JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 19.01.2004, passed by learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 13 of 2000, whereby all the four appellants have been convicted for the offence committed and punishable under Sections 341, 447 and 307/34 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, rigorous imprisonment for one month for the offence committed and punishable under section 447 of the Indian Penal Code and rigorous imprisonment for one month for the offence committed and punishable under Section 341 of the Indian Penal Code and all the sentences are directed to run concurrently. However, one of the appellants namely Babulal Manjhi, son of late Dhanchal Manjhi has died during pendency of the appeal on 19.09.2016, as such, his case has been abated vide order no. 7 dated 29.11.2018. Now the present appeal is only heard with respect to rest three appellants namely Sonalal Manjhi, Paika Manjhi and Baso Manjhi. 2. The prosecution case is based upon the written report submitted by Rameshwar Manjhi (P.W. 6) before the Officer-in-Charge, Jamua Police Station on 09.11.1998 alleging therein that there is a dispute with respect to jamabandi Nos. 3, 10 and 42 between the parties, for which proceeding under Section 144 CrPC was pending before the court. It is alleged that on 09.11.1998 at around 8.00 AM, aunt of the informant Jhumri Devi, wife of Chaman Manjhi and her daughter Sukur Muni went to harvest paddy crop from the Khata No. 25, plot no. 487, over which there was no dispute but subsequently, the informant was informed by his aunt that Babulal Manjhi has sent Ruru Rabidas, asking these persons i.e. Jhumri Devi and her daughter Sukur Muni not to harvest the paddy. Thereafter, the informant along with Chaman Manjhi, brother Rupu Manjhi and Sukhdeo Manjhi went to the plot and asked Babulal Manjhi that why they are not allowing them to harvest the paddy crop, upon which altercation took place and both sides have started challenging each other. Thereafter, the informant along with Chaman Manjhi, brother Rupu Manjhi and Sukhdeo Manjhi went to the plot and asked Babulal Manjhi that why they are not allowing them to harvest the paddy crop, upon which altercation took place and both sides have started challenging each other. In the meantime, Babulal Manjhi having arrow and farsha, Dheba Manjhi having arrow and lathi, Baso Manjhi having lathi, Sonalal Manjhi having arrow and danda, Paika Manjhi having arrow and Karhu Manjhi having lathi, started assaulting the informant with intention to kill him. Informant has further alleged that Babulal Manjhi, Sonalal Manjhi, Dheba Manjhi and Paika Manjhi shot arrows, which all hit on the body of the informant. It is also alleged that Babulal Manjhi assaulted the informant by means of farsha on his head. Dheba Manjhi assaulted Rupu Manjhi by means of lathi on right arm. Basu Manjhi and Sonalal Manjhi assaulted Sukhdeo Manjhi by means of lathi on head and left hand. Paika Manjhi, Rupu Manjhi and Karu Manjhi also assaulted informant by means of lathi and Dewa Manjhi and Karu Manjhi also pelted stone which did not hit anybody. On brawl, co-villagers came there and after causing serious injuries upon informant's side, accused persons have fled away. It is claimed that accused persons had intention to kill them. 3. On the basis of written report, police has registered Jamua P.S. Case No. 140 of 1998 dated 09.11.1998, under Sections 147/148/323/324/337/307/447 of the Indian Penal Code against six named accused persons. 4. After completion of investigation, the police has submitted charge sheet against four accused persons namely Babulal Manjhi, Sonalal Manjhi, Paika Manjhi and Baso Manjhi vide charge sheet no. 155 of 1998, dated 29.12.1998, under Sections 341/323/324/447/307/34 of the Indian Penal Code. So far Dheba Manjhi and Karu Manjhi are concerned, they have not been sent up for trial by the police. 5. The cognizance of the offence has been taken vide order dated 06.01.1999 and case has been committed to the Court of Sessions vide order dated 03.01.2000. 6. The charge has been framed against all four accused persons under Sections 341, 447 and 307/34 of the Indian Penal Code vide order dated 21.08.2001, 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 seven witnesses and also adduced documentary evidence up to Exhibit-4. 7. The prosecution, to prove its case, has examined altogether seven witnesses and also adduced documentary evidence up to Exhibit-4. Rupu Manjhi, has been examined as P.W. 1, Chaman Manjhi has been examined as P.W. 2, Sukur Muni has been examined as P.W. 3, Naresh Prasad Sinha has been examined as P.W. 4, Dr. Ramayan Ram has been examined as P.W. 5, Rameshwar Manjhi, informant of the case, has been examined as P.W. 6 and Sukhdeo Manjhi has been examined as P.W. 7. The endorsement of Officer-in-Charge on the fardbeyan has been proved and marked as Exhibit-1, entire formal F.I.R. including the writing and signature has been proved and marked as Exhibit-2, injury report of Rupu Manjhi (P.W. 1) has been proved and marked as Exhibit-3, injury report of Sukhdeo Manjhi (P.W. 7) has been proved and marked as Exhibit-3/1, injury report of the informant Rameshwar Manjhi (P.W. 6) has been proved and marked as Exhibit-3/2, the signature of informant on the written report has been proved and marked as Exhibit-3/3 and written report has been proved and marked as Exhibit- 4. 8. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C. on 21.01.2003, to which the accused persons have claimed themselves to be innocent and have stated that because of the land dispute between the parties, a false case has been instituted against them to capture the land and have also stated that they will adduce defence evidence. The defence has examined Hublal Yadav as D.W. 1 and also exhibited a number of documents in their support. The certified copy of the F.I.R. of Jamua P.S. Case No. 141 of 1998, dated 09.11.1998 has been marked as Exhibit – A, signature on the written report has been marked as Exhibit – B, notice of proceeding under Section 145 CrPC dated 21.10.1998 has been marked as Exhibit – C, certified copy of the charge sheet No. 145 of 1998 dated 30.11.1998 under Sections 341/323/325/34 of the Indian Penal Code has been marked as Exhibit – D, without formal proved by the witnesses. The certified copies of the aforesaid documents have been marked as exhibits under Section 294 CrPC without objection from the prosecution. 9. The certified copies of the aforesaid documents have been marked as exhibits under Section 294 CrPC without objection from the prosecution. 9. After hearing the parties and on perusal of records, learned Trial Court has passed the impugned judgment of conviction and order of sentence, convicting the appellants under sections 341, 447 and 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, assailing the same. 10. Heard, learned counsel for the appellants, Mr. Akhil Kumar Sinha assisted by Mr. Tarun Kumar, Advocate. 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 case and counter-case has not been tried together as directed by the Hon'ble Supreme Court as reported in 2003 (9) SCC 426 , State of Madhya Pradesh Versus Mishrilal (Dead) & Ors. and 1990 (Supp) SCC 145, Nathi Lal versus State of Uttar Pradesh. Learned counsel for the appellants has further submitted that a case has been instituted by one of the appellant namely Babulal Manjhi, which has been registered as Jamua P.S. Case No. 141 of 1998 dated 09.11.1998 under Sections 341/323/325/34 of the Indian Penal Code against Rameshwar Manjhi, Rupu Manjhi, Sukhdeo Manjhi and Chaman Manjhi, who are witnesses of the present case. Learned counsel for the appellants has further submitted that, it is alleged that Babulal Manjhi has assaulted by means of arrow and farsha, Sonalal Manjhi has assaulted by means of arrow and danda, Paika Manjhi has assaulted by means of arrow, Baso Manjhi has assaulted by means of lathi. Learned counsel for the appellants has further submitted that, it is alleged that Babulal Manjhi has assaulted by means of arrow and farsha, Sonalal Manjhi has assaulted by means of arrow and danda, Paika Manjhi has assaulted by means of arrow, Baso Manjhi has assaulted by means of lathi. From perusal of the injury report of the injured persons which have been brought on record as Exhibits-3, 3/1 and 3/2, it is apparent that Rupu Manjhi has sustained three injuries which are: “(i) Swelling on elbow joint – 3” x 2” (ii) Swelling on right shoulder joint – 3” x 1” abrasion in between- 0.1” x 0.1” (iii) Swelling on left side of the head – 2” x 1” All injuries are simple in nature caused by hard and blunt substances.” Sukhdeo Manjhi has also sustained three injuries which are: “(i) laceration on anterior side of the head-2” x ?” x skin deep” (ii) Swelling on lower left forearm (above wrist) – 2½” x 2” (iii) Abrasion on left post palm inline of index finger – ?” x ?” All injuries are simple in nature caused by hard and blunt substances. Rameshwar Manjhi has sustained altogether nine injuries: “(i) laceration on the head- 2” x ?” x skin deep (ii) laceration on right side of the head-2” x ?” x skin deep (iii) abrasion on right ear- 1” x 1/6” (iv) incised wound on right side chest – 1” x ½” x 0.2” (v) incised wound on mid abdomen below nipple – 1” x ?” x 0.2” (vi) incised wound on left side abdomen – 1/2” x 1/3” x 0.2” (vii) incised wound on upper thigh (left)-1” x 1/3” x 0.2” (viii) swelling on index finger – 1” x 1” (ix) incised wound below right axilla -1” x 1/3” x 0.2”. Injury no. (i), (ii), (iii) and (vi) are caused by hard and blunt substances and injury no. (iv), (vii) and (ix)by small sharp weapons. All the injuries are simple in nature.” Learned counsel for the appellants has thus submitted that even Dr. Ramayan Ram (P.W. 5) has categorically admitted in paragraphs-15 and 17 of his cross-examination that none of these injuries are dangerous to life, as he has not found any infection on any of the injured person. All the injuries are simple in nature.” Learned counsel for the appellants has thus submitted that even Dr. Ramayan Ram (P.W. 5) has categorically admitted in paragraphs-15 and 17 of his cross-examination that none of these injuries are dangerous to life, as he has not found any infection on any of the injured person. Learned counsel for the appellants has further submitted that though, it has been alleged that Babulal Manjhi has assaulted by means of farsha but none of the injuries found on the person of Rameshwar Manjhi can be attributed to farsha assault as these injuries have only dimensions of having 0.2” and as such, the intention of killing the informant by the appellants is missing. Learned counsel for the appellants has further submitted that there is a case and counter case between the parties but because of defects, both the cases have not been tried together and as such, the appellants may be given benefit of doubt by acquitting them under Sections 341, 447 and 307/34 of the Indian Penal Code. Learned counsel for the appellants has further submitted that the investigating officer (P.W. 4) has admitted in paragraph-23 of his cross-examination that he has seen the injury on the person of the accused persons, which has been mentioned in the case diary. Learned counsel for the appellants has further submitted that the case and counter case ought to have been tried together, so as to ascertain the aggressor of the occurrence, as such, the appellants are entitled for benefit of doubt. 11. Heard, learned counsel for the State, Mr. Vijay Kumar Gupta, 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 materials available on record. Learned counsel for the State has submitted that there is a case and counter-case between the parties as admitted by the investigating officer (P.W. 4) in paragraph-23 of his cross-examination. Case and counter-case proves the commission of occurrence between the parties, though injuries were simple in nature but no one has right to take law in his hand. Learned counsel for the State has submitted that there is a case and counter-case between the parties as admitted by the investigating officer (P.W. 4) in paragraph-23 of his cross-examination. Case and counter-case proves the commission of occurrence between the parties, though injuries were simple in nature but no one has right to take law in his hand. Learned trial court has rightly convicted the appellants under Sections 341, 447 and 307/34 of the Indian Penal Code as they had intention to kill the prosecution party as appellants namely Babulal Manjhi went along with farsha and arrow, Sonalal Manjhi with arrow and danda, Paika Manjhi with arrow and Baso Manjhi with lathi. Learned counsel for the State has further submitted that arrows have been shot for killing the prosecution party. Learned counsel for the State has thus, submitted that the impugned judgment of conviction and order of sentence does not warrant any interference from this Hon'ble Court. 12. Heard, learned counsel for the appellants, Mr. Akhil Kumar Sinha assisted by Mr. Tarun Kumar, Advocates and learned counsel for the State, Mr. Vijay Kumar Gupta, Additional Public Prosecutor and perused the evidence brought on record including the F.I.R., framing of charge, evidence of seven prosecution witnesses, four prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C., one defence witness, four defence documents and the impugned judgment of conviction and order of sentence. From perusal of the number of materials this Court is of the opinion that there was land dispute prevailing between the parties and the same has been admitted by the witnesses. The Investigating Officer has admitted in paragraph-23 of his cross-examination that there was a case and counter case between the parties but so far intention of killing the prosecution party against the appellants are concerned, this Court has minutely scrutinized the evidence and has found that there is no grievous injury found on the persons of injured namely Rupu Manjhi (P.W. 1), Sukhdeo Manjhi (P.W. 7) and Rameshwar Manjhi (P.W. 6), which can be attributed to farsha blow, made by appellant Babulal Manjhi, as stated by the witnesses. 13. Under the aforesaid circumstances, the conviction of the appellants under Section 307/34 of the Indian Penal Code cannot sustain in the eyes of law. 13. Under the aforesaid circumstances, the conviction of the appellants under Section 307/34 of the Indian Penal Code cannot sustain in the eyes of law. The use of lathi and arrow may be for frightening the other side as the case and counter-case is admitted between the parties bearing no. Jamua P.S. Case No. 141 of 1998 which has been marked as Exhibit-A, whereas Jamua P.S. Case No. 140 of 1998 has been proved and marked as Exhibit-2 and the same has been admitted by Naresh Prasad Sinha (P.W. 4), Investigating Officer. It is true that case and counter-case has not been tried together and as such, it is difficult to ascertain who was the aggressor of the occurrence?. Accordingly, the conviction of the appellants under Sections 447 and 341 of the Indian Penal Code is hereby affirmed and upheld, whereas the conviction of the appellants under Section 307/34 of the Indian Penal Code is modified to Section 324 of the Indian Penal Code. 14. So far, the sentence is concerned, learned counsel for the appellants has made a prayer that appellants have already served out rigorous imprisonment for one month as awarded by the learned trial court for the offence committed and punishable under Sections 341 and 447 of the Indian Penal Code and sending them to jail after approximately 20 years will not bring any fruitful result in the society, as such, instead of sending them jail under Section 324 of the Indian Penal Code, the appellants may be saddled with some fine amount. Learned counsel for the appellants has also submitted that appellants are poor persons depending upon their agriculture in an infertile area. Learned counsel for the State has no objection if fine amount is imposed. 15. Considering such submissions on behalf of the parties, this Court is also of the view that instead of sending the appellants to custody, it would be appropriate that appellants be awarded sentence under Section 324 of the Indian Penal Code as period already undergone by them with a fine of Rs. 10,000/- each upon the appellants Sonalal Manjhi, Paika Manjhi and Baso Manjhi. The appellants are directed to deposit the said fine amount within a period of eight weeks from the date of receipt of a copy of this judgment. 10,000/- each upon the appellants Sonalal Manjhi, Paika Manjhi and Baso Manjhi. The appellants are directed to deposit the said fine amount within a period of eight weeks from the date of receipt of a copy of this judgment. On deposit of the said amount, the learned trial court will issue notice to the injured Rameshwar Manjhi (P.W. 6), Sukhdeo Manjhi (P.W. 7) and Rupu Manjhi(P.W. 1) and after due verification, shall disburse the same to Rupu Manjhi (P.W. 1), Sukhdeo Manjhi (P.W. 7) and Rameshwar Manjhi (P.W. 6) to the tune of Rs. 10,000/-each. In default of payment of fine as imposed by this Court, the appellants shall serve a sentence of two years rigorous imprisonment as awarded under Section 324 of the Indian Penal Code. 16. In the result, the impugned judgment of conviction and order of sentence, both dated 19.01.2004, passed by learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 13 of 2000, arising out of Jamua P.S. Case No. 140 of 1998, corresponding to G. R. No. 1984 of 1998, is hereby upheld and affirmed with respect to Section 341 and 447 of the Indian Penal Code and with modification of Section 307 of the Indian Penal Code to Section 324 of the Indian Penal Code and order of sentence, dated 19.01.2004, is partly modified by imposing fine, as discussed above. 17. The appellants, who are on bail, their bail bonds are hereby cancelled, but no action may be taken against the appellants for the period of eight weeks from the date of receipt of a copy of this judgment to comply the order of this court, failing which, the learned trial court is at liberty to take all methods for procuring the attendance of the appellant to serve out the sentence of rigorous imprisonment for two years as modified by this Court. 18. Accordingly, the present criminal appeal is partly allowed with modification in sentence. 19. 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.