Judgment S.K.Sharma, J. 1. Initially five persons have filed this appeal but one of them namely, Pyare Rai, died during pendency of this appeal. So his name has been expunged from the array of the appellants vide order dated 10-1-2008. 2. Appellant No. 1 Mahadeo Rai was convicted under Section 307 of the Indian Penal Code and was sentenced thereunder to undergo rigorous imprisonment for five years and other appellants namely, Sahdeo Rai, Subhash Rai alias Ranjan Kumar and Pannu Rai were convicted under Section 147 of the Indian Penal Code and out of these three appellants, two appellants namely, Sahdeo Rai and Pannu Rai were sentenced to undergo rigorous imprisonment one year each and appellant Subhash Rai alias Ranjan Kumar was given the benefit of the provisions of Probation of Offenders Act and was directed to be released on execution of probation bond of Rs. 2000/- with two sureties of the like amount each for a period of one year with a direction that in the meantime, he shall keep the peace and be of good behaviour failing which he shall be called upon by the Court during that period to appear and to receive sentence by judgment dated 13/14-7-1993 passed by Additional Sessions Judge XII, Patna in Sessions Trial No. 17 of 1988. 3. Prosecution case relates to Jakkanpur P.S. case No. 606 of 1987 under Sections 148, 324 and 307 of the Indian Penal Code which was initiated on the basis of fardbeyan of Suraj Rai (P.W. 6) who gave his statement on 29-5-1987 at 10-00 p.m. in P.M.C.H. Surgical Emergency Ward stating that on 29-5-1987 at 10.00 a.m. when his father Sri Bhagwan Rai (P.W. 1) went near the land over which a proceeding under Section 144 of the Code of Criminal Procedure was going on which is situated in the west of his door, saw that six persons engaged in sinking the Chapakal. On seeing his father, the accused persons started abusing and on the exhortation made by accused Punna Rai and Pyare Rai (since dead), accused Mahadeo Rai who was having pharsa in his hand, gave 2/3 pharsa blows on the head of his father causing injuries on his head and he received injuries in his right hand in saving himself. Thereafter Sahdeo Rai, Teka Rai and Subhash Rai caught his father and Mahadeo Rai assaulted him with pharsa on head and hands. Thereafter Sahdeo Rai, Teka Rai and Subhash Rai caught his father and Mahadeo Rai assaulted him with pharsa on head and hands. Thereafter informants father fell down and became unconscious. On hulla, the informant and others went to the place of occurrence and thereafter informants father was brought to P.M.C.H. for treatment and at the time of giving fardbeyan, his father was unconscious. On the basis of said fardbeyan, the matter was investigated into arid after completion of investigation, charge sheet was submitted under the aforesaid sections, The cognizance was taken and the case was committed to the Court of sessions. The trial proceeded, Charge under Section 307 of the Indian Penal Code was framed against accused Mahadeo Rai and under Sections 307/149 of the Indian Penal Code was framed against all the accused persons. Charges were explained to them who pleaded innocence and preferred to face the trial. 4. The defence of the appellants was of their innocence and also that no injury was received by the injured in the manner and time and he might have received injuries in connection with other acts and due to enmity, they have been implicated in this case. The defence has also examined two witnesses. In order to prove its case, the prosecution examined altogether 7 witnesses. They are P.W. 1 Bhagwan Rai, P.W. 2 Umesh Kumar, P.W. 3 Tikam Rai, P.W. 4 Bhagwan Das Mahto, P.W. 5 Dr. Ramesh Prasad Singh, P.W. 6 Suraj Rai and P.W. 7 Deo Nath Bhagat. 5. P.W. 6 is the informant of this case and he has stated in his evidence that on 29-5-1987 at 10.00 a.m. when his father went to fetch water from the well, he saw that the accused persons were engaged in sinking the chapakal. Out of the said accused persons, accused Panna Rai and Pyare Rai (since dead) started abusing him and thereafter accused Mahadeo Rai who was armed with pharsa gave a pharsa blow on his head and in defending himself he received injuries in his hands. Thereafter accused Sahdeo Rai and Teka Rai assaulted his father with lathi. The informants father after receiving injuries became unconscious. On hulla, the accused persons escaped. Thereafter, the injured was brought to P.M.C.H. for treatment. Thereafter accused Sahdeo Rai and Teka Rai assaulted his father with lathi. The informants father after receiving injuries became unconscious. On hulla, the accused persons escaped. Thereafter, the injured was brought to P.M.C.H. for treatment. This witness further stated that with regard to field on which the work of sinking chapakal was going on, there was a proceeding under Sections 107 and 144 of the Code of Criminal Procedure. This witness has stated that his father regained his consciousness after 3 or 4 days of the occurrence. 6. P.W. 1 is the injured and he in his evidence has stated that on 29-5-1987 at about 10.00 a.m. when he had gone to drink water on the well, he saw that the accused persons were engaged in sinking chapakal and on seeing him, the accused Panna Rai and Pyare Rai ordered to catch him. Thereafter Subhash Rai caught him and thereafter Mahadeo Rai assaulted by pharsa whereas other accused persons assaulted with lathi. Their intention was that this witness should be killed, This witness stated that he received severe injuries in course of assault and thereafter fell down and became unconscious. In cross-examination this witness admitted that for the land where work of sinking chapakal was being done, a title suit is going on between the parties. 7. P.W. 6 and P.W. 1 both have stated that the assault was made by Mahadeo Rai with pharsa though they have stated that other accused persons were also present and assaulted with lathi. But in their evidence there are some contradictions with regard to assault. According to fardbeyan, occurrence was not seen by the informant. Occurrence was seen by one Ravindra Rai who has not been examined in this case. 8. P.Ws. 2 and 3 in their evidence stated the same thing as has been stated by P.Ws. 1 and 6. According to them also, on account of assault by Mahadeo Rai, Bhagwan Rai, P.W. 1 received injuries. 9. P.W. 5 is doctor. He in his evidence Has stated that on 29-5-1987 he was posted at P.M.C.H. as Surgeon in Surgical Ward and on that day he examined Bhagwan Rai and found following injuries on his person: (i) Incised wound 5" long from web space between middle finger and ring finger of right hand extending to the thinner eminence cut tendon protruding. He in his evidence Has stated that on 29-5-1987 he was posted at P.M.C.H. as Surgeon in Surgical Ward and on that day he examined Bhagwan Rai and found following injuries on his person: (i) Incised wound 5" long from web space between middle finger and ring finger of right hand extending to the thinner eminence cut tendon protruding. (ii) Lacerated wound 2 1/2 x 1" x skin deep over left side of forehead just above lateral aspect of left eye-brow. (iii) Incised wound 2" x 1/4" over left forearm ulnar aspect posterior 4" below elbow. According to the doctor, injury No. (i) and (iii) were caused by sharp cutting weapon, might be of phalsa and injury No. (ii) might be produced by hard and blunt substance. According to opinion of the doctor injury No. (i) was grievous in nature. Injury report has been marked as Ext. 2. 10 P.W. 4 is a staff of P.M.C.H. who was called by Court who produced the injury report from P.M.C.H. He identified two endorsement made on the injury report which have been marked as Exts. 1 and 1/1. 11. P.W. 7 is the Investigating Officer of this case. This witness has stated that he received fardbeyan of the informant recorded by A.S.I. The fardbeyan has been marked as Ext. 4. The formal FIR has been marked as Ext. 6. This witness has stated that in course of investigation, he has gone to the place of occurrence and has recorded the statement of Rabindra Rai. According to this witness, the place of occurrence is eastern ridge of the road running in the middle of village. This witness has also stated that he did not see anything more about the place of occurrence and of any mark of violence there. This witness also went to the P.M.C.H. and there he found the injured in bed No. 12 of the ward of Dr. S.N. Mishra and thereafter he recorded the statement of injured Bhagwan Rai. This witness further stated that no paper was produced regarding any proceeding under Section 144 of the Code of Criminal Procedure over the land in question. 12. The defence has also examined two witnesses. They are D.W. 1 Rajendra Prasad and D.W. 2 Deo Barata Singh, D.W. 1 in his evidence has stated that accused Panna Rai was not present at the time of occurrence. 12. The defence has also examined two witnesses. They are D.W. 1 Rajendra Prasad and D.W. 2 Deo Barata Singh, D.W. 1 in his evidence has stated that accused Panna Rai was not present at the time of occurrence. D.W. 2 has also stated in his evidence that accused Peyare Rai (since dead) was not present at the time of occurrence and at that time he was present in school. 13. Learned Counsel for the appellants has submitted that the Investigating Officer has not found any sign of violence at the place of occurrence though witnesses have stated that the blood was found there. Further submission is that there are contradictions in the evidence of the witnesses. In the FIR it is mentioned that the injured had gone to see his disputed land whereas the informant P.W. 6 in his evidence has stated that his father had gone to take water from the well and other witnesses have stated that he had gone to drink water on the well. There are contradictions in the depositions of the prosecution witnesses. Some witnesses have stated that it was only Mahadeo Rai who assaulted the injured and some witnesses have stated that other accused persons also assaulted with lathi. Further submission is that the eye-witness of the occurrence was only Rabindra Rai but he has not been examined. 14. After considering the entire evidence on record, it appears that the witnesses are consistent on the point that injured received injuries at the hand of accused-appellant No. 1 Mahadeo Rai. In the fardbeyan also, there is allegation of assault only against appellant No. 1 Mahadeo Rai. So I am of the view that the prosecution has been able to prove the charge against appellant No. 1 Mahadeo Rai beyond the shadow of all reasonable doubts. 15. With regard to other appellant, as there are contradictions in the evidence of the witnesses and in the fardbeyan there is no allegation of assault by these appellants, I am of the view that the prosecution has not been able to prove the charge beyond the shadow of all reasonable doubts against them. As such, they i.e. appellant Nos. 2, 3 and 4 namely, Sahdeo Rai, Subhash Rai alias Ranjan Kumar and Panna Rai, are entitled to be acquitted. As such, they i.e. appellant Nos. 2, 3 and 4 namely, Sahdeo Rai, Subhash Rai alias Ranjan Kumar and Panna Rai, are entitled to be acquitted. Accordingly, the judgment of conviction and order of sentence so far it relates to these appellants is set aside and they are acquitted. 16. The trial Court has convicted the appellant Mahadeo Rai under Section 307 of the Indian Penal Code. So far proving the charge under Section 307 of the Indian Penal Code is concerned, I have gone through the injury report which has been proved from which it appears that this accused has not assaulted the injured Bhagwan Rai with an intention or knowledge to cause death. Further it appears from the evidence on record that there was no intervening circumstances. So, I am of the view that prosecution has not been able to prove that there was any intention to do away with the life of Bhagean Rai, the injured. So the conviction of this appellant under Section 307 of the Indian Penal Code is fit to be modified. Accordingly, the conviction of this appellant under Section 307 of the Indian Penal Code is modified and converted into under Section 324 of the Indian Penal Code. 17. On the question of sentence of this appellant, learned Counsel submits that some lenient view may be taken as the case is of the year 1987 and the appellant has remained in custody for some period during trial and after conviction. He further submits that if the sentence of this appellant is reduced to the period already undergone by him which may be sufficient for the ends of justice. I am in full agreement with the submission of the learned Counsel for the appellant. Accordingly, the sentence of appellant No. 1 Mahadeo Rai is reduced to the period already undergone by him which will be sufficient for the ends of justice. 18. In the result, the appeal so far it relates to appellant No. 1 Mahadeo Rai is dismissed with modification in conviction and sentence, as stated above, and the appeal so far it relates to other appellants namely, appellant Nos. 2, 3 and 4 (Sahdeo Rai, Subhash Rai alias Ranjana Kumar and Panna Rai) is allowed and they are also discharged from liabilities of their bail bonds.