JUDGMENT : 1. Heard, learned counsel for the appellants, Mr. Rohit Kumar Agrawal assisted by Mr. Arvind Kumar Choudhary, Advocates and Mr. Ashok Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 09.01.2004, passed by the learned Additional Sessions Judge, Fast Track Court No.3, Deoghar, in Sessions Case No.127 of 1998/121 of 2002, whereby all these seven appellants namely, 1. Baldeo Goswami, 2. Gauri Goswami, 3. Mahendra Goswami, 4. Thakur Goswami, 5. Sitaram Goswami, 6. Padu Goswami and 7. Srikant Goswami have been convicted for the offence committed and punishable under Sections 323/149 of the Indian Penal Code and all the convicts are directed to be released on their entering into bond of Rs.5000/-with one surety each and maintaining peace and good behavior for one year under Section 4(i) of Probation of offenders act, failing which they will be liable for punishment, in accordance with law. The appellant No.5 Baldeo Goswami died during pendency of the appeal, and his appeal has been abated vide order dated 28.06.2018, passed by this Hon’ble Court. 3. The prosecution case is based upon fardbeyan of Banku Goswami (P. W. 8) recorded by Sub-Inspector of police, K. Kumar, Officer In-charge of Sonaretharhi Police Station, on 26.02.1997, at 19.00 hrs, wherein the informant has alleged, that at around 4:00 P.M., while the informant was at Jara Tola, he heard the brawl of altercation, between his sister Rambha Devi (P.W.1) and his wife Savitri Devi. Upon hearing brawl, the informant rushed to his house and saw his father-in-law, Bhola Goswami having lathi, Sitaram Goswami having Bhala, Gauri Goswami, Mahendra Goswami and Baldeo Goswami having lathi in their hands, Srikant Goswami having lathi, Thakur Goswami having barcha and Padu Goswami having lathi came running there and at the instance of Bhola Goswami, Sitaram Goswami assaulted sister of the informant Rambha Devi by means of Bhala on her head, Gauri Goswami and Srikant Goswami assaulted Rambha Devi by means of lathi on her wrist, causing injury, Padu Goswami and Gauri Goswami assaulted the informant by means of lathi on his head and Thakur Goswami assaulted the informant by means of barcha on his leg, causing injury. On brawl, neighbour Mouji Goswami, his mother Kolho Devi and his wife Savitri Devi came there for rescue of the informant and his sister upon which, Sitaram Goswami assaulted Savitri Devi by means of Bhala on her forehead and Gauri Goswami assaulted Savitri Devi by means of lathi on her wrist causing injury. Bhola Goswami assautlted Mouji Goswami by means of lathi on her back causing injury and Baldeo Goswami assaulted Kolho Devi by means of lathi on her back and wrist causing injury. Gajadhar Goswami, Andu Mahto, Keso Mahto and Patit Goswami have witnessed the occurrence. 4. On the basis of the fardbeyan of the informant, the Police instituted First Information Report bearing Sarwan P.S. Case No. 25 of 1997, dated 27.02.1997, under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. 5. After investigation, the police submitted charge sheet vide charge sheet no. 11 of 1997, dated 30.04.1997, under Sections 147, 148, 149, 323, 325 and 307 of the Indian Penal Code against all the eight accused persons. 6. The cognizance of the offence has been taken vide order dated 11.12.1997 and the case has been committed to the Court of Sessions vide order dated 16.07.1998. Accused Bola Goswami has died during the pendency of the trial, as such, his case has been dropped vide order dated 18.09.2002. 7. The learned trial Court has framed charge against the accused persons, on 25.10.2002, under Sections 147 and 307/149 of the Indian Penal Code, to which the accused persons have pleaded their innocence and stated that, they have been falsely implicated in this case and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether eight witnesses and also exhibited a number of documentary evidence. Rambha Devi (sister of the informant and injured of this case) has been examined as P. W. 1, Gajadhar Goswami has been examined as P. W.2, Keso Mahto has been examined as P. W.3, Patit Pawan Goswami has been examined as P. W.4, Mouji Goswami has been examined as P. W.5, Kolho Devi has been examined as P. W. 6, Andu Mahto has been examined as P. W. 7, (all these witnesses from P.W.2 to P.W. 7 have been declared hostile by the prosecution) and Banku Goswami (informant of the case) has been examined P. W. 8. The signature of Banku Goswami (P.W.8), on the fardbeyan, has been proved and marked as exhibit 1, signature of Gajadhar Goswami (P.W.2), on the fardbeyan, has been proved and marked as exhibit 1/1 and signature of Patit Pawan Goswami (P.W.8), on the fardbeyan, has been proved and marked as exhibit 1/2. 9. After closure of the prosecution evidence the statement of the appellants have been recorded under Section 313 Cr.P.C., on 16.12.2003, to which the appellants have denied about the occurrence and they have pleaded that, because of enmity they have been falsely implicated in this case. 10. No defence witness or documentary evidence has been adduced on behalf of the appellants. 11. After hearing learned counsel for the parties and from the material available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence, both dated 09.01.2004 against the appellants namely, Gauri Goswami @ Gauri Shanker Goswami, Sitaram Goswami, Mahendra Goswami, Srikant Goswami, Baldeo Goswami, Thakur Goswami and Padu Goswami. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order sentence, the present criminal appeal has been preferred by the appellants, assailing the impugned judgment of conviction and order of sentence, before this Hon’ble Court. Seven appellants have been preferred the instant criminal appeal and during the pendency of appeal, Baldeo Goswami has died and no application for grant of leave has been filed, either by his legal heirs or relative within 30 days of death, under Section 394 Cr.P.C., as such, the appeal of Baldeo Goswami has been abated by this Hon’ble Court vide order dated 28.06.2018. 12. Heard, learned counsel for the appellants, Mr. Rohit Kumar Agrawal assisted by Mr. Arvind Kumar Choudhary, Advocates. Learned counsel for the appellants has submitted, that impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as P. W. 2 to P. W. 7 have been declared hostile by the prosecution, only P. W. 1 (Rambha Devi) and P. W. 8 (Banku Goswami, informant of the case) have adduced contradictory evidence on behalf of the prosecution. The learned counsel for the appellants has further submitted, that the investigating officer and medical officer, who has examined the victims, have not been examined in this case and the appellants have seriously been prejudiced for non-examination of investigating officer and medical officer. The learned counsel for the appellants has further submitted, that the investigating officer and medical officer, who has examined the victims, have not been examined in this case and the appellants have seriously been prejudiced for non-examination of investigating officer and medical officer. Learned counsel for the appellants has further submitted, that non-examination of investigating officer has caused serious prejudice to the appellants, as the appellants could not get an opportunity to cross-examine the investigating officer to elucidate the fact with respect to the place and manner of occurrence, to prove their innocence. Learned counsel for the appellants has further submitted, that the signature of the informant, on the fardbeyan, has been proved and marked as exhibit 1 but contents of the fardbeyan has not been exhibited in this case. Learned counsel for the appellants has further submitted, that there is contradiction in the evidence of P. W. 1 and P. W. 8 and learned trial Court without scrutinizing the evidence, convicted the appellants under Sections 323/149 of the Indian Penal Code, where the investigating officer and medical officer have not been examined. Learned counsel for the appellants has further submitted, that under the aforesaid facts and circumstance of the case, the appellants may be acquitted of the charge and conviction under Sections 323/149 of the Indian Penal Code. 13. Heard, Mr. Ashok Kumar, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence is well founded and is based on the material available on record. Leaned counsel for the State, has further submitted, that non-examination of the investigating officer has not caused any prejudice to the appellants, as there is no dispute with respect to the place of occurrence and manner of occurrence and these two witness P. W. 1 (Rambha Devi) and P. W. 8 (Banku Goswami) have been assaulted by these appellants/accused persons by forming an unlawful assembly as such, the learned trial Court has rightly convicted the appellants under Sections 323/149 of the Indian Penal Code, as the injuries were found simple in nature, although not brought on record. Learned counsel for the State has further submitted, that learned trial Court has rightly convicted the appellant under Sections 323/149 of the Indian Penal Code by passing the impugned judgment of conviction and order of sentence as such, this Court may not interfere in the impugned judgment of conviction and order of sentence at this stage. 14. Heard, learned counsel for the appellants, Mr. Rohit Kumar Agrawal assisted by Mr. Arvind Kumar Choudhary, Advocates and Mr. Ashok Kumar, learned Additional Public Prosecutor appearing for the State, and perused the record, i.e. fardbeyan, framing the charge, evidence of eight witnesses, exhibits and the statement of the appellants recorded under Section 313 Cr. P.C. From perusal of evidence on record, this Court is of the opinion, that there is an assault made by these appellants/accused persons upon the informant, P. W. 8 (Banku Goswami) and his sister P. W. 1 (Rambha Devi) and their evidence are consistent to the prosecution case. Other witnesses from P. W. 2 to P. W. 7, out of which P. W. 4, (Patit Pawan Goswami), P. W. 5 (Mouji Goswami) and P. W. 6(Kolho Devi) are injured witnesses, have been declared hostile by the prosecution. The evidence of P. W. 1 (Rambha Devi) and P. W. 8 (Banku Goswami) have remained intact, even though lengthy cross-examination has been made by the defence but nothing has been brought on record to elucidate the fact, that prosecution has brought a false case against the appellants by falsely implicating them. This Court is of the opinion that learned trial Court has rightly convicted the appellants under Sections 323/149 of the Indian Penal Code, as five or more persons have been assembled to commit such offence by forming an unlawful assembly, which has been defined under Section 141 of the Indian Penal Code and they have assaulted the prosecution party, although the investigating officer and medical officer have not been examined in this case. 15. Under the aforesaid circumstance and the discussions made herein above, this Court is of the opinion, that the impugned judgment of conviction and order of sentence, both dated 09.01.2004, passed by the learned Additional Sessions Judge, Fast Track Court No.3, Deoghar, in Sessions Case No.127 of 1998/121 of 2002, under Sections 323/149 of the Indian Penal Code is hereby upheld and affirmed. 16. In the result, the aforesaid criminal appeal stands dismissed. 17. 16. In the result, the aforesaid criminal appeal stands dismissed. 17. Learned counsel for the appellants has further submitted that, instead of directing them to execute a bond of Rs. 5000/-after lapse of 14 years, from the date of impugned judgment and the said order has also been stayed by this Hon’ble Court, on 22.04.2004, it would be appropriate to release the appellants after due admonition, exercising power under Section 3 of the Probation of Offenders Act, 1958. 18. Considering the circumstance of the case including the nature of offence and character of the Offender, this Court, instead of directing them to execute a bond of Rs. 5,000/-each, after 14 years, the appellants be released after due admonition exercising power Under Section 3 of the Probation of Offenders Act, 1958. Considering the above facts, this Court is modifying the sentence by directing the appellants to appear before the trial Court within a period of six weeks from today and the trial Court shall release them after due admonition, as mentioned Under Section 3 of the Probation of Offenders Act, 1958. 19. In the result, the instant criminal appeal stands dismissed with modification. 20. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.