ORAL JUDGMENT 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 21.9.2001 passed by learned Adhoc. District & Sessions Judge, Presiding officer, FTC No. I, Siwan in Sessions trial no. 118 of 1989/31 of 2001 by which and whereunder he convicted the appellant no.1 for the offence punishable under section 324 read with section 109 of the Indian Penal Code and also convicted the appellant no.2 for the offences punishable under sections 307, 326, 324 of the IPC and sentenced the appellant no.1 to undergo rigorous imprisonment for a period of two years for the offence punishable under section 324 read with section 109 of the IPC and sentenced the appellant no.2 to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs 2,000/- for the offence punishable under section 307 of the IPC and in default of payment of fine, to undergo rigorous imprisonment for a period of one year; to undergo rigorous imprisonment for five years and to pay a fine of Rs 2,000/- for the offence punishable under section 326 of the IPC and in default of payment of fine, to undergo rigorous imprisonment for a period of one year and to undergo rigorous imprisonment for two years for the offence punishable under section 324 of the IPC. However, all the sentences were ordered to run concurrently. By the same impugned judgment, the learned trial court acquitted co-accused Ramashray Singh of the charges framed against him for the offence punishable under section 324 read with section 109 of the IPC giving benefit of doubt to him. 2. I may notice the case of the prosecution and facts leading to filing of this criminal appeal. 3. The prosecution witness no. 2. I may notice the case of the prosecution and facts leading to filing of this criminal appeal. 3. The prosecution witness no. 12, Sagar Das, being Officer-in-charge of Basantpur police station, got OD slip on 18.8.1988 at about 11.45 p.m. and having got the aforesaid OD slip, he proceeded to government hospital and recorded fardbeyan of P.W.6, Ram Badan Singh on 19.8.1988 at about 12.30 p.m. at State dispensary, Basantpur to this effect that on 18.8.1988 at about 9.30 p.m. his elder brother, namely, Krishna Singh (P.W.4) had gone to his home from his Bathan to take meal and after some time, he also proceeded to his house from his Bathan and when reached near his house, he saw hot exchange of words was going on between his elder brother as well as his agnate Dharmdeo Singh and Ramakant Singh on the point of fixing a pole. He tried to pacify the matter assuring the aforesaid persons that the matter would be solved in Panchyati in the morning but Dharmdeo Singh became infurious and started abusing and ordered Ramakant Singh to kill him and thereafter, Ramakant Singh gave dagger blow to Krishna Singh on his back causing injury on his stomach Krishna Singh fell down on earth and raised alarm. He went to his rescue but Dharmdeo Singh again ordered and on his instigation, Ramakant Singh hurled dagger blow on him which hit on his back. He also fell down on earth and raised alarm which attracted Umakant Singh who came running there but Ramakant Singh also gave dagger blow to him. On alarm, Awadh Kishore Singh (P.W.1), Chandrika Singh (P.W 2), Jay Shankar Singh (P.W 3) and others came running there and saw the occurrence and the aforesaid persons also saved the life of injured persons. All the three injured persons were brought to hospital where his statement was recorded by the police. P.W 12 issued injury slips of the injured. 4. On the basis of the aforesaid fardbeyan, Basantpur P.S. case no.71/1988 for the offences under sections 307, 326 and 324 of the Indian Penal Code was registered and formal FIR was drawn up against the appellants and one co-accused Ramashray Singh for the above stated offences. 5. P.W 12 issued injury slips of the injured. 4. On the basis of the aforesaid fardbeyan, Basantpur P.S. case no.71/1988 for the offences under sections 307, 326 and 324 of the Indian Penal Code was registered and formal FIR was drawn up against the appellants and one co-accused Ramashray Singh for the above stated offences. 5. P.W. 12, himself, took the charge of investigation and he recorded the statements of the witnesses, inspected the place of occurrence and received injury reports of the injured persons but before completion of investigation, he was transferred and accordingly, he handed over the charge of investigation to P.W. 11, Ramnath Tiwari who completed investigation and after completion of investigation, submitted charge sheet against the appellants and co-accused Ramashray Singh for the offences punishable under sections 307, 326 and 324/34 of the Indian Penal Code. On being receipt of the charge sheet, cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 6. Appellants and co-accused Ramashray Singh stood trial and accordingly, appellant no.2, Ramakant Singh was, separately, charged for the offences punishable under sections 324, 326 and 307 of the IPC whereas the appellant no.1, Dharmdeo Singh and co-accused Ramashray Singh were jointly charged for the offence punishable under section 324 read with section 109 of the IPC. Appellants and co-accused Ramashray Singh denied the charges and accordingly, prosecution led its evidences. 7. In course of trial, prosecution examined, altogether, thirteen prosecution witnesses and also adduced documentary evidence. The statements of the appellants and the co-accused were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and the appellant no.2 and co-accused Ramashray Singh took specific stand that at the time of alleged occurrence, they were not present at their home rather the appellant no.2 was in hospital whereas co-accused Ramashray Singh had gone to Jharia in connection with his business work. Appellant no.1 denied the entire prosecution case and claimed his false implication on account of previous enmity. 8. The learned trial court, having scrutinized the evidences available on record, passed the impugned judgment of conviction and order of sentence in the manner as stated above. 9. During the pendency of this appeal, the appellant no.1, Dharmdeo Singh died and accordingly, this appeal in respect of appellant no.1 was abated vide order dated 4.4.2013. 10. 8. The learned trial court, having scrutinized the evidences available on record, passed the impugned judgment of conviction and order of sentence in the manner as stated above. 9. During the pendency of this appeal, the appellant no.1, Dharmdeo Singh died and accordingly, this appeal in respect of appellant no.1 was abated vide order dated 4.4.2013. 10. Smt. Rina Sinha, learned counsel appearing for the appellant no.2, questioned the correctness and legality of the impugned judgment of conviction and sentence order arguing that the prosecution witnesses made contradictory statements in course of trial and furthermore, all material prosecution witnesses were inimical to appellant no.2 and other accused and, therefore, no reliance could have safely been placed on their testimonies but in spite of that the learned trial court passed the impugned judgment of conviction and order of sentence which is liable to be set aside. Continuing her submissions, she pointed out that P.W. 1, P.W. 2 and P.W. 3 are chance witnesses and there was inimical term between the aforesaid witnesses as well as the appellant. She further submitted that blood stain cloth as well as x-ray plates were not produced before the learned trial court and non-production of blood stain cloth as well as x-ray plates was fatal to the prosecution case but the learned trial court completely ignored the aforesaid fact and based his findings on mere surmises and conjectures. She further argued that P.W. 4 and P.W. 6 admitted this fact that there was land dispute between them and the appellants and the alleged occurrence took place on account of fixing pole. She contended that even if prosecution story assumed to be true, then also, as a matter of fact, the prosecution party attempted to take forcible possession of the land of the appellants and during the aforesaid attempt, alleged occurrence took place and the appellants had every right to protect their person and property in their private defence. She further contended that alleged occurrence took place in the year 1988 and since last 25 years, the appellant no.2 is facing trauma of this case and, therefore, in the aforesaid backdrop and facts and circumstances of the case, even if the appellant no.2 is found guilty, then also, he should be sentenced to the period already undergone by him in course of trial as well as during the pendency of this criminal appeal. 11. 11. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence arguing that P.W. 4, P.W. 5 and P.W. 6, being injured persons of this case, supported the prosecution story in one voice and similarly, P.W.1, P.W. 2 and P.W. 3 are eye-witnesses of this case and they also supported versions of the injured witnesses. He further submitted that injuries of the aforesaid witnesses were examined by P.W. 8 just after the alleged occurrence and again injury of P.W. 4 Krishna Singh was examined by P.W. 9 as well as P.W. 8 and, therefore, all the aforesaid witnesses clearly proved the prosecution case. He further submitted that no doubt, no x-ray plate was produced before the learned trial court but P.W. 9 gave his opinion regarding injury of P.W. 4 after perusing x-ray plate and moreover, prosecution case can not be thrown out due to faulty investigation. 12. As I have already stated that, altogether, 13 prosecution witnesses were examined in course of trial and out of whom, P.W. 7 was tendered by the prosecution and he stated nothing in respect of alleged occurrence in his examination-in-chief but in his cross-examination, he admitted to this extent that in the night of 19.8.1988, the police recorded the statement of P.W.6, Ram Badan Singh in his presence. P.W.13, Umesh Shukla is a formal witness. He proved carbon copy of formal FIR as well as carbon copy of fardbeyan and endorsement on the aforesaid fardbeyan as exhibit 9. 13. P.W. 1, Awadh Kishore Singh claimed himself to be eye witness of alleged occurrence and stated that on the alleged date of occurrence he was going to the house of Sheonath Rai having torch in his hand and saw that hot exchange of words was going on between Dharmdeo Singh, Ramakant Singh, Ramashray Singh and Krishna Singh on the point of fixing a pole. He further stated that P.W. 6 Ram Badan Singh and his son P.W. 5, Umakant Singh were also present there. He further stated that P.W. 6 Ram Badan Singh and his son P.W. 5, Umakant Singh were also present there. This witness further stated that the appellant Dharmdeo Singh ordered the others to kill and thereafter, Ramakant Singh gave dagger blow causing injury to Krishna Singh (P.W. 4) from his chest to waist and after that when P.W. 6 went to rescue P.W. 4, Ramakant Singh gave dagger blow on his back and when P.W. 5 Umakant Singh went there, Ramakant Singh gave dagger blow on his back. He claimed to have seen the aforesaid occurrence in the light of torch as well as in the light of lantern which was burning there. In his cross-examination, this witness admitted that a case in respect of land was pending between him and Dharmdeo Singh. He also admitted that after four to five days of the alleged occurrence, his statement was recorded by the police. He stated that statement of Krishna Singh was recorded in his presence in hospital at about 10 p.m. The attention of this witness was drawn towards his previous statement at paras 6 and 7 of his cross-examination and this witness stated that he had not made statement before the police to this effect that Ramakant Singh hurled dagger blow on the abdomen of Krishna Singh and Ramakant Singh gave dagger blow on the back of Umakant Singh. He stated that he had made statement before the police that at the time of alleged occurrence, a lantern was burning. P.W.12 stated that he had recorded statement of P.W. 1 on 25.8.1988 but P.W. 1 had not stated before him that Dharmdeo Singh had given order to kill and P.W. 12 also stated that P.W. 1 had not stated before him that dagger was dragged from chest to waist of Krishna Singh and P.W. 1 also not claimed before him that he had seen the alleged occurrence in the light of torch and lantern. 14. After careful scrutiny of the statement of this witness, I find that this witness is a chance witness and had inimical term with the appellant and furthermore, I find that this witness developed his statement in course of trial and, therefore, no reliance can safely be placed upon deposition of this witness. 15. 14. After careful scrutiny of the statement of this witness, I find that this witness is a chance witness and had inimical term with the appellant and furthermore, I find that this witness developed his statement in course of trial and, therefore, no reliance can safely be placed upon deposition of this witness. 15. P.W.2, Chandrika Singh is also a chance witness and stated that he was coming from door of Deoraj Pandit and reached near the door of Dharmdeo Singh where he saw hot exchange of words was going on between Dharmdeo Singh and Krishna Singh. Ramakant Singh and Ramashray Singh were also present there. He further stated that at the instigation of Dharmdeo Singh, Ramakant Singh gave dagger blow on the chest of Krishna Singh and dragged the dagger up to his abdomen. This witness also supported this fact that when Ram Badan Singh (P.W.6) and Umakant Singh (P.W.5) went to rescue, Ramakant Singh gave dagger blows on the back of the aforesaid injured persons. This witness also stated that he had sworn affidavit in respect of alleged occurrence. The attention of this witness was drawn towards his previous statement and this witness denied this fact that he had not claimed himself to be eye-witness before the police but P.W.12 admitted this fact at para 17 of his cross-examination that this witness had not claimed himself to be eye-witness of the alleged occurrence rather he had stated before him that he learnt about the alleged occurrence from a boy. P.W.2 admitted at para 4 of his cross-examination that Krishna Singh had given threatening to him and on account of the aforesaid threatening, he gave affidavit. This witness also admitted that he was not aware of the contents of the affidavit. After scrutinizing the entire statement of this witness, I find that this witness developed his statement in course of trial and, in my view, this witness is not a reliable witness. 16. P.W.3, Jay Shankar Singh stated that on 18.8.1988 at about 9.30 p.m. he was going in search of labourers and while he was on his way, he heard noise and went to the house of Dharmdeo Singh and Krishna Singh where he saw that hot exchange of words was going on between Dharmdeo Singh, Ramakant Singh and Krishna Singh on the point of fixing a pole. This witness supported the story of assault as stated by P.W.1 and P.W. 2. This witness stated that injured persons were brought to Basantpur hospital from where injured Krishna Singh was referred to Chapra hospital. On being cross-examined this witness admitted that there was litigation between his father and Dharmdeo Singh. This witness also stated that before his arrival on the place of occurrence, five to seven persons had already reached there. The attention of this witness was drawn towards his previous statement and this witness claimed that he had seen the occurrence but when P.W. 12 was examined and his attention was drawn towards previous statement of this witness recorded under section 161 of the Cr.P.C, P.W. 12 stated that this witness had stated before him that when he reached on the place of occurrence, Krishna Singh had already sustained injury and furthermore, this witness had not named co-accused Ramashray Singh in his previous statement recorded under section 161 of the Cr.P.C. 17. On scrutiny of deposition of this witness, I find that this witness is also an inimical to the appellants and it appears that he came on the place of occurrence after the alleged occurrence and accordingly, he had not seen the alleged occurrence. 18. P.W.5, Umakant Singh is injured of this case. This witness stated that on the alleged date of occurrence, hot exchange of words was going on between him and Dharmdeo Singh and in the meantime, his father Krishna Singh came there who intervened in the matter and sent him in the house. This witness further stated that his uncle Ram Badan Singh also came there and after that Dharmdeo Singh ordered others to assault Krishna Singh and Ram Badan Singh and thereafter, Ramakant Singh gave dagger blow on the Panjara of his father Krishna Singh and when his uncle went to rescue him, Ramakant Singh gave dagger blow on his back. Similarly, when he tried to save his father and uncle, Ramakant Singh gave dagger blow on his back. This witness further stated that he as well as rest two injured persons were brought to Basantpur hospital from where his father was sent to Chapra hospital. He further stated that his statement was not recorded by the police and he filed protest petition. This witness further stated that he as well as rest two injured persons were brought to Basantpur hospital from where his father was sent to Chapra hospital. He further stated that his statement was not recorded by the police and he filed protest petition. This witness was cross-examined at length but defence could not succeed to elicit anything in his favour and, therefore, after scrutinizing the entire deposition of this witness, I find that this witness supported the prosecution case and there is nothing in his deposition on the basis of which his deposition can be discarded. 19. P.W. 6, Ram Badan Singh is the informant of this case. He, too, supported the prosecution case and stated that hot exchange of words was going on between his brother Krishna Singh, Dharmdeo Singh as well as Ramakant Singh and when he enquired about the matter, Dharmdeo Singh and Ramakant Singh disclosed that they had fixed pillar on their land whereas his brother was claiming that pillar had been fixed on his land and after that Dharmdeo Singh ordered his son Ramakant Singh to kill him as well as his brother and thereafter, Ramakant Singh gave dagger blows to him as well as his nephew. This witness stated that Umakant Singh was caught by Ramashray Singh at the time of alleged occurrence but when attention of this witness was drawn towards this fact that he had not made statement in his fardbeyan that Ramashray Singh had caught waist of Umakant Singh. This witness stated that he had made the above stated statement in his fardbeyan. 20. P.W.12 at para 20 of his cross-examination, specifically, stated that P.W.6 had not named co-accused Ramashray Singh in his fardbeyan. However, this witness stated that injured persons were brought to Basantpur hospital from where his brother Krishna Singh was referred to Sadar hospital, Chapra. He also stated that the police went in collusion of the accused persons and being dissatisfied with the police, he filed protest petition in the court. He admitted in his cross-examination that Dharmdeo Singh is cousin brother and prior to alleged occurrence there was no enmity between him and Dharmdeo Singh. He stated at para 6 of his cross-examination that the statement of his brother was recorded by the police in presence of B.D.O. 21. He admitted in his cross-examination that Dharmdeo Singh is cousin brother and prior to alleged occurrence there was no enmity between him and Dharmdeo Singh. He stated at para 6 of his cross-examination that the statement of his brother was recorded by the police in presence of B.D.O. 21. After scrutinizing the entire deposition of this witness, I find that there is nothing in the deposition of this witness to disbelieve his testimony. 22. P.W.8, Dr. Akhtar Hussain, examined injured Ram Badan Singh (P.W.6) on 18.8.1988 at 11.10 p.m. in Basantpur State hospital and found following injuries: Incised wound on the back of right side entering from upper scapular region to lower left chest oblique in nature 12” in length lower 3” in depth in nature, upper 9” scapular skin cut breath of lower 3” x muscle deep with profuse bleeding. P.W. 8 opined that the aforesaid injury was caused by sharp cutting weapon but he kept reserved his opinion regarding nature of injury till receipt of x-ray report and after being receipt of x-ray report, he found that there were varied opinions in two x-ray plates. So, he referred the matter to Medical Board for opinion. 23. P.W.9, Dr. D.N. Srivastava stated that on 31.8.1988, a Medical Board was constituted and being one of the members of Medical Board, he examined P.W 6 and found a liner scar measuring 12” across the back from right to left corresponding to the injuries as mentioned in the injury report. The members of Medical Board also perused x-ray plates and found that there was injury to left lung and pleura and accordingly, Medical Board found the aforesaid injury grievous in nature. 24. P.W.10 stated that on 20.8.1988 at about 1 a.m. he examined Krishna Singh (P.W.4) who was referred to Sadar hospital, Chapra and found incised wound 6” x 3” x deep into chest and abdominal cavity over right side of chest his anterior auxiliary but large gut intestine (transverse colon) and hepatic flexure of colon had come out by the above wound. P.W.10 found injury on the person of P.W.4 grievous in nature. 25. P.W.12 admitted at para 4 of his examination-in-chief that on 23.8.1988, he had received blood stain cloth from hospital which had been sent by the In-charge Medical officer and having receipt blood stain cloth, he gave receipt thereof which has been marked as exhibit 7. P.W.10 found injury on the person of P.W.4 grievous in nature. 25. P.W.12 admitted at para 4 of his examination-in-chief that on 23.8.1988, he had received blood stain cloth from hospital which had been sent by the In-charge Medical officer and having receipt blood stain cloth, he gave receipt thereof which has been marked as exhibit 7. This witness also proved endorsement of the In-charge Medical officer, Basantpur on a petition which had been filed by P.W.6 before the Officer-in-charge, Basantpur which has been marked as exhibit 7/1. P.W. 12 admitted that he had not mentioned in the case diary about receipt of blood stain cloth nor he handed over the aforesaid blood stain cloth to P.W. 11 and that was the reason he had not mentioned in the charge sheet in respect of blood stain cloth. This witness admitted that statement of injured Krishna Singh was recorded in the hospital and in the aforesaid statement he had named only one person as miscreant. 26. On perusal of the entire evidences available on the record, I find that injured P.Ws.4, 5 and 6 supported the story of assault and they, specifically, stated that it was the appellant Ramakant Singh who gave dagger blows to all the injured persons. Admittedly, after alleged occurrence, all the injured persons were examined by the doctor and sharp cutting injuries were found on their persons. Therefore, the prosecution successfully established this fact that the appellant Ramakant Singh had caused injuries to P.Ws.4, 5 and 6 by giving dagger blows to them. 27. Now, it has to be seen whether offence punishable under section 307 of the IPC is made out or not. It is the case of the prosecution that hot exchange of words was going on between the parties since last one and half hour and in course of the above stated hot exchange of words, at the instigation of Dharmdeo Singh, appellant Ramakant Singh gave dagger blow on the abdomen of P.W.4, Krishna Singh but admittedly, P.W.4, Krishna Singh sustained only one injury and appellant Ramakant Singh did not repeat assault rather it is stated that when P.W.6 came to his rescue, appellant Ramakant Singh gave him single dagger blow and similarly, when Umakant Singh ( P.W.5) came to the rescue, appellant Ramakant Singh gave singly dagger blow to him also. Therefore, it is apparent that had appellant Ramakant Singh been intended to commit murder of P.Ws.4, 5 and 6, he would have certainly repeated his blows and, therefore, I am of the opinion that charge under section 307 of the IPC is not proved against appellant Ramakant Singh and appellant Ramakant Singh could have been convicted only for the offences punishable under sections 326 and 324 of the IPC and accordingly, appellant Ramakant Singh is found guilty for the offences punishable under sections 326 and 324 of the IPC and so far as his conviction under section 307 of the IPC is concerned, the same is set aside. 28. Admittedly, during the course of trial, appellant Ramakant Singh remained in jail custody for near about four months and after his conviction he again remained in jail custody for near about three months and, accordingly, he has already served jail custody for near about seven months. 29. It is also an admitted position that appellant Ramakant Singh as well as injured of this case are agnates and there was land dispute between them and furthermore, both the parties were claiming their possession on the land on which pillar had been fixed which turned into genesis of the alleged occurrence. Furthermore, the appellant no.2 is facing the trauma of this case for near about 25 years and his previous antecedent has not been brought on the record and, therefore, in my view, the appellant no. 2 has already suffered a lot and it would not be proper to send him again to jail custody to serve out his sentences and the ends of justice will meet, if his sentence is reduced to the period already undergone by him in course of trial as well as during the pendency of this appeal and accordingly, his sentence is modified to the above stated extent. 30. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with the modification in the judgment of conviction and sentence order in the manner as stated above.