JUDGMENT Kailash Prasad Deo, J. – The instant criminal appeal has been preferred by the appellants Radhe Mahato and Basudeo Mahato, against the judgment of conviction dated 18th December, 2003 and order of sentence dated 19th December, 2003 passed by Additional Sessions Judge, Fast Track Court III, Giridih in Sessions Trial No.344 of 1994, whereby both the appellants have been convicted under Sections 323 and 307 of the Indian Penal Code and appellant Basudeo Mahato has further been convicted for the offence punishable under Section 324 of the Indian Penal Code. The learned trial court has awarded rigorous imprisonment for five years and fine of Rs.3000/- under Section 307 of the Indian Penal Code and rigorous imprisonment for three months for the offence punishable under Section 323 of the Indian Penal Code to both the appellants. So far appellant no.2 Basudeo Mahato is concerned he has been awarded rigorous imprisonment for two years and fine of Rs.2000/- for the offence punishable under Section 324 of the Indian Penal Code. Appellant, Basudeo Mahato has been directed to pay fine of Rs.5000/- and appellant, Radhe Mahato has been directed to pay fine of Rs.3000/-, which will be paid to the injured, Janardan Prasad Verma. In case of default in payment of fine, appellant, Radhe Mahato will further undergo imprisonment for a period of 1 years and appellant, Basudeo Mahato will further undergo rigorous imprisonment for a period of two years. Both the sentences are directed to run concurrently, except so far fine is concerned. 2. The prosecution case is based upon the fardbeyan of Janardan Prasad Verma (P.W.4), recorded by A.S.I., S.B. Mishra of Jamua Police Station on 26.10.1993 at 17.30 Hours where informant has alleged that, while he was going for treatment to Giridih, he met Assistant Sub Inspector of Police of Jamua Police Station and disclosed, that on 26.10.193 at around 3.00 p.m., while informant was going to appear in B.A. practical examination from his house to Giridih, he saw that his elder brother, Nilkanth Prasad Verma was assaulted by Radhe Mahato (appellant no.1) and Basudeo Mahato (appellant no.2) by fists and slaps. Informant has stated, that he went to intervene into the matter upon which, both the appellants became angry and started abusing. Informant has stated, that he went to intervene into the matter upon which, both the appellants became angry and started abusing. It is alleged that appellant (Basudeo Mahato) has assaulted him (informant) with blunt part of Tangi and appellant (Radhe Mahato) has assaulted him (informant) with Lathi on head, right shoulder and other parts of the body, due to which informant sustained injury and fell down. The neighbourer came and saved him. The informant has alleged that Hulas Mahato (father of Radhe Mahato) had asked for tobacco from his brother due to which altercation took place. On the basis of fardbeyan of Janardan Prasad Verma, Police instituted station diary entry no.572/93 dated 26.10.1993 and after receipt of injury report, the Police instituted Giridih (Sadar) P.S. Case No.166 of 1993 dated 26.10.1993, under Sections 323, 324 and 307 of the Indian Penal Code. After investigation, Police submitted charge sheet vide no.14/94 dated 31.01.1994 under Sections 323, 324 and 307 of the Indian Penal Code. 3. The cognizance of the offence has been taken and the case has been committed to the court of Sessions, where charge has been framed under Sections 323 and 307 of the Indian Penal Code against both the appellants Radhe Mahato and Basudeo Mahato and specific charge under Section 324 of the Indian Penal Code against appellant, Basudeo Mahato, has been framed on 18.04.1996. The appellant pleaded their innocence and thus, they were put under trial. 4. The prosecution has examined five witnesses in this case and also proved and exhibited documentary evidence in support of the case. 5. Jaggu Mahato has been examined as P.W.1. This witness is an eye witness to the occurrence who saw Radhe and Basudeo had been assaulting Nilkanth Prasad Verma (informant''s elder brother) with fists and slaps, upon which Janardan (informant of this case) went for rescue, who was also assaulted on left side of the head by means of Tangi by appellant no.2-Basudeo Mahato and appellant no.1 Radhe Mahato assaulted him (informant) by Lathi. Due to assault made by Tangi, bleeding injury was caused and blood was oozing out, resulting in unconsciousness of Janardan Prasad Verma (P.W.4). This witness has stated during his cross-examination at Para 6 that, Nilkanth was assaulted by fists and slaps and Janardan was assaulted once by Tangi. 6. Nilkanth Prasad Verma has been examined as P.W.2. Due to assault made by Tangi, bleeding injury was caused and blood was oozing out, resulting in unconsciousness of Janardan Prasad Verma (P.W.4). This witness has stated during his cross-examination at Para 6 that, Nilkanth was assaulted by fists and slaps and Janardan was assaulted once by Tangi. 6. Nilkanth Prasad Verma has been examined as P.W.2. This witness has stated that on 26.10.1993, when he reached near the house of Hulas Mahato (father of Radhe Mahato), Hulas Mahato asked for tobacco, which was provided by this witness and thereafter demanded lime (chuna), which was not available to Nilkanth Prasad Verma and as such, the same was not provided. P.W.2 has stated, that Basudeo Mahato started abusing him and appellants (Radhe Mahato and Basudeo Mahato) have also started assaulting him by fists and slaps. Janardan Prasad Verma, brother of this witness, who came for rescue, was also assaulted by appellant (Basudeo Mahato) on left side of his (P.W.4) head by Tangi and appellant (Radhe) by Lathi on back, shoulder and chest, due to which his brother became unconscious and was taken to hospital. In the midway, they (P.W.2 and P.W.4) met with Police and statement of Janardan Prasad Verma (P.W.4) was recorded by the Police and the injured, Janardan Prasad Verma was admitted in the hospital for 3-4 days. 7. P.W.3 Ganesh Mahato has been declared hostile by the prosecution. 8. Janardan Prasad Verma, informant of this case and one of the injured of the case, has been examined as P.W.4. This witness has stated that on 26.10.1993, while he was going to attend his examination at Giridih and reached near the house of Radhe Mahato, he saw that Radhe Mahato and Basudeo Mahato were assaulting his brother, Nilkanth Prasad Verma by fists and slaps. This witness has further stated, that he went there to intervene into the matter and thereafter Basudeo Mahato assaulted him by means of Tangi on his head. Radhe Mahato assaulted him by means of Lathi on his right shoulder, chest, waist and back, due to which he fell down and became unconscious for five minutes. This witness was taken on a cot for treatment. In the midway, he met with Police Officer of Jamua Police Station, where his statement was recorded. Radhe Mahato assaulted him by means of Lathi on his right shoulder, chest, waist and back, due to which he fell down and became unconscious for five minutes. This witness was taken on a cot for treatment. In the midway, he met with Police Officer of Jamua Police Station, where his statement was recorded. The statement of the witness has been entered as Sanha diary, which has been marked as Ext.X and he remained in hospital for eight days. This witness has further stated, during his crossexamination, that blood was oozing from his head and he was treated by Dr. B.P. Singh and the injury report was received after three days, which was handed over to the Police. This witness has further stated during his cross-examination, that he had sustained single injury from Tangi, which was left at the place of occurrence itself. This witness has proved the fardbeyan, which has been marked Ext.2. 9. Dr. B.P. Singh has been examined as P.W.5. He is Medical Officer, who had examined Janardan Prasad Verma and found following injuries:- (i) Incised wound on scalp left side 1 " x 3/4" x bone cut, X-Ray advised. (ii) Swelling 2 " x 2 " with scratch on right side of scalp. (iii) Swelling with scratch on right shoulder 2 " x 2 ", X-Ray advised. (iv) Swelling with bruise 3" x 3/4" on right buttock. (v) Swelling with scratch 2" x 2" on left shoulder. (vi) Bruises on back below scapular region both side five in number of varying sizes, 3" to 5" x 3/4 to 1" with swelling. (vii) Bruises with swelling on lumbar region back three in number of different sizes, 2 " to 4" x 3/4". (viii) Swelling with bruises on upper part of chest right side two in number of different sizes 2" to 3 " x 3/4 to 1". Doctor has stated, that injury no.1 caused by sharp cutting instrument and rest by hard blunt substance. The doctor has proved injury report of Janardan Prasad Verma as Ext.1. During cross-examination, nothing has been elucidated by the defence to disbelieve the evidence of P.W.5. After closure of prosecution evidence, statement of appellants have been recorded under Section 313 of the Code of Criminal Procedure on 19.09.2001. Thereafter, defence has also examined Radhe Mahato appellant himself as defence witness no.1. 10. During cross-examination, nothing has been elucidated by the defence to disbelieve the evidence of P.W.5. After closure of prosecution evidence, statement of appellants have been recorded under Section 313 of the Code of Criminal Procedure on 19.09.2001. Thereafter, defence has also examined Radhe Mahato appellant himself as defence witness no.1. 10. After hearing the parties and on perusal of record, the learned trial court passed the impugned judgment of conviction dated 18th December, 2003 and order of sentence dated 19th December, 2003 passed by Additional Sessions Judge, Fast Track Court III, Giridih in Sessions Trial No.344 of 1994. 11. Learned counsel for the appellants Mr. P.K. Mukhopadhyay assisted by Mr. S.K. Murtty, Advocate has submitted, that in this case Investigating Officer has not been examined nor the Police Officer who has recorded the fardbeyan of the injured, has been examined. Learned counsel for the appellant has further submitted, that even though, the presence of independent witnesses are there, as deposed by the prosecution witnesses, but none of them have been examined in this case and Ganesh Mahato, who has been examined as P.W.3, has been declared hostile by the prosecution. Learned counsel for the appellants has further submitted, that as per the allegation Basudeo Mahato has assaulted Janardan Prasad Verma, once on head by Tangi but doctor has found two injuries on head of Janardan Prasad Verma, one by sharp cutting and other by hard and blunt substance. No specific allegation, of assault made on the head of Janardan Prasad Verma, against Radhe Mahato and there is contradictions in the evidence of prosecution witnesses. Learned counsel for the appellants has further submitted that because of non-examination of Investigating Officer and the Police Officer, who had recorded the fardbeyan, serious prejudice has been caused to the appellants and they could not get an opportunity to crossexamine, the said witnesses, on the point of place of occurrence, manner of occurrence and injury caused upon victim and as such, benefit of doubt may be granted in favour of the appellants. 12. Mr. Ram Prakash Singh, learned counsel appearing for the State submitted, that evidences of P.W.2 Nilkanth Prasad Verma, P.W.4 Janardan Prasad Verma and P.W.5 Dr. Bhupendra Prasad Singh, who had examined Janardan Prasad Verma and proved the injury report as Ext.1 are consistent to each other. 12. Mr. Ram Prakash Singh, learned counsel appearing for the State submitted, that evidences of P.W.2 Nilkanth Prasad Verma, P.W.4 Janardan Prasad Verma and P.W.5 Dr. Bhupendra Prasad Singh, who had examined Janardan Prasad Verma and proved the injury report as Ext.1 are consistent to each other. The specific allegation of assault by means of Tangi has been attributed against Basudeo Mahato, causing bleeding injury on the head of Janardan Prasad Verma and Radhe Mahato has been attributed with an allegation of assaulting Janardan Prasad Verma by means of Lathi. Learned counsel for the State, Mr. Ram Prakash Singh has further submitted, that from the perusal of injury report (Ext.1) of Janardan Prasad Verma, such injuries are corresponding to the allegation made by the prosecution witnesses. Dr. B.P. Singh, who has been examined as P.W.5, found one injury on the head of Janardan Prasad Verma caused by sharp cutting weapon i.e. by Tangi, which is incised wound and other injuries are bruises and abrasions, which can be attributed against Radhe Mahato, who has assaulted Janardan Prasad Verma by means of Lathi. Learned counsel for the State has submitted, that evidence of prosecution is consistent and it does not require any interference by this Hon''ble Court. 13. Heard Mr. P.K. Mukhopadhyay, learned counsel for the appellants and Mr. Ram Prakash Singh, learned counsel for the State and perused the record including the F.I.R., evidences and the injury report. From perusal of the same, it appears that prosecution has come up with a straight case, that initially Hulas Mahato was abusing Nilkanth Prasad Verma and Radhe Mahato and Basudeo Mahato were assaulting Nilkanth Prasad Verma by fists and slaps. When Janardan Prasad Verma came for rescue, he was assaulted by means of Tangi by Basudeo Mahato, causing bleeding injury on his head. The said injury was found by doctor, who proved the injury report of Janardan Prasad Verma as Ext.1, which is incised wound on scalp left side 1 " x 3/4" x bone cut and subsequently Radhe Mahato assaulted Janardan Prasad Verma by means of Lathi on different parts of the body, including right shoulder, chest, back, waist and other parts of the body. The doctor has found five swelling injuries and two bruises on the person of Janardan Prasad Verma, which (injury report) has already been marked Ext.1 in this case. The doctor has found five swelling injuries and two bruises on the person of Janardan Prasad Verma, which (injury report) has already been marked Ext.1 in this case. There is no material contradiction in the evidence of the prosecution witnesses. The non-examination of the Investigating Officer has not caused any prejudice to the appellants as the manner of occurrence is not under dispute. The counsel for the appellants has failed to establish before the appellate court, that how prejudice has been caused to the appellants because of non-examination of Investigating Officer. 14. Under the aforesaid facts and circumstances, this Court is of the opinion that prosecution has proved the case beyond all reasonable doubts against Basudeo Mahato and Radhe Mahato but conviction of appellants under Section 307 of the Indian Penal Code, is nonsustainable in the eyes of law as mense rea was lacking and prosecution has failed to establish the same and as such, Radhe Mahato is only convicted for the offence under Section 323 of the Indian Penal Code. So far, Basudeo Mahato is concerned, he is rightly convicted by the learned trial court under Section 324 of the Indian Penal Code. Since, the parties are co-villagers and the appellants have faced the rigours of trial since 1993 as such, instead of awarding them sentence as directed by the learned trial court, this Court modifies the sentence awarded to the appellant Radhe Mahato, who has been convicted under Section 323 of the Indian Penal Code and appellant Basudeo Mahato, who has been convicted under Section 324 of the Indian Penal Code are awarded to the period already undergone by them. Since, Radhe Mahato is aged about 70 years and convicted under Section 323 of the Indian Penal Code, the sentence of Radhe Mahato is modified to the period, already undergone. So far Basudeo Mahato is concerned, who has been convicted under Sections 323 and 324 of the Indian Penal Code, he is being awarded the sentence to the period already undergone but with the condition, that instead of fine of Rs.5000/- awarded by the learned trial court, Basudeo Mahato will pay a fine of Rs.7000/- to Janardan Prasad Verma, within a period of eight weeks from today, failing which Basudeo Mahato will serve a sentence of one year for the offence punishable under Section 324 of the Indian Penal Code, so far this criminal appeal is concerned. 15. 15. Thus, this appeal is dismissed with the aforesaid modification. 16. Let the Lower Court Record be sent along with the copy of this judgment to the court concerned.