JUDGMENT : KAILASH PRASAD DEO, J. 1. The appellant No. 2, Sishupal Baski died in March, 2014, as such, the criminal appeal preferred by him stands abated. The present Criminal Appeal which has been preferred by eight appellants including Sishupal Baski (appellant No. 2) is now pending with respect to seven appellants, Rasik Baski, Dudulal Baski, Bisheshwar Baski, Bhola Baski, Rupai Baski, Rup Lal Baski and Bhajan Baski. Heard, Mr. Nityanand Choudhary learned counsel appearing for the appellants and Mr. Suraj Mohan, 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 28.09.2004, passed by the learned 3rd Additional Sessions Judge, Fast Track Court, Jamtara, in Sessions Case No. 494 of 1992 and 154 of 2002, whereby, the appellants have been convicted for the offence committed and punishable under Sections 307 read with 149 I.P.C. and also for the offence committed and punishable under Sections 325 as well as 149 I.P.C. and awarded rigorous imprisonment for seven years for the offence committed and punishable under Sections 307/149 I.P.C. and a fine of Rs. 1,000/- each and in default of payment of fine, the accused shall further undergo simple imprisonment for six months and the convicts have also been awarded rigorous imprisonment for three years for the offence committed and punishable under Sections 325/149 I.P.C. and all the sentences are directed to run concurrently. 3. The prosecution case is based upon, the fardbeyan of the informant, Poldar @ Pollar Baski, recorded by A.S.I. Jamtara Police Station on 23.07.1991 at 9 p.m. at Jamtara Hospital, wherein the informant has alleged that in the morning at 7 a.m. on 23.07.1991 when the informant went to see his paddy field, he saw the accused persons, Dudulal Baski, Sishulal Baski, Bisheswar Baski, Bhola Baski and Rup Lal Baski were ploughing his field. The informant asked them not to do so. Thereafter all the accused persons abused him and gave threatening with dire consequences. When the informant asked them not to abuse nor plough his field, then Rasik Baski having lathi, Bhajan Baski having ballam, Rup Lal Baski having axe (tangi), Bhola Baski having lathi, Bisheshwar Baski having lathi, Sishulal Baski having lathi, Rupai Baski having lathi and Dudulal Baski having lathi came and started assaulting the informant. When the informant asked them not to abuse nor plough his field, then Rasik Baski having lathi, Bhajan Baski having ballam, Rup Lal Baski having axe (tangi), Bhola Baski having lathi, Bisheshwar Baski having lathi, Sishulal Baski having lathi, Rupai Baski having lathi and Dudulal Baski having lathi came and started assaulting the informant. Rasik Baski by means of lathi and Bhajan Baski by means of ballam assaulted on the head of the informant and other parts of the body. On brawl raised by the informant, his son, Kunji Ram Baski came along with his brother, Bhokta Baski, who were also assaulted by the above named accused persons by means of lathi, axe and Ballam on head and other parts of the body. The accused persons were shouting that today all the three will be killed. The informant has alleged that because of the assault, his son, Kunji Ram Baski got injury on his left leg and his brother, Bhokta Baski has suffered fracture injury on his right hand. On brawl raised by the informant, co-villagers came then accused persons fled away. The informant has alleged that the above-named accused persons have committed this occurrence as litigation is going on between the parties, but the accused persons are trying to cultivate the land which is in possession of the informant. 4. On the basis of fardbeyan of the informant, the Police registered First Information Report bearing Jamtara P.S. Case No. 111 of 1991, dated 23.07.1991, corresponding to G.R. No. 248 of 1991 under Sections 147, 148, 149, 307, 325, 324 and 323 of the Indian Penal Code against the accused persons. 5. After investigation, the Police submitted charge-sheet against accused/appellants vide Charge-sheet No. 66 of 1991 dated 21.11.1991 under Sections 307, 325, 147, 148, 149 and 323 I.P.C. 6. The cognizance of the offence has been taken against the accused/ appellants vide order dated 30.11.1991 and case has been committed to the Court of Sessions vide order dated 10.09.1992. The charge has been framed against the eight accused/appellants under Sections 148, 325/149 and 307/149 vide order dated 11.05.2004, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution has examined altogether five prosecution witnesses and also exhibited a number of documents up-to Exhibit-5 to prove its case beyond all reasonable doubt against the appellants. 7. The prosecution has examined altogether five prosecution witnesses and also exhibited a number of documents up-to Exhibit-5 to prove its case beyond all reasonable doubt against the appellants. Kunji Ram Baski S/o the informant and an injured witness has been examined as PW-1, Bhokta Baski, brother of the informant and an injured witness has been examined as PW-2, Noor Mohammad, an independent witness has been examined as PW-3, Dr. A.K. Chakarvorty, the Medical officer, has been examined as PW-4, who has examined Poldar @ Pollar Baski (informant), his brother. Bhokta Baski (PW-2) and Kunji Ram Baski (PW-1) S/o the informant and an injured witnesses of the case and Dasrath Kisku, another independent witness has been examined as PW-5. 8. After closure of the prosecution evidence, the accused/appellants have been examined under Section 313 Cr.P.C. on 21.09.2004, wherein they have denied about their involvement in the occurrence and has stated that they have falsely been implicated in this case, as decree has been passed in favour of them with respect to the land, in question. But no defence witness or documentary evidence has been adduced on behalf of the accused/defence. 9. The learned trial court, after hearing learned counsel for the parties and perusing the records, has passed the impugned judgment of conviction and order of sentence, as stated above, which has been assailed by the appellants in the present Criminal Appeal. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court. 10. Heard, Mr. Nityanand Prasad Choudhary, learned counsel appearing for the appellants. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that non-examination of the Investigating officer has caused serious prejudice to the appellants, as the appellants could not get an opportunity to cross-examine him to elucidate the fact, to disbelieve the prosecution case. Learned counsel for the appellants has further submitted that the informant of this case has also not been examined, as he has died during trial of the case. Learned counsel for the appellants has further submitted that the informant of this case has also not been examined, as he has died during trial of the case. Learned counsel for the appellants has further submitted that the Doctor has neither found any sharp-cut injury or penetrating injury on the person of the victim nor the Doctor has opined that in normal circumstances any of the injuries caused upon the injured are sufficient for death of the person, as such, conviction of the appellants under Section 307 I.P.C. cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted that one grievous injury was found on the person of injured (PW-1) that too on his leg, which is a fracture injury, as such, conviction of the appellants under Sections 307/149 I.P.C. cannot sustain in the eyes of law. The occurrence took place in the year 1991 and the appellants have faced rigours of trial for more than 26 years and the occurrence has taken place between the agnates, as such, the benefit of doubt may be extended in favour of the appellants, with whom the informant has land dispute. 11. Heard, Mr. Suraj Mohan, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed upon the material available on record, as such, the learned trial court has rightly convicted the appellants. Learned counsel for the State has vehemently argued this case and submitted that these three injured persons, namely, Poldar @ Pollar Baski, informant of the case, his son, Kunji Ram Baski (PW-1) and his brother, Bhokta Baski (PW-2), have been examined by the Dr. A.K. Chakarvorty (PW-4), who has proved the injury report of Prahalad @ Poldar @ Pollar Baski as Exhibits-2, injury report of Bhokta Baski as Exhibit-2/1 and injury report of Kunji Ram Baski as Exhibit-2/2. Five injuries were found on the person of the informant, for which X-ray was advised and as per the X-ray report dated 24.07.1991, fracture of 5th Metacarpal bone was found which was grievous in nature and all the other injuries were simple in nature caused by hard and blunt substances. Dr. Five injuries were found on the person of the informant, for which X-ray was advised and as per the X-ray report dated 24.07.1991, fracture of 5th Metacarpal bone was found which was grievous in nature and all the other injuries were simple in nature caused by hard and blunt substances. Dr. A.K. Chakarvorty (PW-4) has also examined the brother of the informant and another injured of the case, Bhokta Baski (PW-2) and found four injuries and as per the x-ray report dated 24.07.1991, injury nos. (ii) and (iii) are grievous in nature caused by hard and blunt substance. X-ray report of Bhokta Baski has been proved and marked as Exhibit-1. Dr. A.K. Chakarvorty (PW-4) has also examined son of the informant, Kunji Ram Baski and found altogether six injuries and on the basis of x-ray report, there was fracture of knee. Doctor has proved x-ray plate of Kunji Ram Baski (PW-1) as Exhibit-1/1 and has opined that injury No. (v) on the left hand and injury No. (vi) on the left knee are grievous in nature and the other injuries are simple in nature caused by hard and blunt substances. The injury reports of the informant, his son, Kunji Ram Baski and his brother, Bhokta Baski have been proved and marked as Exhibit-2, 2/2 and 2/1 respectively. Learned counsel appearing for the State has submitted that the hand-writing and the signature of Karmchari on the rent receipt issued in the year 1990-91, 1991-92, namely, Nand Lal Yadav have been proved and marked as Exhibit-3 and Exhibit-3/1 and the signature of the Gram-Sewak, Narayan Chanda on rent receipt for the year 1975-76 and 1978-79 have been proved and marked as Exhibits-3/2 and 3/3 respectively. The hand-writing and signature of the then Officer-in-Charge, Jamtara Police Station on the Formal First Information Report has been proved and marked as Exhibit-4 with objection. Entire fardbeyan recorded by A.S.I. has been proved and marked as Exhibit-5 with objection. Learned counsel for the State, has thus submitted that no prejudice has been caused to the appellants because of non-examination of the Investigating officer and the learned trial court has rightly convicted the appellants under Sections 307/149 and 325/148 I.P.C. 12. After hearing learned counsel for the appellant, Mr. Nityanand Prasad Choudhary and Mr. Learned counsel for the State, has thus submitted that no prejudice has been caused to the appellants because of non-examination of the Investigating officer and the learned trial court has rightly convicted the appellants under Sections 307/149 and 325/148 I.P.C. 12. After hearing learned counsel for the appellant, Mr. Nityanand Prasad Choudhary and Mr. Suraj Verma, learned Additional Public Prosecutor appearing for the State, perused the entire records, such as, the First Information Report, framing of charge, evidence of five prosecution witnesses, five prosecution exhibits, the statement of the appellants recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. From mere perusal of the First Information Report and the medical reports which have been proved and marked as Exhibit-2 series by Dr. A.K. Chakarvorty (PW-4), there is no evidence that these appellants have assaulted the informant by lethal weapon on the vital part of the body which could lead to the death of the person, rather the Doctor (PW-4) during his cross-examination, has categorically stated that he did not find any sharp and penetrating wound, as such, there is no mens rea on the part of the appellants to commit murder of the informant and his relatives, who are injured of this case. Had it been so, there was no impediment for the appellants in committing such offence, as they were armed with deadly weapons. They were eight in numbers and prosecution party were three in numbers. The appellants, without having any intention, assaulted the prosecution party in land dispute and, as such, conviction of the appellants under Section 307/149 I.P.C. cannot sustain in the eyes of law, as Doctor (PW-4) has also stated that none of the injury caused upon the victim is sufficient for death of injured. 13. Accordingly, the conviction of the appellants under Section 307/149 is hereby set aside, upholding conviction under Sections 325/149 I.P.C. passed by the learned trial Court and this Court is modifying the sentence, awarded by the learned trial court, as period already undergone by the appellants, which is approximately three months with a fine of Rs. 10,000/- (Rupees Ten Thousand) each i.e. a sum of Rs. 70,000/- to be deposited by the appellants within a period of six weeks, from the date of receipt of a copy of this judgment. 10,000/- (Rupees Ten Thousand) each i.e. a sum of Rs. 70,000/- to be deposited by the appellants within a period of six weeks, from the date of receipt of a copy of this judgment. On deposit of the aforesaid amount, the learned trial court will issue notice to the victims, Kunji Lal Baski, Bhokta Baski and the informant, Poldar @ Pollar Baski or their heirs or successours in case any of them is not available and after due verification, a sum of Rs. 30,000/- shall be paid to victim (Kunji Ram Baski PW-1) or his legal heir, 20,000/- to Bhokta Baski or his legal heirs and Rs. 20,000/- to legal heirs or successours of Poldar @ Pollar Baski (informant). 14. Thus, in the result, the present Criminal Appeal is dismissed with modification, as stated above by setting aside the conviction under Section 307/149 I.P.C. and upholding conviction under Section 325/149 I.P.C. and also modifying the sentence from rigorous imprisonment for three years to the period already undergone by the appellants subject to the conditions that the each appellant will deposit Rs. 10,000/- before the learned trial court, to be paid to the victims within six weeks from the date of receipt of a copy of this judgment. 15. The bail bonds of the appellants are hereby cancelled to comply with the order/ judgment of this Court. 16. The learned trial court will not take any coercive step against the appellants within six weeks from the date of receipt of a copy of this judgment failing which, the trial court is directed to take all coercive steps to secure attendance of the appellants to serve rigorous imprisonment for three years, as awarded by the learned Trial Court. 17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal dismissed.