JUDGMENT : Heard learned counsel for the appellants, Mr. Pravin Kumar Rai and Mr. Mukesh Kumar, learned Additional Public Prosecutor, appearing for the State. 2. The present criminal appeal is directed against the judgment of conviction, dated 14.01.2004 and order of sentence, dated 19.01.2004, passed by learned Additional Sessions Judge, Ghatshila, Singhbhum East, in Sessions Trial No. 105 of 1992, arising out of Baharagora (Barsol) P.S. Case No.65 of 1991, corresponding to G.R. No.1972 of 1991, whereby all the appellants have been convicted for the offence punishable under Sections 307/34 and 326/34 of the Indian Penal Code and awarded sentence of rigorous imprisonment for seven years each for the offence committed and punishable under Section 307/34 of the Indian Penal Code and rigorous imprisonment for five years with a fine of Rs.1000/- each and in default of payment of fine further rigorous imprisonment for one year for the offence committed and punishable under Section 326/34 of the Indian Penal Code. All the sentences are directed to run concurrently. 3. The prosecution case is based upon written report submitted by informant, Shambhu Nayak, before the Officer-in-charge, Baharagora police station on 02.09.1991, alleging therein that today i.e. on 02.09.1991 at around 08:00 P.M. the informant was in his house, when a small kid eased himself near the well of Digbarda village. The informant asked the mother of the child to clean the stool, but she refused. Thereafter, Pramatho Bag and Guru Charan Bag came near the well and started abusing the informant. On showing protest, the altercation took place which was subsequently aggravated and thereafter Sachin Bag having tangi in his hand and Durga Bag having lathi in his hand came there. Gurucharan Bag and Pramatho Bag began to assault with tangi, lathi and danda, causing injury to informant, Shambhu Nayak, Shankar and Santosh. 4. On the basis of written report, police instituted Baharagora (Barsol) P.S. Case No.65 of 1991, dated 03.09.1991, under Sections 341/323/324/34 of the Indian Penal Code against four named accused persons namely, 1. Pramatho Bag, 2. Guru Charan Bag, 3. Sachin Bag and 4. Durga Bag and subsequently, vide order dated 24.09.1991, Sections 307 and 326 of the Indian Penal Code have been added. 5. After investigation, the police submitted charge sheet vide charge sheet no.54 of 1991, dated 02.11.1991 under Sections 307/326/324/323/34 of the Indian Penal Code against all the accused persons. 6. Guru Charan Bag, 3. Sachin Bag and 4. Durga Bag and subsequently, vide order dated 24.09.1991, Sections 307 and 326 of the Indian Penal Code have been added. 5. After investigation, the police submitted charge sheet vide charge sheet no.54 of 1991, dated 02.11.1991 under Sections 307/326/324/323/34 of the Indian Penal Code against all the accused persons. 6. The cognizance of the offence has been taken vide order dated 11.11.1991 and the case has been committed to the court of sessions vide order dated 21.07.1992. 7. The charge has been framed against all the accused persons under Sections 307/34 and 326/34 of the Indian Penal Code on 07.11.1992, to which the accused persons have pleaded their innocence and thus, they were put under trial. During trial, one of the accused, namely, Pramath Bag has died and his case was dropped vide order dated 06.01.1999. 8. The prosecution, has examined altogether nine witnesses and also exhibited documents up to exhibit 3. Dr. Arun Kumar Sinha, who has examined, the injured has been examined as P.W.-1, Khokon Nayak, has been examined as P.W.-2, Shankar Nayak, has been examined as P.W.-3, Ambika Nayak, has been examined as P.W.-4, Santosh Nayak, has been examined as P.W.-5, Chamati Nayak, tendered by the prosecution, has examined as P.W.-6, Dr. S. Bhagat, who has examined injured, Shankar Nayak (P.W.-3), has been examined as P.W.-7, Malti Nayak, has been examined as P.W.-8 and Bhujang Nayak, tendered by the prosecution, has been examined as P.W.-9. Injury report and supplementary injury report of Shankar Nayak, has been proved and marked as exhibit-1 and 1/a, injury report of Santosh Nayak, has been proved and marked as exhibit-1/b and injury report of Shambhu Nayak, has been proved and marked as exhibit-1/c, all injury reports have been proved by P.W.-1, Dr. Arun Kumar Sinha. Written report of the informant, has been proved and marked as exhibit-2 and injury report of Shankar Nayak, has been proved and marked as exhibit-3. 9. After closure of the prosecution evidence, the statement of the accused persons have been recorded under section 313 Cr.P.C., on 08.01.1997 to which they have pleaded their innocence and stated that they have been falsely implicated in this case. Guru Charan Bag, has been examined as D.W.-1 and Pratima Bag, has been examined as D.W.-2. 9. After closure of the prosecution evidence, the statement of the accused persons have been recorded under section 313 Cr.P.C., on 08.01.1997 to which they have pleaded their innocence and stated that they have been falsely implicated in this case. Guru Charan Bag, has been examined as D.W.-1 and Pratima Bag, has been examined as D.W.-2. Defence has also exhibited certified copy of order sheet dated 25.08.1994, passed in C-1 Case No.57 of 1993, arising out of Barsol P.S. Case No.66 of 1991, under Sections 323 and 436/34 of the Indian Penal Code, which has been proved and marked as exhibit-A, fardbeyan of S.T. Case No.293 of 1996 has been proved and marked as exhibit-B and protest petition of S.T. No.293 of 1996 as exhibit-C. 10. After hearing the learned counsel for the parties and on the basis of the materials available on record, the learned trial court 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 appellants have preferred the present criminal appeal, assailing the same, which is being heard by this Hon’ble Court. 11. Heard, learned counsel for the appellants Mr. Pravin Kumar Rai. 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 a case and counter case between the parties, which has been registered as Baharagora (Barsol) P.S. Case No.66 of 1991 (whereas the present case is Baharagora P.S. Case No.65 of 1991) against the present prosecution party under Sections 323/436/34 of the Indian Penal Code, arising out of G.R. No.1973 of 1991. Learned counsel for the appellants has further submitted, that except Shankar Nayak (P.W.-3), whose supplementary injury report shows privation of right upper limb about 30 degree movement, all other injuries caused upon Shambhu Nayak, informant of the case, Shankar Nayak (P.W.-3) and Santosh Nayak (P.W.-5) are simple in nature and there is no ingredient to constitute an offence under Section 307/34 of the Indian Penal Code. None of the witnesses have stated either in the written report or in their deposition in the court that accused persons have intention to kill them and as such the conviction of appellant 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 conviction of the appellants under Section 326/34 of the Indian Penal Code, on the basis of grievous injury found on Shankar Nayak, P.W.-3 as submitted by P.W.-7, Dr. S. Bhagat is contrary to the injury report issued by P.W.-1, Dr. Arun Kumar Sinha. Learned counsel for the appellants has further submitted, that P.W.-1, Dr. Arun Kumar Sinha, has examined Shankar Nayak (P.W.-3) on 02.09.1991 at about 10:45 P.M. and found only one incised wound 6”x3”x bone deep over right scapular region. The opinion was reserved and the patient was referred for x-ray. Dr. S. Bhagat (P.W.-7), M.G.M. College, Jamshedpur issued injury report of Shankar Nayak (P.W.-3) showing (i) privation of right upper limb about 30 degree movement as re-examined on 27.09.1991 and (ii) deep cut 1 c.m. on the spine of right scapula and opined that the injury is grievous in nature. Doctor has also mentioned that Shankar Nayak, P.W.-3 was admitted on 05.09.1991 and discharged on 23.09.1991. The injury report issued by Dr. S. Bhagat addressed to Dr. Arun Kumar Sinha, Medical Officer, Baharagora, has been proved and marked as exhibit-3. Learned counsel for the appellants has further submitted, that from perusal of injury report of Shankar Nayak, which has been marked as exhibit-1, exhibit-1/a and exhibit 3, all are not in inconsonance with each other. Dr. A.K. Sinha, P.W.-1, has categorically mentioned about injury as incised wound 6” x 3” x bone deep meaning thereby that none of the bone of injured was found cut injury by the assault but Dr. S. Bhagat, P.W.-7, whose injury report has been proved and marked as exhibit-3, has found privation of right upper limb (about 30 degree movement) and injury no.2 as deep cut on the spine about 1 c.m on the right scapula are not in consonance with each other. Learned counsel for the appellants has further submitted, that injury found on Shambhu Nayak (not examined) and Santosh Nayak (P.W.-5) are simple in nature. Learned counsel for the appellants has further submitted, that injury found on Shambhu Nayak (not examined) and Santosh Nayak (P.W.-5) are simple in nature. Learned counsel for the appellants has further submitted, that as per the evidence of P.W.-2, Khokon Nayak, injured Shambhu Nayak has sustained injury on his head and elbow by tangi and also on the wrist due to which Shambhu Nayak became unconscious, whereas Shankar Nayak has sustained injury by lathi once on the back and Santosh Nayak has sustained three injuries caused by lathi. Learned counsel for the appellants has further submitted, that from perusal of evidence of P.W.-3, Shankar Nayak has sustained injury by lathi and tangi as such the injury report marked as exhibit-1, 1/a and 3 are not inconsonance with the evidence of P.W.-2. Shankar Nayak, injured of the case. This witness has stated that, when this witness along with his brother, Santosh Nayak, P.W.-5 came out of the house, they were assaulted by Durga Bag having lathi and Sachin Bag having tangi. This witness has also stated that he was assaulted on his shoulder. Learned counsel for the appellants has further submitted, that the injured, Shankar Nayak has himself stated in the court that he was assaulted by Sachin Bag by means of tangi on his shoulder, as such exhibits-1, 1/a and 3 are not inconsonance with the allegation made by Shankar Nayak, P.W.-3. Ambika Nayak, has been examined as P.W.-4. This witness has stated that Sachin Bag came and assaulted her brother-in-law by tangi on back. Guru Charan Bag has assaulted her father-in-law by means of lathi and Sachin Bag has assaulted her husband, Santosh Nayak (P.W.-5) by means of tangi. This witness has stated that assault took place on the veramada and room, where blood has fallen. Learned counsel for the appellants has further submitted, that evidence of P.W.-4, Ambika Nayak is contrary to the prosecution case as none of the witnesses have alleged that occurrence took place inside the house, rather Shankar Nayak, P.W.-3 has categorically stated that when he along with his brother, Santosh Nayak came out of the house and he was assaulted, as such the evidence of P.W.-4, Ambika Nayak is not worth to be relied upon to convict the appellants. Santosh Nayak, another injured witness has been examined as P.W.-5, This witness has stated that he saw Pramatho Bag, Sachin Bag, Guru Charan Bag and Durga Bag were assaulting his father and thereafter the accused persons have assaulted him, his father and Shankar Nayak (P.W.-5) causing injury to him on hand, finger and head and injury upon his father, Shambhu Nayak on head and hand injury upon Shankar Nayak (P.W.-3) on back of right shoulder. This witness has categorically stated in paragraph 4 of his cross-examination that none of the occurrence has been committed in his house. Learned counsel for the appellants has further submitted, that from perusal of the exhibit-1, which is the injury report of Shankar Nayak, Doctor has found injury on the right scapular region, whereas the allegation has been made by Shankar Nayak, P.W.-3, that he was assaulted by tangi on the back of right shoulder and this version has been supported by P.W.-5, Santosh Nayak but doctor has found the injury on the right scapular region. Chamati Nayak, has been examined as P.W.-6 and she has been tendered by the prosecution. Dr. S. Bhagat, who has examined Shankar Nayak (P.W.-3) at M.G.M. College, Jamshedpur on 05.09.1991 has been examined as P.W.7 and has found two injuries (i) deep cut 1 c.m. on the spine of right scapula, (ii) privation of right upper limb about 30 degree movement and proved the injury report as exhibit-3. Malti Nayak, has been examined as P.W.-8, this witness has also supported the prosecution case. Bhujang Nayak, has been examined as P.W.-9 and he has been tendered by the prosecution. Learned counsel for the appellants has submitted, that non-examination of the investigating officer has caused serious prejudice to the appellants and appellants could not draw attention with respect to the place of occurrence and manner of occurrence. Learned counsel for the appellants has thus submitted, that under the above circumstances, appellants are entitled for benefit of doubt. 12. Heard, Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has 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 326/34 of the Indian Penal Code. 12. Heard, Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has 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 326/34 of the Indian Penal Code. Learned counsel for the State has further submitted, that the injury reports as exhibits 1, 1/a and 3 are consistent to each other, as injury has been found on the right scapular region of Shankar Nayak, caused by sharp cut weapon alleged to have been caused by assault made by appellant no.2, Sachin Bag, which is grievous in nature in view of section 320 of the Indian Penal Code. Learned counsel for the State has further submitted, that the evidence of prosecution witnesses are consistent to each other and informant, Shambhu Nayak could not be examined in this case because of his death after three months of the occurrence. Learned counsel for the State has further submitted, that no prejudice has been caused to the appellants because of non-examination of the investigating officer as the appellants have never doubted the place of occurrence nor given any suggestion to any of the witnesses with respect to the place of occurrence during trial, as such the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon’ble Court. 13. Heard, learned counsel for the appellants, Mr. Pravin Kumar Rai and Mr. Mukesh Kumar, Additional Public Prosecutor, appearing for the State and perused the records i.e. first informant report, framing of charge, the evidence of nine prosecution witnesses, three prosecution exhibits, two defence witnesses, three defence exhibits, statement of the appellants recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. It appears that defence has tried to establish the case that on the alleged date of occurrence, these prosecution parties have also set their house on fire for which a case was instituted but from perusal of exhibit-A, B and C, it appears that case was found to be false by the police after investigation and thus, the protest petition was filed, as such the defence document of the appellants are of no help for them in the present case. This court has scrutinized the evidence of prosecution witnesses. This court has scrutinized the evidence of prosecution witnesses. From perusal of the prosecution evidence, it appears that P.W.-1, Dr. Arun Kumar Sinha initially treated Santosh Nayak, Shambhu Nayak and Shankar Nayak. P.W.-2, Khokon Nayak, has also supported the prosecution case. Shankar Nayak, P.W.-3, injured witness to the case, his evidence is consistent with evidence of doctor, which has been proved and marked as exhibits-1, 1/a and 3. Ambika Nayak, P.W.-4 is not trustworthy witness of this case as this witness has stated contrary to other prosecution witnesses so far blood was found in the room. Santosh Nayak, P.W.-5, another injured witness of the case has also supported the prosecution case and the medical evidence, which has been proved and marked as exhibit-1 series. Dr. S. Bhagat, (P.W.-7), who has examined Shankar Nayak, has found grievous injury upon Shankar Nayak. Considering all this aspect of the matter this Court is of the opinion, that conviction of the appellants under Section 326/34 of the Indian Penal Code has been rightly passed by the learned trial court and the same is upheld and affirmed by this Court. Since there is no allegation or averments on record to constitute an offence under Section 307/34 of the Indian Penal Code, as such the appellants are acquitted of the charge and conviction under Section 307/34 of the Indian Penal Code. So far sentence of the appellants under Section 326/34 of the Indian Penal Code is concerned, considering the period of rigor of trial since 1991, the sentence awarded by learned trial court is modified to the extent of period already undergone by the appellants, subject to condition that Sachin Bag will pay sum of Rs.10,000/- and Durga Charan Bag and Guru Charan Bag with pay a fine of Rs.3000/- each. The fine amount shall be deposited in the court below at Ghatshila, East Singhbhum. The fine amount shall be disbursed to the victims in equal proportion by the learned trial court. The appellants are directed to deposit the fine amount as stated above within a period of eight weeks from the date of service of notice upon them. The learned trial court will issue notice to all the appellants to deposit the fine amount within eight weeks, failing which the appellants shall have to undergo a rigorous imprisonment for one year. 14. The learned trial court will issue notice to all the appellants to deposit the fine amount within eight weeks, failing which the appellants shall have to undergo a rigorous imprisonment for one year. 14. In the result, the instant appeal is partly allowed as the appellants are acquitted of the charge and conviction under Section 307/34 of the Indian Penal Code but their conviction under Section 326/34 of the Indian Penal Code is hereby upheld with modification in sentence as stated above. 15. The appellants, who are on bail, their bail bonds is hereby cancelled to comply the order passed by this Hon’ble Court. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.