JUDGMENT : Aditya Kumar Trivedi, J. Appellant, Kamal Bhagat has been found guilty for an offence punishable under Section 307/149 IPC and sentenced to undergo R.I. for six years as well as fined of Rs. 5000/- in default thereof, to undergo R.I. for six months additionally, Appellant Kamal Bhagat, Hira Lal Bhagat, Indradeo Bhagat, Mithilesh Bhagat, Shakunti Devi have been held guilty for an offence punishable under Section 447 IPC and sentenced to undergo S.I. for two months as well as to pay fine of Rs. 200/- in default thereof to undergo S.I. for one month additionally, appellants Hira Lal Bhagat and Indradeo Bhagat have been found guilty for an offence punishable under Section 307 IPC and sentenced to undergo R.I. for six years as well as to pay fine of Rs. 6000/- in default thereof to undergo R.I. for one year additionally, appellant Hira Lal has been found guilty for an offence punishable under Section 324 IPC and sentenced to undergo R.I. for one year as well as to pay fine of Rs. 1500/- in default thereof to undergo R.I. for six months additionally, appellant Hira Lal Mahato and Mithilesh Mahto have been found guilty for an offence punishable under Section 148 IPC and sentenced to undergo R.I. for one year as well as to pay fine of Rs. 1000/- in default thereof to undergo R.I. for six months additionally, appellant Indradeo Bhagat and Sakunti Devi under Section 147 IPC and sentenced to undergo R.I. for one year, fine of Rs. 1000/- in default thereof to undergo R.I. for one month additionally, under Section 341 IPC and sentenced to undergo S.I. for one month, to pay fine of Rs. 500/- in default thereof to undergo S.I. of one month, additionally, under Section 323 IPC and sentenced to undergo R.I. for six months as well as to pay fine of Rs. 1000/- in default thereof, to undergo R.I. for three months additionally, appellant Sakunti Devi under Section 379 IPC and sentenced to undergo R.I. for one year as well as to pay fine of Rs. 1000/- in default thereof, to undergo R.I. for three months additionally, appellant Sakunti Devi under Section 379 IPC and sentenced to undergo R.I. for one year as well as to pay fine of Rs. 5000/- in default thereof to undergo R.I. for six months with a further direction to run the sentenced concurrently, with a further direction to set off against the period having undergone during course of trial as provided under Section 428 of the Cr.P.C. vide judgment of conviction dated 07.09.2015 and order of sentence dated 08.09.2015 passed by Fifth Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No.5/1992. 2. Sukhdeo Bhagat filed written report on 07.10.1990 divulging the fact that on the same day at about 03:00 PM accused Kamal Bhagat was ploughing his field whereupon, he protested. Kamal Bhagat indulged in abusing him who also, called his associates who were hiding nearby since before whereupon, Hira Lal Bhagat son of Kamal Bhagat armed with farsa, Sakunti Devi wife of Kamal Bhagat armed with Mungri, Mithlesh Bhagat son of Saguni Bhagat armed with farsa, Bindeshwar Mahto son of Bishuni Mahto armed with lathi, Indradeo Bhagat son of Bharat Bhagat armed with rod, Ram Ekbal Bhagat son of Daroga Bhagat along with two unknown persons armed with lathi, arrived, encircled him and on an order of Kamal Bhagat, they began to assault. Bindeshwar Mahto, Ram Ekbal Bhagat, Indradeo Bhagat, Sakunti Devi assaulted him with lathi, Mungari and rod as a result of which, he sustained injury over upper portion of back at right side, left knee. He raised alarm attracting his wife and daughter whereupon, his wife was assaulted with lathi and rod while his daughter Sarswati Kumari was assaulted by Hira Lal Bhagat with farsa over his head as a result of which, she sustained injury and fell down. Indradeo Bhagat gave rod blow over head of his daughter as a result of which, she again sustained injury over head. Blood oozen out. Sakunti Devi snatched golden chain from her neck. On hue and cry so many villagers arrived and protested as a result of which, accused persons began to flee who were chased and out of them, Indradeo Bhagat and Mithilesh Bhagat were apprehended. Accordingly, they were produced along with written report. 3. Blood oozen out. Sakunti Devi snatched golden chain from her neck. On hue and cry so many villagers arrived and protested as a result of which, accused persons began to flee who were chased and out of them, Indradeo Bhagat and Mithilesh Bhagat were apprehended. Accordingly, they were produced along with written report. 3. On the basis of the aforesaid written report, Rajepur P.S. Case No.67 of 1990 was registered followed with an investigation and after completing the same, charge sheet was submitted which happens to be the basis of trial, meeting with the ultimate result, subject matter of instant appeal. 4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been pleaded that the lands belonging to uncle of the accused persons, which was gifted to them illegally been claimed by the prosecution party on the basis of forged, fabricated document and, only to pressurize upon the accused persons to give up those lands, this case has purposely been filed after taking the police in their collusion. Oral as well as documentary evidence has also been adduced in support there of. 5. In order to substantiate its case, prosecution had examined altogether eight PWs who are PW.1-Rajendra Prasad, PW.2-Mauzelal Sahni, PW.3-Musafir Sahni, PW.4-Ramashish Sahni, PW.5-Guddar Paswan, PW.6-Sarswati Sinha, PW.7-Sukhdeo Bhagat, PW.8-Dr. Prabhash Kumar as well as had also exhibited Ext.1- written report, Ext.2 series-injury report of respective injured, Sarswati Sinha (PW.6), Janki Devi (not examined) and Sukhdeo Bhagat (PW.7), Ext.3-Formal FIR. On the other hand, defence had also examined one DW.1-Gopal Sah and had also exhibited the gift deed dated 06.12.1993 executed by Jaldhari Bhagat uncle of the accused in their favour. 6. While assailing the judgment impugned, it has been submitted on behalf of learned counsel for the appellants that malicious prosecution having been initiated at the end of the prosecution is found very much exposed from their own conduct and on account thereof, the judgment impugned is fit to be set aside. 7. 6. While assailing the judgment impugned, it has been submitted on behalf of learned counsel for the appellants that malicious prosecution having been initiated at the end of the prosecution is found very much exposed from their own conduct and on account thereof, the judgment impugned is fit to be set aside. 7. In order to substantiate the same, it has been submitted that there happens to be definite assertion at the end of the informant that accused Indradeo Bhagat and Mithilesh Bhagat were apprehended at the spot by the villagers on chase while they resisted illegal activities of the accused persons and further informant took both of them to the police station taking assistance of Harishankar Prasad, Mauje Lal Sahni and Rajendra Prasad out of whom Harishankar Prasad has not been examined. Though, at an initial stage Rajendra Prasad (PW.1) and Mauzelal Sahni (PW.2) supported the case of the prosecution but, later on they melted down whereupon, their approach are not at all found supportive to the prosecution. In its continuity, it has also been submitted that IO has not been examined. On account of non-examination of Investigating Officer serious prejudice has been caused to the appellant and that being so, simply on the score of non-examination of the Investigating Officer, appellants are entitled for acquittal. 8. It has also been submitted that apart from changing their status by PW.1 as well as PW.2 respectively other independent witnesses namely Musafir Sahni (PW.3), Ramashish Sahni (PW.4) and Guddar Paswan (PW.5) became volte-face to prosecution whereupon they were declared hostile. That means to say, the prosecution version is not at all found supported by any of the independent witness. Then it has been submitted that PW.6 and PW.7 are the father and daughter, though claiming to be an injured and their injuries are found corroborated with the evidence of PW.8 but, totality of the event in case is properly adjudged then, in that circumstance, whatever injuries over the person of the PW.6 & PW.7 happen to be that was not on account of the occurrence so alleged and that being so, appellants would not have been convicted. 9. It has also been submitted that from the evidences, it is apparent that both the parties are own pattidars. Land dispute amongst them was going on since before and further, they faced the rigor of the trial since 1990. 9. It has also been submitted that from the evidences, it is apparent that both the parties are own pattidars. Land dispute amongst them was going on since before and further, they faced the rigor of the trial since 1990. In the aforesaid background, even if, the case of the prosecution is found supported, substantiated, then, in that circumstance, lenient view over the sentence be taken more particularly having an application of probation of offenders act. 10. On the other hand, while refuting the submission having been made on behalf of appellant, it has been submitted by the learned Additional Public Prosecutor that non-supporting the case by any of the independent witnesses are not going to discredit the prosecution version. It has also been submitted that remaining witnesses are not interested witness, rather happens to be family members as well as an injured. Furthermore, the evidence of injured has got primacy and unless and until, there happens to be cogent convincing reason to discard their version in ordinary course of nature, it has to be accepted as, by way of presence of injury, presence of witnesses at the spot is found affirmed and further, manner whereunder, witnesses had sustained injuries. That being so, the injuries whatever been found over the person of PW.6 and PW.7 duly corroborated by PW.8 doctor justify the finding recorded by the learned lower court. It has also been submitted that non-examination of the Investigating Officer has not prejudiced to the appellants in the background of the fact that there happens to be no material contradiction in the evidence of PW.6, PW.7 nor there happens to be any kind of confusion, inconsistency amongst their evidences with regard to place of occurrence. That being so, instant appeal lacks merit and is accordingly fit to be dismissed. 11. From perusal of the record, it is apparent that PW.3, PW.4, PW.5 have not supported the case of the prosecution whereupon, they were declared hostile. It is further evident that at an initial stage PW.1 and PW.2 have fully supported the case of the prosecution and further, even during course of cross-examination stood firm however, on one count or other, as is evident, they were recalled by the learned lower court and on that very score, have given bonanza to the appellants. 12. It is further evident that at an initial stage PW.1 and PW.2 have fully supported the case of the prosecution and further, even during course of cross-examination stood firm however, on one count or other, as is evident, they were recalled by the learned lower court and on that very score, have given bonanza to the appellants. 12. Hon'ble Apex times without number have held that prosecution witnesses should not be recalled on flimsy ground more particularly, when they are bent upon to demolish the case of the prosecution so, the learned lower court should have taken cared of. Be that as it may, it is evident that PW.1 para-12 and PW.2 para-13 even after recall have not controverted the occurrence nor, there was any kind of cross-examination relating to apprehension of Indradeo Bhagat and Mithilesh Bhagat, carrying them to police station where they were produced along with written report at the end of PW.7 informant. The most surprising feature is that PW.7 happens to be own Sadhu of the PW.1. 13. Now remains evidence of PW.6, 7 and 8. PW.8 is the doctor who had examined all the three injured that means to say PW.6, PW.7 and Janki since deceased, on 08.10.1990 and found the following:- (A) Sarswati Sinha (PW.6) and found the following:- (1) One incised wound of 1" x ¼" x skin deep. On the left side of the top of the head. (2) Incised would 1" x ¼" x skin deep on the top of head. (3) Tender swelling of 2" diameter on the left side of the scapular region. Injuries no.1 and 2 may be caused by sharp cutting weapon like farsa. Injuries no.2 and 3 might have caused death of the injured. Injury no.3 was caused by hard and blunt substance like lathi. (B) Sukhdeo Rai (PW.7) and found the following:- (i) Tender swelling of 3" diameter with linear bruise mark of 3" length on the outer side of the left arm. (ii) Tender swelling of 2" diameter on the right scapular area. (iii) Tender swelling of 2" diameter on right scapular area. (iv) Tender swelling of 2" diameter on the left calf. All these injuries were caused by hard and blunt substance such as lathi. (C) Janki Devi and found the following:- (i) One abrasion with tender swelling of ½" diameter on upper part of left palm. (iii) Tender swelling of 2" diameter on right scapular area. (iv) Tender swelling of 2" diameter on the left calf. All these injuries were caused by hard and blunt substance such as lathi. (C) Janki Devi and found the following:- (i) One abrasion with tender swelling of ½" diameter on upper part of left palm. (ii) Tender swelling 2" diameter on the back. All the aforesaid injuries were caused by hard and blunt substance like lathi. During cross-examination, it is evident that nothing substantial has been taken out save and except the finding recorded against cumulative effect of injury no.2 and 3 found over the person of Sarswati as disclosed in examination-in-chief, might have caused death, had not shown in his injury report. Be that as it may, injuries over the person of 6, 7 as well as Janki (since deceased) are not at all found controverted. 14. Pw.6 is Sarswati Devi she had deposed that on the alleged date and time of occurrence, her father had gone to field which was being ploughed by the Kamal Bhagat. Her father protested whereupon, Kamal abused. Then Kamal called his associates whereupon, Hira Lal Bhagat armed with farsa, Shankunti Devi armed with Musal, Mithilesh armed with Farsa, Ram Ekbal Bhagat armed with lathi, Bindeshwar Bhagat armed with iron rod came began to assault her father. After hearing alarm of her father, she rushed along with her mother whereupon they were also assaulted. Hiralal inflicted farsa over her head causing injury thereupon. Blood oozen out. She fell down followed by rod blow by Bindeshwar Bhagat and lathi blow by Indradeo. Then thereafter, Shakunti Devi snatched away golden chain from her neck. On hue and cry large number of villagers assembled, seeing whom, accused began to flee, were chased and during course thereof, accused Indradeo and Mithilesh were apprehended by the villagers who were handed over to the police at police station. Her father had filed written report. Identified the accused in dock. During cross-examination at para-4 she had stated that the field lies 2-4 laggi from her house. She had further stated that house of Hari Shankar Prasad and others are in the vicinity. Field was being ploughed. 15. She shown boundary of the land North-Kamal Bhagat and Raghunath Bhagat, South-her land, East Raghunath Bhagat, West-Kuldeep Bhagat. Identified the accused in dock. During cross-examination at para-4 she had stated that the field lies 2-4 laggi from her house. She had further stated that house of Hari Shankar Prasad and others are in the vicinity. Field was being ploughed. 15. She shown boundary of the land North-Kamal Bhagat and Raghunath Bhagat, South-her land, East Raghunath Bhagat, West-Kuldeep Bhagat. At para-5 she had stated that when she reached at the P.O. her father had already fallen down having injury over his body. He was unconscious. Blood was oozing out. He was severely assaulted. Then she stated that first of all she was assaulted. She was assaulted in midst of field. Her father had fallen down 4-5 hands away from the place where she was assaulted. First of all she was given farsa blow by Hira Lal from back whereupon, she fell down. Then she was assaulted by rod. Then, golden chain was snatched by Sakunti. Then thereafter, she became unconscious. On hue and cry villagers came seeing whom, accused began to flee. Then had stated that she along with her mother was assaulted conjointly. Mother also became unconscious. Blood had oozen out and fallen over the ground. In para-6 she had stated that occurrence took place for an hour. Both the parties were on strain relationship relating to land since before. As, accused was ploughing land forcibly on account thereof, occurrence took place. Then she disclosed that the land was being ploughed by the Kamal since before the occurrence. But after the occurrence they are ploughing field. In para-7 she had stated that she regained sense at hospital where her statement was recorded by the police. In para-8 she had stated that Kamal Bhagat happens to be her uncle. Land is Khatiyani one. Then had denied the suggestion that no occurrence took place in a manner as suggested. 16. Pw.7 is the informant. During his examination-in-chief he had reiterated the initial version whatever been stated by him in the written report. He had further stated that except Hira Lal and Mithilesh others had assaulted him with lathi and rod. On his alarm, his wife and daughter came whereupon they were also assaulted. His daughter Sarswati was assaulted by farsa over her head by Hira Lal while Indradev Bhagat had assaulted her with rod. Shankunti Devi snatched away ornament. He had further stated that except Hira Lal and Mithilesh others had assaulted him with lathi and rod. On his alarm, his wife and daughter came whereupon they were also assaulted. His daughter Sarswati was assaulted by farsa over her head by Hira Lal while Indradev Bhagat had assaulted her with rod. Shankunti Devi snatched away ornament. His wife was assaulted by the accused persons with lathi, rod, fist and slaps, as a result of which his wife died within 2-3 months of the occurrence. On hue and cry villagers came and seen the occurrence. Accused flee therefrom and during course thereof, Mithilesh and Indradeo were apprehended who were taken to police station where they were handed over. He had also handed over written report having in his pen and signature (exhibited), identified the accused. During course of cross-examination at para-6 he had admitted inter se relationship. He had further stated that since before the occurrence they were enjoying cordial relationship. There was no land dispute persisting amongst them. Under para-7, he had stated that he is unable to disclose khata number of the disputed land. He had not seen Khatiyan. But khatiyan stood name of Chhatu Bhagat. Badari Bhagat, Ram Pal Bhagat, having equal share. Accused persons belong to descendants of Ram Pal Bhagat while he happens to be descendants of Badri Bhagat. He had further admitted that partition by metes and bound has not been effected however for convenience shake land has been partitioned, and they are possessing the same accordingly. But is unable to say the exact area. At para-10 admitted Jagdhari full brother of appellant Kamal Bhagat. He had admitted that Jagdhari had no male issue. He had denied the suggestion that he got sale deed in favour of PW1, Rajendra Prasad relating to the land possessed by his brother Jagdhari after impersonating him and subsequently thereof, got the sale deed from PW.1 in his favour. In para-11 he had disowned to have knowledge with regard to the fact that aforesaid Jagdhari gifted land to the son of Kamal Bhagat. However, he had admitted that he is contesting a title suit having instituted by the daughter of Jagdhari but, P.O. is not the aforesaid land. That land lies ten laggi away from the P.O. land. In para-11 he had disowned to have knowledge with regard to the fact that aforesaid Jagdhari gifted land to the son of Kamal Bhagat. However, he had admitted that he is contesting a title suit having instituted by the daughter of Jagdhari but, P.O. is not the aforesaid land. That land lies ten laggi away from the P.O. land. In para-13 he had stated that after seeing the accused ploughing field he had gone to the Mauza Lal Sahni and Harishankar Prasad but they were not present and so, had gone to the field alone. Just 1-2 minutes after his arrival, he was assaulted by all the accused persons save and except those armed with farsa. They assaulted but he is unable to disclose how many blows were given. When he fell down then, thereafter, the accused persons left to assault. He had not became unconscious. In para-15 he had stated that after his assault, his wife and daughter were assaulted. While his wife was being assaulted, his daughter was standing there. His daughter was assaulted by farsa by Hira Lal and by rod by Indradeo. He had not seen other injuries. Then thereafter villagers came. Then at para-18 he had stated that blood had oozen out from the injury of Sarswati only. In para-20 he had stated that P.O. was shown to the police by him. In para-21, 22 there happens to be cross-examination with regard to document. Then had denied the suggestion that no such type of occurrence had ever taken place rather, on account of dispute relating to the land accused persons have been falsely implicated. 17. Dw.1 is the formal witness who had exhibited the document having executed by Jagdhari in favour of accused persons. 18. From the evidence available on the record as discussed hereinabove, it is crystal clear that inter se relationship amongst the parties is not at all denied. There happens to be no denial with regard to presence of Jagdhari full brother of appellant Kamal from whom, the informant had also claimed to have purchased the land which, in the opinion of the appellants was created by impersonating the Jagdhari. It is also apparent that the daughter of Jagdhari had instituted a title suit. Furthermore, it is also evident that there happens to be no partition by metes and bound however, for convenience shake they were separate in mess and business. It is also apparent that the daughter of Jagdhari had instituted a title suit. Furthermore, it is also evident that there happens to be no partition by metes and bound however, for convenience shake they were separate in mess and business. From the evidence of PW.6 Sarswati it is apparent that the P.O. land was under cultivable possession of Kamal before the occurrence but, after the occurrence, same came under their possession. In the aforesaid background when the occurrence as alleged is being considered, it is apparent that there happens to be an admission at the end of prosecution witness much less from the evidence of PW.6, it is crystal clear that the land was under the possession of the accused/appellant since before the occurrence and so, presence of informant PW.7 at the P.O. was not warranted. However, neither happens to be counter version nor, informant PW.7 or PW.6 was ever suggested that they were armed and brandished their weapon and in retaliation, they sustained injury. In the facts and circumstances of the case, it is abundantly clear that appellants were in possession of the land. Even considering that they were illegally even then, they would not have been prevented otherwise than legal means. Apart from this, it appears that the occurrence as alleged took place at spur of moment, and the nature of injury, though exaggerated by the doctor from initial version, did not justify the finding relating to Section 307 IPC. Consequent thereupon, same is set aside while retaining the conviction relating to other offences. In the facts and circumstances of the case, it did not attract the substantial sentence whereupon, the appellants are found entitled for getting benefit under Section 4 of the Probation of Offenders Act and that being so, the sentence is accordingly modified. The quantum of bond and the period therefor is to be decided by learned lower court itself. 19. In terms thereof, this appeal is partly allowed. Appellants are on bail which is extended for another four weeks, during midst thereof, appellants are directed to surrender before the learned lower court to execute bond in terms as directed by the lower court failing which, the learned lower court will be at liberty to proceed against the appellants in accordance with law.