JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction dated 05.01.2004 and order of sentence dated 06.01.2004, passed by learned Additional Sessions Judge, F.T.C. No. V, Deoghar, in Sessions Case No. 72 of 2002, whereby all the above named appellants have been convicted for the offence committed and punishable under Section 325/34 of the Indian Penal Code and have been awarded rigorous imprisonment for five years with a fine of Rs. 2000/-each and in default of payment of fine amount, the appellants have to further undergo imprisonment for three months. 2. The prosecution case is based upon the written report submitted by Nandan Kumar Chauhan (P.W. 5), before the Officer-in-Charge, Madhupur police station, Deoghar, on 05.07.2001, alleging inter alia that informant is resident of village Jasiadih, P.S. Madhupur, District-Deoghar and in the year, 1981, the Pradhan of Jasiadih namely late Gajadhar Nonian has given one bigha of land to his father for construction of house and cultivation and since then the informant and his family is in possession of the land. It is stated that, after death of Pradhan Gajadhar Nonian, his sons have started cultivating the land except the land on which the informant has constructed his house and two kathas of land in front of his house, which is being used as khalihaan, on the plea that their father has given the land only for construction of the house. It is further alleged that on 05.07.2001 at around 2.30 P.M., Forester Nonian @ Noniya, Devendra Nonian @ Noniya, Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya came to the khalihaan of the informant and removed the straw kept there. Forester Nonian @ Noniya and Bhairav Nonian @ Noniya started ploughing the field with the help of ox. It is further alleged that Umesh Nonian @ Noniya and Devendra Nonian @ Noniya were standing there. When informant and his father came to protest, then Forester Nonian @ Noniya, Bhairav Nonian @ Noniya came near the informant to assault. Forester Nonian @ Noniya having farsi, Devendra Nonian @ Noniya having tangi and Umesh Nonian @ Noniya and Bhairav Nonian @ Noniya having lathi in their hands came running there and started assaulting the father of the informant. Forester Nonian @ Noniya having farsi, Devendra Nonian @ Noniya having tangi and Umesh Nonian @ Noniya and Bhairav Nonian @ Noniya having lathi in their hands came running there and started assaulting the father of the informant. It is specifically alleged that Devendra Nonian @ Noniya assaulted the father of the informant on his head by means of tangi, due to which, informant has sustained bleeding injury on his head and fell down. On brawl, Jamuni Devi, wife of Devendra Nonian and Sharma Devi, wife of Forester Nonian @ Noniya and Naresh Nonian @ Noniya also came there with lathi and started assaulting the father of the informant. The informant has further alleged that he went for rescue of his father, then Forester Nonia @ Noniya tried to assault him by means of farsi and subsequently, he was assaulted by means of lathi by Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya. It is further alleged that when father of the informant became unconscious, the accused persons believing that his father has died, fled away. It has further been alleged that the accused persons have assaulted father of the informant with an intention to kill. 3. On the basis of the written report of the informant, police has registered Madhupur P.S. Case No. 119 of 2001, dated 05.07.2001, under Sections 341, 323, 324 and 307/34 of the Indian Penal Code against seven accused persons including the appellants. 4. After investigation, the police has submitted charge sheet vide charge sheet no. 224 of 2001, dated 31.07.2001, under Sections 341, 323, 325 and 307/34 of the Indian Penal Code, against all the seven accused persons. 5. The cognizance of the offence has been taken vide order dated 15.09.2001 and the case has been committed to the Court of Sessions vide order dated 18.02.2002. 6. The charge has been framed against all the seven accused persons under Section 307/34 of the Indian Penal Code vide order dated 04.12.2002, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and exhibited two documents. 6. The charge has been framed against all the seven accused persons under Section 307/34 of the Indian Penal Code vide order dated 04.12.2002, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and exhibited two documents. Paras Kumar Chauhan, elder brother of the informant has been examined as P.W. 1, Kiran Devi, wife of Paras Kumar Chauhan, has been examined as P.W. 2, Dewanti Devi, mother of the informant, has been examined as P.W. 3, Rajendra Prasad Chauhan, father of the informant and an injured of the case, has been examined as P.W. 4, Nandan Kumar Chauhan, informant and injured of the case, has been examined as P.W. 5 and Dr. Naresh Prasad Singh, Medical Officer, who has examined the injured Rajendra Prasad Chauhan (P.W. 4) and Nandan Kumar Chauhan (P.W. 5), has been examined as P.W. 6. The signature of the informant Nandan Kumar Chauhan, on the fardbeyan, has been proved and marked as Exhibit-1, injury report of Rajendra Prasad Chauhan (P.W. 4) has been proved and marked as Exhibit-2 and injury report of Nandan Kumar Chauhan (P.W. 5) has been proved and marked as Exhibit- 2/1. 8. After closure of the prosecution evidence, the statement of the accused persons, have been recorded under Section 313 Cr.P.C. on 04.12.2003, to which they have submitted that they are innocent and they have been falsely implicated in this case but no defence witness or document has been adduced on behalf of the defence. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, whereby the learned Trial Court has convicted the appellants, Forester Nonian @ Noniya, Devendra Nonian @ Noniya, Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya for the offence committed and punishable under Section 325/34 of the Indian Penal Code but by the same impugned judgment, the learned trial court has acquitted the other co-accused persons namely Naresh Nonian @ Noniya, Jamuni Devi and Sharma Devi of the charge under Section 307/34 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon’ble Court assailing the same. 10. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Hon’ble Court assailing the same. 10. Heard, learned counsel for the appellants, Mr. Arvind Kumar Choudhary assisted by Mr. Sambhu Nath Tiwari, Advocates. 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 submitted, that the investigating officer has not been examined in this case, as such the conviction of the appellants under Section 325/34 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted that the doctor (P.W. 6) has opined that all the injuries were simple in nature, caused upon Rajendra Prasad Chauhan (P.W.4) as well as Nandan Kumar Chauhan (P.W. 5) and none of the injury has been found to be caused by either tangi or farsa and as such, the conviction of the appellants under Section 325/34 of the Indian Penal Code is not sustainable. Learned counsel for the appellants has further submitted that there are vital contradictions in the evidence of the prosecution witnesses, as such benefit of doubt may be granted to the appellants. 11. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the material available on record and the learned Trial Court has rightly convicted the appellants under Section 325/34 of the Indian Penal Code. Learned counsel for the State has further submitted that there is no vital contradiction in the evidence of the prosecution witnesses nor any prejudice has been caused to the appellants because of non-examination of the investigating officer. Learned counsel for the State has further submitted that corresponding injury has been found by the Medical Officer, Dr. Naresh Prasad Singh (P.W. 6), who has proved the injury report of Rajendra Prasad Chauhan (P.W.4) as Exhibit-2 and injury report of Nandan Kumar Chauhan (P.W.5) as Exhibit-2/1. Though, the injuries were simple in nature but those have been caused by hard and blunt substance. Naresh Prasad Singh (P.W. 6), who has proved the injury report of Rajendra Prasad Chauhan (P.W.4) as Exhibit-2 and injury report of Nandan Kumar Chauhan (P.W.5) as Exhibit-2/1. Though, the injuries were simple in nature but those have been caused by hard and blunt substance. Learned counsel for the State has further submitted that doctor has categorically stated that those injuries are not possible because of fall and as such, the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court. 12. Heard, learned counsel for the appellants Mr. Arvind Kumar Choudhary assisted by Mr. Sambhu Nath Tiwari, Advocates and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor and perused the evidence brought on record including the F.I.R., framing of charge, evidence of six prosecution witnesses, 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. Paras Kumar Chauhan (P.W. 1), Kiran Devi (P.W. 2), Devanti Devi (P.W. 3), who are eye-witnesses to the occurrence. Rajendra Prasad Chauhan (P.W. 4) and Nandan Kumar Chauhan (P.W. 5) are the injured witnesses of the case. The corresponding injuries have been found by the Medical Officer, Dr. Naresh Prasad Singh (P.W. 6). The injury report of Rajendra Prasad Chauhan (P.W. 4) has been proved and marked as Exhibit-2 and the injury report of Nandan Kumar Chauhan (P.W. 5) has been proved and marked as Exhibit-2/1. From perusal of Exhibit-2, it appears that injury no. 1 of P.W. 4 is grievous in nature caused by hard and blunt substances, which is : “one lacerated wound on head (frontal bone), 3” x 1/4” x Bone deep (X-ray shows fracture of frontal bone)”. 13. The evidence of the prosecution witnesses are consistent to each other but injury no. 1 can only be attributed against the appellant Devendra Nonian @ Noniya, who has assaulted the father of the informant, Rajendra Prasad Chauhan (P.W. 4) on his head, as such considering the specific allegation against Devendra Nonian @ Noniya, the conviction of the appellant, Devendra Nonian @ Noniya under Section 325/34 of the Indian Penal Code is upheld and affirmed. 1 can only be attributed against the appellant Devendra Nonian @ Noniya, who has assaulted the father of the informant, Rajendra Prasad Chauhan (P.W. 4) on his head, as such considering the specific allegation against Devendra Nonian @ Noniya, the conviction of the appellant, Devendra Nonian @ Noniya under Section 325/34 of the Indian Penal Code is upheld and affirmed. So far the conviction of the appellants Forester Nonian @ Noniya, Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya are concerned, their conviction is modified from Section 325/34 of the Indian Penal Code to Section 324/34 of the Indian Penal Code. The sentence of appellant Devendra Nonian @ Noniya, whose conviction has been upheld and affirmed under Section 325/34 of the Indian Penal Code, is hereby modified to the period already undergone during the trial, subject to the condition that Devendra Nonian @ Noniya will deposit a sum of Rs. 10,000/-before the learned trial court, which is payable to Rajendra Prasad Chauhan (P.W. 4), within a period of ten weeks from the date of receipt of copy of this judgment to the learned trial court and in default of payment of fine amount as imposed by this Hon’ble Court, the appellant Devendra Nonian @ Noniya shall serve the sentence as awarded by the learned trial court. The learned Trial Court shall issue notice to Rajendra Prasad Chauhan (P.W. 4) and Nandan Kumar Chauhan (P.W. 5), after deposit of the said amount and on proper verification, the learned trial court will release the fine amount of Rs. 10,000/-to the victim Rajendra Prasad Chauhan (P.W. 4) and in his absence to Nandan Kumar Chauhan (P.W. 5). 14. The sentence of the appellants Forester Nonian @ Noniya, Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya, whose conviction have been converted from Section 325/34 of the Indian Penal Code to Section 324/34 of the Indian Penal Code, are hereby modified as period already undergone by them. 15. In the result, the impugned judgment of conviction dated 05.01.2004, passed by learned Additional Sessions Judge, F.T.C. No. V, Deoghar, in Sessions Case No. 72 of 2002, in connection with Madhupur P.S. Case No. 119 of 2001, corresponding to G.R. No. 272 of 2001, is hereby upheld and affirmed, with regard to the appellant Devendra Nonian @ Noniya, with modification in sentence as stated above. Further, the conviction of the appellants Forester Nonian @ Noniya, Bhairav Nonian @ Noniya and Umesh Nonian @ Noniya is modified from Section 325/34 to Section 324/34 of the Indian Penal Code with modification in sentence as period already undergone. 16. The appellants, who are on bail, their bail bonds are hereby cancelled to comply the order passed by this Hon’ble Court. 17. Accordingly, the present criminal appeal is dismissed with modification in conviction and sentence as stated above. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal dismissed.