Judgment 1. This is the criminal appeal against the judgment and order dated 29th February, 1988, whereby 3rd Additional Sessions Judge, Madhubani in Sessions trial No. 64/115 of 1980/83 held these accused-appellants guilty for the commission of the offence punishable under Secs. 147 and 307 read with Sec. 149 IPC; and awarded the sentence to undergo rigorous imprisonment for one year and for seven years respectively. Further the trial Court held the accused-appellant Jagdish Purbey guilty for the commission of the offence under Sec. 379 IPC and awarded the sentence for one year rigorous imprisonment, and to run concurrently. 2. Briefly the prosecution case is that in the morning on 26th June, 1979 the Informant Tripit Narain came to Madhubani to give Rupees one thousand to his brother Jitendra for his admission in M.Sc. at Patna, and there at Madhubani he come to know that his brother Jitendra had already left for Patna a day earlier on 25th June, 1979; this Informant Tripit Narain left Madhubani town to come to village home at 8 P.M., and at 7.30 P.M. this Informant Tripit Narain was about one hundred yards to the east of Panditain tank of his village on the road. All these four accused-appellants along with Lal Babu (who died during the trial) arrived and surrounded the Informant Tripit Narain; Lal Babu was armed with Chhura, Bhola, Bindeshwari and Jagdish were armed with Lathi and Pulkit was holding a Lota (small vessel to contain water) in the hand, and Pulkit gave the call that prey was in the trap; Lal Babu caused Chhura blows on the head and left hand of the Informant and other accused-appellants caused Lathi blows and Lota blows on the Informant Tripit Narain. Tripit raised alarm for help, and the villagers arrived there including Deo Saran Yadav, Shiv Shankar Lal Das, Kodal Sahni. 3. Further the prosecution case is that the accused Jagdish took out Rupees one thousand from the waist of the Informant and also took out one Dhoti from the bag of the Informant and took them away. 4. According to the prosecution the motive for the occurrence was because this Informant had rebuked Lal Babu and Bindeshwari for their bad activities and thus these accused-appellants along with Lal Babu attacked him and assaulted him badly. 5. 4. According to the prosecution the motive for the occurrence was because this Informant had rebuked Lal Babu and Bindeshwari for their bad activities and thus these accused-appellants along with Lal Babu attacked him and assaulted him badly. 5. The injured-Informant Tripit Narain proceeded to the area Police Station, and in the way he met Sri J. P. Verma, Officer Incharge, Police Station and this Informant gave his statement to the Police Officer Verma-Exhibit-3 relating the occurrence. The formal F.I.R. was prepared in the records of the Police Station-Exhibit-2. Verma sent the Informant Tripit Narain to the Hospital doctor for medical examination. 6. Dr. Ramesh Chandra Mishra P.W. 11 examined the injuries of this Informant Tripit Narain Lal Das and found the following injuries : (i) One Incised wound 1" x 1/6" x 1/6" on the upper part of forehead right side. (ii) One Incised wound 1" x 1/6" x 1/6" on the midline. (iii) One incised wound 1" x 1/6" x 1/6" on left occipital eminence. (iv) Incised wound 1/4" x 1/6" in front of left ear. (v) Haematoma 4" x 3" left deltoid eminence. (vi) Haematoma 2" x 1 1/2" on middle of left arm. (vii) Haematoma 2" x 1" on lower part of left arm. (viii) Bruise 1" x 1/2" over left wrist with fracture of ulna. (ix) Bruise 4" x 2" on right arm middle. (x) Haematoma 3" x 1 1/2" just at one right elbow. (xi) Haemotoma 2 1/2" x 1" exterior surface of right forearm. (xii) Haematoma 4" x 2 1/2" on back of the body. (xiii)Haematoma 3" x 1 1/2" on left lumbar region. (xiv) Haematoma 7" x 2" on left side of abdomen. (xv) Bruise 2" x 1" over right knee. (xvi) Bruise 1" x 1/2" just below middle of right leg with fracture of right tibia. 7. All the four incised wounds including one on the head were simple injuries and were hardly 1/6" deep. The doctor expressed opinion that cumulative effect of these incised wounds could be dangerous to life. The doctor expressed the opinion that injuries No. 8 and 16, the fracture of ulna of left wrist and the fracture of right tibia of right leg were grievous in nature. 8. The Investigation Officer Verma inspected the place of occurrence on 27th June, 1979 and also recorded the statement of several witnesses after interrogating them. The doctor expressed the opinion that injuries No. 8 and 16, the fracture of ulna of left wrist and the fracture of right tibia of right leg were grievous in nature. 8. The Investigation Officer Verma inspected the place of occurrence on 27th June, 1979 and also recorded the statement of several witnesses after interrogating them. As Verma was transferred he handed over the charge of the case to Hari Nandan Singh. Harin Nandan Singh started investigation in the case from 16th September, 1979 and he recorded the statements of some of the witnesses including Kodai Sahni P.W. 1. 9. The trial judge accepted the depositions of Kadai Sahni P.W. 1, Sahni Paswan P.W. 2, Deo Saran Yadav P.W. 3 and the injured-Informant Tripit Narain Lal P.W. 4. 10. Saini Paswan P.W. 2 and Deo Saran Yadav P.W. 3 who had gone to ease themselves, hearing the cries for help raised by the Informant could reach to the place of occurrence a bit late, and they had stated on oath simply that they saw all these four accused-appellants Bhola, Bindeshwari, Jagdish and Pulkit, and Lalbabu there at the place of occurrence, where this Informant Tripit Narain was in injured condition. 11. Kodai Sahni P.W. 1 and the injured Tripit P.W. 4 have stated on oath how these accused-appellants Pulkit, Jagdish, Bindeshwari and Bhola, and Lal Babu, where Lal Babu was armed with Chhura, Bhola, Bindeshwari and Jagdish were armed with Lathies and Pulkit was armed with Lota, surrounded Tripit Narain and they assaulted him causing several injuries on his body. 12. Kodai Sahni P.W. 1 and the injured Tripit P.W. 4 have stated on oath how these accused-appellants Pulkit, Jagdish, Bindeshwari and Bhola, and Lal Babu, where Lal Babu was armed with Chhura, Bhola, Bindeshwari and Jagdish were armed with Lathies and Pulkit was armed with Lota, surrounded Tripit Narain and they assaulted him causing several injuries on his body. 12. Advocate for the appellants raised the contentions that the accused-appellant Bhola might be fourteen to fifteen years of age on the date of occurrence and he should have been tried by a Juvenile Court; that there was no light and the appellants could not have been identified; that there was no blood at the spot and it is doubtful where the occurrence took place; that the deposition of Kodai Sahni should not be acceptable as he was interrogated after two and half months, and this witness executed a fictitious deed in favour of mother of the accused Bindeshwari which led into a land dispute between them; that the injured has stated that he was unconscious and thus his interrogation by the Investigation Officer and the investigation in itself is doubtful, and that in any case the offence under Sec. 307 IPC has not been made out. 13. The plea relating the age of appellant Bhola Mandal/Bhola Ram had not been raised before the Magistrate or at the trial stage. Further this plea had also not been raised in the memo of appeal. Learned Advocate for the appellant simply happened to calculate the age as fifteen years from the age noted by the trial judge at the time of recording the statement of this accused under Sec. 313 Cr. P.C. was an approximate assessment only by the Judge. In absence of any evidence of age from the side of the accused on record of the case now it cannot be held that this accused-appellant Bhola Ram should have been tried separately by the Juvenile Magistrate. 14. All the accused-appellants belong to the village of this injured Tripit Narain and this injured-Informant too was knowing them well. On 20th June at 7.30 P.M. in the evening darkness starts setting in but it would not be all dark. Looking to the nature of the injuries, it is evident that these appellants gave the blows on this injured-Informant standing close to the victim Tripit Narain, thus there was no difficulty in identifying the appellants. On 20th June at 7.30 P.M. in the evening darkness starts setting in but it would not be all dark. Looking to the nature of the injuries, it is evident that these appellants gave the blows on this injured-Informant standing close to the victim Tripit Narain, thus there was no difficulty in identifying the appellants. 15. The Injured Tripit Narain P.W. 4 made the statement on oath that the blood trickled from the injuries drenched his clothes. This witness Tripit Narain P.W. 4 stated on oath that soon after the occurrence it started raining. That is why the Investigation Officer did not find any blood at the spot. 16. Kodai Sahni P.W. 1 has been named as a witness in the first information report. As the Police Officer Verma stood transferred soon, and the other Police Officer started investigation joining the new post on 16th September, 1979, the delay in interrogating Kodai Sahni by the Police Officer was there. This delay does not go to discredit the testimony on oath of this witness Kodai Sahni P.W. 1. The fact that this witness P.W. 1 executed a sale deed in favour of the mother of the accused Bindeshwari, and the same was disputed to be genuine is no ground enough to discredit the deposition of Kodai Sahni P.W. 1 . 17. The injured Tripit Narain went to the Police Station and in the way the Police Officer met him and the injured Tripit Narain made his report to the Police Officer, and soon thereafter, the Police Officer interrogated the injured Tripit and recorded his statement under Sec. 161 of the Code of Criminal Procedure. Thus, it is evident that the injured Tripit Narain was not unconscious. It might be that the injured Tripit Narain became drowsy in Hospital due to exhaustion, and lack of nutrition. There is nothing to doubt the statement of the injured Tripit Narain P.W. 4. 18. The depositions of the injured Tripit Narain P.W. 4 and Kodai Sahni P.W. 1 established fully that these accused-appellants Bhola, Bindeshwari, Jagdish and Pulkit, and one Lal Babu formed unlawful assembly and they made assault on Tripit Narain with the common object to make assaults and they assaulted Tripit Narain, and the accused-appellant Jagdish dishonestly removed Rupees one thousand from the person of Tripit Narain. 19. In defence four witnesses have been examined. 19. In defence four witnesses have been examined. Shiv Shankar Das, D.W. 1 had boundary dispute with Tripit Narain. His house was at a distance of 300 yards. It is very likely that this witness Shiv Shankar Das had come to depose due to the land dispute with the injured-Informant. The other witnesses Uday Chand D.W. 2; Manchan Paswan D.W. 3 have simply stated that they had not seen or heard about any such occurrence. It is not known from the depositions if they were near the place of occurrence at that time. Bindeshwari Sahni, accused-appellant D.W. 4 gave the statement in the Court that he came to know from his mother that Tripit Narain entered her house and she raised cries and also caught hold (Sic) (of) Tripit Narain; and the villagemen arrived at her house and assaulted Tripit Narain finding him indulging in lurking house tresspass in the night with mala fide intention. This witness D.W. 4 (accused) has made this statement for the first time in the Court as a defence witness. He did not tell these facts to the Investigation Officer or to the Magistrate. Even he did not tell these facts to the trial Judge. In his statement under Sec. 313 Cr. P.C. Accordingly, the statement of this witness D.W. 4 inspite any confidence. 20. Advocate for the appellants urged rightly that neither there was any sufficient motive nor the prosecution evidence on record go to show that these accused-appellants and Lal Babu had any intention and thus attempted to commit the murder of Tripit Narain. There is only one 1/6th" deep simple incised wound on the head, and all other injuries are on non-vital part of the body. 21. In view of the above these accused-appellants are held guilty for the offence punishable under Sec. 147 and Sec. 326 read with Sec. 149 IPC. Further the accused-appellant Jagdish is held guilty for the offence punishable under Sec. 379 IPC. 22. Advocate for the appellants pointed out that it is an old occurrence of 1979 A.D. and the accused-appellants had remained in jail custody for fifteen days, and that it will not be just and proper now after such a long lapse of time to award sentence of imprisonment to these accused-appellants. 23. 22. Advocate for the appellants pointed out that it is an old occurrence of 1979 A.D. and the accused-appellants had remained in jail custody for fifteen days, and that it will not be just and proper now after such a long lapse of time to award sentence of imprisonment to these accused-appellants. 23. Accused-appellants Pulkit Purbey, Bindeshwari Sahni, Bhola Mandal and Jagdish Purbey each are awarded the punishment of the sentence of their jail custody already undergone and a fine of Rupees five hundred for the commission of offence under Sec. 147 IPC and a fine of Rupees one thousand for the commission of the offence under Sec. 326 read with Sec. 149 IPC each. Further the accused-appellant Jagdish Purbey is awarded the sentence of fine of Rupees one thousand as punishment for the commission of offence punishable under Sec. 379 IPC. 24. The accused-appellants shall be depositing all those fine amount in the trial Court within three months from the date of the judgment, failing which the accused-appellants shall be undergoing the sentence of six months imprisonment, for the commission of the offence under Sec. 147 IPC and the sentence of one year rigorous imprisonment for the commission of the offence under Sec. 326 read with Sec. 149 IPC; and the accused-appellant Jagdish Purbey shall be undergoing a sentence of six months imprisonment further for the commission of the offence punishable under Sec. 379 IPC. If the fine amount is not deposited the trial Court shall be issuing warrants to lodge the accused-appellants in jail to undergo the sentence in default of fine. 25. The appeal is allowed partly with modification in sentence. 26. Let a copy of the judgment be sent to the trial Court for compliance.Appeal partly allowed.