JUDGMENT : Heard Mr. A.K. Chaturvedi, learned counsel, assisted by Mr. Amit Kumar Choubey, Advocates, on behalf of the appellants and Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor, on behalf of the State. 2. The instant criminal appeal has been preferred against the Judgment of conviction and Order of sentence both dated 12th of January, 2004, in Sessions Trial No. 206 of 1993 (arising out of Palkot P.S. Case No. 66 of 1992 corresponding to G.R. No. 936 of 1992) passed by the Additional Sessions Judge-F.T.C.-III, Gumla, whereby the appellants have been convicted by the learned Trial Court. The appellant No. 1 Markus Ekka has been convicted for the offence committed and punishable under Section 452 of the Indian Penal Code and awarded rigorous imprisonment for 3 years. Appellant No. 2, Anthoni Ekka has also been convicted for the offence committed and punishable under Section 452 of the Indian Penal Code and awarded rigorous imprisonment for 3 years. Appellant No. 3 Silibester Ekka has been convicted for the offence committed and punishable under Section 452 and 323 of the Indian Penal Code and awarded rigorous imprisonment for 3 years and rigorous imprisonment for 6 months respectively. Appellant No. 4, Guju Ekka has also been convicted for the offence committed and punishable under Sections 307, 324 and 452 of the Indian Penal Code and awarded rigorous imprisonment for three years for the offence committed and punishable under Section 307 of the Indian Penal Code, rigorous imprisonment for one year for the offence committed and punishable under Section 324 of the Indian Penal Code and rigorous imprisonment for three years for the offence committed and punishable under section 452 of the Indian Penal Code. Appellant No. 5 Sushil Lakra has been convicted for the offence punishable under Sections 452 and 323 of the Indian Penal Code and awarded rigorous imprisonment for 3 years and six months respectively. All the sentences were directed to run concurrently. 3. During the pendency of the appeal, the appellant Silibester Ekka died, but no application under Section 394 of the Cr.P.C. has been filed by the legal heir or representative of the deceased within 30 days of the death of the deceased, the appeal preferred by Silibester Ekka has been abated vide order dated 30.8.2018. The present appeal is now pending only with respect to Markus Ekka, Anthoni Ekka, Guju Ekka and Sushil Lakra. 4. The present appeal is now pending only with respect to Markus Ekka, Anthoni Ekka, Guju Ekka and Sushil Lakra. 4. The prosecution case is based upon the written report, submitted by Pradip Minz (P.W.-8) before the Officer-in-charge of Palkot Police Station on 27.10.1992, alleging therein that informant has asked Kishor Ekka and Sushil Lakra not to roam around his house. After some time, Silibester Ekka and Guju Ekka entered into the house of the informant by breaking the lock and, thereafter, assaulted the mother of the informant Devmani Beck by means of axe. Anthoni Ekka having an axe, Sushil Lakra having lathi, Markus Ekka having balua and Sunil Uraon having danda entered into the house and assaulted the mother of the informant. On brawl, neighbour Saibul Minz (P.w.-4) came there, who was also assaulted by Guju Minz by means of kulhari (axe) on his head causing injury. On further brawl, Awtar Minz (P.W.-1), Iswar Dutt Minz (P.W.-3) and Paulish Minz (P.W.-7) came to the house of the informant, thereafter, the accused persons fled away. Due to late night, the injured were examined by the local nurse and the doctor and in the morning, the informant Pradip Minz along with his injured mother and uncle, gave a written report to the police station. 5. On the basis of the said written report, Palkot P.S. Case No. 66 of 1992 dated 27.10.1992 corresponding to G.R. No. 936 of 1992 under Sections 448, 324, 307, 323/34 of the Indian Penal Code has been instituted, against six accused persons namely Markus Ekka, Sunil Oraon, Shushil Lakra, Antoni Ekka, Silibester Ekka and Guju Ekka. 6. After investigation, charge sheet has been submitted vide charge sheet No. 57 of 1992 dated 22.11.1992 against all the six accused persons under Sections 324, 326, 452, 323 and 307/34 of the Indian Penal Code. 7. Cognizance of the offence has been taken vide order dated 8.1.1993 and the case has been committed to the Court of Sessions vide order dated 3.5.1993. The learned Trial Court has framed the charge against all the six accused persons, under Sections 452/34, 325/34 and 307/34 of the Indian Penal Code, vide order dated 27.5.1994, to which, the appellants / accused persons have pleaded their innocence and, thus, they were put under trial. The learned Trial Court has framed the charge against all the six accused persons, under Sections 452/34, 325/34 and 307/34 of the Indian Penal Code, vide order dated 27.5.1994, to which, the appellants / accused persons have pleaded their innocence and, thus, they were put under trial. Accused Sunil Oraon has died, during the pendency of the trial as such, his case was dropped by learned Trial Court vide order dated 19.9.2000. 8. The prosecution has examined altogether 8 witnesses and also exhibited the injury reports of the injured, which have been proved and marked as Exhibit-1 series and the F.I.R. has been proved and marked as Exhibit-2. Avtar Minz has been examined as P.W.-1, Jilo Beck, who is also injured in the occurrence has been examined as P.W.-2, Ishwar Dutt Minz has been examined as P.W.-3, another injured witness, Saibul Minz has been examined as P.W.-4., Dr. Brajnandan Sharma, who has examined all the four injured witnesses and proved their injury reports, which have been marked as Exhibit-1 Series has been examined as P.W.-5. Deomani Beck, the mother of the informant and injured in the occurrence has been examined as P.W.-6. Paulush Minz, who is a hearsay witness has been examined as P.W.-7. Pradip Minz, informant of the case has been examined as P.W.-8. 9. After closure of the prosecution evidence, the accused persons have been examined under Section 313 of the Cr.P.C. on 23.10.2003, where they have stated that they are innocent and they have been falsely implicated in this case. Defence has not examined any witness or exhibited any document. After hearing the parties and on the basis of materials available on record, the learned Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. 10. All the five appellants have preferred present appeal jointly before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence passed by the learned Trial Court. 11. Heard Mr. A.K. Chaturvedi, learned counsel, assisted by Mr. Amit Kumar Choubey, Advocates on behalf of 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. 11. Heard Mr. A.K. Chaturvedi, learned counsel, assisted by Mr. Amit Kumar Choubey, Advocates on behalf of 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 also submitted that there are vital contradictions in the evidence of the prosecution witnesses, even the name of P.W.-2 Jilo Beck has not been mentioned in the First Information Report as an injured witness. Though, the FIR was filed on the next day after taking treatment at hospital and the informant Pradip Minz, P.W.-8 has not disclosed the name of Jilo Beck in the F.I.R. Learned counsel for the appellants has further submitted that because of non-examination of the Investigating Officer, serious prejudice has been caused to the appellants as the appellants could not get opportunity to cross-examine the I.O. with respect to the manner of occurrence, nature of injury as well as place of occurrence. Learned counsel for the appellants has further submitted that as per the evidence of P.W.-2 Jilo Beck, the occurrence had taken place on the road, whereas as per the First Information Report, which was lodged on the basis of written report of Pradip Minz, P.W.-8, the occurrence took place inside the house of informant where mother of the informant Deomani Beck and the neighbour Saibul Minz have been assaulted by the accused persons. Learned counsel for the appellants, accordingly, submitted that there is only omnibus allegations against all the accused to have assaulted the mother of the informant Deomani Beck and Saibul Minz by means of hard and blunt substance. Learned counsel for the appellants has further submitted that as per evidence, the appellants have been convicted for the offence punishable under Sections 452, 323, 324 and 307 of the Indian Penal Code, although, there is no mens rea on the part of the appellants to commit the murder and as such conviction under Section 307 is not sustainable in the eyes of law. 12. Heard learned Additional Public Prosecutor for the State Mr. Rajesh Kumar Mishra. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of material available on record. 12. Heard learned Additional Public Prosecutor for the State Mr. Rajesh Kumar Mishra. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of material available on record. Learned counsel for the State has further submitted that Kishor Ekka and Sushil Lakra were roaming around the house of the informant and were teasing the girl, which was opposed by the informant because of which, after some time, five to six accused persons entered into the house of the informant by breaking the lock of the door and assaulted the mother of the informant and neighbour Saibul Minz and in the said occurrence, P.W.-2 Jilo Beck was also assaulted. Injury reports of all the injured persons have been proved as Exhibit-1 Series. Injury Report of Pradip Minz (P.W.-8), i.e. abrasion on left side of cheek, which was simple in nature has been marked as Exhibit-1. Injury report of Deomani Beck (P.W.-5) i.e. (1) sharp cutting injury upon the upper margin of forehead size 2” in length x 1/4” deep, (2) sharp cut injury upon upper margin of nose 1/2” x 1/2”, (3) sharp cut injury upon upper margin of left cheek 1 1/2” in length and 1/2” in depth (4) inflammation found upon left side of breast and X-ray shows hazy in left lung and (5) abrasion upon back were found. Injury Nos. 1 and 3 are grievous in nature and injury Nos. 2, 4 and 5 are simple in nature and the injury report has been marked as Exhibit-1/1. Saibul Minz (P.W.-4) is also an injured witness and sustained two injuries i.e. (1) sharp cut injury upon left side of head and (2) abrasion upon left elbow joint. Both the injuries were simple in nature and caused by sharp cut weapon and the injury report has been marked as Exhibit-1/2. Jilo Beck (P.W.-2), is also one of the injured witness and has sustained one lacerated wound upon head 1/2” x 1/2” in size and the said injury was simple in nature, caused by hard and blunt substance and the injury report has been marked as Exhibit-1/3. Learned counsel for the State has submitted that the First Information Report has been proved and marked as Exhibit-2. Learned counsel for the State has submitted that the First Information Report has been proved and marked as Exhibit-2. Learned counsel for the State has further submitted that the evidence of the prosecution witnesses are consistent to each other and there is no contradiction. Non-examination of the Investigating Officer has not caused any prejudice to the appellants as there is no suggestion with respect to contradictions in the evidence of the prosecution witnesses or manner of occurrence or the place of occurrence. There is nothing on record to suggest that prosecution has deprived the appellants from cross-examination of the Investigating Officer, which has caused prejudice to the appellants as no such suggestion is given to other prosecution witnesses. Learned counsel for the State has, accordingly, submitted that the learned Trial Court has rightly convicted the appellants in accordance with law for the offence committed by appellants. 13. Heard Mr. A.K. Chaturvedi, assisted by Mr. Amit Kumar Choubey, Advocates, on behalf of the appellants and Mr. Rajesh Kumar Mishra, learned Additional Public Prosecutor, on behalf of the State and perused the materials available on record including the First Information Report, framing of charge, evidence of eight prosecution witnesses, prosecution exhibits, statement of the appellants, recorded under Section 313 of the Cr.P.C. and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of prosecution witnesses, from which, it appears that there is consistency in the evidence of prosecution witnesses so far assaults are concerned. This Court has also perused the evidence and has found that there was lack of intention on the part of the appellants to commit the murder of the injured, as such conviction of the appellant Guju Ekka under Section 307 of the Indian Penal Code cannot be sustained in the eyes of law. This Court has also perused the evidence and has found that there was lack of intention on the part of the appellants to commit the murder of the injured, as such conviction of the appellant Guju Ekka under Section 307 of the Indian Penal Code cannot be sustained in the eyes of law. So far as the conviction of the appellants under Section 452 of the Indian Penal Code is concerned, this Court has perused the evidence, brought on record and is of the opinion that the learned Court below has rightly passed the judgment of conviction against all the appellants of the present appeal under Section 452 of the Indian Penal Code, as they have entered into the house of the informant and, subsequently, they have assaulted the mother of the informant and his neighbour Saibul Minz, P.W.-4, as such, the learned Court below has rightly convicted the appellant Sushil Lakra for the offence punishable under Section 323 and Guju Ekka for the offence punishable under Section 324 of the Indian Penal Code. Non-examination of the I.O. has not prejudiced the case of the appellants, as the appellants have cross-examined the prosecution witnesses, but nothing has been asked from the prosecution witnesses to disbelieve the prosecution case with respect to the manner of occurrence and the place of occurrence. Since the appeal preferred by Silibester Ekka has already abated, as such, the present appeal is being disposed of with respect to Markus Ekka, Anthoni Ekka, Guju Ekka and Sushil Lakra only. The conviction of all the four appellants are, hereby, upheld and affirmed under Section 452 of the Indian Penal Code and further conviction of Guju Ekka under Section 324 of the Indian Penal Code and Sushil Lakra under Section 323 of the Indian Penal Code, are hereby upheld and affirmed. 14. At this stage, learned counsel for the appellants has submitted that the appellant Guju Ekka is aged about 80 years now, as at the time of conviction in the year January, 2004, Guju Ekka was of 65 years, as such instead of sending him jail, the sentence awarded by the learned Court below may be modified by putting some fine/compensation in monetary terms. 15. Learned counsel for the State has no objection to the submission of learned counsel for the appellants. 15. Learned counsel for the State has no objection to the submission of learned counsel for the appellants. Learned counsel for the appellants also submitted that the occurrence had taken place in the year 1992 and the appellants have faced rigors of the trial for approximately 26 years and, as such, instead of sending them jail, fine / compensation may be imposed. 16. Considering the submissions of both the parties and upon going through the materials, available on record including the criminal antecedent of the appellants, this Court is of the view that after 15 years of the pendency of the appeal, if the appellants, who are aged about 80 years and more than 60 years approximately are sent to jail, no useful purpose will be served. This Court is, accordingly, instead of sending them jail, modifies the sentence under Sections 323 and 452 of the Indian Penal Code as the period already undergone with the condition that appellants shall pay a fine / compensation of Rs. 10,000/- for the offence committed under Section 452 of the Indian Penal Code and Guju Ekka is further directed to pay a sum of Rs. 10,000/- for the offence committed under Section 324 of the Indian Penal Code. The appellants are directed to deposit the fine/compensation amount within a period of ten weeks from today, failing which, the appellants shall serve the sentence, as directed by the learned Court below. 17. The bail bonds of the appellants are, hereby, cancelled, but the learned Court below will not take any coercive step against the appellants for ten weeks in order to enable the appellants to comply the directions passed by this Hon’ble Court with respect to deposit of fine/compensation as stated above. 18. If the appellants are depositing the fine/compensation amount before the Court below, the said amount shall be handed over to the injured after issuing notice to all the four injured persons and after due verification, a sum of Rs. 10,000/- be paid to each of three injured and a sum of Rs. 20,000/- be paid to the victim Deomani Beck (P.W.-5), the mother of the informant, who has sustained grievous injuries. 19. In the result, this appeal is dismissed with modification in conviction and sentence. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.