JUDGMENT : RATNAKER BHENGRA, J. 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 21.6.2003 passed by Additional Sessions Judge, Fast Track Court No.II, Deoghar in connection with S.T. Case No. 347 of 2001 arising out of Jasidih P.S. Case no. 99 of 2001, G.R. no. 371 of 2001 whereby and whereunder appellants have been convicted for the offences U/Ss. 341/149 IPC and sentenced to undergo R.I. for one month and further convicted u/s 323/149 IPC and sentenced to undergo R.I. for one year, further convicted u/s 324/149 IPC and sentenced to undergo R.I. for two years and further convicted u/s 379/149 IPC and sentenced to undergo R.I. for two years and further convicted u/s 307/149 IPC and sentenced to undergo R.I. for five years and to pay a fine of Rs. 2,000/- each and in default of payment of fine amount S.I. for four months. It was also ordered that 60% of the amount of fine shall go to the informant and all the sentences were directed to run concurrently. 2. The prosecution case as per written report of the informant Sahdeo Prasad Yadav, PW-5 is that on 8.6.2001 at about 5 p.m. his cousin brothers Dinesh Yadav, Shanker Yadav and Tripurari Yadav started removing tiles from ancestral house belonging to the informant’s share to which was objected by the informant side. Thereafter all the above named accused persons or appellants armed with lathi, danda, bhala and rod came out of their house and started assaulting informant side. Accused Sudama Yadav assaulted the informant with bhala on his head with intention to kill him causing bleeding injury. Accused Dinesh Yadav, Shanker Yadav and Tripurari Yadav assaulted the informant by lathi and rod. Then informant’s brothers Ram Deo Yadav, Kam Deo Yadav, Bineshwar Yadav, his father, mother Reshmi Devi and his wife Mandodari Devi came to save him but they were also assaulted by the appellants with lathi, bhala and rod and while going away the appellants also committed theft in the informant’s shop. 3. On the basis of the written report of the informant Jasidih P.S. case No. 99 of 2001 was registered u/s 341, 323, 324, 307, 379/34 IPC. After investigation charge sheet was submitted under the same sections including 27 Arms Act. Cognizance was taken and the case was committed to the court of Sessions. 3. On the basis of the written report of the informant Jasidih P.S. case No. 99 of 2001 was registered u/s 341, 323, 324, 307, 379/34 IPC. After investigation charge sheet was submitted under the same sections including 27 Arms Act. Cognizance was taken and the case was committed to the court of Sessions. Charges were framed to which the accused pleaded not guilty and claimed to be tried. Trial was held, witnesses were examined and at the conclusion of trial accused were convicted and sentenced as aforesaid. Hence, this appeal. 4. Prosecution examined altogether eleven witnesses to prove its case. Defence side examined two defence witnesses. 5. P.W.-5 Sahdeo Prasad Yadav is the informant of the case. He deposed that on the day of occurrence accused Dineshwar Yadav, Shankar Yadav and Tripurari Yadav started removing tiles from his house which was objected by him and his mother, brother, father on which accused persons started abusing them. Accused persons dragged him to the cement road then Sudama Yadav assaulted him by bhala on his forehead as a result he sustained injury on his head, blood oozed out and he fall down. Thereafter accused Shanker Yadav, Tripurai and Dinesh assaulted him by lathi and rod. When his mother came to save him, then Sudama Yadav tried to assault her on the head. She tried to save her but sustained injury in her right hand. He had proved his signature on the written report which was marked as Ext.1. In his cross-examination, he deposed that accused removed tiles for 15-20 minutes. For the same date of occurrence Tripurari Yadav had filed a case against them which is pending in the court of Judicial Magistrate. 6. PW-1 Kam Deo Prasad Yadav is the brother of the informant. He deposed that on the date of occurrence all the accused persons came and started removing tiles from his house which was objected by his brother Sahdeo Yadav, mother and father. Thereafter all the accused persons said filthy words to them to which his brother objected. Thereafter accused Sudama Yadav assaulted Sah Deo by bhala on his head with intention to cause his death as a result blood oozed out and he fell down and rest accused assaulted him by lathi and rod. When he and his mother went to save him all accused persons assaulted them. Thereafter accused Sudama Yadav assaulted Sah Deo by bhala on his head with intention to cause his death as a result blood oozed out and he fell down and rest accused assaulted him by lathi and rod. When he and his mother went to save him all accused persons assaulted them. At para 6 of the cross-examination he deposed that he sustained injury of 2-3 sticks. At para 7 he said that assault took place in the courtyard. 7. PW-2 Mandodari Devi is the wife of the informant. She deposed that on the date of occurrence accused Shankar Mahto, Triputari Mahto and Dineshwar Mahto started removing tiles from her house which was objected by her husband, mother-in-law and brother-in-law. Thereafter, accused Sudama Yadav assaulted her husband by bhala on his forehead as a result he sustained injury on his head, blood oozed out and he fell down and then accused Prakash assaulted him with rod and other accused persons assaulted him by lathi. When her mother-in-law Reshmi Devi went to save him then accused Sudama Yadav tried to assault her by bhala on her head. She tried to save herself but she sustained injury in her hand. At para 5 of her cross-examination she said assault took place in the courtyard. 8. PW-3 Dinesh Prasad Yadav is also the brother of the informant. He deposed that on the time of occurrence accused Shanker, Tripurari and Dineshwar Yadv were removing tiles from his house. His brother Sahdeo protested and an altercation took place. Accused Sudama assaulted his brother Sahdeo by bhala on his forehead as a result he sustained injury on his head. Blood oozed out and he fell down and thereafter other accused also assaulted him. His mother went to save Sahdeo but Sudama tried to assault his mother by bhala on her head. She tried to save herself and sustained injury in her right hand. 9. P.W.-4 Reshmi Devi is the mother of the informant. She deposed that on the day of occurrence Shanker Mahto, Tripurari Mahto and Dineshwar Mahto started removing tiles of her house. They protested on which altercation took place. Accused Sudama assaulted his son Sahdeo with bhala on his head as a result blood oozed out and he fell down. She went to save her son then Sudama assaulted her with bhala on her head. She sustained injury on her right hand. 10. They protested on which altercation took place. Accused Sudama assaulted his son Sahdeo with bhala on his head as a result blood oozed out and he fell down. She went to save her son then Sudama assaulted her with bhala on her head. She sustained injury on her right hand. 10. P.W.-6 Ram Deo Yadav is also the brother of the informant. He stated that on the day of occurrence accused Sudama assaulted his brother Sahdeo (PW-5) with bhala on his head as a result he sustained injury and blood oozed out. He was also assaulted by the accused persons with lathi and rod as a result he sustained injury on his right leg and left hand. 11. (1) P.W.7 Dr. Anjani Kumar Mishra examined the injured PW-1 Kam Deo Prasad and found following injuries: Swelling of right calf caused by hard and blunt substance. He said injury was simple in nature. He proved the injury report of PW-1 which was marked as Ext. 2/2. (2) On the same day he examined the injured PW-6 Ram Deo Prasad Yadav and found following injures on his person: i. Swelling 2”x1” right calf ii. Ecoimosis 1”x1/2” on lateral aspect of left arm on upper part. He said both the injury caused by hard and blunt substance and both injuries were simple in nature. The injury report of PW-6 is marked as Ext. 2/1. (3) On the same day he examined the injured PW-4 Reshmi Devi and doctor found following injuries on her person. (i) Lacerated wound 3”x1/2”x skin deep on right hand between thumb and index finger (ii) Lacerated wound 1 ½” x ½” x skin deep just above the injury no.1 (iii) Ecoimosis 1” x1/2”x1” on right temporal region. (iv) Swelling 2”x1” on front of left tibia. (v) Swelling right wrist-joint. He said all the injuries were caused by hard and blunt substance and all were simple in nature. He proved the injury report of P.W.4 which was marked as Ext. 2. 12. PW-8 Guneshwar Yadav and PW-9 Nand Lal Yadav have been declared hostile. 13. PW-10 Prem Nath is the investigating officer of the case. He proved registration in the written report which was marked as Ext-3 and formal FIR was marked as Ext.4. He proved the injury requisition of the injured Ram Deo Mahto, Kam Deo Yadav, Reshmi Devi which were marked as Exts. 6, 6/1 and 6/2 respectively. 13. PW-10 Prem Nath is the investigating officer of the case. He proved registration in the written report which was marked as Ext-3 and formal FIR was marked as Ext.4. He proved the injury requisition of the injured Ram Deo Mahto, Kam Deo Yadav, Reshmi Devi which were marked as Exts. 6, 6/1 and 6/2 respectively. 14. PW-11 Dr. Ram Nath Prasad examined P.W.-5 Sah Deo Prasad Yadav and found following injuries: (i) one lacerated wound on forehead above the right orbit 1 ½” x ½” x skin deep with blood clot. (ii) one penetrating wound over forehead above the right orbit area ¾”x1/4”x bone touch with blood clot. He said that injury no.1 caused by hard and blunt substance and simple in nature. Injury no.2 may be caused by any penetrating substance and was simple in nature. He proved the injury report marked as Ext.7. 15. D.W.-1 and D.W.-2 are defence witnesses. D.W.-1 is Raghu Nath Prasad Yadav, Station Master, Madhupur Rail had stated that Dineshear Mahto is switch man at Shankerpur Railway Station. On 8.6.2001 Dineshwar Mahto was on duty from 17:00 hours to 1:00 hours night at Shankerpur Railway Station. He proved Train Signal Register of 8.6.2001 as Ext. A and A/1. Station Diary marked as Ext.B and B/1, one certificate issued by him dated 12.6.2001 marked as Ext.C. 16. D.W.-2 Meter Rout said that village Gidheya is at about three k.m. distance at south of Shankerpur. ARGUMENTS ON BEHALF OF APPELLANTS: 17. Learned counsel for the appellants had first taken the court to the deposition of PW-1 Kam Deo Prasad Yadav, brother of the informant. He pointed out that this witness in his examination-in-chief has supported the prosecution case but subsequently he had tried to improve his case by adding something which had not been stated in the written report such as theft of various items from their shop and taking away the items on tractor and that Prakash Yadav had fired from his pistol. Learned counsel further submitted that many other co-villagers were present there but none of them have been examined as prosecution witness. Only family members who are interested witnesses had been examined which surely prejudiced the appellants. Learned counsel further submits that both sides are descendants and therefore, it is a civil dispute and should be viewed in that light. 18. Learned counsel further submitted that many other co-villagers were present there but none of them have been examined as prosecution witness. Only family members who are interested witnesses had been examined which surely prejudiced the appellants. Learned counsel further submits that both sides are descendants and therefore, it is a civil dispute and should be viewed in that light. 18. Learned counsel then referred to the deposition of PW-2 Mandodari Devi and argued that she is also a very interested witness. She had also tried to improve the prosecution case. She had deposed that during the occurrence the door of the shop was broken by exploding bomb. However, no such evidence of any bomb or explosion had been found and neither any pieces of broken door were recovered. 19. Learned counsel then referred to the evidence of PW-3 Dinesh Prasad Yadav and argued that from his evidence the occurrence had taken place on the roof but as per the written report as well as testimony of PW-1 and PW-2 the occurrence had taken place inside the courtyard. This witness had not produced any documents regarding the ancestral property. This witness however, on the contrary, said that the lock was not broken by bomb rather lock of the door was broken by cartridge. Learned counsel said that the cartridge was also not recovered. Learned counsel further pointed out that on the one hand it is stated that the tiles were taken away by bullock cart and then again PW-1 stated that it was taken away by a tractor which shows significant difference. 20. Learned counsel then referred to the deposition of Reshmi Devi PW-4 who is mother of the informant. She deposed that the occurrence took place on the concrete road and Tripurari Yadav was having an iron rod in his hand while other witnesses deposed that Prakash Yadav was having an iron rod in his hand and therefore, there is significant inconsistency as to who had carried what. This witness had further deposed that appellants had gone without any weapon to remove the tiles which would indicate that the appellants had no intention to commit any offence. 21. Learned counsel then referred to the deposition of PW-5 Sahdeo Prasad Yadav who deposed that the door of the shop was broken by the appellants by a bomb and articles were taken away. 21. Learned counsel then referred to the deposition of PW-5 Sahdeo Prasad Yadav who deposed that the door of the shop was broken by the appellants by a bomb and articles were taken away. Counsel again reiterated that there had been no evidence of any bomb and no evidence of any blasted door and it is totally false that any bomb was used and it is only made to aggravate the charges against the appellants. He also deposed that he had not seen any documents regarding the plot or the house. This witness had also deposed in para 8 that several villagers were present but none of them have been examined which prejudices the appellant’s case. Regarding the shop counsel had pointed out that as per the paragraph no.11 of his cross-examination it is stated that after arrival of the police nothing was found in the shop since the appellants had taken away all the articles. Counsel has argued that this is total contradiction of the deposition of PW-4 who indicates otherwise. PW-2 had deposed that items were taken away on a bicycle which is laughable. 22. Learned counsel then pointed out the evidence of PW-6 Ram Deo Yadav who deposed that there were nine accused persons, counsel said that this is again an exaggeration and is only done to increase the number of persons to indicate that offence was committed by many more persons so that the crime appears to be serious in nature if any at all. Counsel had also submitted that the informant was well known to the police because he was a Homeguard and therefore, FIR had been lodged in connivance with the police. 23. Learned counsel further referred to the evidence of PW-7, Dr. Anjani Kumar Mishra and pointed out that he had issued the injury reports of Kam Deo Prasad Yadav and Ram Deo Prasad Yadav and Reshmi Devi and found all the injuries simple in nature and caused by hard and blunt substance. Counsel further said that therefore section 307 IPC is not made out. This witness had also admitted that lacerated injuries may be caused by falling on hard surface or falling from height. Dr. Ram Nath Prasad PW-11 had examined the informant. During cross-examination this witness had admitted that such injuries may be caused when one dashed with wall or door frame. 24. This witness had also admitted that lacerated injuries may be caused by falling on hard surface or falling from height. Dr. Ram Nath Prasad PW-11 had examined the informant. During cross-examination this witness had admitted that such injuries may be caused when one dashed with wall or door frame. 24. Learned counsel had also pointed out that the prosecution witness No. 8 and 9 have been declared hostile by the prosecution. 25. Learned counsel further referred to the deposition of PW-10, the I.O. of this case. This witness had said that regarding locking of the door there is claim and counter claim but the key of the shop had not been made available to him. Counsel pointed out that I.O. had not recorded the evidences of independent witnesses who had arrived at the place of occurrence. Therefore, it was again reiterated that non-examination of independent witnesses also prejudiced the case of the appellants. 26. Learned counsel also pointed out from the evidence of D.W.-1 and D.W.-2 that appellant no.2 Dinesh Yadav was not at all present at the place of occurrence at the time of occurrence and as such he had been implicated in this case with ulterior motive. Learned counsel said that if fabrication can be done in the case of one then it also can be done against other persons and therefore the allegations should not be believed at all and they should not be convicted for the offence. However, he further submitted without admitting that if the conviction is upheld by this court a lenient view may be taken as the case is very old and the appellants are also much older and have also spent some period in custody already hence, their custodial period may be taken as sufficiently punished or period undergone. ARGUMENTS ON BEHALF OF STATE: 27. Learned A.P.P. on the other hand had submitted that from the evidence itself it is apparent that both parties are related and descendants from common ancestor and both have claimed on a certain ancestral house wherein there is tiled house from which the tiles were alleged to be removed. Therefore there is a dispute for ancestral house and because of this the assault was made by the accused side when the tiles were removed or were being removed by the accused persons and informant side had objected to the same. Therefore there is a dispute for ancestral house and because of this the assault was made by the accused side when the tiles were removed or were being removed by the accused persons and informant side had objected to the same. He also pointed out that both sides also have houses nearby. Counsel argued that even if there is a dispute the appellants have no right to take the law into their own hands and commit assault of the nature that was made, including by deadly weapon such as bhala. Counsel for the State had said that it is the appellant’s side who have initiated the assault and had pointed out that it is disclosed from the evidence of PW-2, 4 and 5 that a bhala was used by one Sudama. He had pointed out that PW-5 had received injury by bhala and it is also indicated in the injury report as penetrated wound which would indicate that it was inflicted by a bhala. Learned counsel further submitted that it is also disclosed in the evidence that it was the appellants who were taking away the tiles and this was the reason for the altercation. Therefore no mercy can be allowed to the appellants in the case. Counsel said that on the basis of the evidences it is indicated that four of the persons from the informant’s side were severely injured, therefore the conviction as held by the learned court below needs to be upheld. FINDINGS: 28. Having gone through the evidences, the records of the case and having heard both counsels, it is apparent that both sides have claimed their ancestral house for which the occurrence took place. Both parties have also their own houses nearby the ancestral house. As per P.W.10 the investigating officer there are two places of occurrence. He had indicated that first place of occurrence is the place which bear tiled house for which there was claim regarding removable of the tiles. The second place of occurrence is the cemented road near the house of one Kishun Prasad. It appears that altercation occurred when tiles of the ancestral house was being removed then from there it moved to the courtyard and to the main road and near the shop also. So regarding place of occurrence there is no doubt. The second place of occurrence is the cemented road near the house of one Kishun Prasad. It appears that altercation occurred when tiles of the ancestral house was being removed then from there it moved to the courtyard and to the main road and near the shop also. So regarding place of occurrence there is no doubt. As per evidence of prosecution witnesses occurrence took place when tiles of the house were removed by the appellants. There is evidence to the effect that the tiles were removed by the appellants as investigating officer has said that he had found tiles removed from the house of the informant side. As per written report, appellant’s side had started assaulting and firstly the case was also lodged from the informant’s side. In the FIR lodged by the appellants, the place of occurrence is not indicated, while in the FIR lodged by the informant place of occurrence is indicated. It appears that firstly it was a matter of civil dispute between two parties that ultimately culminated in violence. From the evidence it appears that the aggressor were the appellants. The doctor has also found injuries sustained by both parties. 29. Evidence of defence witnesses are of no help to the appellants as D.W.-1 has deposed that Ext.C was issued on the oral request of appellant or accused Dineshwar Yadav and Ext. A and Ext.B was given in the court without the information of his senior officers. D.W. -2 has only said about distance of village Gidheya and Shankerpur. 30. As far as conviction of the appellants u/s 307/149 IPC is concerned, I find that there are four injured prosecution witnesses in this case namely PW-1 Kam Deo Prasad, PW-6 Ram Deo Prasad Yadav, PW-4 Reshmi Devi and PW-5 Sahdeo Praqsad Yadav and their injury report has been marked as Ext. 2/2, Ext. 2/1, Ext.2 and Ext.7 respectively. These four injured witnesses were examined by the doctors P.W.-7 and P.W.-11. On perusal of injury reports and deposition of doctors, I find that all the injured prosecution witnesses sustained simple injury. Hence, there was no intention on the part of the appellants’ side to cause death of the informant’s side. Hence, the conviction of the appellants u/s 307/149 IPC and its sentence passed by the learned court below is set aside. On perusal of injury reports and deposition of doctors, I find that all the injured prosecution witnesses sustained simple injury. Hence, there was no intention on the part of the appellants’ side to cause death of the informant’s side. Hence, the conviction of the appellants u/s 307/149 IPC and its sentence passed by the learned court below is set aside. Since there is acquittal u/s 307/149 IPC the fine imposed by the learned court below is also done away. 31. So far as section 379/149 IPC is concerned there is much doubt, particularly because of the inconsistent allegations made regarding theft in the said shop. It is said that the door of the shop was broken by throwing bomb and on the other hand the lock of the shop was opened by gun shot. But neither any residues of the bomb nor splinters were recovered. Investigating officer found that the door was locked. Hence, conviction of the appellants u/s 379/149 IPC and sentence passed thereupon is also set aside. 32. Regarding conviction u/s 341/149 IPC of the appellants I find from the written report and evidence of prosecution witnesses that firstly mutual altercation took place between both the sides thereafter assault occurred. From the perusal of record I find that appellants side had also lodged the FIR for the same date of occurrence. So, the question of wrongful confinement of the informant side does not arise. Hence, the conviction of the appellants u/s 341/149 IPC and its sentence is also set aside. 33. As far as conviction of the appellants u/s 323/149 IPC and u/s 324/149 IPC is concerned, I find from the written report, depositions of PW-1,PW-2,PW-3,PW-4,PW-5 and PW-6 that appellant Sudama Yadav assaulted the informant PW-5 by spear (bhala) which is a sharp cutting weapon on his forehead. Doctor PW-11 who examined the injured informant also found lacerated wound and one penetrating wound of size 1 ½”x ½” x skin deep and ¾” x ¼” respectively on the forehead of informant. There are four injured witnesses PW-1,PW-6,PW-4,PW-5 in this case and supported by injury report Ext. 2/2, Ext. 2/1, Ext. 2/2 and Ext.7 respectively. Hence conviction of the appellants u/s 323/149 IPC u/s 324/149 IPC is upheld. 34. Summing up based on the aforesaid reasons the conviction of the appellants under sections 323/149 and 324/149 IPC are upheld. There are four injured witnesses PW-1,PW-6,PW-4,PW-5 in this case and supported by injury report Ext. 2/2, Ext. 2/1, Ext. 2/2 and Ext.7 respectively. Hence conviction of the appellants u/s 323/149 IPC u/s 324/149 IPC is upheld. 34. Summing up based on the aforesaid reasons the conviction of the appellants under sections 323/149 and 324/149 IPC are upheld. Conviction of the appellants’ u/s 379/149, 307/149 and 341/149 IPC and its corresponding sentences are also set aside. 35. Taking the mitigating circumstances as prayed by counsel for the appellants, appellants will undergo a modified sentence of simple imprisonment for two months only for conviction under Section 323/149 and 324/149 and any period undergone by the appellants shall not be subtracted from the modified sentence of two months passed by this court. Appellant’s bail bonds are cancelled. Learned court below is directed to take steps as per law to serve out the modified sentence passed by this court. 36. Instant appeal is dismissed with above modification in conviction and in sentence.