as far back as in the year 1981 and this appellant had to undergo rigorous imprisonment of criminal prosecution for six years the sentence of ten years awarded by the learned trial court is hereby reduced to five years and also to pay a fine of Rs. 2000 (Two thousand); in default of payment of fine to undergo further rigorous imprisonment of two years. 13. In the result so far as the appellant Nos. 2000 (Two thousand); in default of payment of fine to undergo further rigorous imprisonment of two years. 13. In the result so far as the appellant Nos. 2 and 3 are concerned, their appeal is allowed and the orders of conviction and sentence passed by the learned trial court against them is hereby set aside and they are acquitted of all the charges. So far as appellant No. 1 Suresh Chaudhary is concerned, his appeal is dismissed with the above modification in sentence. The fine if realised shall be paid to P.W. 3 (the victim) of this case.