Judgment SHYAM KISHORE SHARMA, J. 1. The appellants have filed this appeal against the judgment of conviction and order of sentence dated 28.6.1993 and 6.7.1993 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 275 of 1987/29 of 1993 whereby the appellants Amir Lal Singh, Biraj Singh, Jatan Singh @ Ram Jatan Singh and Rajeshwar Singh were found guilty for the offence committed under section 304 Part 2 of the IPC and were sentenced to undergo R.I. for 7 years and appellants Shyam Nandan Singh, Pradeep Singh and Ram Briksh Singh were found guilty under sec. 324 IPC and were sentenced to undergo R.I. for two years. 2. PW 14 has lodged the fard beyan before the Officer In charge of Mahua Police Station on 10.5.1986 at 2 PM alleging therein that at preceding 11 AM Amir Lal Singh, Viraj Singh and Jatan Singh along with co-villagers Braj Kishroe Soingh, Awadh Kishore Singh (both acquitted), Rajeshwar Singh, Ramesh Singh (acquitted), were digging foundation for the purpose of erecting wall by encroaching informants land. The accused persons were also cutting Mahua Tree which was standing over the land. At that time PW 4 along with his brother Sheo Nath Singh, Jainath Singh (PW 3) and their father Nandlal Singh (PW 4) forbade the accused from digging the land as the land was of theirs. The accused persons further request that the land be measured by the Amin and only thereafter foundation should be done. Allegation is that at the behest of Braj Kishore Singh (acquitted) appellant Amir lal Singh, Viraj Singh, Jatan Singh and Rajeshwar Singh along with Braj Kishore Singh and Awadh Kishroe Singh (both acquitted) who were having Farsa and appellant Rajeshwar Singh with Ramesh Singh appellants Shyamnandan Singh, Pradeep Singh and Ram Briksh Singh and others started assaulting the prosecution party. As a result of the assault the prosecution party was seriously injured. Brother of the informant Sheo Nath Singh became unconscious. Thereafter, the injured were taken to Mahua Dispensary for treatment where they were treated and lard beyan was registered as Mahua P.S. Case No. 61 of 1986 dated 10.5.1986 under sections 147, 148, 149, 325, 324, 323, 307 of the Indian Penal Code. Alter death of Sheonath Singh sec. 302 IPC was added. The matter was investigated and after investigation charge sheet was submitted. Alter death of Sheonath Singh sec. 302 IPC was added. The matter was investigated and after investigation charge sheet was submitted. Cognizance was taken and case was committed to the Court of sessions. 3. In order to prove its charges the prosecution examined 15 witnesses. They are PW 1 Gopal Singh, PW 2 Dineshwar Singh, PW 3 Jainath Singh, PW 4 Nand lal Singh, PW 5 Binod Prasad Singh, PW 6 Ratnesh Kumar Chaduhary, PW 7 Chalitra Thakur, PW 8 Chandrketh Prasad Singh, PW 9 Upendra Singh, PW 10 Ashok Mahto, PW 11 Dr. Nand Kishore Narain, PW 12 Girja Kunwar, PW 13 Chandra Mohan Kumar Singh, PW 14 Deonath Singh and PW 1.5 Raj Kishore Singh. PWs 7, 8 and 13 are the formal witnesses. PW 5 was declared hostile. PW 14 is the informant. PW 4 is the father of the informant. The doctor is PW 11 and I.O. is PW 15. 4. The defence of the appellants from the beginning was that the appellant no. 1 has lodged a case against the informant PW 14 and his two brothers PW 3 and 4 with respect to same occurrence. When PW 3 Jainath Singh tried to assault the appellant no. 1 on his neck by means of farsa and the appellant no. 1 while trying to save himself received injuries on the right hand. The assault was repeated by PW 3 as a result of which the appellant no. 1 received injuries and he fell down, thereafter the appellant no. 1 was assaulted by PW 3. Appellant no. 3 was also assaulted by PW 3and he received injuries on his chest. Appellant no. 2 wanted to escape but he was assaulted by PW 14 with Khanthi and when Ram Dahin Singh (since dead) came to his rescue then he was assaulted by PW 4 Nand Lal Singh by means of spade. After the attack the appellant nos. 1, 2 and 3 were taken to clinic of Dr. Rameshwar Singh where the fard beyan of appellant no. 1 was recorded. Before proceeding further it would be proper to discuss the evidence of the doctor. 5. PW 11 Dr. N. K. Singh has deposed that on 10.5.1986 he was posted as Medical Officer in Primary Health Center Mahua. On that date he received requisitions of Mahua Police Station requesting him to examine four injured persons. 1 was recorded. Before proceeding further it would be proper to discuss the evidence of the doctor. 5. PW 11 Dr. N. K. Singh has deposed that on 10.5.1986 he was posted as Medical Officer in Primary Health Center Mahua. On that date he received requisitions of Mahua Police Station requesting him to examine four injured persons. On the same day at 12.45 PM he examined Jainath singh and found following injuries on his person: (i) Lacerated wound 1 1/2xl/6"xl/5" on the top of the hand (ii) Abrasion 1/4x1/4" on right cheek (iii) Complaint of pain on left side of the buttock, but there is no apparent injury (iv) Abrasion l/5"xl/6" with diffused swelling on the back of the right shoulder. All the injuries were simple by hard and blunt substance may be lathi or iron rod within six hours. 6 On the same day he has examined Nand Lal Singh and found following injuries: (i) Lacerated wound 2"xl/5"xl/5" on the left parietal region (ii) Lacerated wound 3/4xl"/5"xskin deep above the right eye brow. (iv) complaint of pain on left shoulder but there was no apparent injury. 7. The injuries are simple in nature caused by hard blunt substance caused by hard blunt substance caused within six hours of the examination of the doctor. 8. On the same day this witness has examined PW 14 Deonath Singh and found following injuries: (i) Lacerated wound l"xl/4" cut through left ear. (ii) Diffused swelling on the left temporal region. (iii) Abrasion 1/2"x1/2" with diffused swelling on the mid of fore-arm. (iv) Multiple sat mark in difference shape and sizes on the back. (v) Sat mark 5"xl/4" on the left leg. (vi) Sat mark 4"xl/4" on the right leg. (vii) Complaint of pain on the chest, but there is no apparent injury. 9. All the injuries were caused by hard and blunt substance. Opinion with regard to injury no. 3 was kept reserve for X-ray examination and report. After receipt of the X-ray report the doctor found that the injury no. 3 comprised of fracture of Ulna and was grievous. 10. On the same data at 12.50 PM this witness has examined Sheo Nath Singh and found following injuries on his persons: (i) Lacerated wound l"xl/4"xl/4" with diffused swelling on left parietal region. (ii) Abrasion 2"xl/4" on the left side of the chest. (iii) Abrasion l"xl/4" on the left side of the chest. 10. On the same data at 12.50 PM this witness has examined Sheo Nath Singh and found following injuries on his persons: (i) Lacerated wound l"xl/4"xl/4" with diffused swelling on left parietal region. (ii) Abrasion 2"xl/4" on the left side of the chest. (iii) Abrasion l"xl/4" on the left side of the chest. (iv) Linear abrasion 3"xl/4" on the right side of the chest below the right nipples. (v) Sat mark 6"xl" placed lontitudinally on the upper part of the back on the right side. (vi) Multiple sat marks of different shape and sizes crossing and overlapping each other on the whole of the back. (vii) Abrasion 6"x2" on the upper part of the left thigh. (viii) Abrasion 3"x1" on the outer surface of the right thigh 3" above the pattela. (ix) Abrasion in an area of the anterior iliac 1"x1/23" in size. 11. Opinion with regard to injury no. 1 was kept reserved and rest injuries were simple caused by hard blunt substance such as iron rod, lathies or back portion of the Farsa. All the injuries were caused within six hours of the examination. The injury reports are on the record. Those are Exhibit3 to 3/3. X-ray report was marked as Exhibit-1. 12. PW 14 has stated that on 10.5.1986 on 10.5.1986 at about 11 AM he was working on the shop along with his brother and father, appellant Amir Lal Singh, Viraj Singh and Jatan Singh were trying to put plinth on the land of the informant. At that time Braj Kishore Singh, Awadh Kishore Singh, Ramesh Singh, Rajeshwar Singh, Shyam Nandan Singh, Pradeep Singh, Ram Singh, Uma Singh, Ram Brikch Singh, Ram Dahin Singh were also present there. The informant and his brother with his father forbade the accused persons from digging the land of the informant but they were adamant. Appellant Amir Lal Singh started abusing which was exchanged. At the behest of Braj Kishore Singh (since acquitted), other accused persons committed various overt acts including the assault. At that time Braj Kishore Singh, Awadh Kishore Singh and Ramesh Singh were having Farsa where as Rajeshwar singh having iron rod and other appellants were having lathi. The informant was assaulted by Pradeep Singh by lathi. Ram Brikch and Ram Dahin have also assaulted him by lathi. Jai Nath Singh was assaulted by Shyamnandan Singh whereas Rajeshwar Singh assaulted him by iron rod. The informant was assaulted by Pradeep Singh by lathi. Ram Brikch and Ram Dahin have also assaulted him by lathi. Jai Nath Singh was assaulted by Shyamnandan Singh whereas Rajeshwar Singh assaulted him by iron rod. Shivnath Singh was assaulted by Braj Kishore Singh, Awadh Kishroe Singh and Ramesh Singh by back portion of Farsa. He was further assaulted by Amir Lal Singh, Viraj Singh and Jatan Singh by lathi and rod by Rajeshwar Singh. As a result of which he become unconscious. Informants father was assaulted by Rama Shanker Singh and Uma Shankar Singh by means of lathi. The informant and injured persons were brought to the hospital by Gopal Singh where in course of treatment Sheonath Singh died. Motive behind the alleged occurrence was that earlier a case was litigated before the Consolidation Court and both sides have lodged Sanaha prior to the occurrence. The witnesses of the case were threatened. After the fard beyan was recorded which it was not read over to him but was signed by the informant and his brother Jainath Singh. The signature are made exhibits ad Ext-5 and 5/2. The injury reports were prepared. PWs 1, 2, 3, 4, 6, 9 , 10, 11 and other material witnesses have stated that on the date and time of occurrence the accused persons variously armed committed various overt acts as a result thereof four persons were seriously injured. Those witnesses have been cross examined in detail but on the question of assault they are intact. If the evidences is seen in its entirety then it appears that there is no vital contradiction in the evidences of the witnesses but it has come that assault was not with intention to cause death so charge under sec. 302 was not found rather conviction was in under sec. 304 part 2 IPC. So far as the appellant nos. 1, 2, 3 and 4 are concerned, with regard to them it was found that they have only caused some injuries for that they have been charged under sec. 324 IPC. 13. Learned counsel for the appellants argued that the accused persons were the victim and they were also assaulted for which a case was registered. The prosecution has not come with clean hand and suppressed this vital fact. 324 IPC. 13. Learned counsel for the appellants argued that the accused persons were the victim and they were also assaulted for which a case was registered. The prosecution has not come with clean hand and suppressed this vital fact. The court below has failed to appreciate that the PW 14 the informant and his two brothers PWs 3 and 4 have also been convicted by the same trial court for an offence under sec. 307/34 of the IPC by the judgment and order of conviction in Sessions Trial No. 63 of 1988/25 of 1993 holding that the PW 14 and his two brothers PWs 3 and 4 were the aggressors also. They were held guilty for causing assault. The trial court has already held that the appellants were digging foundation on their own land and the informant had no reason to forbade the accused persons from digging foundation on the place of occurrence. It was the prosecution party which has picked up the quarrel with the accused persons. The trial court has also found that the appellant nos. 1, 2 and 3 have also sustained injuries inflicted by sharp cutting weapon as it appears from the Ext-M to M/1. There is no explanation as to under what circumstances the appellant nos. 1, 2, 3 and Ram Dahin (since acquitted) have received injuries and from the judgment passed in Sessions Trial No. 63 of 1988 it is clear that the aggression was on behalf of the informant and others. At best this was a case in which it can be said that some force was utilized to avert further attacks. Therefore, sec. 304 Part 2 is also not made out. Another argument is that almost on similar evidence the trial court has acquitted Uma Shankar Singh, Awadh Kishore Singh, Ramesh Singh, Ram Sankar Singh and Braj Kishore Singh and has convicted all these appellants for various offences. 14. Learned counsel for the State submits that the prosecution has been able to prove its case beyond all reasonable doubt and the court below has rightly convicted the appellants. 15. It has come during evidence that one of the injured died on the same date i.e. on the date of registration of the case and sec. 302 IPC was added on the very same day. 15. It has come during evidence that one of the injured died on the same date i.e. on the date of registration of the case and sec. 302 IPC was added on the very same day. The assault was by traditional weapon i.e. lathi and Garasa which is apparent from the injury report of the doctor. So I am of the view that the court below was right in finding the appellant guilty for culpable homicide not amounting to murder. The overt acts are alleged against the appellant no. 1-4 and all the witnesses are consistent that there was assault which led to culpable homicide not amounted to murder and despite that the trial court was just in finding the appellant no. 1 to 4 guilty under sec. 304 Part 2 of the IPC. With regard to other appellants it is clear that some injuries were caused by them which is apparent from the injury report. The defence has tried to put some questions before the doctor who treated the injured and also certain questions were put to the witnesses but the witnesses supported that these three appellants namely, Shyam Nandan siangh, Pradeep Singh and Ram Briksh Singh caused hurt by dangerous weapon, so I am of the view that the court was right in arriving at the conclusion that the conviction under section 324 IPC to these three appellants was correct. No doubt, in this case it has been found by the court below that the appellants were digging their own land and in that case some altercation took place but definitely this is not the case in which minimum force was utilized rather the appellants have insisted and committed various act of assault. So I am of the view that the prosecution is able to prove its case beyond all reasonable doubt and the court below has rightly convicted the accused persons. 16. On the question of sentence it has been submitted that the appellants have remained in custody for various periods during the investigation, trial and appeal. No useful purpose will be served if they are forced to go jail once again for the occurrence of about 22 years earlier. 17. 16. On the question of sentence it has been submitted that the appellants have remained in custody for various periods during the investigation, trial and appeal. No useful purpose will be served if they are forced to go jail once again for the occurrence of about 22 years earlier. 17. I considered the submission and come to the opinion that the sentence should be modified and accordingly, it is modified to the extent that the period undergone by the appellants in custody shall be deemed to be sufficient for the ends of justice. 18. In the result this appeal is dismissed with the modification in the sentence.