JUDGMENT Kailash Prasad Deo, J. - Appellant No.1, Ishan Tudu, Son of Sri Suru Tudu died in the year 2015 and the Criminal Appeal as against him, has already been abated vide order dated 30.08.2018 passed by this Hon''ble Court and the present Criminal Appeal was pending with respect to rest four appellants. 2. Heard, Ms. Kirti Saboo, learned Amicus Curiae and Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State. 3. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 17th April, 2004, passed by the learned 3rd Additional Sessions Judge, Fast Track Court, Jamtara, in Sessions Case No.148 of 1995/ 44 of 2003, whereby Sita Ram Tudu (appellant No.3) and Sanatan Tudu (appellant No.4) have been convicted by the learned trial court for the offence committed and punishable under Section 325 I.P.C. and awarded rigorous imprisonment for three years and to pay fine of Rs. 500/- each and in case of default in payment of fine, to undergo simple imprisonment for three months. The learned trial Court has also convicted, Ishan Tudu (appellant No.1), Thuru Hembram (appellant No.2) and Jawahar Lal Tudu @ Jauhar Tudu (appellant No.5) for the offence committed and punishable under Section 147 I.P.C. and awarded rigorous imprisonment for one year and to pay fine of Rs. 500/- each and in case of default in payment of fine, to undergo simple imprisonment for three months. 4. The prosecution case, is based upon, the fardbeyan, of the informant, Hemant Marandi (P.W.2), recorded by Ram Chandra Yadav, Sub Inspector of Police, Binda Pathar Police Station, on 09.07.1995 at 13.15 Hrs., wherein, the informant has alleged that today in the morning, at about 8.30 A.M., his field was ploughed by Ishan Tudu (appellant No.1), Sita Ram Tudu (appellant No.3) and Thuru Hembram (appellant No.2 and son-in-law of Ishan Tudu). The informant along with his son, Sunil Marandi and his father, Vinod Marandi went to the paddy field and asked all the accused persons not to plough the field. Upon which, these three accused persons asked the co-accused persons sitting near the field to kill them so that no body can put any obstacle in ploughing the field. The informant along with his son, Sunil Marandi and his father, Vinod Marandi went to the paddy field and asked all the accused persons not to plough the field. Upon which, these three accused persons asked the co-accused persons sitting near the field to kill them so that no body can put any obstacle in ploughing the field. The informant has further alleged, that Ishan Tudu having lathi, Sita Ram Tudu having deng (a hard and blunt substance), Thuru Hembram having sword, Jatlu Tudu having balam (bhala), Sanatan Tudu having sword, Jawahar Lal Tudu having axe (tangi/ kulhari) and Bhender Tudu having spade came near the informant and after surrounding, assaulted them. It is further alleged that Ishan Tudu, Sita Ram Tudu and Jatlu Tudu assaulted the informant causing bleeding injury on left hand and fracture of finger. The son of the informant, Sunil Marandi was assaulted by Sita Ram. Father of the informant, Vinod Marandi was assaulted by Thuru Hembram, Jatlu Tudu and Sanatan Tudu causing bleeding injury on hand and leg. The father of the informant has sustained serious injury, because of which he is lying at his home in a precarious condition. The informant has further stated that the occurrence took place as the accused persons were trying to grab his land forcefully, for which a case had been filed, in which decision had been given against the accused persons and thus, the occurrence took place. 5. On the basis of the ''fardbeyan'' of the informant, the Police has registered First Information Report bearing Nala (Binda Pathar) P.S. Case No. 103 of 1995, dated 09.07.1995, corresponding to G.R. No.356 of 1995, under Sections 147 /148 /149 /323 /324 /325 / 307 of the Indian Penal Code against the seven named accused persons. 6. After investigation, the Police has submitted charge-sheet vide Chargesheet No.51 of 1995 dated 18.08.1995, under Sections 147 /148 /149 /323 / 324 /325 / 307 I.P.C. against the six accused persons. Bhender Tudu has not been sent up for trial by the Police. 7. The cognizance of the offence has been taken against accused/appellants vide order dated 25.08.1995, and the case has been committed to the Court of Sessions vide order dated 20.10.1995. 8. Bhender Tudu has not been sent up for trial by the Police. 7. The cognizance of the offence has been taken against accused/appellants vide order dated 25.08.1995, and the case has been committed to the Court of Sessions vide order dated 20.10.1995. 8. The charge has been framed by the learned trial court on 05.12.2000 against the five accused/ appellants under Sections 147, 148, 325, 149 and 307 I.P.C., to which the accused persons have pleaded their innocence and thus, they were put under trial. One of the co-accused, namely, Jatlu Tudu has died during pendency of the trial, as such, his case has been dropped vide order dated 05.12.2000. 9. The prosecution has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence up-to Exhibits- 4 Series in order to prove its case. Sunil Marandi, son of the informant and an injured witness has been examined as P.W.1, Hemant Marandi, informant and an injured witness has been examined as P.W.2, Haradhan Mahto, a hearsay witness has been examined as P.W.3, Nayan Tudu, another hearsay witness has been examined as P.W.4, Tahir Hussain, being an Advocate Clerk and a formal witness has been examined as P.W.5 and Dr. Damodar Yadav, Medical Officer, has been examined as P.W.6, who has examined the injured namely, Hemant Marandi, Sunil Marandi and Vinod Marandi,. Signatures of the informant, Hemant Marandi and his son, Sunil Marandi on the fardbeyan have been proved and marked as Exhibits-1 and 1/1, fardbeyan written in the hand-writing of Ram Chandra Yadav, Officer-In-charge, Nala (Binda Pathar) Police Station has been proved and marked as Exhibit-2, Formal First Information Report in the hand-writing and signature of the A.S.I., Ram Rup Singh has been proved and marked as Exhibit-3, Dr. Damodar Yadav (P.W.6), who has examined the injured persons, Vinod Marandi, Hemant Marandi and Sunil Marandi, has issued the injury reports, which have been proved and marked as Exhibits- 4, 4/1 and 4/2 respectively. 10. After closure of the prosecution evidence, the statements of the accused/appellants have been recorded under Section 313 Cr.P.C., on 06.08.2003, wherein they have denied their involvement in the occurrence and have stated that they have falsely been implicated in this case and they will adduce evidence in their defence. 10. After closure of the prosecution evidence, the statements of the accused/appellants have been recorded under Section 313 Cr.P.C., on 06.08.2003, wherein they have denied their involvement in the occurrence and have stated that they have falsely been implicated in this case and they will adduce evidence in their defence. Shankar Pandey, an Advocate Clerk has been examined as D.W.1, who has proved the fardbeyan and the Formal First Information Report of Nala (Binda Pathar) P. S. Case No.106 of 1995 dated 12.07.1995, lodged by Ishan Tudu against Hemant Marandi, Sunil Marandi and Vinod Marandi under Sections 323, 324, 307/34 I.P.C. in the hand-writing and signature of A.S.I., Ram Rup Singh, which have been marked as Exhibits- A and B respectively, Exhibit- C is the Certified copy of Parcha of Jote No.23, Mouza Brindaban. Hardeo Marandi has been examined as D.W.2 and he has proved five rent receipts and the same have been marked as Exhibits- D, D/1, D/2, D/3 and D/4. 11. The learned trial court, after hearing learned counsel for the parties and on the basis of the material brought on record, has passed the impugned judgment of conviction and order of sentence. 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, assailing the impugned judgment of conviction and order of sentence. 12. Heard Ms. Kirti Saboo, learned amicus curiae on behalf of the appellants. Learned amicus curiae 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 amicus curiae has further submitted that the Investigating Officer of the case has not been examined nor Sub Inspector of Police, Ram Chandra Yadav, who has recorded the fardbeyan has been examined in this case. Learned amicus curiae has further submitted that both the sides have filed cases against each other. The present case is the First Information Report bearing Nala (Binda Pathar) P.S. Case No.103 of 1995 dated 09.07.1995, whereas, the case filed by the appellant, Ishan Tudu against the present prosecution party has been registered as Nala (Binda Pathar) P.S. Case No.106 of 1995 dated 12.07.1995. The present case is the First Information Report bearing Nala (Binda Pathar) P.S. Case No.103 of 1995 dated 09.07.1995, whereas, the case filed by the appellant, Ishan Tudu against the present prosecution party has been registered as Nala (Binda Pathar) P.S. Case No.106 of 1995 dated 12.07.1995. Learned amicus curiae has further submitted that both the sides have sustained injuries, the injuries sustained by the informant, Hemant Marandi, his son, Sunil Marandi and his father, Vinod Marandi, have been examined by Dr. Damodar Yadav (P.W.6) and the same have been proved and marked as Exhibits- 4, 4/1 and 4/2. It appears that the injury found on the informant, Hemant Marandi on his hand was grievous, in nature and the injury on the hand of Vinod Marandi was also grievous in nature. But from the statement of P.W.6 (Dr. Damodar Yadav) made in Para-17, 18, 19 and 20, the injury reports are highly doubtful, as the Doctor (P.W.6), has admitted in Para-17 that there is no mentioning regarding X-ray of the patient, Hemant Marandi. In Para-18, the Doctor has categorically stated that he has not mentioned in the injury report of Hemant Marandi, which part of hand was fractured. The Doctor in Para-19 has admitted that he has not mentioned in the injury report of Hemant Marandi that digital bone of Index finger of hand was fractured. Doctor has categorically admitted that in his Primary Health Centre at Binda Pathar, there is no X-ray facility. Learned amicus curiae, on the basis of such evidence given by the Doctor, has submitted that until and unless, the X-ray report is brought on record and it is legally proved, mere saying by the Doctor about fracture without specifying which part of body, will not constitute an offence for grievous injury, as grievous injury has been defined under Section 320 I.P.C. Learned amicus curiae relying on the aforesaid submissions, has submitted that the conviction of the appellants under Section 325 I.P.C. cannot sustain in the eyes of law, as there was case and counter-case between the parties. P.W.4 (Nayan Murmu) has categorically admitted that there is free fight between both the sides and in absence of the examination of the Investigating officer or the Police officer, who has recorded the ''fardbeyan'', the appellants have seriously been prejudiced, as they could not get an opportunity to cross-examine the Investigating officer or the Police Officer who has recorded the ''fardbeyan'' of Nala (Binda Pathar). P.S. Case No.106 of 1995 to elucidate the fact to prove their innocence. Learned amicus curiae has further submitted that conviction of the appellants under Section 147 I.P.C. is also not sustainable in the eyes of law, as from perusal of the First Information Report, it appears that these accused persons were present at the place of occurrence, where three persons were ploughing the field and two persons were sitting near the paddy field. It is the prosecution party, who were the aggressors and they went to the place of occurrence along with the informant and on altercation, free fight from both the sides took place. Thus, the conviction of the appellants under Section 147 I.P.C. is also not sustainable in the eyes of law. Section 141 I.P.C. reads as follows :- 141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- (First- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) - To resist the execution of any law, or of any legal process; or (Third) - To commit any mischief or criminal trespass, or other offence; or (Fourth) - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Learned amicus curiae has further submitted that unless and until the prosecution is able to prove that unlawful assembly, as defined under Section 141 I.P.C., is formed with a common object, no offence under Section 147 I.P.C. is made out. Learned amicus curiae has further submitted that since common object is missing, rather three persons were cultivating the land and two persons were sitting there when prosecution party went there and an altercation with a free fight took place between the parties, for which both the sides have lodged the cases, the conviction of the appellants under Section 147 I.P.C. cannot sustain in the eyes of law, as basic ingredients of common object for all the accused persons are missing in the present case. Learned amicus curiae has further submitted that the First Information Report of both the sides does not disclose about any injury caused upon the either side, but admittedly the injured persons from both the sides were examined on Police requisition, as such, non-examination of the Investigating officer has caused serious prejudice to the appellants, as they could not get an opportunity to cross-examine the Investigating officer to elucidate the facts to prove their innocence. Learned amicus curiae has further submitted that certified copies of the fardbeyan and formal First Information Report bearing Nala (Binda Pathar) P.S. Case No.106 of 1995, which have been proved and marked as Exhibits- A and B and Certified copies of the injury reports of injured persons, Jatlu Tudu and Ishan Tudu, which were issued by Dr. S. K. Jha, Assistant Civil Surgeon, Primary Health Centre, Nala, are already on record. Learned amicus curiae has further submitted that this Court may invoke provisions enshrined under Section 172 Cr.P.C. to look into the matter with respect to the injury report, though the same will not come under the evidence. Learned amicus curiae has further submitted that though the informant has categorically stated that on the same day of lodging the First Information Report on 09.07.1995, they were treated by the Doctor on the Police requisition, but Exhibit-4 series shows that the injured persons were examined by the Doctor on 11.07.1995. Learned amicus curiae has further submitted that considering the above submissions, the appellants are entitled for benefit of doubt. 13. Heard, Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State. Learned amicus curiae has further submitted that considering the above submissions, the appellants are entitled for benefit of doubt. 13. Heard, Mr. P. K. Appu, 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 by the learned trial court on the basis of the material available on record and the learned trial court has rightly convicted the appellants. Learned counsel for the State has submitted that injured persons, Hemant Marandi and Sunil Marandi have been examined in this case as P.W.2 and P.W.1 respectively and the injured persons have been examined by P.W.6 (Dr. Damodar Yadav), who proved the injury reports of injured persons, Vinod Marandi, Hemant Marandi and Sunil Marandi and the same have been marked as Exhibits- 4, 4/1 and 4/2 respectively, as such, the conviction of the appellants has rightly been passed by the learned trial Court. Learned counsel for the State has further submitted that the First Information Report which has been proved and marked as Exhibits- A and B by the defence with respect to Nala (Binda Pathar) P. S. Case No.106 of 1995, there is no whisper about the injury sustained by the prosecution party as such, the said First Information Report which was lodged subsequently on 12.07.1995 is a concocted one filed with ulterior motive to protect themselves. Learned counsel for the State has further submitted that five persons were sitting at the place of occurrence with common intention that if any person will come for making any protest, they will be dealt accordingly, as such, the conviction of the appellants under Section 147 I.P.C. has rightly been passed by the learned trial Court and conviction of the appellants, Sita Ram Tudu and Sanatan Tudu has rightly been passed under Section 325 I.P.C., as they have assaulted Hemant Marandi and his father, Vinod Marandi causing grievous injury. 14. Heard, Ms. Kirti Saboo, learned Amicus Curiae and Mr. 14. Heard, Ms. Kirti Saboo, learned Amicus Curiae and Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State and also perused the entire records of the case i.e. First Information Report, framing of charge, evidence of six prosecution witnesses, four prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C. as well as two defence witnesses, four defence exhibits up to Exhibits-D Series and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. The evidence of witness, Sunil Marandi (P.W.1) and Hemant Marandi (P.W.2), who are injured of the case are consistent to the prosecution case. Witnesses, Haradhan Mahto (P.W.3) and Nayan Murmu (P.W.4) are hearsay witnesses. P.W.5 (Tahir Hussain) is a formal witness, who has proved formal First Information Report and the ''fardbeyan'' in this case. P.W.6 (Dr. Damodar Yadav) is the Medical Officer, who has examined all the three injured persons namely, Hemant Marandi, Vinod Marandi and Sunil Marandi and proved the injury reports as Exhibit-4 Series. There is nothing on record which contradicts the prosecution case as the defence has cross-examined the prosecution witnesses at length, but nothing has been elucidated to disbelieve the prosecution case. It is true that non-examination of the Investigating officer has caused prejudice to the appellants, as they could not get an opportunity to cross-examine the Investigating officer with respect to the admission made by Nayan Murmu (P.W.4) regarding free fight and case and counter case. The case and counter-case have been brought on record as the ''fardbeyan'' and Formal First Information Report of Nala (Binda Pathar) P.S. Case No.106 of 1995 lodged by Ishan Tudu against the prosecution parties, namely, Hemant Marandi, Sunil Marandi and Vinod Marandi have been proved and marked as Exhibits- A and B along with injury report which are available on record, but no opportunity was given to the appellants to draw contradiction in prosecution case by cross-examining the Investigating officer. This Court has found that P.W.6 (Dr. Damodar Yadav) has categorically stated that X-ray Machine was not available at the Preliminary Health Centre, Binda Pathar nor the X-ray Plate was brought on record and thus, this Court modifies the conviction of the appellants, Sita Ram Tudu and Sanatan Tudu from Section 325 I.P.C. to Section 323 I.P.C., as the nature of injuries have not been legally proved. Damodar Yadav) has categorically stated that X-ray Machine was not available at the Preliminary Health Centre, Binda Pathar nor the X-ray Plate was brought on record and thus, this Court modifies the conviction of the appellants, Sita Ram Tudu and Sanatan Tudu from Section 325 I.P.C. to Section 323 I.P.C., as the nature of injuries have not been legally proved. Further, the conviction of the appellants, Thuru Hembram and Jawahar Lal Tudu @ Jauhar Tudu passed by the learned trial court under Section 147 I.P.C. cannot sustain in the eyes of law, as the common object, as defined under Section 141 I.P.C. is missing and as such, these appellants are acquitted of the charge under Section 147 I.P.C. and accordingly, they are also discharged from the liability of their bail bonds. The present Criminal Appeal preferred by the appellants, Thuru Hembram and Jawahar Lal Tudu @ Jauhar Tudu is hereby allowed. So far the conviction of the appellants, Sita Ram Tudu and Sanatan Tudu is concerned, it has been modified from Section 325 I.P.C. to Section 323 I.P.C. This Court has considered the submissions made by the learned amicus curiae with respect to sentence. The learned amicus curiae has submitted that these appellants have suffered rigours of trial since July, 1995 for approximately 23 years and have no criminal antecedent and the occurrence took place because of land dispute. There is case and counter-case between the parties and the learned trial court has not found these appellants to be aggressors. So after such a long time, instead of sending them to jail, it would be in the interest of justice that they are directed to execute a bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties to maintain peace and be of good behaviour in the society for one year under Section 4 of the Probation of Offenders Act. The bail bonds of the appellants, Sita Ram Tudu and Sanatan Tudu are cancelled and they are directed to appear before the learned Trial Court within six weeks from the date of receipt of a copy of judgment to execute a bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties to maintain peace and be of good behaviour in the society for one year under Section 4 of the Probation of Offenders Act. 15. In the result, the present Criminal Appeal stands partly allowed. 16. 10,000/- (Rupees Ten Thousand) with two sureties to maintain peace and be of good behaviour in the society for one year under Section 4 of the Probation of Offenders Act. 15. In the result, the present Criminal Appeal stands partly allowed. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. 17. Before parting with the judgment, this Court appreciates the assistance rendered by Mis. Kirti Saboo, learned Amicus Curiae. The Member Secretary, JHALSA, Ranchi, is directed to release the legal remuneration to Mis. Kirti Saboo, learned Amicus Curiae within a period of four weeks from the date of receipt of a copy of this judgment. 18. Let a copy of this judgment be communicated to the Member Secretary,