JUDGMENT : 1. Since nobody has appeared on behalf of the appellants and this case appears to be of the year 2003, I deem it appropriate to appoint Mr. Baban Roy as Amicus Curiae to assist the Court. 2. Challenge in this appeal is of judgment of conviction and order of sentence dated 19.12.2002, passed by Shri Anand Prasad Shrivastava, the then Adhoc District & Sessions Judge, Presiding Officer First Additional Fast Track Court, Siwan in Sessions Trial No. 222/83/33/2001, by which appellant Ramashankar Singh @ Tuntun was held guilty under Section 148 and 326 of the Indian Penal Code (hereinafter referred to as the “IPC”) and was sentenced to undergo R.I. for two years under Section 148 of the IPC and R.I. for three years under Section 326 of the IPC with a fine of Rs. 2,000/-having default clause. Appellant Hareshwar Singh was held guilty under Section 148 and 324 of the IPC and was sentenced to undergo R.I. for two years under each Section. Appellant Devendra Singh was convicted under Section 147 and 323 of the IPC and was sentenced to undergo R.I. for one year under each Section. By the said Judgment the trial court also convicted one co-accused–Nag Narayan Singh, however, he was released on due admonition under the provisions of Section 360 of the IPC and he has not preferred any appeal. 3. Prosecution case as per the fardbeyan of informant Ravindra Singh (P.W. 6) in short is that on 17.01.1982 at about 10. A.M., while he was getting the branches of dried tree cut in his orchard field with two labourers, namely, Bakridan Mian (P.W. 1) and Sahabuddin Mian (P.W. 5), where his father Sudhist Narain Singh (P.W. 4) was also there, all the appellants and other co-accused came there variously armed and co-accused Sheo Mangal Singh told that after the decree passed in the partition suit you all have become jubilant and gave a bhala blow on the thigh of P.W. 4, appellant Ramashankar Singh @ Tuntun Singh gave a farsa blow on the head of P.W. 4 and all the remaining co-accused and appellant Devendra Singh assaulted P.W. 4 by lathi. Thereafter, P.W. 4 fell down on the ground. Thereafter, P.W. 4 fell down on the ground. Further prosecution case is that appellant Ramashankar Singh @ Tuntun Singh assaulted the informant (P.W. 6) by means of farsa on his head and appellant Devendra Singh and other co-accused assaulted him by means of lathi on his left hand and back. On hulla cousin of informant, namely, Sudheswar Singh (P.W. 7) came to intervene, co-accused Sheo Mangal Singh inflicted a bhala blow in his stomach and appellant Hareshwar Singh assaulted him by means of bhala in his left thigh, thereafter he fell down. On hulla villagers, namely, Birendra Singh (P.W. 2) and Kameshwar Singh (P.W. 3) came there. It is also alleged that Upendra Kumar Singh (P.W. 8), younger brother of informant told him that the palanis and one khop were set on fire by the accused person. On the basis of the aforesaid fardbeyan Daroundha P.S. Case No. 13 of 192 was registered against the appellants and other accused persons under Sections 147, 148, 149, 323, 324 and 436 of the IPC. 4. Police after investigation submitted charge-sheet against the F.I.R named accused persons and the case was committed to the court of Sessions, which ultimately came to the file of Shri Anand Prasad Shrivastava, the then Adhoc District & Sessions Judge, Presiding Officer First Additional Fast Track Court, Siwan for trial and disposal. 5. To bring home the charge, prosecution has examined altogether 12 witnesses. They are:-P.W. 1–Bakridan Mian, claimed to be eye witness of the occurrence, P.W. 2-Birendra Kumar Singh, claimed to be eye witness of the occurrence, P.W. 3-Kameshwar Singh, claimed to be eye witness of the occurrence, P.W. 4-Sudhist Narain Singh (injured), P.W. 5–Sahabuddin Mian, claimed to be eye witness of the occurrence, P.W. 6-Rabindra Singh (informant and injured), P.W. 7–Sudeshwar Singh (injured), P.W. 8–Upendra Kumar Singh, claimed to be eye witness with respect to setting the palanis on fire by the accused persons, P.W. 9-Doctor Ramashray Singh, who treated and examined the injured persons, P.W. 10-Ram Pukar Singh, Advocate Clerk, who proved Ext. 3 and 4 and also proved case diary Ext. 5 of Daroundha P.S. Case No. 13/92, P.W. 11-Chandeshwar Rai, survey knowing persons, who was appointed as commissioner in Execution Case No. 9/1975 in the court of Sub-Judge, Siwan effected the delivery of possession connected with plot no. 3 and 4 and also proved case diary Ext. 5 of Daroundha P.S. Case No. 13/92, P.W. 11-Chandeshwar Rai, survey knowing persons, who was appointed as commissioner in Execution Case No. 9/1975 in the court of Sub-Judge, Siwan effected the delivery of possession connected with plot no. 4007 and 3606 and 6300 with respect to Khata No. 27, 28 and 150 respectively and P.W. 12–Sudama Prasad, Advocate Clerk, who proved certified copy of report of Advocate Commissioner and signature on said report was marked as Ext. 8 to 8/2 and certified copy of report of Advocate Commissioner is marked as Ext. 9. Besides the above, signatures on seizure list was marked as Ext. 1 to 1/1. Injury report was marked as Ext. 2 to 2/2. Fardbeyan was marked as Ext. 3. Formal F.I. R was marked as Ext. 4. Case diary was marked as Ext. 5. Order dated 04.06.80 in torn condition in Execution Case No. 9/75 was marked as Ext. 6 and certified copy of judgment in Suit No. 811/56 marked as Ext. 7. 6. On behalf of defence also judgment of conviction delivered by Judicial Magistrate in counter case has been produced and marked as Ext. A, certified copy of charge-sheet of Daraoundha P.S. Case No. 15 of 82 in which, Ravindra Singh is an accused, is marked as Ext. B and FIR of the counter case marked as Ext. C. and photo-state copy of injury report of Sheo Mangal Singh in counter case marked as Ext. D and photo-state copy of injury report of Nag Narayan Singh marked as Ext. D/1 and photo-state copy of injury report of Rameshwar Singh marked as Ext. D/2. 7. When examined under Section 313 Cr.P.C, appellants denied the allegation and pleaded not guilty and further defence of the appellants from the documents filed by the defence is that for the same occurrence, appellant–Ramashankar Singh @ Tuntun Singh has filed a case against he informant and others and appellants had also received the injuries and only to save their skin, present false and concocted case has been filed by the informant. 8. Learned Trial Court after considering the material available on record, convicted the appellants and sentenced them in the manner aforesaid. 9. 8. Learned Trial Court after considering the material available on record, convicted the appellants and sentenced them in the manner aforesaid. 9. Submission of learned Amicus Curiae is that there are several inconsistencies and infirmities in the evidence of prosecution witnesses and the injury sustained by the appellants in the counter case has not been explained by the prosecution, which clearly shows that they are not coming with clean hands and suppressing the material facts and that clearly casts a serious doubt on the manner of occurrence. However, the learned Trial Court erred in law in not appreciating the fact that there was a counter case of the occurrence as well, in which appellants side sustained injuries and some of them were also grievous in nature but veracity of the said counter case, was doubted only on the ground that there was delay in registration of F.I.R as well as on the ground that the place of occurrence was not similar in the counter case, however, failed to consider that the informant and other had been convicted in the counter case (Ext. A). Further contention of learned Amicus Curiae is that in this case, non–examination of I.O., has proved to be fatal for the defence as had he been examined, he would have thrown light regarding the determination of place of occurrence and also as to who was the aggressor of the occurrence. It has also been submitted that the Trial Court has failed to consider that the injury no. 1 of Sudhist Narain Singh (P.W. 4), though found to be grievous and dangerous to life by the doctor (P.W. 9), however the evidence of doctor clearly shows that there was no fracture on the scalp and in such a situation, the finding with regard to injury no. 1, being grievous in nature, does not appear to be probable. 1 of Sudhist Narain Singh (P.W. 4), though found to be grievous and dangerous to life by the doctor (P.W. 9), however the evidence of doctor clearly shows that there was no fracture on the scalp and in such a situation, the finding with regard to injury no. 1, being grievous in nature, does not appear to be probable. Further contention of learned Amicus Curiae is that the Trial Court has also not considered the defence case as per the counter case that the appellants had two pilanis over the land and after the decree, the prosecution party were forcibly trying to remove those pilanis, which was objected by the appellants and due to which the occurrence took place and hence it is the prosecution party, who was aggressor in the occurrence, however, the Trial Court without considering all these inconsistencies and infirmities in the prosecution story has convicted the appellants, which is not sustainable in the eye of law. 10. Per contra, learned counsel for the respondent–State has defended the impugned judgment of Trial Court on the ground that all the witnesses have supported the prosecution case so far genesis of occurrence, place of occurrence and manner of occurrence, is concerned and the same has been corroborated by the fardbeyan which is the earliest version and further been corroborated by the evidence of Doctor, who has found injuries on the person of P.W. 4, P.W. 6 and P.W. 7 as per description given in their evidence. It has further been argued that the informant had been given possession over the land by Advocate Commissioner in the execution case and when, they were cutting the dried up branches of the tree, appellants came variously armed and assaulted him and others, which clearly suggests that it is the appellants, who were aggressor in the occurrence and, therefore, there is no infirmity in the impugned judgment and conviction of appellants is just and proper. 11. 11. In the background of the rival contentions of the parties on evaluation of evidence available on record, it appears that in this case, P.W. 6 is the informant and he has supported the genesis of occurrence and stated that while he was cutting the branches of dried up tree with the help of two labourers i.e. P.W. 1 Bakrudin Mian and P.W. 5 Sahabuddin Mian, and his father Sudhist Narain Singh (P.W. 4) was also there, appellants came variously armed and accused Sheo Mangal Singh assaulted Sudhist Narain Singh (P.W. 4) on his left thigh by bhala and appellant Ramashankar Singh assaulted him on his head by farsa and accused Nag Narayan Singh, appellant–Devendra Singh and accused Jagdish Singh assaulted him by means of lathi and, thereafter he fell down. His evidence further disclose that he was assaulted by Ramashankar Singh @ Tuntun Singh by means of farsa on his head and appellant Devendra Singh and other co-accused assaulted him by means of lathi on his left hand and back and his cousin Sudeshwar Singh (P.W. 7) was assaulted by accused Sheo Mangal Singh in his abdomen by bhala and appellant Hareshwar Singh assaulted him on his left thigh by means of bhala. His evidence further discloses that appellants set on fire two pilanis, causing damage to a property worth Rs. 1,000/-. 12. The aforesaid evidence of informant (P.W. 6) found corroboration from the evidence of Sudhist Narain Singh (P.W. 4) and evidence of Sudheswar Singh (P.W. 7) as they themselves were injured in this case and they have supported the manner, place and genesis of occurrence. 13. In this case P.W. 9 is the Doctor, who treated and examined the injured P.W. 4, P.W. 6 and P.W. 7 and found following injuries on the person of Sudhist Narain Singh (P.W. 4); (i) An incised wound on the middle of the head crossing transversely-4” x 3/4” x scalp deep peritorium of the skull bone was cut and blood vessels were trisected. (ii) Scratch on the left upper arm on its lateral side, size 4”x 3/ 4” x vertical deep. (iii) Scratch on the middle of the left gluteus region size 2 ½ x ¼” x vertical deep. (iv) Bruise, swelling and tenderness on left scapula size 4” x ½” x 0. (v) Bruise, swelling with tenderness on the right gluteus region size 3” x ½” x 0. (iii) Scratch on the middle of the left gluteus region size 2 ½ x ¼” x vertical deep. (iv) Bruise, swelling and tenderness on left scapula size 4” x ½” x 0. (v) Bruise, swelling with tenderness on the right gluteus region size 3” x ½” x 0. (vi) Bruise with tenderness and swelling on the lateral side of the right upper arm size 3” x ¼” x 0. (vii) Bruise and swelling on the back and lateral side of left thigh size 3” x ½”x 0. (viii) One penetrating wound on the lower third of the left thigh more towards the posterior lateral side, big blood vessels and muscles etc. (acetated) size 2 ½” x 2 ½” x muscle deep 04” directing towards the medial side. In the opinion of doctor injury no. 1 was caused by sharp cutting weapon and was dangerous to life as well as injury no. 8 was also dangerous to life, which was caused by sharp penetrating weapon. 14. Doctor (P.W.9) found following injuries on the person of informant (P.W. 6):- (i) An incised wound on the middle of the head transversely more towards the left side 1 ½” x ½” x scalp deep. Big blood vessels were trisected packed with blood clots. (ii) Diffused bruise on the right side of scapula with profound welling and extreme tenderness size 2” x ½” x 0. (iii) Bruise, swelling and tenderness on back of chest more towards the left renal angle size 1” x ¼” x 0. (iv) Bruise, swelling and tenderness on the right side gluteus region 3” x 2” x 0. (v) Scratch in between scapula 6” x ¼ “ into vertical deep. (vi) Lacerated wound on the forehead ¾” x ¼” x skin deep. In the opinion of doctor, injury no. 1 was found to be dangerous to life. Injury report of informant Ravindra Singh was marked as Ext. 8/1. 15. Further, the doctor (P.W. 9) found following injuries on the person of Sudheswar Singh (P.W. 7):- (i) Penetrating would right lower abdomen size ½” x 1 ½” x sub coetaneous deep directly towards the right to left side. Branches of blood vessels were found trisected. (ii) One penetrating wound on the third of the left thigh, more towards the medial side directly and also medially, size 1 ½” x 1 ½” x muscle deep upto 2”. Branches of blood vessels were found trisected. (ii) One penetrating wound on the third of the left thigh, more towards the medial side directly and also medially, size 1 ½” x 1 ½” x muscle deep upto 2”. Big blodd vessels and muscles were also lacerated. (iii) Bruise, swelling and tenderness on the back just above the wrist crossing mid line, size 3” x ½” x 0. In the opinion of doctor injury no. 1 and 2 were found dangerous to life and were caused by penetrating weapon, may be bhala. His injury report was marked as Ext. 2/2. 16. In his cross–examination, the Doctor (P.W. 9) in para-9 has stated that injury no. 1 found on the person of Sudhist Narain Singh (P.W. 4) was only scalp deep and there was no finding of any fracture of scalp and only upper most layer of skull was touched. Temporal main vessel was affected. The branches of temporal blood vessels was affected and injury no. 8 was a bit of away from big femoral anterior vein. He further stated in his cross-examination in para 10 that there was no fracture of skull of informant (P.W. 6) and no main blood vessel of brain passed through the affected area. He stated that it would no be correct to say that there was no fracture of skull bone and injury was not dangerous to life. In para-11 of his cross–examination, the has also stated that injury of Sudheswar Singh (P.W.7) was not abdominal cavity deep. The vessel which was cut, was outside the cavity bone. The femoral vessels which the main vessel was not cut regarding injury no. 2. Hence, from the perusal of evidence of this witness as well as the injury report, it appears that none of the injuries were grievous in nature and finding of doctor that those injuries being dangerous to life, does not appear to be sound. 17. P.W. 10 is the witness, who proved some documents and P.W. 11 is the survey knowing Commissioner and he has stated in his evidence that he was appointed as Commissioner by Sub Judge, Siwan in execution case no. 9/75 and he has given the possession of land to the party but he has stated that his original execution report was burnt and attested copies were also partially burnt. 9/75 and he has given the possession of land to the party but he has stated that his original execution report was burnt and attested copies were also partially burnt. His evidence further disclosed that from the attested copy, it appears that in Rukundipur Mauza, possession of land was also given in plot nos. 3606 and 6300 and the land belonged to khata no. 27, 28 and 150. P.W. 12 is the Advocate Clerk and has also proved some documents. 18. From the entire discussion of the prosecution evidence, it appears that prosecution party claimed over the land on the basis of a decree in the title suit and possession over the land was given by the pleader commissioner in Execution Case No. 9/75. It further appears that case of the prosecution is that while informant was cutting the branches of dried up tree, the accused persons came variously armed and assaulted informant (P.W. 6), Sudhist Narain Singh ( P.W. 4) and one Sudheswar Singh (P.W. 7) as narrated by the these witnesses in their evidence and corroborated by the evidence of other witnesses and the Doctor (P.W. 9) has also found the injuries on the persons of P.W. 4, P.W. 6 and P.W. 7 as per the description given by them in their evidence. All the prosecution witnesses have been examined in detail but there is nothing in their cross-examination to discredit their respective evidence. 19. The defence has also come with a case that after the decree the prosecution side came to take possession over the land and also damaged their pilanis, when protested, they were assaulted and the appellants’ side also brought injury report, which shows that Ramashankar Singh @ Tuntun Singh, Hareshwar Singh, accused Sheo Mangal Singh had also received several injuries on their persons and some of the injuries were also dangerous to life. It also appears that there was delay of some days in lodging the F.I.R in counter case being Daroundha P.S. Case No. 14/82 (G.R. No. 112/82) by the appellants. From perusal of the copy of F.I.R and counter case, it appears that they had given explanation for the delay as they had taken the injured to Siwan for treatment as the injuries were grievous in nature. It further appears from perusal of Ext. From perusal of the copy of F.I.R and counter case, it appears that they had given explanation for the delay as they had taken the injured to Siwan for treatment as the injuries were grievous in nature. It further appears from perusal of Ext. A, which is copy of judgment in G.R. Case No. 112/82 (the counter case), Trial Court had convicted the informant and others in that case, however, they were released on probation. In such a situation, though there was delay in lodging of F.I.R but the case, lodged by the appellants side against the informant and others, was found true and informant side were also held guilty and convicted in that very case and from perusal of the judgment of that very case, it appears that appellants side had also sustained injuries. However, the Trial Court in this case, has not considered this aspect of the matter and only on the ground of delay, disbelieved the veracity of counter case. 20. It is also a fact that Doctor (P.W. 9) has found injury no. 1 and 8 of Sudhist Narain Singh (P.W. 4) and injury no. 1 of Ravindra Singh (Informant/P.W. 6) as well as injury no. 1 and 2 of Sudheswar Singh (P.W. 7), dangerous to life but the Doctor (P.W. 9) has admitted in his cross–examination with regard to injuries caused to Sudhist Narain Singh ( P.W. 4) that there was no finding of any fracture of scalp and only upper most layer of skull was touched Temporal main vessel was affected. The branches of temporal blood vessels was affected and injury no. 8 was a bit of away from big femoral anterior vein. With regard to injury caused to informant (P.W. 6) he had stated in his cross-examination that there was no fracture of skull of and no main blood vessel of brain passed through the affected area. Similarly with regard to injuries caused to Sudheswar Singh (P.W. 7) he had stated in para-11 of his cross–examination that injury was not abdominal cavity deep. The vessel which was cut, was outside the cavity bone. The femoral vessels which the main vessel was not cut regarding injury no 2. As such the finding arrived at by the Doctor (P.W. 9) that those injuries were dangerous to life, appears to be without any sound reasoning. 21. The vessel which was cut, was outside the cavity bone. The femoral vessels which the main vessel was not cut regarding injury no 2. As such the finding arrived at by the Doctor (P.W. 9) that those injuries were dangerous to life, appears to be without any sound reasoning. 21. On the other hand, from perusal of evidence adduced on behalf of defence, it is evident that on the alleged date of occurrence, there was a scuffle between the parties with respect to the land, possession of which was given to the informant and there was a dispute with respect of removing the pilanis from the said land, in which both sides sustained injuries and it cannot be said that appellants have not received injuries in the same occurrence and hence it appears to be a case of free fight between the parties and though the informant, claimed the land on the basis of decree passed in title suit and execution of the same was given to him by the Court but the story of setting the pilani on fire and causing damage to pilani was also in the counter case lodged by the appellants’ side against the informant and others as in the counter case, it was stated that as they damaged and set the pilani on fire, the occurrence took place. In such a situation, it cannot be said with certainty as to who was the aggressor in the occurrence and it can also not be said that the appellants were members of any unlawful assembly and has came to create violence in unlawful manner. Hon’ble Apex Court has also considered aforesaid aspect of the matter in the case of Mariadasan And Ors. vs State Of Tamil Nadu reported in 1980 SCC 573 and further the Hon’ble Apex Court in the case of Ananta Kathod Pawar and Others. v. State of Maharastra reported in (1997) 11 SCC 564 ) relying on the Judgment of Hon’ble Apex Court in the case of Lakshmi Singh v. State of Bihar reported in (1976) 4 SCC 394 ) held that “In our considered view, with the above observations and findings, the trial court was not at all justified in convicting the appellants for rioting or for the other offences with the aid of Section 149 IPC. Equally untenable is the High Court’s affirmation of the above convictions for the evidence on record clearly establishes the findings recorded by the trial court. Once the trial Court found that there was a sudden and free fight between the two groups in which members of both the groups sustained injuries, the trial Court should have held that there was no scope for convicting members of one of those groups under Sections 147 or 148 I.P.C. and for that matter for substantive offences with the aid of Section 149 I.P.C. In such a case, the accused persons would be liable for their individual acts and would not be liable vicariously. In the instant case, we are unable to convict the appellants for their individual acts also as no specific evidence was led by the prosecution in that regard. 22. In view of the above settled principle, in the case in hand also, at best the appellants can be convicted for their individual acts. In the present case, appellant Ramashankar Singh @ Tuntun Singh has been attributed with allegation of assault to Sudhist Narain Singh (P.W. 4) by farsa on his head as well as with allegation of assault to informant (P.W. 6) by farsa on his head and convicted under Section 326 and 148 of the IPC and as discussed above, there are consistent evidence available on record and doctor has also found both the injuries, dangerous to life. 23. However, as discussed above, finding of Doctor that injuries were dangerous to life was without any sound reasoning and in the facts and circumstances of the case, section 148 of the IPC is also not sustainable and at best appellant Ramashankar Singh may appropriately be convicted under Section 234 of the IPC. Further appellant Hareshwar Singh has been attributed with allegation of assault to Sudheswar Singh (P.W. 7) by means of bhala on his left leg and the doctor has found the injury dangerous to life. However, as stated above, the doctor (P.W. 9) has clearly stated in his cross–examination, that there was no fracture of bone. In such view of the matter, finding of Doctor (P.W. 9) that those injuries were dangerous to life does not inspire confidence. So far other injuries, which are dangerous to life, was attributed to accused Sheo Mangal Singh (since died). In such view of the matter, finding of Doctor (P.W. 9) that those injuries were dangerous to life does not inspire confidence. So far other injuries, which are dangerous to life, was attributed to accused Sheo Mangal Singh (since died). It further appears that there are evidence available on record that other accused assaulted the Sudhist Narain Singh (P.W. 4) and others by means of lathi and the medical evidence also corroborate the said evidence. 24. Considering the discussions made above, conviction of appellants Ramashankar Singh @ Tuntun Singh, Hareshwar Singh under Section 148 of the IPC and conviction of appellant Devendra Singh under Section 147 of the IPC, is set aside. So far conviction of appellants Hareshwar Singh and Devendra Singh under Section 324 and 323 of the IPC respectively is concerned, the same is upheld. Further so far conviction of appellants Ramashankar Singh @ Tuntun Singh under Section 326 of the IPC is concerned, considering the facts and circumstances of the case, the same is modified to a conviction of under Section 324 of the IPC. 25. Further it also appears that the case is of the year 1982 and thirty five years have elapsed since then and appellants have suffered the mental agony and trauma of trial and appeal for so many years and it is also evident that the appellants were never convicted except this case and have never misused the privilege of bail, as such, I deem it appropriate that in stead of confirming the order of sentence, they are released on probation for a period of six months on execution of bond of Rs. 10,000/- (Rs. Ten Thousand) each with two sureties. 26. With above modification in conviction and sentence, this appeal is disposed of.