JUDGMENT : Pradeep Kumar, J. The appeal is directed against the judgment of conviction and order of sentence dated 30.4.2002 passed by Sri Binay Kumar Sinha, Sessions Judge, Jamtara in Sessions Case No. 54/90/404/01, by which judgment he found ail the four appellants, namely, Sagu Mahato, Fagu Mahato, Fichi Mahato and Mohan Mahato guilty under Sections 307/326/323/34 of the Indian Penal Code and sentenced the appellant No. 1, Sagu Mahato to undergo R.I. for 10 years u/s 307 of the Indian Penal Code and 6 years u/s 326 of the Indian Penal Code. Appellant Nos. 2, 3, 4, namely, Fagu Mahato, Fichi Mahato and Mohan Mahato were sentenced to undergo R.I. for 7 years each u/s 307 read with Section 34 of the Indian Penal Code and appellant No. 4, Mohan Mahato was further sentenced to undergo R.I. for one year u/s 323 of the Indian Penal Code. However, he directed all the sentences will run concurrently. 2. It is submitted by the learned Counsel for the appellants that it will appear from the prosecution case and evidences that there was some land dispute with rerard to the "Bagicha" and as such when the prosecution party objected some verbal fight took place between them and then suddenly Sagu Mahato charged "Katari" blow on the injured Nirmal Chandra Sen, causing injury on his left side head and again Sagu Mahato charged another "Katari" blow, causing injury on his left hand and thereafter the informant - P.W.7, Gokul Chandra Sen intervened then Sagu Mahato also charged "Katari" blow on his right hand, but there is no allegation of assault against the other appellant No. 4, Mohan Mahato, who is said to have caused only a "lathi" blow on the wrist of the informant and the doctor found no 'lathi' injury corresponding to the same and as such the conviction of all the appellants u/s 307/34 of the Indian Penal Code is bad in law except appellant No. 1, Sagu Mahato. 3. Learned Counsel appearing for the State has opposed the prayer and submitted that although that no allegation of assault against the appellant Nos. 2 and 3, Fagu Mahato and Fichi Mahato, but they also gave call in order to assault the injured and informant and they were asking the main accused to commit murder and as such they have rightly been convicted under Sections 307/34 of the Indian Penal Code. 4. 2 and 3, Fagu Mahato and Fichi Mahato, but they also gave call in order to assault the injured and informant and they were asking the main accused to commit murder and as such they have rightly been convicted under Sections 307/34 of the Indian Penal Code. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by the informant-P.W.7, Gokul Chandra Sen on 3.1.89 at 12.30 p.m. in the afternoon stating therein that on the same day at 8.30 a.m. when he along with cousin brother, Nirmal Chandra Sen had gone to "Bagicha" for easing, they saw that accused, Sagu Mahato, Fagu Mahato, Fichi Mahato and Mohan Mahato variously armed with "Katari", "Farsha" and "Lathi" and accused, Sagu Mahato was cutting leaves of palm tree with the help of a "Katari". Then they asked them as to why they are cutting leaves of palm trees. Whereupon, the accused said now they will cut their body. Thereafter, the accused Sagu Mahato with intention to commit the murder gave a "Katari" blow on the head of his brother, Nirmal Chandra Sen, causing injury on his left side head and again the accused, Sagu Mahato gave another "Katari" blow by which the left hand of the brother of the informant was chopped off from the wrist. When the informant went to intervene then the accused, Sagu Mahato also gave a "Katari" blow at his right hand. After that, the accused, Mohan Mahato gave a "lathi" blow on his wrist. On hearing 'hullah' the witnesses rushed at the place of occurrence then the accused persons fled away. 5. On the basis of the said Fardbeyan the police registered a case under Sections 323/324/326/307/34 of the Indian Penal Code and after investigation submitted charge-sheet under the aforesaid Sections. 6. Since, the case was exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, after taking cognizance committed the case to the court of Sessions and subsequently, the case was tried by Sessions Judge, Jamtara, who found the appellants guilty as aforesaid. 7. It appears that in course of trial the prosecution has examined 9 witnesses. P.W.1, Sonaram Marandi, P.W.2, Arun Chandra Sen, P.W.3, Amul Chandra Dutta, P.W.4, Pramod Kumar Dutta, P.W.5, Ramesh Chandra Dutta, P.W.6, Nirmal Chandra Sen, P.W.7, Gokul Chandra Sen, P.W.8, Dr. 7. It appears that in course of trial the prosecution has examined 9 witnesses. P.W.1, Sonaram Marandi, P.W.2, Arun Chandra Sen, P.W.3, Amul Chandra Dutta, P.W.4, Pramod Kumar Dutta, P.W.5, Ramesh Chandra Dutta, P.W.6, Nirmal Chandra Sen, P.W.7, Gokul Chandra Sen, P.W.8, Dr. Arun Kumar Chakraborty and P.W.9, Ramanuj Sharma-formal witness, who has proved the writing of the I.O. on the Fardbeyan, which is marked as Ext.-2. 8. It appears that the informant - P.W.7 has fiilly supported the prosecution case as given by him in the Fardbeyan and stated that when he along with cousin brother, Nirmal Chandra Sen (P.W.6) had gone to "Bagicha" for easing, they saw that accused, Sagu Mahato, Fagu Mahato, Fichi Mahato and Mohan Mahato were present there and accused, Sagu Mahato was cutting leaves of palm tree in his "Bagicha" with a "Katari" in his hand and a "Farsa" in the hand of Fichi Mahato and a 'Lathi" in the hand of Mohan Mahato. When the informant and his cousin brother objected them and said that as to why they are cutting leaves of palm trees. Whereupon, the accused said now they will cut their body and some verbal fight took place between them. Thereafter, on the order of the accused, Fagu Mahato the accused, Sagu Mahato gave a "Katari" blow on the head of his brother, Nirmal Chandra Sen, causing injury on his left hand then he gave another blow, causing chopping off of his left hand from the wrist. On hearing hullah, the witnesses came there then the accused persons fled away. Then, the witnesses took the informant and his cousin brother to the hospital where the Investigating Officer was called to record their statements. He further stated that he read the statement and then he put his L.T.I. on the same. In his cross-examination, he further stated that about 24-30 leaves were cut by the accused persons from the palm tree. 9. P.W.6, injured Nirmal Chandra Sen has also supported the prosecution case and stated that on the date of occurrence his uncle has died and in the morning he along with Sonaram Marandi-P.W.1 had gone to bring wood for the use of funeral. When, he came back then his brother said that few people are going towards in his "Bagicha" then, he went with him and saw that Fagu Mahato was cutting leaves of palm tree. When, he came back then his brother said that few people are going towards in his "Bagicha" then, he went with him and saw that Fagu Mahato was cutting leaves of palm tree. He also saw the other accused persons, Sagu Mahato with "Katari" in his hand, Mohan Mahato with "Lathi" in his hand and Fagu Mahato with "Farsa" in his hand were standing there. When they asked them as to why they are cutting leaves of palm trees. Whereupon the accused said now they will cut their body and some verbal fight took place between them. Thereafter, on the order of the accused, Fagu Mahato the accused, Sagu Mahato gave a "Katari" blow on his head, causing injury on his left hand, then he gave another blow, causing chopping off of his left hand from the wrist. Then, his brother-informant, P.W.7, Gokul Chandra Sen came in order to save him, but he was also assaulted by Sagu Mahato, causing injury at his right hand. After that, the accused, Mohan Mahato gave a "lathi" blow on his wrist. On hearing 'hullah' the witnesses also came then the accused persons fled away. Both of them were taken to Hospital where they were treated and police came then his brother gave statement. In his cross-examination, he also stated that the place of occurrence, belonging to the informant, Gokul Chandra Sen and his brother Nirmal Chandra Sen. He also stated that his hand from wrist fell down on the ground. He also gave the boundary of the "Bagchia". 10. The other witnesses, P.W.1, Sonaram Marandi, P.W.2, Aran Chandra Sen, P.W.3, Amul Chandra Dutta, P.W.4, Pramod Kumar Dutta, and P.W.5, Ramesh Chandra Dutta have also supported the prosecution case and stated that on hearing Hullah they rushed to the "Bagchia" of the informant, Gokul Chandra Sen and found that the accused, Sagu Mahato by giving "Katari" blow on the head and hand of injured, Nirmal Chandra Sen and also gave "Katari" blow on the informant-Gokul Chandra Sen and the accused persons fled away seeing the witnesses. Then, the informant and his brother were taken to the Hospital and as such it appears that the prosecution has proved beyond reasonable doubt that the main accused, Sagu Mahato with intention to cause death of the injured and the informant gave "Katari" blow on the head of the injured, Nirmal Chandra Sen and also chopped off of his left hand from wrist and as such he is held guilty under Sections 307 of the Indian Penal Code and also u/s 326 of the Indian Penal Code and his conviction and sentence requires no interference by this Court. However, since as per the evidence of all the witnesses that accused, Fagu Mahato had a "Katari" in his hand, Fichi Mahato had a "Farsa" in his hand and Mohan Mahato had a "Lathi" in his hand, but there is no allegation that they also participating in assaulting the informant and his injured brother with their respective weapons and as such although there is an allegation that they also instigated the main accused, Sagu Mahato to assault and they also participated in rebuking and entering with verbal dialogue with the informant and the injured, but there is no allegation of assault against them nor they used their weapons. In that view of the matter, it is difficult to come to a conclusion that the three appellants, Fagu Mahato, Fichi Mahato and Mohan Mahato had any intention to cause death of the injured or the informant and as such their conviction u/s 307/34 of the Indian Penal Code is not warranted and they have wrongly been found guilty u/s 307/34 of the Indian Penal Code. Hence, the convictions of the appellant Nos. 2, 3 and 4, namely, Fagu Mahato, Fichi Mahato and Mohan Mahato under Sections 307/34 of the Indian Penal Code is set aside. However, all the three appellants are found and held guilty u/s 323 of the Indian Penal Code the period already undergone by them during trial and appeal is sufficient sentence for them. 11. In the result, the appeal is allowed in part. 12. Since the appellant No. 1, Sagu Mahato is concerned, he has been found guilty hence his bail bond is cancelled and the learned trial court is directed to issue warrant of arrest for serving out the sentence. 13. So far the other appellant Nos. 11. In the result, the appeal is allowed in part. 12. Since the appellant No. 1, Sagu Mahato is concerned, he has been found guilty hence his bail bond is cancelled and the learned trial court is directed to issue warrant of arrest for serving out the sentence. 13. So far the other appellant Nos. 2, 3 and 4, namely, Fagu Mahato, Fichi Mahato and Mohan Mahato are concerned, they are also on bail they are released from the bondage of their bail bond. Appeal partly allowed.