JUDGMENT : Ratnaker Bhengra, J. This Criminal appeal is directed against the judgment of conviction and order of sentence dated 21.5.2003 passed by the learned Additional Judicial Commissioner, F.T.C No. 9 Ranchi in S.T. No. 237 of 1997 whereby the above named appellants have been found guilty and convicted under sections 307/323/342 of the Indian Penal Code. However, the appellants were sentenced to undergo rigorous imprisonment for seven years each under section 307 of the Indian Penal Code and six months each under section 323 of the Indian Penal Code and six months each under section 342 of the Indian Penal Code. Sentences so passed were directed to run concurrently. 2. The prosecution case in brief, as per Fardbayan (Ext.1) of Sambad Mahto is that on 26.1.1997 at Goradih Bazar Tanr P.S. Silli, District Ranchi some altercation took place between Mahendra Manjhi (P.W 5) and the Munsi namely Jarka Manjhi (appellant no.2) because of filling of soil on the road. Meanwhile, on hulla raised by Jarka Manjhi, accused Suffal Manjhi, Ghani Manjhi and Bhaggu Manjhi, who are the appellants in this case, came at the place of occurrence and they started assaulting Mahendra Manjhi (P.W.5) with stick (Danda) and stone/brick on his head as a result of which he sustained several injuries and due to that, Mahendra Manjhi fell down on the earth and became unconscious. When the informant tried to save Mahendra Manjhi, he was also assaulted by the accused persons with fist and slaps. 3. On the basis of the fardbeyan (Ext.1) made by the informant Sambad Mahto present case was registered as Silli P.S Case No. 05 of 1997 corresponding to G.R case No. 195 of 1997 under sections 307/323/341 of the Indian Penal Code. 4. The police, after due investigation, submitted charge sheet against the appellants and cognisance of the offence was taken and case was committed to the court of Sessions and it was registered as S.T. No. 237 of 1997. 5. The plea of the defence was that they have been falsely implicated in this case and they pleaded not guilty and claimed to be tried. 6. The prosecution in order to substantiate the charge examined altogether eight witnesses. 5. The plea of the defence was that they have been falsely implicated in this case and they pleaded not guilty and claimed to be tried. 6. The prosecution in order to substantiate the charge examined altogether eight witnesses. They are (1) Sambad Mahato (informant), P.W.1 (2) Nand Kumar Choudhary, P.W 2 (3) Sadhu Charan Mahto P.W 3 (4) Jhagvar Manjhi, P.W 4 (5) Mahendra Manjhi P.W 5, (injured) (6) Manbodh Naik P.W 6 (7) Binoy Pd. Mandal P.W.7 (I.O) (8) Dr. Vidya Nand Choudhar (Doctor) P.W 8. However, P.Ws 2,3 and 6 were declared hostile by the prosecution. 7. The learned trial Judge, after conclusion of the trial, convicted the accused under sections 307/323/342 of the Indian Penal Code and sentenced them as aforesaid under the aforesaid section. The sentences so passed were directed to run concurrently. Hence this appeal. 8. P.W.1 Sambad Mahto, who is the informant in this case, has stated that the incident is of one year ago around at 5.30 p.m and road was being constructed. An altercation took place between Mahendra Manjhi (P.W 5) and Jarka Manjhi (Appellant 2). He was watching cock fighting in Bazar Tanr and just then accused Jarka, Bhaggu, Suffal and Ghani came there and started assaulting to Mahendra Manjhi by means of stick and stone. He has stated that they took Mahendra Manjhi to the Police station and instituted a case. Thereafter he was admitted into hospital for treatment. He also stated that he recognized all the accused persons in court. In cross-examination he stated that from Thana he went to R.M.C.H Ranchi and there his statement was recorded. He has also stated that in Silli Hospital his statement was also recorded. He stated that the place where assault took place between the accused persons and P.W 5 is at a distance of 100 yards from where the altercation took place. He has also stated that altercation between Mahendra Manjhi and Jarka Mahato took place in Bazar tanr itself. On hearing alarm he reached there. Distance between the place where cock fighting was going on and the place where altercation took place is about 20 steps. He was alone and at that time altercation was going on and what had happened he did not remember. He did not stop the fighting. Other people settled the fight. On hearing alarm he reached there. Distance between the place where cock fighting was going on and the place where altercation took place is about 20 steps. He was alone and at that time altercation was going on and what had happened he did not remember. He did not stop the fighting. Other people settled the fight. He went to see cockfighting and Mahendra Manjhi also came to see cockfighting and then Jarka came and caught the collour of Mahendra Manjhi and thereafter both began fighting. Jarka did not receive any injury but Mahendra Manjhi fell down on the ground and Jharka ran away. He also stated that there was a lot of blood spilt on the ground . He also stated that Mahendra's injury was covered with muffler. He took him home. Police (Darogaji) had seen blood stained muffler. There was a blood stains on the clothes of Mahendra Manjhi. Mahedra Manjhi stayed in Silli Hospital the whole night. In the unconscious condition he was brought to R.M.C.H Ranchi and admitted in the ward of Doctor B.K. Singh. He regained consciousness after seven days. He was administered with two bottles of blood. Mahendra Manjhi was injured in the middle of head and also near the eye. 9. P.W.5 Mahindra Manjhi is injured witness. He stated that on 26.1.1997 road was constructed and he was present there. He told Ram Das (Jarka) to fill the soil on both side of the road side but not on one side. After that he went to the market where the accused also came and assaulted him with stick as a result of which he sustained cut injuries. He also stated that Ghani, Ram Das and Bhaggu assaulted him with stone on his head and due to which his head was fractured. He also stated that Ghani also hit him on head. He also stated that he received treatment of his injuries on head at Silli Hospital and then he went to R.M.C.H. He also stated in para 10 of his deposition that he was hit by stone of four Kgs. He recognized the accused persons in the court. 10. P.W.4 Jhagvar Manjhi, is the father of the injured Mahindra Manjhi, has stated that Jharka, Ghani, Bhaggu Manjhi and Suffal Manjhi assaulted his son Mahindra Manjhi. He has also stated that he took his son to hospital where he was treated. 11. He recognized the accused persons in the court. 10. P.W.4 Jhagvar Manjhi, is the father of the injured Mahindra Manjhi, has stated that Jharka, Ghani, Bhaggu Manjhi and Suffal Manjhi assaulted his son Mahindra Manjhi. He has also stated that he took his son to hospital where he was treated. 11. P.W.8 Dr.Vidiya Nand Choudhary, who examined the injured Mahindra Manjhi, has stated that on 26.1.1997 he was posted as Medical Officer in Primary Health Center Silli. While examining, he found the following injuries sustained by him. (i) Lacerated wound scalp 3" x 1" bone deep at right hemisphere. (ii) Lacerated wounds below left eye ½" x ½". Injuries were simple caused by hard and blunt force. He had also proved his injury report marked Ext.4. 12. P.W.7 Binoy Pd. Mandal, who was the Investigating Officer in this case. He proved Fardbeyan which is marked as Ext.1. He proved the formal F.I.R which is marked as Ext.2. He also proved the injury letter issued by him marked as Ext.3. He also proved injury report prepared by Dr. V.N Choudhar (P.W 8) marked as Ext.4. 13. The learned counsel for the appellants has submitted that there is a contradiction in the statements made by the prosecution witnesses, particularly of the informant and also in comparison statement of P.W 5 who is an injured witness. He has also stated that general and omnibus allegations of attack is made against all the accused persons, but it seems that the assault was made because P.W5 objected to the manner of work being done to which the appellant No.2 Jarka Manjhi did not accept this and he called his other friends and colleagues to counter this objection. So provocation prior to assault to P.W.5 Mahendra Manjhi cannot be ruled out and so in such circumstances it cannot be said that there was any deliberate action on the part of the accused or to commit offence under section 307 of the Indian Penal Code. He also stated that assault was made by the stick which is not dangerous weapon of assault and there is also reference to 4 Kgs stone made by P.W 5 in his deposition but none of the of sticks or stick, nor stone/brick was seized. So in the absence of such seizure it is difficult to sustain the allegation. He also stated that assault was made by the stick which is not dangerous weapon of assault and there is also reference to 4 Kgs stone made by P.W 5 in his deposition but none of the of sticks or stick, nor stone/brick was seized. So in the absence of such seizure it is difficult to sustain the allegation. He has also stated that there is also statement to the effect that P.W 5 was taken to R.M.C.H, Ranchi but papers regarding his treatment was not produced. This discrepancy cannot be ignored. However, it has also been stated that statement of the informant was taken in both the hospitals but second statement was not brought on record. He has also referred to the deposition of Dr. Vidiya Nand Choudhary where it emerges that injuries found on the person are simple in nature and therefore offence under section 307 of the Indian Penal Code is not made out against the appellants. He also stated that in cross-examination the Doctor stated that injuries received can be caused due to fall on the ground but at best it can be said that injuries found on the person are not serious in nature. He has relied on the decision in the case of Md. Alam v. State of Bihar reported in [2014(1) East Cr.Cases 441(Patna)] and Umesh Prasad and Ors v. State of Bihar reported in [2014(1) East Cr.Cases 602. Learned counsel for the appellants has also relied on the judgment in Bhirgun Mian and Ors v. State of Bihar reported in [2012(4) East Cr.Cases 533(Patna), where it has been observed as :- "12. Thus this court does not find that in the facts aforesaid, that a case would be made out under section 307 of the Indian Penal Code as the occurrence took place at the spur of the moment and the 'intention' to cause fatal injuries to Havildar Mian has not been established by the prosecution, and therefore, the conviction under section 307 of the Indian Penal Code is set aside and converted into one under section 323 of the Indian Penal Code. The period already undergone by the appellant no. 1 is sufficient to the facts of this case to meet the ends of justice. 13. Appellant nos. The period already undergone by the appellant no. 1 is sufficient to the facts of this case to meet the ends of justice. 13. Appellant nos. 2 and 3 have been convicted under section 323 of the Indian Penal Code for a period of six months for supposedly assaulting Shakeela Klhatoon and Havildar Mian. The evidence regarding this aspect of the matter is not supported by the witnesses nor is there any injury report to corroborate their conviction under section 323 of the Indian Penal Code. At the most, it can be said that they would by virtue of being present along with Bhrigun Mian is convicted under section 149 of the Indian Penal Code. Because of the fact that the occurrence took place in the year 1988 and the matter is being taken up after more than two decades, this Court does not think it proper to pass any sentence against appellants 2 and 3." 14. Learned counsel for the appellant also submitted that the appellants was in jail from 4th February, 1997 to 11th April 1997 and after conviction from 21.5.2003 till 21.7.2003. Finally he has also pointed out that this is a case that is two decades old. 15. The learned counsel for the State has referred to the deposition of P.W 5 and pointed out that all the appellants are assailants and the main assailant were Gheni, Ramdas and Bhaggu Manjhi who assaulted on the head of the Mahinder Manjhi which is a vital part of the body. Hence offence punishable under section 307 of the Indian Penal Code is made out. FINDINGS 16 In the Fardbeyan P.W 1 or Sambad Mahato has stated that the assault by all the four accused is of a general and omnibus but no specific assault is mentioned regarding any one of the accused or appellant. In his deposition also he has initially repeated the same general and omnibus allegations on the four accused. In his cross-examination he deposes about altercations between Mahendra Manjhi and Jarka and that Jarka had caught hold of the collar of Mahendra and both had began fighting but there is no reference to use of stick or stone here or that any one had assisted Jarka in the fight here. P.W 1 has also deposed that blood had been spilt and his muffler was blood stained. P.W 1 has also deposed that blood had been spilt and his muffler was blood stained. But then it has then rightly been pointed out by the counsel for the appellant that no blood stained soil was seized, no stained muffler nor even the weapon of assault, the sticks or stone was seized so the absence of any such material evidence certainly weakens case against the appellant. The main argument of the appellant is that the injuries were simple in nature and hence no charge under section 307 IPC can be made out. More so, when it is clear that the altercation resulted over a dispute over road construction and it is not as if the appellants had conspired or premeditated the assault on P.W5. The 4 K.G stone reference in the deposition is also doubtful in the sense that P.W1 did not make any reference to it in his initial complaint. 17. Reliance by the appellant on the case of Bhirgun Mian (Supra) Para 12 is useful to the appellants since in that case also intention it seems was not made out and occurrence was on the spur of the moment. In the current case also there was some provocation regarding the road construction and though it is not excusable but given that injuries were simple in nature, some benefit of doubt regarding intention may be allowed. 18. Hence, having heard the learned counsels for the appellants, perused materials available on record and also considering the facts and circumstances of the case, the prosecution has not been able to prove its case for the offence punishable under section 307 of the Indian Penal Code beyond all reasonable shadow of doubts against the appellants. Therefore, appellants are entitled to get the benefit of doubt for the conviction under section 307 IPC. Sentence prescribed for seven years under section 307 IPC is not sustainable. So far as sections 342 and 323 of the Indian Penal Code is concerned, for the reasons aforesaid and the findings of the learned lower court also noted, it requires no interference. Hence, the conviction and sentence under sections 342 and 323 of the Indian Penal Code passed by the learned court are upheld. The appellants have already served for more than four months in custody, hence, the appellants are sentenced to the period already undergone. Hence, the conviction and sentence under sections 342 and 323 of the Indian Penal Code passed by the learned court are upheld. The appellants have already served for more than four months in custody, hence, the appellants are sentenced to the period already undergone. The appellants are on bail and hence they are discharged from the liabilities of their bail bonds. 19. Accordingly, this appeal is dismissed with above modification in conviction as well as sentence. Appeal disposed of.