HEMANT KUMAR SRIVASTAVA, J.:–This criminal appeal has been preferred against the judgment of conviction and sentence order dated 21.7.2001 passed by Sri Subodh Kumar Shukla, learned Addl. Sessions Judge IV, Nawada in Sessions trial no. 29 of 1997/243 of 1997 by which and whereunder he convicted the appellants for the offences punishable under sections 307/149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years. 2. P.W. 6, Brahamdeo Mahto gave a written report to officer-in-charge of Govindpur police station on 21.10.1996 to this effect that on the same day at about 6.30 p.m. he returned to his home and in the meantime, all the appellants being armed with sword and lathi came at his door and appellant no.4, Kameshwar Mahto started abusing him whereupon he made protest but appellant no.1,Kapildeo Mahto and appellant no.3, Ramdhani Mahto ordered others to assault him after that appellant no.1, Kapildeo Mahto gave one sword blow which hit on his head and having received injury he fell down on the earth. He further stated that when he fell down on the earth, all the appellants started assaulting him with sword and lathi and when his son Surendra Prasad (P.W.3) and Shiv Kumar Mahto (P.W.2) came to his rescue, they were, too, assaulted by the appellants. On alarm being raised by him and other injured, his co-villagers Manoj Tripathi (P.W.1), Musafir Mahto and others came running there and after that the appellants fled away from there. After the aforesaid occurrence, he along with his injured sons went to police station and gave written report. He disclosed the reason for the aforesaid occurrence as two years ago someone had stolen machine of the appellants and on account of the aforesaid theft, an altercation had taken place between him and the appellants. 3. On the basis of the aforesaid written report, Govindpur P.S. case no.43/1996 for the offences under sections 147, 148, 323, 324, 341, 447 and 504 of the Indian Penal Code was registered and formal FIR against the appellants for the aforesaid offences was drawn up. Later on, section 307 of the IPC was also added in the formal FIR. After investigation, police submitted charge sheet for the offences under section 307 and other minor sections of the Indian Penal Code against all the appellants. Later on, section 307 of the IPC was also added in the formal FIR. After investigation, police submitted charge sheet for the offences under section 307 and other minor sections of the Indian Penal Code against all the appellants. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 4. All the appellants were put on trial and charged for the offences punishable under section 307 read with section 149 of the Indian Penal Code. 5. The appellants denied the charge and claimed to be tried. 6. In order to prove the charge, prosecution examined, altogether, eight witnesses and also got exhibited some documents. The statements of appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. 7. One defence witness was also examined who proved affidavit as exhibit A. 8. The learned trial court, having considered the depositions of prosecution witnesses as well as documentary evidence, passed the impugned judgment of conviction and sentence in the manner as stated above. 9. Learned counsel appearing for the appellants submitted that the learned trial court committed error in convicting and sentencing the appellants as the learned trial court did not appreciate the materials available on the records in right perspective. He further submitted that P.W.2, P.W.3, P.W.5 and P.W.6 are of one family and so far as P.W.1 is concerned, he had already sworn affidavit to this effect that he had not seen any occurrence and the aforesaid fact is evident from perusal of exhibit A. He further submitted that according to written report of P.W.6, the alleged occurrence took place on account of previous altercation which had taken place two years prior to the alleged occurrence. In course of trial, P.W.6 admitted that alleged occurrence took place on account of theft of a radio and the aforesaid facts clearly suggest that prosecution suppressed some facts. He further stated that prosecution witnesses made contradictory statements on the point of assault and, therefore, a suspicion is raised about genuiness of the prosecution story. 10. On the other hand, learned Addl. He further stated that prosecution witnesses made contradictory statements on the point of assault and, therefore, a suspicion is raised about genuiness of the prosecution story. 10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that all the injured persons including independent witnesses supported the prosecution story and they proved the manner of assault as well as place of occurrence and furthermore, doctor, who examined injured persons of this case after alleged occurrence, also proved injuries found on the person of P.W.6 and other injured of this case and, therefore, there is no scope for this court to interfere with the impugned judgment of conviction and sentence order. 11. P.W.1, Manoj Tripathi stated that appellant Kapildeo Mahto gave sword blow to P.W.6 Brahmdeo Mahto causing injury on his head and similarly, Ramdhani Mahto gave sword blow to P.W.6 and after that other accused assaulted P.W.6 with lathi. He further stated that when P.W.2 and P.W.3 came there to rescue P.W.6, they were, too, assaulted by lathi. This witness further stated that under some sort of confusions, he sworn an affidavit but he was not aware about the contents of the aforesaid affidavit. 12. P.W.2, Shiv Kumar Mahto is injured of this case. This witness stated that Kapildeo Mahto and Ramdhani Mahto assaulted his father Brahmdeo Mahto and Kapildeo Mahto gave sword blow causing injury on the head of P.W.6, Brahmdeo Mahto. He further stated that when his father fell down on the earth, rest appellants assaulted him with lahti. He further stated that when he along with his brother (P.W.3) went to rescue his father, Kapildeo Mahto gave sword blow to P.W.3 (Surendra Prasad) causing injury on his head whereas other appellants assaulted P.W.3 causing fracture injury on his hand. He further stated that the appellant Bindeshwar assaulted him with lathi as a result of which he sustained injury on his left scapular region, cheek and other parts of the body. 13. He further stated that the appellant Bindeshwar assaulted him with lathi as a result of which he sustained injury on his left scapular region, cheek and other parts of the body. 13. P.W.3, Surendra Prasad stated that Kapildeo Mahto hurled sword blow causing injury on the head of P.W.6 and after that the appellant Jagdish Mahto gave lathi blow causing injury on left scapular region of his father and when his father fell down on earth, appellant Ramdhani Mahto gave sword blow twice causing injury on the back side of head of P.W.6 and rest appellants assaulted his father with lathi. He further stated that he as well as his brother Shiv Kumar Mahto (P.W.2) tried to rescue P.W.6 but they were assaulted by the appellants and appellant Kapildeo Mahto hurled one sword blow which was prevented by him with his hand as a result of which he sustained injury on the little finger of his right hand. He further stated that appellant Jagdish Mahto gave lathi blow on his left hand and rest appellants assaulted him on his entire body. This witness also stated that Jagdish Mahto assaulted Shiv Kumar Mahto (P.W.2) with lathi. 14. P.W.4. is not eye-witness of alleged occurrence but this witness came on the place of occurrence just after alleged occurrence and stated that when he reached on the place of occurrence, he found P.W.2, P.W.3 and P.W.6 lying in injured condition and P.W.6 disclosed the manner in which he as well as P.W.2 and P.W.3 sustained injuries. 15. P.W.5, Jamuni Devi is wife of the informant. She stated that appellant Kapildeo Mahto gave sword blow twice on head of her husband whereas appellant Jagdish Mahto gave lathi blow on his pasuli. She further stated that appellant Ramdhani Mahto also gave sword blow on the head of her husband whereas appellant Suresh assaulted him with lathi and similarly, other accused assaulted her husband. She further stated that when P.W.2 and P.W.3 went to rescue P.W.6 , appellant Kapildeo Mahto gave sword blow causing injury on the head of P.W.3 whereas appellant Jagdish Mahto gave one lathi blow causing injury on scapular region. She further stated that the appellant Bindeshwar Mahto gave lathi blow on scapular region of injured P.W.2. 16. P.W.6, Brahmdeo Mahto is the informant as well as injured of this case. She further stated that the appellant Bindeshwar Mahto gave lathi blow on scapular region of injured P.W.2. 16. P.W.6, Brahmdeo Mahto is the informant as well as injured of this case. This witness stated that Kapildeo Mahto gave sword blow twice on his head and after that Jagdish Mahto gave lathi blow causing injury on his scapular region and after that the appellant Ramdhani Mahto gave sword blow twice on his head whereas rest appellants assaulted him with lathi. This witness further stated that his sons Shiv Kumar Mahto (P.W.2) and Surendra Prasad (P.W.3) sustained injuries at the hands of these appellants. 17. P.W.7, Dr Rajendra Kumar Bibhuti proved injury reports of all injured persons and stated that he found four incised wounds over head of P.W.6 and apart from the aforesaid four incised wounds this witness found five more injuries on the person of P.W.6 . This witness, on the basis of x- ray report, gave his opinion that one injury on left shoulder of P.W.6 was grievous in nature whereas rest injuries were simple in nature. This witness also opined that four incised wounds were caused by sharp cutting weapons whereas rest injuries of P.W.6 were caused by hard and blunt substance. 18. P.W.7 found four injuries on the person of P.W. 3 and out of the aforesaid four injuries, one injury was caused by sharp object weapon whereas rest injuries were caused by hard and blunt substance. This witness further found on the basis of x- ray report that there was fracture on left shoulder of P.W. 3 and accordingly, he opined that one injury of P.W. 3 was grievous in nature. This witness further examined P.W.2 and found three injuries on his person and opined that all the aforesaid three injuries were caused by hard and blunt substance and simple in nature. 19. On perusal of the aforesaid evidences, it is explicit clear that four incised wounds were found on head of P.W.6 and according to the statements of P.W.6 and other witnesses, the aforesaid four incised wounds were caused by appellants Kapildeo Mahto and Ramdhani Mahto because P.W.6, specifically, stated that Kapildeo Mahto gave sword blow twice causing injury on his head and similarly Ramdhani Mahto gave sword blow twice causing injury on his head and admittedly, P.W.7 also found four incised wounds on the head of P.W.6. According to P.W.7 the informant Brahmdeo Mahto (P.W.6) sustained one grievous injury on his left shoulder and P.W.6, specifically, stated that appellant Jagdish Mahto assaulted him with lathi as a result of which his rib was broken. 20. It is also explicit clear from perusal of statement of P.W.3 that it was the appellant Jagdish Mahto who gave lathi blow to him causing injury on his left hand and, therefore, the grievous injury found on the person of P.W.3 was caused by the appellant Jagdish Mahto. 21. Admittedly, P.W.7 found simple injuries on the person of P.W.2 and the aforesaid injuries were caused by hard and blunt substance and no grievous injury was found on the person of P.W.2. 22. On perusal of the evidences of the aforesaid prosecution witnesses, it is explicit clear that the evidence of all the material prosecution witnesses on the point of assault is consistent and there is nothing in their evidence to disbelieve their statements. No doubt, some minor contradictions have occurred in their statements but the said minor contradictions do not go to the root of the prosecution case. 23. Now, on the basis of evidences available on record, it has to be seen as to whether appellants had intention or knowledge to commit murder of P.W.6, P.W.2 and P.W.3 and as to whether conviction of appellants under section 307 of the IPC is liable to be sustained or not. 24. According to P.W.6, appellants came at his door and appellant Kapildeo Mahto gave sword blow twice to him and when he fell down on the earth, appellant Ramdhani Mahto gave sword blow twice causing injury on his head and after that rest appellants assaulted him with lathi. P.W.6, nowhere, stated in his deposition that there was any intervening circumstance to prevent the appellants to commit his murder. No doubt, allegation against appellants Kapildeo Mahto and Ramdhani Mahto is that they chose head of P.W.6 for causing injuries but admittedly, injuries found on the head of P.W.6 were simple in nature and no much force was used by the appellants Kapildeo Mahto and Ramdhani Mahto in causing injuries on the head of P.W.6. Furthermore, appellant Jagdish Mahto gave one lathi blow to P.W.6 and it is stated that rest appellants assaulted him with lathi. Furthermore, appellant Jagdish Mahto gave one lathi blow to P.W.6 and it is stated that rest appellants assaulted him with lathi. Although the lathi blow given by appellant Jagdish Mahto caused grievous injury to P.W.6 but there is nothing in the deposition of P.W.7 to show this fact that the aforesaid injury was sufficient to cause death of P.W.6 nor there is any whispering in the deposition of P.W.7 that injuries sustained by P.W.6 were dangerous to life. 25. No doubt, if cumulative effect of the aforesaid injuries is taken into consideration, it may be presumed that cumulative effect of the aforesaid injuries might have dangerous to P.W.6 but there is nothing in the evidence of prosecution witnesses that appellants had common object to commit murder of P.W.6, P.W 2 and P.W 3. 26. In the instant case, except the appellant Kapildeo Mahto and Ramdhani Mahto, none of the appellants chose to assault P.W.6, P.W.2 and P.W.3 on the vital parts of their body and only the appellant Kapildeo Mahto and Ramdhani Mahto gave sword blows on vital parts of the body of P.W.6 and P.W.3 but injuries found on vital parts of P.W.6 and P.W.3 are simple in nature and, therefore, in my view, appellants had neither intention nor knowledge to commit murder of P.W.6, P.W.2 and P.W.3 and, therefore, I am of the opinion that the learned trial court committed error in convicting the appellants for the offence under section 307 of the IPC. Furthermore, I am of the opinion that the appellants could have been convicted for their individual act and accordingly, appellant Jagdish Mahto is convicted for the offence under section 325 of the IPC. Appellants Kapildeo Mahto and Ramdhani Mahto are convicted for the offence under section 324 of the IPC and rest appellants are convicted for the offence under section 323 of the IPC in place of section 307 of the IPC. 27. So far as sentence is concerned, alleged occurrence took place in the year 1996 and P.W.6 has admitted in his deposition that the appellants are his agnates and next door neighbours. 27. So far as sentence is concerned, alleged occurrence took place in the year 1996 and P.W.6 has admitted in his deposition that the appellants are his agnates and next door neighbours. Appellants were convicted in the year 2001 for the occurrence of the year 1996 and furthermore, the appellants were sent to jail in course of trial as well as during the pendency of this appeal and therefore, in my view, the appellants have already suffered a lot and so in stead of sending them to jail, it would be proper that they should be sentenced to the period already undergone by them as well as fine of Rs 5,000/- should be imposed upon appellant Jagdish Mahto and accordingly, appellants are sentenced to the period already undergone by them during the course of trial as well as during the pendency of this appeal and furthermore, appellant Jagdish Mahto shall pay Rs 5,000/- within three months from the date of receipt of copy of this judgment to the court below. On being receipt of copy of this judgment, the court below shall issue notice to the appellant Jagdish Mahto for depositing the aforesaid amount and if the aforesaid amount is deposited by appellant Jagdish Mahto, the said amount shall be paid to P.W.6 Brahmdeo Mahto and furthermore, it is made clear that in default of payment of the aforesaid amount, appellant Jagdish Mahto shall undergo rigorous imprisonment for six months. 28. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the impugned judgment of conviction and sentence order as stated above.