JUDGMENT : Appellants, four in numbers, have preferred this appeal against the judgment dated 30.9.2002 and order dated 1.10.2002 passed by Sri Surya Narayan Mandal, the then 3rd Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 192 of 1989 in which all the appellants have been convicted under Sections 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- each and in default to further undergo rigorous imprisonment for one year. 2. Since nobody appears on behalf of the appellants to argue this appeal on repeated calls, Mr. Rajesh Kumar Sharma, Advocate has been appointed as amicus curiae to assist this Court. 3. Prosecution case as per fardbeyn of Janki Prasad (PW 4), in short, is that he along with his brother Mohan Prasad (PW 5) had gone to Bhata reta of village Gambhirpur for harvesting ‘khar’ and watching the wheat crop and when they reached there at about 4.30 P.M. miscreants chased them, out of them they identified Mahavir Ahir, Nathu Ahir and Jaleshwar Ahir, all of village Dumaria, who were holding lathi and gun in their hands. Further prosecution case is that his brother Mohan Prasad was caught by the accused persons on chase, accused appellant Harihar Yadav assaulted Mohan with the butt of the gun and rest accused persons threw him down and assaulted with lathi on his hand, chest and neck. Thereafter they threw him in the sugar cane field i n injured condition and they also pressed the lathi on his body with an intention to kill him. On alarm villagers Firangi Prasad (not examined), Mahendra Ahir (not examined), Ash Mohammad (PW 3), Bhager Mahto (not examined) and others reached there and brought him on a tyre-cart to M.J.K. Hospital, Bettiah where he was admitted in injured condition. 4. On the basis of the aforesaid fardbeyan Bairia P.S.Case No. 2 of 1988 was registered against the appellants. Post investigation charge sheet was submitted, cognizance of the offence was taken and as the case, triable by court of sessions, was committed to the court of sessions which ultimately traveled to the court of Sri Surya Narayan Mandal, the then 3rd Additional Sessions Judge, West Champaran, Bettiah for trial and disposal. During trial all the accused persons were charged under Sections 307/34 IPC. 5. During trial all the accused persons were charged under Sections 307/34 IPC. 5. In order to substantiate its case the prosecution has examined altogether five witnesses, they are PW 1 Dr. Noorul Hoda, the then Medical Officer of M.J.K. Hospital, Bettiah, PW 2 Gayani Prasad, declared hostile, PW 3 Ash Mohammed, FIR named witness, PW 4 Janki Prasad, informant and PW 5 Mohan Mahto, the injured. 6. Apart from that, prosecution has brought on record some documents as exhibits, they are Ext.1- injury report, Ext.2- signature of Ash Mohammad on fardbeyan and Ext.3- the entire fardbeyan. 7. No ocular or documentary evidence has been adduced/brought on behalf of defence and the defence of the appellants as per the statement under Section 313 Cr.P.C. and from the trend of cross examination, is of innocent and of false implication due to land dispute and further defence is that Mohan Mahto (PW 5) has sustained injuries at the instance of some criminals at Reyta area. 8. Learned trial court on conclusion of trial has convicted the appellants under Sections 307/34 IPC and sentenced them as stated above. 9. Learned amicus curiae has assailed the judgment on the ground that in this case witnesses named in the FIR have not been examined and I.O. has also not been examined and non-examination of I.O. has caused prejudice to the defence. Further submission is that the prosecution has also not been able to prove the motive as alleged in the fardbeyan but the learned trial court in spite of the same has convicted the appellants under Sections 307/34 IPC. Further contention of learned amicus curiae is that in this case though the appellant Harihar Yadav was armed with gun but he has not fired upon the injured, rather butt portion of gun was used and rest of the injuries were caused by hard and blunt substance and Doctor has also found all the injuries, except one on head, are simple in nature and that clearly shows that intention of the accused appellants was not to kill the PW 5 Mohan Mahto as had it been intention of the appellants to kill him they could have easily fired at PW 5. Moreover, learned trial court has come to the conclusion that prosecution has not been able to establish that injury on head as grievous in absence of the production of X-ray report or the basis of the conclusion of the Doctor (PW 1). In view of aforesaid submissions learned amicus curiae has submitted that the conviction of the appellants under Sections 307/34 IPC is bad in law and not sustainable in the eye of law. 10. On the other hand, learned counsel for the State has defended the judgment of guilt on the ground that injured PW 5 has himself stated about the assault by appellant Harihar Yadav with but portion of gun and other accused appellants by lathi and the Doctor has found altogether seven injuries on the person of Mohan Mahto (PW 5), out of which one injury on the head was grievous and PW 3, who is an independent witness, has also supported the prosecution case and he also appears to be an eye-witness to the occurrence. In such view of the matter, the conviction of the appellants under Sections 307/34 IPC appears to be just and proper which does not require any interference by this Court. 11. In the background of argument of both sides on perusal of evidence it appears that PW 4 is the informant of this case and his evidence discloses that while he was moving in the wheat field miscreants came and he has identified them as Harihar Yadav, Mahavir Yadav, Nathu Yadav, Lachuman Yadav and Jimdar Ahir and Harihar Yadav was armed with gun and others were armed with lathi and they chased them and caught hold of his brother Mohan Mahto, who was assaulted by butt portion of gun and others assaulted by lathi in the above and below eyes as well as on chest, back, neck and head by pressing lathi. This witness has given the explanation for non-examination of the witnesses Bhagwat, Menhar and Kirani Yadav as they had gone in the camp of accused persons and witness Shambhu Sah had left the place for his livelihood and Bhikhu Sah died. His evidence further discloses that his brother was taken to Bettiah for treatment where his statement was recorded and from Bettiah Hospital he was referred to PMCH, Patna. His evidence further discloses that his brother was taken to Bettiah for treatment where his statement was recorded and from Bettiah Hospital he was referred to PMCH, Patna. This witness has been cross examined at length and even in his cross examination he has stated that miscreants came from southern side and they were armed with lathi and gun and also stated in paragraphs 22 and 23 that Mohan Mahto was assaulted in his field and in paragraph 26 he has stated that after assault his brother became unconscious and appellant Harihar Yadav assaulted him by butt portion of gun on lips and cheeks. In paragraph 27 he has further stated that he was also assaulted by lathi from all around. This witness has been cross examined in order to extract that there was land dispute between the parties but defence has failed to extract that fact, rather in spite of his cross examination his evidence in chief has remained intact. 12. PW 5 is injured and his evidence discloses that at the time of occurrence he was watching the wheat crop field in the Bhatha reta along with his brother Janki Prasad (PW 4) and he saw that 12-13 buffalos were grazing in their wheat field and he drove those buffalos from his field and accused appellants came out from the sugar cane field and started chasing them and he was caught hold by the accused persons but his brother managed to flee away. He has further stated that appellant Harihar Yadav assaulted him by butt portion of gun in his hand and all the other accused persons assaulted him by lathi. Even in spite of his cross examination this witness withstood test of cross examination and his evidence is corroborated by the evidence of PW 4, informant in this case and except that he has taken another story for reason behind the occurrence that she buffalos were grazing his field and while taking the she buffalo he was chased and assaulted by the accused persons, there is nothing in his evidence to doubt his credibility. Even his evidence regarding place of occurrence is consistent to the evidence of PW 4 and moreover he is injured witness, received injuries in the occurrence. 13. Even his evidence regarding place of occurrence is consistent to the evidence of PW 4 and moreover he is injured witness, received injuries in the occurrence. 13. Apart from that, PW 3 has also been examined in this case and he appears to be an independent witness and he has supported the prosecution version and manner of assault. No doubt he does not appear to be an eye-witness as he has stated in his cross examination that when he reached the place of occurrence he saw Mohan Mahto as unconscious but in his evidence in chief he has categorically stated about the assault by the accused persons to Mohan Mahto (PW 5) and in paragraph 9 he has stated that when he reached there Janki Prasad was there and others reached there thereafter. He remained there for 10-15 minutes and when he reached there Mohan Mahto was in unconscious condition but it appears that he has supported the prosecution case in his chief and even if it is believed that he is not an eye-witness to the occurrence but his evidence disclosed that when he reached there he saw PW 5 in injured condition. 14. PW 1 is the Doctor and according to his evidence the patient was admitted in unconscious state bleeding from nose and mouth and he found the following injuries on the person of PW 5 Mohan Mahto : “1. Swelling on forehead extending to left eye lid with fracture of skull 2” x 1” 2. Swelling on front of neck 2” x ½” 3. Swelling back of chest 3” x 1” 4. Swelling back of chest left side 2” x 1” 5. Swelling back of right forearm 2” x 1” 6. Swelling front of c hest 3” x 1” 7. Swelling left thigh 4” x 1” According to Doctor, injury No.1 is grievous and injury Nos. 2 to 7 are simple in nature. The Doctor has not been cross examined by the defence. 15. I.O. has not been examined in this case. However, on perusal of evidence it appears that the place of occurrence is the wheat field of the informant and the evidence is consistent on that point and apart from that no vital contradiction or omission has been taken from the evidences of PWs. 3, 4, 5 from their earliest version and as such non-examination of I.O. does not appear to be fatal. 16. 3, 4, 5 from their earliest version and as such non-examination of I.O. does not appear to be fatal. 16. So far motive is concerned, in the fardbeyan there is motive that appellants were carrying criminal antecedents and as they were protesting against that such occurrence has taken place. Mere perusal from the evidence of PW 4 it appears that PW 4 in paragraph 11 has stated about criminal antecedents of the appellants and in paragraph 12 has stated that the accused persons wanted them to leave the land and they were threatening them also and as such it cannot be said that prosecution has not established the motive behind the occurrence. No doubt PW 5 has come with another motive as she buffalos were grazing the field and while they were taken by him to make complaint the occurrence took place but so far criminal antecedent of the accused persons is concerned, that has been stated by PW 4 and moreover in this case the eye-witnesses PWs 3 to 5 has supported the manner of occurrence and PW 5 has received injuries which is also supported by the evidence of Doctor and as such evidence of injured has taken into consideration as high pedestal than other witnesses and it cannot be brushed aside. In such view of the matter, even if it is assumed that prosecution has not established the motive, the evidence of prosecution witnesses cannot be brushed aside. 17. In such view of the matter, even if it is assumed that prosecution has not established the motive, the evidence of prosecution witnesses cannot be brushed aside. 17. Learned amicus curiae has contended that in this case no offence is made out under Section 307 IPC as even in spite of having armed with gun but portion of gun was used by appellant Harihar Yadav and others have assaulted by lathi and the Doctor has found seven injuries on the person of PW 5 and all the injuries were found to be simple in nature except one and even learned trial court has also not relied on the evidence of PW 1 so far injury No.1 as grievous is concerned in paragraph 12 and found that “non-production of X-ray report by the prosecution, no doubt, fails to prove that the injury No.1 on the person of injured was grievous in nature and charge has been framed against the accused persons not under Section 125 IPC, rather a composite charge under Section 307 IPC has been framed against all the accused persons although I find that charge-sheet has been submitted in this case under Sections 307, 325, 323/34 IPC.” 18. From perusal of the entire evidence, as discussed above, it appears that one of the appellants was armed with gun but prosecution story is that PW 5 was assaulted by butt portion of the gun on chick as such it is clear that he has used the butt portion for assaulting him and not fired at the PW 5 and there is also allegation of assault by lathi and Doctor has found one injury on head is grievous and others are simple in nature but in absence of X-ray or any paper and he was admitted for 28 days in PMCH, even learned trial court has doubted the finding that injury No.1 is grievous in nature, in such view of the matter it cannot be said that intention of the accused persons was to kill the injured and even the charge under Section 325 IPC against the accused appellants is proved, in such view of the matter, to my opinion, the prosecution has not been able to establish its case under Section 307 IPC against the appellants and at best they can be found guilty under Section 323 IPC. In view of above fact, the conviction of the appellants under Section 307 IPC is modified to the conviction under Section 323 IPC. 19. So far sentence is concerned, learned amicus curiae has submitted that appellants remained in custody for about two months and the occurrence is 30 years old and as such they deserve leniency and they have suffered rigor and agony for long 30 years. 20. On perusal of record I find that the case is of 30 years old and as such the sentence under Section 323 IPC is modified to the period already undergone by the appellants. 21. With the above modification in the conviction and sentence, the appeal is disposed of.