JUDGMENT Sheema Ali Khan, J. – The appellants, three in numbers, have been found guilty for offences under Section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- by the 5th Additional Sessions Judge, Bhojpur in Sessions Trial No. 474 of 1991. 2. The First Information Report was instituted on the basis of the fardbayan of Arun Kumar Thakur (PW 5). According to the case as made out in the First Information Report, it is said that Arun Kumar Thakur along with his uncle Bhola Thakur (PW 4) and his father Ramadhar Thakur (PW 1) were sitting near their door. In the mean time, it is said that the accused persons came to the door of the informant and asked them to partition the orchard and asked them to remove their pilani from the orchard. The informant did not remove the said pilani, on which Kapil Thakur ordered others to assault the informant and others. It is alleged that Lal Mohar Thakur assaulted Arun Kumar Thakur, the informant, on his chest by a Bhala. It is also said that Manager Thakur and Kapil Thakur assaulted him by a Bhala and lathi respectively. Bhola Thakur was assaulted by lathi by Kapil Thakur. On alarm being raised, Ramjee Thakur and Devanand Thakur came to the place of occurrence and intervened in the matter. Thereafter, they took them for treatment to the hospital. 3. The defence of the appellants is that no such occurrence took place and the entire case is false. It was stated that the appellants have been named in the occurrence as an afterthought due to partition of property. Counsel for the appellants has argued that no case is made out under Section 307 of the Indian Penal Code as there was no intention on behalf of the appellants to inflict fatal blows and there were no intervening circumstances to deter the appellants. Besides which, it is submitted that they are closely related and because of the dispute of partition of orchard, the present case has been instituted. Besides which, it is submitted that they are closely related and because of the dispute of partition of orchard, the present case has been instituted. It is also contended that the First Information Report has been received in the Court of the Chief Judicial Magistrate on 11.12.1990, whereas it was instituted on 06.12.1990, and the delay has not been explained, especially in view of the fact that the Investigating Officer of the case has not been examined, which raises a doubt with respect to the manner in which the First Information Report has been instituted. 4. This Court, therefore, has to consider the ocular evidence and the evidence of the doctor and examine whether there are circumstances to indicate that the First Information Report is an afterthought, implicating the appellants. 5. There are seven witnesses examined in this case on behalf of the prosecution. PW 6 is Dr. Madan Kumar Pandey who examined the two injured of this case. PW 6 has found that there is incised would on the chest beginning from the 6th rib and going downwards on the injured Arun Kumar Thakur, which supports the First Information Report, wherein, it has been stated by the informant that he was given a Bhala blow on the chest. Apart from which, there is an incised wound in the hand of the informant and abrasion on the arm, which have been caused due to lathi blows. The injury on Bhola Thakur also indicates that there are one blow by a lathi on the occipital region and three incised wounds on the left arm, mid thigh and root of the right axilla. There was also abrasion over back of the right thumb. The injured were asked to get an X-ray done, however, the X-ray report was not received, and therefore, it has been opined that the injuries are simple in nature. 6. An argument has been raised with respect to the evidence of PW 6, which is that the original injury report was not available. In fact, this argument is not sustainable because it is specifically stated that the injuries are recorded and maintained in the Register and thereafter copied and sent to the Police Station. Therefore, it cannot be said that the injury report, which was proved and marked as Exhibits 1 and 1/1, are not original documents. 7. In fact, this argument is not sustainable because it is specifically stated that the injuries are recorded and maintained in the Register and thereafter copied and sent to the Police Station. Therefore, it cannot be said that the injury report, which was proved and marked as Exhibits 1 and 1/1, are not original documents. 7. PW 7 Murat Ram is the formal witness who has proved the writing and signature of A.S.I. Surendra Singh at Shahpur Police Station on the fardbayan (Exhibit-2). 8. The ocular witnesses to the occurrence are PWs 1 to 5, out of whom PWs 1, 4 and 5 are the injured witnesses, whereas PW 2 has been named in the First Information Report as a witness to the occurrence. PW 3 is the brother of the informant and he claims to be the eye-witness to the occurrence. 9. PW 1 Ramadhar Thakur has supported the allegations levelled against the appellants in his examination-in-chief. His cross-examination discloses that the orchard which was under dispute measures about 15 kathas. The prosecution has not been able to illicit any material which would indicate that the evidence of this witness is false and should not be believed. 10. An argument has been raised on behalf of the appellants that they are prejudiced due to the non-examination of the Investigating Officer of this case as they could not draw the attention of the witnesses to the statements made before the Investigating Officer. The Trial Court has taken care of this aspect of the matter and has questioned the witnesses with respect to the supposed statements made before the Investigating Officer. Thus, the Trial Court has asked this witness whether he had made a statement that the land on which the Pilani was situated belongs to him. This witness has replied that the pilani was on his land. Taking the help of Section 172 (2)of the Code of Criminal Procedure, the Trial Court has taken into consideration the statement of the witnesses recorded under Section 161 of the of the Code of Criminal Procedure in the case diary. I may state here that this witness has stated before the Investigating Officer that the pilani was on his land. Taking the help of Section 172 (2)of the Code of Criminal Procedure, the Trial Court has taken into consideration the statement of the witnesses recorded under Section 161 of the of the Code of Criminal Procedure in the case diary. I may state here that this witness has stated before the Investigating Officer that the pilani was on his land. This Court, therefore, concludes that there is no reason to disbelieve the testimony of this witness regarding the genesis of the occurrence, the place of the occurrence or that the manner in which the assault took place. 11. PW 2 Ramjee Thakur is named in the First Information Report as a witness. It is argued that this witness is not an eye-witness as it is stated in the First Information Report that he came on alarm being raised. However, this aspect has been explained in the First Information Report, wherein, it has been stated that when alarm was raised, Ramjee Thakur and others came to the place of occurrence and the appellants only left after their intervention and when they chided the appellants for creating such a disturbance. Thus, it cannot be argued on behalf of the appellants that PW 2 was not an eye-witness to the occurrence. As far as his evidence is concerned, he has supported the prosecution version by stating that he was sitting in front of his door when he heard the sound of raised voices. Thereafter, he went to the place of occurrence and saw the appellants assaulting the informant and others. This witness has been cross-examined in some details, but the defence could not illicit any material in their favour which would lead this Court to disbelieve the occurrence. There are some minor discrepancies in the evidence of this witness, inasmuch, as it has been pointed out that he has stated before the Investigating Officer that the occurrence took place at about 6 AM, whereas according to the informant (PW 5), the occurrence took place at about 5:30 AM. Such a discrepancy is not fatal to the prosecution case and it is not expected that the witnesses would have noted the time before they went to the place of occurrence. 12. PW 3 Arvind Kumar Thakur is the brother of the informant. Such a discrepancy is not fatal to the prosecution case and it is not expected that the witnesses would have noted the time before they went to the place of occurrence. 12. PW 3 Arvind Kumar Thakur is the brother of the informant. Admittedly, he was not present at the place of occurrence when the occurrence took place as his name does not find place in the First Information Report. He could only be a hearsay witness and as such this Court cannot attach any importance to his deposition on the aforesaid ground. 13. PW 4 Bhola Thakur is the uncle of the informant and one of the injured in the said occurrence. He has supported the prosecution version of the occurrence and has given a detailed account of the manner in which the assault took place. According to this witness, he has 10 bighas of land, whereas 10 bighas of land was divided between his gotias Devanand Thakur and Ramjee Thakur. The pilani, according to him, was standing on his 10 bighas of land and he further states that there had already been a partition with respect to property in question. The evidence of PW 4 is quite consistent with the case as made out in the First Information Report. 14. PW 5 Arun Kumar Thakur is the informant of this case. He supports his case. It is specifically pointed out that the evidence of the informant at paragraph 12 would indicate that it is an afterthought and that it was not recorded on the day on which the occurrence had taken place, rather it is prepared later. Paragraph 12 reads as follows:- ^^ eSusa ml le; c;ku fn;k iqfyl us ml le; uksV fd;k ;k ugha ;g mudk dke FkkA eSaus ugha ns[kk fd os fy[k jgs Fks ;k ugha okn es esjk gLrk{kj djk;kA esjk o;ku i<+dj lquk;k eSaus lgh ikdj gLrk{kj cuk;kA^^ From the evidence aforesaid, it would appear that this witness had given the statement before the Police. Apparently, he had not seen whether the Police has noted it down or not, but he eventually admits that the statement was read over to him and he had put his signature on it. The tenor of cross-examination is rather incomplete inasmuch as it would appear that no date or time has been mentioned by the defence to show that the fardbayan was not recorded on 06.12.1990. The tenor of cross-examination is rather incomplete inasmuch as it would appear that no date or time has been mentioned by the defence to show that the fardbayan was not recorded on 06.12.1990. There must be some indication to show that the fardbayan was prepared much later. Even though, this witness at paragraph 17 has stated that he has duly signed on the fardbayan. It has also been argued that the informant ought to have reported the matter to the Out-Post which is situated at Goura Bazaar which is 150 yards from the house of the informant. It is the specific case of the informant that after he was injured, he was taken to the Shahpur Hospital by his family members and other villagers on a tractor. Therefore, the first concern of the family members was to give medical aid to a person who has injured, rather than to go to the Police Station and inform them regarding the occurrence. 15. Lastly, it has been submitted on behalf of the appellants that the Court should disbelieve the First Information Report on the ground that it is an afterthought and the appellants have been roped in due to previous enmity. Counsel for the appellants relies on the case of Sarju Prasad @ Sarju Mahto and 3 others vs. State of Bihar [1992 (1) PLJR 219]. The facts of this case is that it was alleged that the accused had gone to the house, committed theft of gun etc. and had killed one of the inmates of the house. The defence was false implication on account of Panchayat elections. It was also the defence that the deceased had affairs with the brother’s wife of Jagdish and finally, he was shot dead by the prosecution party to save the prestige of the family. In view of the specific defence of the appellants that it was not an occurrence of dacoity, rather it was an occurrence which had taken place due to some other purpose, the Court took into account the delay in sending the First Information Report to the Chief Judicial Magistrate as a different version of the occurrence has been reported in the First Information Report. The facts of this case are quite different. The facts of this case are quite different. It is clear that there is no alternative defence raised by the appellant, which would indicate that the occurrence had not taken place in the manner as alleged in the First Information Report. I, therefore, find that the case aforesaid would not be applicable to the facts of this case. Even though, the delay in sending the First Information Report to the Chief Judicial Magistrate can be fatal in certain circumstances, but such circumstances have to be explained on behalf of the appellants which would lead this Court to doubt the veracity of the statements made by the witnesses. 16. In the circumstances, this Court finds no reason to disbelieve the First Information Report or disbelieve that the occurrence had taken place in the manner as alleged. 17. After perusing the evidence aforesaid, this Court finds that the ocular evidence is supported by the medical evidence, however, it would appear that the prosecution has not been able to show that the injuries were grievous in nature. Besides which, it would appear that as per the First Information Report, the case made out by the prosecution, the appellants had gone for partition of the orchard, which ended up in the aforesaid dispute and assault. Therefore, there is no intention on their part to assault or to cause such injuries which would be fatal in nature to the informant and others, as such this Court comes to the conclusion that the case does not come within the purview of Section 307 of the Indian Penal Code. I, therefore, set aside the conviction under Section 307/34 of the Indian Penal Code and convict the appellants Manager Thakur and Lal Mohar Thakur under Section 324 of the Indian Penal Code, whereas the appellant Kapil Thakur is convicted under Section 323 of the Indian Penal Code. The appellants Manager Thakur and Lal Mohar Thakur are directed to pay a sum of Rs. 2000/- as compensation to the injured, whereas Kapil Thakur is directed to pay compensation of Rs. 1000/- to the injured persons. Failure to pay the fine, the appellants will have to undergo rigorous imprisonment for one year and six months respectively. 18. The appellants Manager Thakur and Lal Mohar Thakur are directed to pay a sum of Rs. 2000/- as compensation to the injured, whereas Kapil Thakur is directed to pay compensation of Rs. 1000/- to the injured persons. Failure to pay the fine, the appellants will have to undergo rigorous imprisonment for one year and six months respectively. 18. The Trial Court is directed to issue notice to the appellants, who shall deposit the compensation imposed on them in the Trial Court within a period of four months on valid service of notice. The Trial Court should also issue notice to the informant of this case so that he may receive the compensation amount on behalf of the injured persons. The appellants would be discharged from the liabilities of the bail bonds only after depositing the amount of fine. 19. In the result, this appeal is dismissed with the alteration of the conviction and the sentence.