ORAL JUDGMENT 1. Heard learned counsel appearing for the appellants in both the criminal appeals as well as learned Additional Public Prosecutor for the State and perused the record. 2. All the above named appellants faced trial before the 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 62 of 1992/ 33 of 1993 and appellants in Criminal Appeal No. 161 of 2001 were convicted for the offence punishable under Section 307 of the Indian Penal Code and accordingly, they were sentenced to undergo rigorous imprisonment for a period of seven years and a fine of rupees six thousand each was also slapped upon them under the above stated Section and furthermore, both the aforesaid appellants of Criminal Appeal No. 161 of 2001 were directed to suffer further rigorous imprisonment of six months, if they fail to deposit the aforesaid fine amount whereas appellants in Criminal Appeal No. 152 of 2001 were convicted for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years and a fine of rupees three thousand each was also slapped upon them under the above stated section and furthermore, they were directed to undergo rigorous imprisonment for three months, in case of failure of deposit of fine. Since both the above stated appeals arise out of common judgment of conviction and order of sentence dated 05.05.2001, both the above stated criminal appeals were heard together and a common judgment is being passed in both the above stated criminal appeals. 3. In brief, the prosecution case, is that P.W. 4, Nageshwar Singh gave his Ferdbeyan to A.S.I of Teghra police station on 02.01.1991 at about 11:00 A.M. in Tegra hospital to this effect that on the same day at about 09:00 A.M. all the appellants being armed with lathi, bhala and farsa came at his Dera and started assaulting him as well as his Samdhi, namely, Ram Padharath Singh (P.W. 3) and in course of the aforesaid assault, appellant Dayanand Singh hurled bhala blow aiming the neck of P.W. 4 but P.W. 4 warded of the aforesaid bhala by his left hand as a result of which he sustained injury on the palm of his left hand and blood started oozing out. Furthermore, appellant Haribansh Singh gave farsa blow on the head of P.W. 3 as a result of which P.W. 3 sustained injury on his head and the blood started oozing out. The rest appellants were armed with different weapons. P.W. 4 came running to his house and raised alarm whereas P.W. 3 fell down on the place of occurrence. On being alarm raised by P.W. 4, villagers, namely, Mukteshwar Prasad Singh, Nageshwar Prasad Singh, Upendra Prasad Singh, Ram Sagar Mahto etc. assembled near the place of occurrence and after that all the appellants started demolishing Dera of P.W. 3 but when witnesses reached on the place of occurrence, the appellants proceeded towards their home. After the alleged occurrence, P.W. 3 as well as informant were brought to the hospital where treatment of P.W. 3 and P.W. 4 (informant) was done. The reason behind the alleged occurrence, as stated in the Ferdbeyan, is said to be dispute of irrigation and furthermore, there was dues on appellant, Rama Kant Singh. 4. On the basis of aforesaid ferdbeyan, Teghra P.S. Case No. 02 of 1991 was registered. Formal first information report was drawn up against the appellants for the offences punishable under Sections 147, 148, 149, 323, 324, 307 of the Indian Penal Code and after investigation, charge sheet was submitted against the appellants and one Ram Balak Singh, who died in course of trial, for the offences punishable under Section 307 and other minor sections of the Indian Penal Code. The cognizance of the offences was taken in routine manner and the case was committed to the court of Sessions. The appellants in Criminal Appeal No. 161 of 2001 were charged for the offence punishable under Section 307 of the Indian Penal Code whereas rest appellants were charged for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. The appellants denied the charges and claimed to be tried. 5. To prove its case, prosecution, in course of trial, examined, altogether, six witnesses and got exhibited some documents including injury reports. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The appellants denied the charges and claimed to be tried. 5. To prove its case, prosecution, in course of trial, examined, altogether, six witnesses and got exhibited some documents including injury reports. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The defence also examined one Ram Sudisth Singh as D.W.1 and got exhibited certified copy of sale deed dated 22.12.1990 as Exhibit-A. It appears from perusal of statements of the appellants recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses and the document adduced on behalf of the appellants that the defence of the appellants was total denial of prosecution story and their false implication because of land dispute as appellants claimed that the land in dispute belonged to them. 6. The learned trial court, having relied upon the testimonies of prosecution witnesses as well as documents adduced on behalf of the prosecution, passed the impugned judgment of conviction and order of sentence in the manner as stated above. 7. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and order of sentence arguing that the finding of learned trial court is erroneous and as a matter of fact prosecution could not succeed to prove charge under Section 307 of the Indian Penal Code against the appellants in Criminal Appeal No. 161 of 2001 and similarly, prosecution failed to prove charge against the appellants in Criminal Appeal No. 152 of 2001. He submitted that P.W. 5 is said to be a doctor who examined the injured persons of this case but aforesaid P.W. 5 has, specifically, admitted at para 3 of his cross examination that he gave his opinion regarding the injury and nature of weapon used for committing injury to Ram Padharath Singh (P.W. 3) on the basis of report of treating surgeon, X ray plates as well as report of radiologist but neither treating surgeon nor radiologist was examined by the prosecution and furthermore, X ray plates were also not brought on record legally and, therefore, opinion of P.W. 5 regarding the injury of P.W. 3 is not admissible in evidence and, at best, it can be said that P.W. 3 sustained simple injury. He further submitted that the wife of P.W. 4 was working as nurse at the time of alleged occurrence and as a matter of fact P.W. 4 got manufactured forged injury reports and no reliance can safely be placed on the injury report of injured persons of this case. He further contended that appellants also lodged a case for the occurrence of the same day against the prosecution party. He further submitted that no doubt, the aforesaid case lodged by the appellants ended in acquittal but, at least, this fact is established that there was land dispute between the parties and the prosecution party of this case has not come before this Court with clean hands. Lastly, he submitted that even if it assumed that an altercation took place and in the aforesaid altercation, P.W. 3 and P.W. 4 sustained injury, then also, at best, appellant no. 2 in Criminal Appeal No. 161 of 2001 can only be convicted for the offence punishable under Section 323 of the Indian Penal Code and moreover, the aforesaid appellant no. 2 remained in jail custody for more than one month and he has sufficiently been punished. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that there is specific allegation against the appellant no. 1 in Criminal Appeal No. 161 of 2001 that he gave bhala blow to P.W. 4 aiming his neck but P.W. 4 warded of the aforesaid blow and sustained injury on his hands. So, there was clear intention of appellant no. 1 in Criminal Appeal No. 161 of 2001 to commit murder of P.W. 4 and similarly, appellant no. 2 in Criminal Appeal No. 161 of 2001 gave farsa blow on the head of P.W. 3 and doctor found the aforesaid injury grievous caused by sharp cutting weapon and the aforesaid circumstance indicates that both the aforesaid appellants had assaulted P.W. 3 and P.W. 4 with intent to kill them. He further submitted that so far as the rest appellants are concerned, admittedly, they were present on the place of occurrence having different weapons in their hands and, therefore, the aforesaid fact reflects that the rest appellants had also common object to commit the murder of P.W. 3 and P.W. 4 and, therefore, learned trial court rightly convicted all the appellants in the manner as stated above. 9. 9. As I have already stated that, altogether, six prosecution witnesses were examined in this case. P.W. 1 and P.W. 2 claimed to have seen the P.W. 3 and P.W. 4 while they were lying on the place of occurrence in injured condition. So, admittedly, P.W. 1 and P.W. 2 came on the place of occurrence after the aforesaid assault. Both the aforesaid witnesses have admitted in their cross examination that they are related with P.W. 3. 10. P.W. 3, Ram Padarath Singh is injured of this case and similarly, P.W. 4 Nageshwar Singh is informant as well as another injured of this case. Both the aforesaid witnesses narrated the contents of first information report and P.W. 3 stated that it was appellant Haribansh Singh who gave farsa blow on his head. This witness further stated that initially, he was treated by doctor of Teghra hospital and after that he was referred to sadar hospital, Begusarai where X ray of his injury was done. This witness admitted that wife of P.W. 4 was working as nurse at the time of alleged occurrence but he could not say as to in which hospital she was posted at the time of alleged occurrence. 11. P.W. 4 stated that appellant Dayanand Singh hurled bhala towards his neck but he warded of the aforesaid bhala by his hands as a result of which he sustained cut injury on his hand. He stated that due to dues of irrigation, the alleged occurrence took place. He admitted in his cross examination that at the time of alleged occurrence his wife was posted as nurse in Dariyapur Primary Health Centre. 12. P.W. 5 Dr. Ashok Kumar Gupta stated that on 02.01.1991 he examined P.W. 4 and found one injury on his person i.e. abrasion on the base of right finger and the aforesaid injury was caused by hard and blunt substance and simple in nature. He further stated that on the same day, he examined Ram Padarath Singh (P.W. 3) and found linear cut measuring 2”x1/2”x1/2” on left frontal area (forehead) and the aforesaid injury was 3” above the eye brow. This witness stated that he referred P.W. 3 for x ray and on receipt of the report of radiologist, he opined that injury found on the person of P.W. 3 was grievous in nature and caused by sharp cutting weapon. This witness stated that he referred P.W. 3 for x ray and on receipt of the report of radiologist, he opined that injury found on the person of P.W. 3 was grievous in nature and caused by sharp cutting weapon. In his cross examination at Para 3, he admitted that he based his opinion regarding the nature of injury as well as weapon used in the aforesaid assault in respect of injury of P.W. 3 on the basis of report of treating surgeon, X ray plates and report of radiologist. 13. Admittedly, neither treating surgeon nor radiologist, who prepared his report on the basis of X ray plates, was not examined by the prosecution in course of trial and furthermore, neither X ray plates nor the report of treating surgeon as well as report of radiologist was brought on record even by proving the same by a formal witness. Therefore, in my view, in absence of examination of radiologist as well as treating surgeon and the X ray plates as well as aforesaid reports, opinion of P.W. 5 in respect of injury of P.W. 3 cannot be admitted in evidence and the opinion of P.W. 5 in respect of injury of P.W. 3 will come under the definition of hearsay witness. Therefore, in the aforesaid circumstance, I am of the opinion that prosecution could not succeed to prove the nature of injury of injured P.W. 3. 14. According to prosecution case, appellant no. 1 in Criminal Appeal No. 161 of 2001 gave single farsa blow and similarly, appellant no. 2 in Criminal Appeal No. 161 of 2001 gave single bhala blow and they did not repeat the blows of bhala as well as farsa. Furthermore, it is admitted case of P.W. 3 and P.W. 4 that there was no intervening circumstance to prevent the appellants in Criminal Appeal No. 161 of 2001 to commit their murder and, therefore, the aforesaid circumstance clearly indicates that the appellants in Criminal Appeal No. 161 of 2001 had no intention to commit the murder of P.W. 3 and P.W. 4 because had the appellants in Criminal Appeal No. 161 of 2001 intended to commit the murder of P.W. 3 and P.W. 4, they would have certainly fulfilled their desire because there was no intervening circumstance to prevent them. It is also an admitted case of the prosecution that appellants in Criminal Appeal No. 152 of 2001 did nothing and no specific overt act attributed against them and it is only stated that they were present on the place of occurrence having different weapons in their hands. In my view, mere presence of appellants in Criminal Appeal No. 152 of 2001 having weapons in their hands on the place of occurrence does not indicate this fact that they had also common object to assault or commit the murder of P.W. 3 and P.W. 4 particularly, in the circumstance, when there was land dispute between the parties and the above appellants did nothing at the time of alleged occurrence. Therefore, I am of the opinion that learned trial court committed error in convicting the appellants in Criminal Appeal No. 161 of 2001 for the offence punishable under Section 307 Indian Penal Code as well as appellants in Criminal Appeal No. 152 of 2001 for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. 15. P.W. 5 has found injuries on the person of P.W. 3 and P.W. 4. It is specific case of prosecution that appellant no. 1 in Criminal Appeal No. 161 of 2001 caused injury to P.W. 4 by means of bhala and in Ferdbeyan, P.W. 4 stated that he sustained cut injury on his hand but admittedly, P.W. 5, the doctor, who examined P.W. 4, did not find any cut injury on the hand of P.W. 4 rather only abrasion said to be caused by hard and blunt substance was found on the hand of P.W. 4 and, therefore, in the aforesaid circumstance, appellant no. 1 in Criminal Appeal No. 161 of 2001 is entitled to get benefit of doubt. 16. So far as appellant no. 2 in Criminal Appeal No. 161 of 2001 is concerned, there is specific allegation against him that he gave farsa blow on the head of P.W. 3 and P.W. 5, the doctor also found injury on the head of P.W. 3. No doubt, prosecution could not succeed to prove this fact that P.W. 3 sustained grievous injury on his head but there is material in the deposition of P.W. 3 and P.W. 5 to prove this fact that it was appellant no. No doubt, prosecution could not succeed to prove this fact that P.W. 3 sustained grievous injury on his head but there is material in the deposition of P.W. 3 and P.W. 5 to prove this fact that it was appellant no. 2 in Criminal Appeal No. 161 of 2001 who gave farsa blow on the head of P.W. 3 and, therefore, in my view, the appellant no. 2 in Criminal Appeal No. 161 of 2001 should be convicted under Section 324 of the Indian Penal Code instead of Section 307 of the Indian Penal Code. 17. On the basis of aforesaid discussions, Criminal Appeal No. 152 of 2001 is allowed and accordingly, the impugned judgment of conviction and order of sentence in respect of appellants in Criminal Appeal No. 152 of 2001 is set aside. All the appellants in Criminal Appeal No. 152 of 2001 are on bail. They are discharged from the liabilities of their respective bail bonds. 18. So far as Criminal Appeal No. 161 of 2001 is concerned, the same is partly allowed and appellant no. 1 in Criminal Appeal No. 161 of 2001 is acquitted giving benefit of doubt as a result of which the impugned judgment of conviction and order of sentence in respect of appellant no. 1 in Criminal Appeal No. 161 of 2001 is set aside but appellant no. 2 in Criminal Appeal No. 161 of 2001 is found guilty for the offence punishable under Section 324 of the Indian Penal Code instead of Section 307 of the Indian Penal Code. 19. So far as period of sentence of appellant no. 2 in Criminal Appeal No. 161 of 2001 is concerned, appellant no. 2 was taken into custody on 05.05.2001 after his conviction and he was released on bail by this Court on 06.06.2001 so, he remained in custody for near about one month and, therefore, in my view, the end of justice will meet, if the appellant no. 2 in Criminal Appeal No. 161 of 2001 is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal. Accordingly, the impugned judgment of conviction and order of Sentence in respect of appellant no. 2 in Criminal Appeal No. 161 of 2001 is modified to the above stated extent and his appeal stands dismissed in the manner as stated above.