JUDGMENT : 1. Heard learned counsel for the appellants, Dr. H. Waris and Mrs. Sadhana Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The present criminal appeal is directed against the judgment of conviction, dated 11.02.2004 and order of sentence, dated 12.02.2004, passed by learned Sessions Judge, Pakur, in Sessions Case No. 16 of 2003, whereby the appellants have been convicted for the offence committed and punishable under Sections 307/34 and 323/34 of the Indian Penal Code and awarded rigorous imprisonment for seven years for the offence committed and punishable under Section 307/34 of the Indian Penal Code and rigorous imprisonment for six months for the offence committed and punishable under Section 323/34 of the Indian Penal Code. Both the sentences are directed to run concurrently. 3. The prosecution case is based upon fardbeyan of informant, Shish Mohammad (P.W.-9), recorded by Kamlapati Singh, Officer-in-charge, Pakur (M) police station on 19.05.2002 at 11:30 hours. The informant has alleged that today on 19.05.2002 at about 09:30 A.M. co-villagers namely, Kayum Sheikh, Akat Sheikh, Mijad Sheikh, Jarul Sheikh and Akhtar Sheikh were plucking the palm fruit from the palm tree of the informant standing in the western bahiyar of the village and eating the same. The informant’s mother namely, Jahanur Bewa (P.W.-6) went there and objected to it whereupon accused Kayum Sheikh and Akhtar Sheikh assaulted her badly by means of lathi, causing injury. When the informant alongwith his brother Jhantu Sheikh (P.W.-7) went there to save his mother, accused Kayum Sheikh and his son Jarul Sheikh assaulted the informant and his brother Jhantu Sheikh with lathi, causing grievous injury. The accused persons have assaulted the informant on his head, right hand, back, left leg and middle finger of right hand and also assaulted his mother on head, both legs and left hand, causing bleeding injury. The informant’s brother Jhantu Sheikh, after being assaulted, was caught hold by the accused persons. The informant alongwith his mother somehow managed to come to the police station by a rickshaw. The informant has further alleged that the occurrence took place because of pendency of the civil suit with respect to land and palm tree. 4. On the basis of fardbeyan, police has instituted Pakur (M) P.S. Case No.108 of 2002, dated 19.05.2002, under Sections 147/323/342 of the Indian Penal Code against five named accused persons. 5. The informant has further alleged that the occurrence took place because of pendency of the civil suit with respect to land and palm tree. 4. On the basis of fardbeyan, police has instituted Pakur (M) P.S. Case No.108 of 2002, dated 19.05.2002, under Sections 147/323/342 of the Indian Penal Code against five named accused persons. 5. After investigation, the police has submitted charge sheet vide charge sheet no.54 of 2002, dated 30.06.2002 under Sections 147/323/342/307 of the Indian Penal Code against all the five accused persons. 6. The cognizance of the offence has been taken vide order dated 08.07.2002 and the case has been committed to the court of sessions vide order dated 24.01.2003. 7. The charge has been framed against all the accused persons under Sections 307/34 of the Indian Penal Code on 25.02.2003, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, has examined altogether twelve prosecution witnesses and also exhibited documents up to exhibit -4. Badrudoja Sheikh, has been examined as P.W.-1, Samsul Sheikh, has been examined as P.W.-2, Nurej Sheikh, has been examined as P.W.-3, Raisuddin Sheikh, has been examined as P.W.-4, Nargis Bibi, has been examined as P.W.-5, Jahanur Bewa, mother of the informant, has been examined as P.W.-6, Jhantu Sheikh @ Sher Mohammad, brother of the informant, has been examined as P.W.-7, Tanjila Khatoon, has been examined as P.W.-8, Shish Mohammad Sheikh, informant and victim of the case, has been examined as P.W.-9, Dr. Bindeshwar Rajak, Medical Officer, has been examined as P.W.-10, Umesh Prasad Singh, Investigating Officer, has been examined as P.W.-11 and Subodh Kumar Banerjee, Advocate’s Clerk, formal witness, has been examined as P.W.-12. The x-ray film of the injured, Jahanoor Bewa, has been proved and marked as exhibit-1, three injury reports of the injured namely, Shish Mohammad Sheikh, informant, Jahanoor Bewa, mother of the informant and Jhantu Sheikh @ Sher Mohammad, brother of the informant, have been proved and marked as exhibits-2, 2/1 and 2/2, formal first information report, has been proved and marked as exhibit-3 and fardbeyan, has been proved and marked as exhibit-4. 9. After closure of the prosecution evidence, the statement of the appellants/accused persons have been recorded under section 313 Cr.P.C., on 19.09.2003 to which they have stated that they are innocent and have been falsely implicated in this case. 9. After closure of the prosecution evidence, the statement of the appellants/accused persons have been recorded under section 313 Cr.P.C., on 19.09.2003 to which they have stated that they are innocent and have been falsely implicated in this case. The defence has also examined two witnesses namely, Abdul Rajjak Biswas as D.W.-1 and Sukumar Ghosh as D.W.-2, apart from that the defence has also exhibited sale deed No.2490 of 1990 and registered sale deed dated 04.12.1991, which have been proved and marked as exhibit-A and A/1 respectively. 10. After hearing the learned counsel for the parties and on the basis of the material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellants. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal, assailing the impugned judgment of conviction and order of sentence, which is being heard by this Hon’ble Court. 11. Heard, learned counsel for the appellants, Dr. H. Waris. 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 further submitted, that there is no ingredient to constitute an offence under Section 307/34 of the Indian Penal Code, as prosecution has neither alleged in the first information report that accused persons have assaulted them with intention to kill nor there is any intention alleged against the appellants that they have tried to kill the victims. Learned counsel for the appellants has thus submitted, that the conviction of appellants under Section 307/34 of the Indian Penal Code cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that the informant, Shish Mohammad Sheikh has sustained injury on the middle finger of his left hand. The opinion was kept reserved awaiting x-ray report but the x-ray report has not been brought on record. Learned counsel for the appellants has further submitted, that the informant, Shish Mohammad Sheikh has sustained injury on the middle finger of his left hand. The opinion was kept reserved awaiting x-ray report but the x-ray report has not been brought on record. Learned counsel for the appellants has further submitted, that the Jahanur Bewa, mother of the informant has sustained incised wound on middle of head, but prosecution has failed to explain that by which weapon incised wound has been caused on the head of the mother of the informant, as the consistent case of the prosecution is that accused persons have assaulted the mother of the informant by means of lathi. Learned counsel for the appellants has further submitted, that for on a trivial issue of eating the palm fruit from the tree, the occurrence has taken place between the co-villagers, who were in litigating terms. Learned counsel for the appellants has further submitted, that in view of non-examination of technicians of the x-ray dated 22.05.2002 for an injury caused on 19.05.2002, appellants cannot be convicted under Section 307/34 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that the charge under Section 341 of the Indian Penal Code has not been framed against the appellants and the investigating officer, P.W.-11, Umesh Prasad Singh has also not stated in the court, while deposing as P.W.-11 that he has rescued the brother of the informant, Jhantu Seikh @ Sher Mohammad. Learned counsel for the appellants has further submitted, that the Badrudoja Seikh, P.W.-1, Samsul Seikh, P.W.-2, Nurej Seikh, P.W.-3 and Raishudin Seikh, P.W.-4 have been declared hostile by the prosecution. Nargish Bibi, sister of the informant, has been examined as P.W.-5 but she is a hearsay witness. Learned counsel for the appellants has further submitted, that the Jahanur Bewa, P.W.-6, Jhantu Seikh @ Sher Mohammad, P.W.-7 and Shish Mohammad Sheikh, P.W.-9 are the injured witnesses of the case. Learned counsel for the appellants has further submitted, that the Tanjila Khatoon, P.W.-8 is co-villager and she is also a hearsay witness. Learned counsel for the appellants has further submitted, that Dr. Learned counsel for the appellants has further submitted, that the Tanjila Khatoon, P.W.-8 is co-villager and she is also a hearsay witness. Learned counsel for the appellants has further submitted, that Dr. Bindeshwar Rajak, P.W.-10 has found incised wound on the head of the mother of the informant, which has not been explained by the prosecution and investigating officer, Umesh Prasad Singh, who has been examined as P.W.-11 has not rescued the brother of the informant from the custody of the appellants as alleged by the prosecution. Under the aforesaid circumstances, learned counsel for the appellants has submitted that the appellants are entitled for benefit of doubt. 12. Heard, Mrs. Sadhana Kumar, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has vehemently argued the case and submitted, that the impugned judgment of conviction and order of sentence is based upon the material available on record and the learned trial court has rightly convicted the appellants under Sections 307/34 and 323/34 of the Indian Penal Code. Learned counsel for the State has further submitted, that Jahanur Bewa, P.W.-6, mother of the informant, Jhantu Seikh @ Sher Mohammad, P.W.-7, brother of the informant and Shish Mohammad Sheikh, P.W.-9, informant and victim of the case, have supported the prosecution case and corresponding injuries have been found by Dr. Bindeshwar Rajak, who has been examined as P.W.-10. The investigating officer, Umesh Prasad Singh, examined as P.W.-11, has investigated the case and after finding the case to be true, submitted charge sheet against the appellants, as such the impugned judgment of conviction and order of sentence has rightly been passed by the learned trial court, which does not warrant any interference by this Hon’ble Court at this stage. 13. Heard, learned counsel for the appellants, Dr. H. Waris and Mrs. Sadhana Kumar, Additional Public Prosecutor, appearing for the State and perused the records i.e. first informant report, framing of charge, the evidence of twelve prosecution witnesses, four prosecution exhibits, the statement of the appellants recorded under Section 313 Cr.P.C., two defence witnesses and two defence exhibits. This court has scrutinized the evidence brought on record. This Court is of the opinion that nothing has been brought on record to constitute an offence under Section 307 of the Indian Penal Code. This court has scrutinized the evidence brought on record. This Court is of the opinion that nothing has been brought on record to constitute an offence under Section 307 of the Indian Penal Code. Neither the witnesses have alleged that appellants have intention to kill them nor the same has been asserted in the first information report as well as in the depositions of the prosecution witnesses in the Court. Furthermore, none of the injury found by the Dr. Bindeshwar Rajak (P.W.-10) are fatal nor the doctor has stated that in normal course these injuries are sufficient to cause death of a person. As such, this Court is of the opinion that the conviction of the appellants under Section 307/34 of the Indian Penal Court cannot sustain in the eyes of law. Since the appellants have used weapon for assaulting the informant and his mother and brother, as such the offence under Section 324 of the Indian Penal Code is made out against the appellants as they have voluntarily caused hurt by dangerous weapons or means. Section 324 reads as follows:- 324. Voluntarily causing hurt by dangerous weapons or means- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 14. This Court has examined the evidence in view of Section 324 of the Indian Penal Code and found that lathi, which is a weapon of offence has been used in assaulting the injured, as such this Court is hereby setting aside the conviction of the appellants under Section 307/34 of the Indian Penal Code and appellants are hereby convicted under section 324/34 of the Indian Penal Code in addition to the conviction under section 323/34 of the Indian Penal Code. So far the sentence awarded by the learned trial court is concerned since, the conviction of the appellants under Section 307/34 of the Indian Penal Code has been passed by the learned trial court is set aside, the sentence of rigorous imprisonment of seven years is also set aside. The conviction under Section 307/34 of the Indian Penal Code has been modified to Section 324/34 of the Indian Penal Code, as such period already undergone by the appellants is sufficient to meet the sentence. So far sentence of the appellants under Section 323/34 is concerned, this court is of the opinion that instead of rigorous imprisonment for six months, sentence of period already undergone during the trial will be sufficient, as the dispute arose between the parties with respect to a civil dispute and for plucking of palm fruit from the tree of the informant. The occurrence took place in the year, 2002 and they have faced rigor of trial for approximately 16 years. Under the aforesaid circumstances, instead of awarding the sentence of jail this Court is of the opinion that period already undergone by the appellants, which as per the record shows approximately three months, is sufficient. 15. In the result, this appeal is partly allowed with modification in sentence. 16. The appellants, who are on bail, their bail bonds is hereby cancelled but no further order is required. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal partly allowed.