JUDGMENT : Heard, Mr. Anand Kumar Sinha, learned counsel for the appellants [in Crl. Appeal 430 of 2004] and Mr. Arvind Kumar Chaudhary assisted by Mr. Shambhu Nath Tiwari, learned counsel for the petitioner [in Crl. Revision 375 of 2004] and Mr. Sanjay Kumar pandey, learned Additional Public Prosecutor appearing for the State. 2. The present Criminal Appeal and Criminal Revision application have been preferred against the common impugned judgment of conviction and order of sentence, as such, both are being heard together and disposed of, by this common judgment. 3. Both Criminal Appeal and Criminal Revision application have been arising out of common Judgment of conviction dated 12.02.2004 and order of sentence dated 19.02.2004, passed by the learned Additional Sessions Judge (Fast Track Court No.II) Deoghar, in Sessions Case No.219 of 2002. The aforesaid four appellants have preferred present Criminal Appeal for setting aside the impugned judgment of conviction and order of sentence passed against them under Sections 447, 323, 325/34 I.P.C. and awarded imprisonment for three months for the offence committed and punishable under Section 447 I.P.C., imprisonment for one years for the offence committed and punishable under Section 323 I.P.C. and rigorous imprisonment for five years with a fine amount of Rs.3,000/-for the offence committed and punishable under Section 325 I.P.C. and in case of default in payment of fine, the accused/appellants shall undergo six months further imprisonment. All the sentences are directed to run concurrently. However, the informant has preferred the Criminal Revision No.375 of 2004 against the impugned judgment of conviction and order of sentence for enhancement of conviction to the opposite parties, who are the appellants in Crl. Appeal (SJ) No.430 of 2004. 4. The prosecution case, is based upon, the written report submitted by the informant, Jahangir Mian (P.W.5) before the Officer-in-Charge, Palajori Police Station on 01.09.2001, wherein the informant has alleged that today i.e. 01.09.2001 in the morning at 7 a.m., the informant along with his elder brother, Shakil Ansari and younger brother, Nasib Ansari went to the paddy field and saw Ismail Mian (appellant no.3) was ploughing his field and also claiming ownership over the same. When the informant claimed the land and asked the accused not to plough the same, altercation took place. When the informant claimed the land and asked the accused not to plough the same, altercation took place. In the meantime, Abbas Mian (appellant no.1) assaulted the elder brother of the informant, Shakil Ansari by means of axe on his head 2 to 3 times, due to which, Shakil Ansari sustained grievous injury and fell down on the ground. It is further alleged that Ismail Mian knowing that Shakil Ansari has not died, asked the accused persons to kill him and thereafter taking iron rod in his hand, assaulted Shakil Ansari by means of iron rod 2 -3 times on his head. Thereafter Harun Mian (appellant no.4) with an intention to kill, assaulted Shakil Ansari by means of lathi on his head and other parts of the body. The informant has also alleged that his younger brother has also sustained injury on the head and on the back by means of lathi and fled away towards the village considering his elder brother to be dead because of the assault made by four persons. On brawl, co-villagers came and thereafter all the four accused persons fled away. The informant saw his brother in pool of blood and in an unconscious state, brought him to the Hospital along with his younger brother. 5. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report bearing Palajori P.S. Case No. 64 of 2001, dated 01.09.2001, corresponding to G.R. No.349 of 2001 under Sections 447/323/325/326/307/34 of the Indian Penal Code against the four named accused persons. 6. After investigation, the Police submitted charge-sheet against the four accused/appellants vide Charge-sheet No.73 of 2001 dated 30.09.2001 under Sections 447/323/325/307/504/34 I.P.C. 7. The cognizance of the offence has been taken against accused/appellants vide order dated 11.10.2001 and case has been committed to the Court of Sessions 17.09.2002. 8. The charge has been framed by the learned trial court vide order dated against all the four accused persons, namely, Ismail Mian, Abbas Mian, Alam Ansari and Harun Mian vide order dated 26.11.2002 under Sections 447/323/325/504/34 I.P.C., to which they have pleaded their innocence and thus, they were put for trial. 9. The prosecution has examined altogether ten prosecution witnesses and also exhibited a number of documentary evidence up-to Exhibit-9 and Material Exhibits as I to I/2. Karamat Mian has been examined as P.W.1, Matauddin Mian has been examined as P.W.2, Dr. 9. The prosecution has examined altogether ten prosecution witnesses and also exhibited a number of documentary evidence up-to Exhibit-9 and Material Exhibits as I to I/2. Karamat Mian has been examined as P.W.1, Matauddin Mian has been examined as P.W.2, Dr. Dilip Kumar Keshari, Medical officer, has been examined as P.W.3, Nasib Ansari has been examined as P.W.4, Md. Jahangir Mian, informant of the case, has been examined as P.W.5, Nizam Mian has been examined as P.W.6, Dr. Yusuf Ansari, a Private Doctor, has been examined as P.W.7, Md. Shakil Ansari has been examined as P.W.8, Siya Ram Mishra, A.S.I. and Investigating officer of the case, has been examined as P.W.9 and Dr. Ram Lakhan Prasad Singh has been examined as P.W.10. One Court witness, namely, Sri Ballabh Deo has also been examined in this case. Two Injury Reports issued by Dr. Dilip Kumar Keshari (P.W.3) have been proved and marked as Exhibit-1 and 1/1, Other two Injury Reports issued by Dr. Yusuf Ansari (P.W.7) have been proved and marked as Exhibit-1/2 and 1/3', signature of informant, Jahangir Mian on the fardbeyan' has been proved and marked as Exhibit-2, Three X-ray Plates and X-ray reports have been marked as X to X/4 for identification, signature of Officer-in-Charge on fardbeyan has been proved and marked as Exhibit-3, First Information Report has been proved and marked as Exhibit-4, Police Case diary has been proved and marked as Exhibit-5, X-ray report has been proved and marked as Exhibit-6, Three X-ray Plates have been proved and marked as Material Exhibits – I, I/1, I/2, agreement (Patta) has been proved and marked as Exhibit-7, Revenue receipts have been proved and marked as Exhibit-8 to 8/5 and Certified copy of the order dated 20.09.2001 passed by the learned Sub Divisional Magistrate, Madhupur, has been proved and marked as Exhibit-9. 10. After closure of the prosecution evidence, the accused/appellant has been examined under Section 313 Cr.P.C. on 12.09.2003, wherein they have denied allegation against them. Thereafter the defence has also examined three witnesses, but have not exhibited any documentary evidence. Ishhaque Mian has been examined as D.W.1, Madhusudan Yadav has been examined as D.W.2 and Akshay Kumar Yadav has been examined as D.W.3 11. Thereafter the defence has also examined three witnesses, but have not exhibited any documentary evidence. Ishhaque Mian has been examined as D.W.1, Madhusudan Yadav has been examined as D.W.2 and Akshay Kumar Yadav has been examined as D.W.3 11. 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/appellant has preferred the present Criminal Appeal before this Hon'ble Court. The informant, Jahangir Mian being aggrieved at, by lesser punishment awarded to the appellants, preferred Criminal Revision No.375 of 2004 for enhancement in the conviction and sentence. 12. Heard, Mr. Anand Kumar Sinha, learned counsel for the appellants [in Crl. Appeal 430 of 2004] and Mr. Arvind Kumar Choudhary assisted by Mr. Shambhu Nath Tiwari, learned counsels for the petitioner [in Crl. Revision 375 of 2004]. Learned counsel for the appellants has submitted, that the 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 there is free fight between the parties and initially the injured persons were examined by the Doctor (P.W.3-Dr. Dilip Kumar Keshari), who has found the injuries on the person of Shakil Ansari, eight in numbers. Learned counsel for the appellants has further submitted that the Doctor has opined that all the injuries are simple in nature and proved the injury report as Exhibit-1. This witness (P.W.3-Dr. Dilip Kumar Keshari) has also examined injured, Nasim Ansari and found three injuries on the person, but were also simple in nature, caused by hard and blunt substances and the injury report has been proved and marked as Exhibit-1/1. The Doctor (P.W.3) has been cross-examined by the defence, wherein this witness has categorically stated that he has not found any injury to be fatal in nature. Learned counsel for the appellants has further submitted that P.W.3 (Dr. Dilip Kumar Keshari) has not referred the injured persons for better treatment, but the patient obtained a forged injury report, which has been brought on record, by a private Doctor, Dr. Learned counsel for the appellants has further submitted that P.W.3 (Dr. Dilip Kumar Keshari) has not referred the injured persons for better treatment, but the patient obtained a forged injury report, which has been brought on record, by a private Doctor, Dr. Yusuf Ansari (P.W.7), who has found three injuries on the person of injured, Nasim Ansari, the first injury being stitched wound on the occipital region of head. The another injury report of Shakil Ansari was also brought on record, where this Doctor (P.W.7) has found seven injures, out of which four injuries were found to be stitched wound and proved the injury reports as Exhibit-1/2 and 1/3 and the X-ray plates have been exhibited as X/1, X/2 and X/3 for identification. Learned counsel for the appellants has further submitted that these injury reports are contradictory to each other, as such, the appellants have been wrongly convicted by the learned trial court under Section 325/34 I.P.C. Learned counsel for the appellants has further submitted that there was a free fight between the parties and it was owing to a land dispute between the agnates and as such, the appellants may be given benefit of doubt, as they have suffered rigour of trial for approximately 17 long years. 13. Heard, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor appearing for the State assisted by Mr. Arvind Kumar Choudhary on behalf of the informant. Learned Additional Public Prosecutor appearing for the State assisted by learned counsel for the informant, 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 informant appearing in Cr. Revision No.375 of 2004, has submitted that since the injuries were grievous in nature and there are repetition of blow, the appellants ought to have been convicted under graver Sections and the punishment awarded to them be enhanced. 14. Heard Mr. Anand Kumar Sinha, learned counsel appearing for the appellants in Crl. Appeal (SJ) No.430 of 2004 and Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor appearing for the State assisted by Mr. Arvind Kumar Choudhary, learned counsel for the informant and for the petitioner in Criminal Revision No.375 of 2004. 14. Heard Mr. Anand Kumar Sinha, learned counsel appearing for the appellants in Crl. Appeal (SJ) No.430 of 2004 and Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor appearing for the State assisted by Mr. Arvind Kumar Choudhary, learned counsel for the informant and for the petitioner in Criminal Revision No.375 of 2004. This Court has perused the records of the case i.e. First Information Report, framing of charge, evidence of ten prosecution witnesses, prosecution exhibits, and statement of the appellants recorded under Section 313 Cr.P.C. and evidence of defence witness as well as the impugned judgment of conviction and order of sentence. This Court has also perused the the evidence brought on record and the material available on record. It appears that the Doctor of a Government Hospital who has been examined as P.W.3 (Dr. Dilip Kumar Keshri) has categorically mentioned about the injuries found on the injured persons caused by hard and blunt substances and those were simple in nature. Doctor (P.W.3) has never referred the injured persons for better treatment to a private Medical institution or higher Medical institution. Without any reason and rhyme and in contrary to the Police requisition and against injury report issued by the Government Doctor, a concocted injury report has been obtained from a Private Doctor (P.W.7 – Dr. Yusuf Ansari), who has found one injury as stitched wound on the occipital region of the head on the person of the injured, Nasib Ansari caused by hard and blunt substance like 'lathi' and four injures on person of the injured, Shakil Ansari to be stitched wound, which are contrary to the record of the prosecution. If such vital contradictions have emerged in the prosecution case, then the prosecution case seems to be doubtful and benefit of doubt must go in favour of the appellants, as the prosecution has tried to develop the prosecution case by bringing some materials on record which are not in consonance with the investigation. Siya Ram Mishra, investigating officer of the case has been examined as P.W.9. He has categorically admitted during cross-examination that he had issued medical requisition for medical examination at Government Hospital, but he has not referred the injured persons before the private doctor as Dr. Yusuf Ansari (P.W.7) This Court has scrutinized the evidence of witnesses, Karamat Mian (P.W.1), Matauddin Mian (P.W.2), Nasib Ansari (P.W.4), Md. Jahangir Mian (P.W.5), Nizam Mian (P.W.6) and Md. Yusuf Ansari (P.W.7) This Court has scrutinized the evidence of witnesses, Karamat Mian (P.W.1), Matauddin Mian (P.W.2), Nasib Ansari (P.W.4), Md. Jahangir Mian (P.W.5), Nizam Mian (P.W.6) and Md. Shakil Ansari (P.W.8). From perusal of the evidence of the informant (P.W.5 Jahangir Mian), it appears that there are contradictions in the evidence of the informant and injured witnesses, but those contradictions are not fatal for the prosecution case. Those are minor as there is consistency of evidence with regard to assault made on the injured, Shakil Ansari and Nasib Ansari. This Court is of the opinion that in absence of any material to constitute an offence under Section 307 I.P.C., the learned trial court has rightly acquitted the appellants from the charge and conviction under Section 307 I.P.C. and learned counsel for the informant has also not pointed out any material to show that these appellants have intention to kill the injured persons, as such, Criminal Revision No.375 of 2004 which has been preferred by the informant for enhancement of sentence is hereby dismissed. So far conviction of the appellants under Section 325/34 I.P.C. is concerned, in view of evidence of P.W.3 (Dr. Dilip Kumar Keshri) who has proved the injury report of Shakil Ansari as Exhibit-1 and injury report of Nasib Ansari as Exhibit-1/1, this Court has reason to believe that, without referring by the original Doctor, who has treated the injured persons and found simple injury, P.W.7 (Dr. Yusuf Ansari), a private Practitioner has been examined in this case, who gave a report of grievous injury to Shakil Ansari which is not acceptable to this Court, as the Investigating officer (P.W.9 – Siya Ram Mishra) has categorically stated during his cross-examination that he has never sent the injured persons before P.W.7 (Dr. Yusuf Ansari), a private Practitioner, as such, this Court is not satisfied with the conviction of the appellants under Sections 325/34 I.P.C. and convicted the appellants under Section 323 I.P.C. 15. In the result, the conviction of the appellants under Sections 447 and 323 I.P.C., is upheld and affirmed by this Court. 16. Yusuf Ansari), a private Practitioner, as such, this Court is not satisfied with the conviction of the appellants under Sections 325/34 I.P.C. and convicted the appellants under Section 323 I.P.C. 15. In the result, the conviction of the appellants under Sections 447 and 323 I.P.C., is upheld and affirmed by this Court. 16. Since the parties are agnates and the fight was with respect to land dispute which took place in the year 2001, this Court is modifying the sentence awarded by the learned trial court of imprisonment for three months under Section 447 I.P.C. and imprisonment for one year under Section 323 I.P.C. to be period already undergone by the appellants with a fine of Rs.1,000/-each under Section 323 I.P.C. payable to both the victims, Shakil Ansari and Nasib Ansari in equal share of Rs.2,000/-each and in case of default in payment of fine, the appellants shall serve a sentence of three months for the offence committed and punishable under Section 447 I.P.C. and six months for the offence committed and punishable under Section 323 I.P.C. 17. The appellants are directed to deposit the aforesaid amount within six weeks from the date of receipt of a copy of this judgment. The learned Trial Court will not take any coercive step against the appellants for six weeks from the date of receipt of a copy of this judgment. In case of non-payment of fine amount, the learned trial court will take all coercive steps for procurement of the appellants to serve imprisonment for three months under Section 447 I.P.C. and imprisonment for six months under Section 323 I.P.C. by taking all legal recourse in the 7th week from the date of receipt of a copy of this judgment to serve sentence, as awarded by this Hon'ble Court. 18. The appellants are on bail, as such, their bail bonds are cancelled to comply the order passed by this Hon'ble Court. 19. In the result, this Criminal Appeal stands partly allowed as the conviction under Section 325/34 I.P.C. has been set aside, but this Court has dismissed the present Criminal Appeal so far the conviction of the appellants under Sections 447 and 323 I.P.C. is concerned. 20. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal partly allowed.