JUDGMENT : Since appellant No.1, Bishwanath Pandit, S/o Khulal Pandit, died during pendency of the present Criminal Appeal, as such, Criminal Appeal preferred by the appellant No.1, Bishwanath Pandit stands dismissed, as abated. The present Criminal Appeal is pending for the rest of three appellants, namely, Rameshwar Pandit @ Ram Prasad Pandit (appellant No.2), Bholanath Pandit (appellant No.3) and Dulal Pandit (appellant No.4). 2. Heard, Mr. Sanjay Kumar, assisted by Mr. Rajiv Lochan, learned counsels appearing on behalf of the appellants and learned counsel for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor. 3. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 20.03.2004, passed by the learned 3rd Additional Sessions Judge, Fast-Track-Court, Jamtara, in Sessions Case No.3 of 2003/9 of 2003, whereby all the four accused/appellants have been convicted by the learned trial court for the offence committed and punishable under Sections 307/34 and 341/34 of the Indian Penal Code and has been awarded rigorous imprisonment for seven years with a fine of Rs.2,000/- each and in case of default in payment of fine, to undergo further simple imprisonment for three months each for the offence committed and punishable under Section 307/34 of the Indian Penal Code, but no separate sentence has been awarded for the offence committed and punishable under Section 341 I.P.C. 4. The prosecution case, is based upon, the ‘fardbeyan’ of the informant, Hanu Pandit (P.W.11), recorded by, Y.K. Gupta, Sub Inspector of Police and Officer in Charge, Binda Pathar Police Station, District-Jamtara, on 11.08.2002 at 11.00 Hours, wherein, the informant has alleged that today i.e. on 11.08.2002, in the morning at about 5.30 to 6.00 a.m., his father Bimal Pandit, aged about 57 years, was going in paddy field having spade followed by his two brothers, namely, Shibu Pandit (P.W.3) and Susto Pandit (P.W.8) with plough, to their field for ploughing the land, as on previous night there was heavy rainfall and the informant was also ready to go to field, after handing-over his cattle for grazing. The informant suddenly heard the sound of 'maro'-'maro' and ‘bachao'-'bachao’, and saw that appellants/accused persons, namely, Bishwanath Pandit, Bholanath Pandit, Rameshwar Pandit and Dulal Pandit having bhala, sword and lathi started assaulting his father, as such, both brothers of the informant, came there for rescue and requested them not to assault their father. The informant suddenly heard the sound of 'maro'-'maro' and ‘bachao'-'bachao’, and saw that appellants/accused persons, namely, Bishwanath Pandit, Bholanath Pandit, Rameshwar Pandit and Dulal Pandit having bhala, sword and lathi started assaulting his father, as such, both brothers of the informant, came there for rescue and requested them not to assault their father. Upon which, they were also assaulted by four accused persons by means of lathi, bhala and sword causing injuries. The informant saw the occurrence and came there for rescue, but he was threatened and chased by all the four accused persons. The informant, under fear, fled away and saw the occurrence from bridge. The accused persons have given threatening with dire consequences by means of bullet and bomb. Thereafter the accused persons fled away. The informant went to his village and thereafter his uncle, Vakil Pandit, cousin, Kanto Pandit (P.W.5) and others came for their help. They brought the father and both the brothers of the informant, to the Police Station in injured condition. The informant has categorically stated that his father and brothers were assaulted by Bholanath Pandit by means of lathi, Bishwanath Pandit by means of bhala, Rameshwar Pandit by means of sword and Dulal Pandit by means of lathi with intention to kill them, causing serious bleeding injuries. The occurrence took place in the bari/field of the informant because of land dispute. 5. On the basis of the aforesaid 'fardbeyan' of the informant, the Police has instituted First Information Report bearing Nala (Binda Pathar) P.S. Case No. 55 of 2002, dated 11.08.2002, corresponding to G.R. No.309 of 2002 under Sections 341/323/324/307/34 of the Indian Penal Code against the four named accused/appellants. 6. After investigation, the Police has submitted charge-sheet vide Charge-sheet No.68 of 2002 dated 31.08.2002 against all the four named accused persons under Sections 341/323/307/34 I.P.C.. 7. The cognizance of the offence has been taken against accused persons vide order dated 07.09.2002, and the case has been committed to the Court of Sessions vide order dated 03.01.2003. 8. The charge has been framed by the learned trial court on 09.04.2003 against all the four named accused persons under Sections 307/34 and 341/34 I.P.C., to which the accused persons have claimed themselves to be innocent and thus, they were put under trial. 9. 8. The charge has been framed by the learned trial court on 09.04.2003 against all the four named accused persons under Sections 307/34 and 341/34 I.P.C., to which the accused persons have claimed themselves to be innocent and thus, they were put under trial. 9. The prosecution, in order to prove its case, has examined altogether twelve prosecution witnesses and also exhibited a number of documentary evidence up-to Exhibits-4 Series to prove its case beyond all reasonable doubt against the accused persons. Shankar Pandit has been examined as P.W.1, Girish Pandit has been examined as P.W.2, Shibu Pandit, an injured and brother of the informant has been examined as P.W.3, Jagarnath Pandit has been examined as P.W.4, Kanto Pandit, cousin of the informant, has been examined as P.W.5, Shyama Pad Pandit has been examined as P.W.6, Teju Pandit has been examined as P.W.7, Susto Pandit, an injured and brother of the informant has been examined as P.W.8, Bimal Pandit, an injured and father of the informant has been examined as P.W.9, Dr. Ramdeo Das, Medical officer, has been examined as P.W.10 and has examined all the three injured persons, Hanu Pandit, informant of the case and an eye-witness has been examined as P.W.11 and Md. Mustaque Khan, Investigating Officer of the case, has been examined as P.W.12. Injury report of injured, Bimal Pandit (P.W.9) has been proved and marked as Exhibit-1, injury report of Susto Pandit (P.W.8) has been proved and marked as Exhibit-1/1, injury report of Shibu Pandit (P.W.3) has been proved and marked as Exhibit-1/2, supplementary injury report of Shibu Pandit (P.W.3) has been proved and marked as Exhibit-1/3, supplementary injury report of injured, Bimal Pandit (P.W.9) has been proved and marked as Exhibit-1/4, supplementary injury report of Susto Pandit (P.W.8) has been proved and marked as Exhibit-1/5, entire fardbeyan has been proved and marked as Exhibit-2, Police requisition for treatment of injured Bimal Pandit (P.W.9) has been proved and marked as Exhibit-3, Police requisition for treatment of injured Susto Pandit (P.W.8) has been proved and marked as Exhibit-3/1, Police requisition for treatment of injured Shibu Pandit (P.W.3) has been proved and marked as Exhibit-3/2, Certified copy of the order dated 26.06.1992 passed in Rev. Misc. Misc. Appeal No.194 of 1983-84 in the Court of Deputy Commissioner, Dumka, has been proved and marked as Exhibit-4, Certified copy of Parcha of Mouja Bogikata No.6 has been proved and marked as Exhibit-4/1, part settlement map of Village-Bogikata has been proved and marked as Exhibit-4/2. 10. After closure of the prosecution evidence, statements of the accused persons have been recorded under Section 313 Cr.P.C., on 07.02.2004, to which accused persons have denied about their involvement in the occurrence. The defence has examined one Bhog Singh as D.W.1 and adduced documentary evidence as Exhibits. Certified copy of the order dated 01.09.1983 in Settlement Case No.438/1977-78 of S.D.O. has been proved and marked as Exhibit-A. Certified copy of judgment dated 08.03.1967 of 2nd Additional Sub-Judge, Deoghar, in Title Suit No.3 of 1963/64 of 1964 has been proved and marked as Exhibit-A/1 and Rent receipt in the name of Khublal Pandit has been proved and marked as Exhibit-B. 11. The learned trial court, after hearing learned counsel for the parties and on the basis of the materials brought on record, 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 accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 12. Heard, Mr. Sanjay Kumar assisted by Mr. Rajiv Lochan, learned counsels for the appellants. Learned counsel appearing on behalf of 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 learned trial court, without scrutinizing the evidence, has wrongly convicted the appellants under Sections 307/34 I.P.C., as the appellants have no intention to kill the victims. Had it been so, there was no intervening circumstances for the accused/appellants in achieving their target. Learned counsel for the appellants has further drawn attention of this Court towards the ‘fardbeyan’ of the informant, wherein the informant has categorically stated that when the accused persons were beating the victims, informant made a request not to do so, upon which, the informant was chased by the accused persons up-to some distance and also have threatened him with dire consequences by means of bomb and cartridge, but subsequently the accused persons returned to their house. Learned counsel for the appellants has further submitted that if the accused persons had intention to kill them, there was no intervening circumstances in achieving the goal, as the appellants alleged to have armed with sword, bhala and lathi and they were four in number, whereas, victims were three in numbers, as such, non-commission of murder by the appellants, shows that there was lack of intention on the part of the accused/appellants to commit murder. Learned counsel for the appellants has thus, submitted that conviction of the appellants under Section 307/34 I.P.C. is not sustainable in the eyes of law. Learned counsel for the appellants has further submitted that though there is allegation of assault by means of sword and bhala, but no sharp-cut injury was found on the persons of the victims nor any penetrating wound on the persons of the victim has been found, as such, Learned counsel for the appellants has submitted that the prosecution case is false and because of land dispute between the parties, they have been falsely implicated in this case. Learned counsel for the appellants has further submitted that considering the rigours of trial for long period of 16 years faced by the appellants, sentence awarded by the learned Trial Court may be modified, as the conviction of the appellants is not sustainable under Section 307/34 I.P.C. 13. Heard, learned counsel appearing for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor. Learned counsel appearing for the State has vehemently argued and submitted that the impugned judgment of conviction and order of sentence is well-founded on the materials available on record and the learned trial Court has rightly convicted the accused/appellants under Section 307/34 I.P.C. Learned counsel appearing for the State has further submitted that without provocation made by the informant, the accused/appellants have assaulted the father of the informant, aged about 68 years by means of sword, bhala and lathi, causing injury and supplementary injury report i.e. Exhibit-1/4 shows that injury Nos.(ii) and (iii) are grievous in nature. Learned counsel appearing for the State has further submitted that three persons were assaulted by these four appellants, who were armed with weapon of offence, such as, sword, bhala and lathi and caused grievous injury, as such, the appellants have rightly been convicted. Learned counsel appearing for the State has further submitted that three persons were assaulted by these four appellants, who were armed with weapon of offence, such as, sword, bhala and lathi and caused grievous injury, as such, the appellants have rightly been convicted. Learned counsel appearing for the State has further submitted that three injured witnesses, namely, Shibu Pandit (P.W.3), Susto Pandit (P.W.8) and Bimal Pandit (P.W.9), have supported the version of the prosecution case, based upon fardbeyan of the informant (P.W.11-Hanu Pandit), and the evidence of these four witnesses are consistent and corroborative with the medical evidence i.e. Exhibit-1 Series have been proved by the Doctor (P.W.10) and Exhibit-3 Series have been proved by the Investigating officer (P.W.12). Learned counsel appearing for the State has thus submitted that considering the evidence of the injured persons, namely, Shibu Pandit (P.W.3), Susto Pandit (P.W.8) and Bimal Pandit (P.W.9), which are in consistence with fardbeyan of the informant (P.W.11-Hanu Pandit) and medical evidence i.e. Exhibit-1 Series proved by the Medical Officer (P.W.10) and the medical requisitions have been proved by the Investigating Officer (P.W.12-Md. Mustaque Khan) as Exhibit-3 Series, as such, the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court and the same does not warrant any interference by this Hon’ble Court. 14. Heard, Mr. Sanjay Kumar, assisted by Mr. Rajiv Lochan, learned counsels appearing for the appellants and learned counsel for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor and perused the materials available on record, including the First Information Report, framing of charge, the evidence of all the twelve prosecution witnesses, prosecution exhibits up-to Exhibits-4 Series, and statement of accused persons recorded under Section 313 Cr.P.C. and evidence of defence witness, defence exhibit up-to Exhibit-B as well as impugned judgment of conviction and order of sentence. 15. This Court has found the evidence of the informant (P.W.11-Hanu Pandit) is completely in consistent with his fardbeyan recorded by the Police on 11.08.2002. The evidence of the injured witnesses, i.e. Bimal Pandit (P.W.9)-father of the informant and Shibu Pandit (P.W.3), Susto Pandit (P.W.8), brothers of the informant are consistent to the prosecution case, as the corresponding injuries have been found on the person of injured, Bimal Pandit (P.W.9). The evidence of the injured witnesses, i.e. Bimal Pandit (P.W.9)-father of the informant and Shibu Pandit (P.W.3), Susto Pandit (P.W.8), brothers of the informant are consistent to the prosecution case, as the corresponding injuries have been found on the person of injured, Bimal Pandit (P.W.9). The injury report of injured of Bimal Pandit (P.W.9) has been proved and marked as Exhibit-1 which shows three injuries :- (i) Lacerated wound 1½” x 1/5” x bone deep over middle occipital region of scalp (X-ray advised). (ii) Lacerated would ½” x 1/5” x 1/5” over middle area of left side of lateral leg (X-ray advised). (iii) Pain and tenderness in left side lateral chest (X-ray advised). The opinion was reserved till X-ray report is seen. Supplementary injury report was subsequently issued which has been proved and marked as Exhibit-1/4, which shows that injury No.(i) is simple whereas injury Nos.(ii) and (iii) are grievous in nature. Doctor has found segmental fracture of shaft of fibula, fracture upper 1/4th of mid shaft. Doctor has also found fracture of 7th and 8th ribs of injured, Bimal Pandit (P.W.9). The injury report of Susto Pandit (P.W.8) i.e. Exhibit-1/1 which shows three injuries :- (i) Lacerated would 1”x1/10”x skin deep over left parietal region of scalp (x-ray advised). (ii) Complain of pain in left lateral thigh. (iii) Complain of pain in right lower arm. Opinion for injury No. (i) was reserved. Injury Nos.(ii) and (iii) are simple in nature caused by hard and blunt substance. Supplementary injury report of injured, Susto Pandit (P.W.8) i.e. Exhibit -1/5 which shows that injury No.(i) is also simple in nature. The injury report of Shibu Pandit (P.W.3) has been proved and marked as Exhibit-1/2, which is as follows :- (I) Lacerated wound 2”x 1/3”x 1/3” over right side of upper chest, deep in 1/2” length in middle area (X-ray advised). Injury caused by hard and blunt substance. Supplementary injury report of injured, Shibu Pandit (P.W.3) has been proved and marked as Exhibit-1/3 where it shows that injury No.(i) is simple in nature. 16. This Court has also perused the First Information Report and the evidence of the informant (P.W.11-Hanu Pandit), Investigating officer (P.W.12-Md. Mustaque Khan) and the other witnesses, namely, Kanto Pandit (P.W.5), cousin of the informant, who have also supported the case of prosecution. 16. This Court has also perused the First Information Report and the evidence of the informant (P.W.11-Hanu Pandit), Investigating officer (P.W.12-Md. Mustaque Khan) and the other witnesses, namely, Kanto Pandit (P.W.5), cousin of the informant, who have also supported the case of prosecution. Shankar Pandit (P.W.1), Girish Pandit (P.W.2) and Jagarnath Pandit (P.W.4), are hearsay witnesses, as they have reached the place of occurrence after the actual occurrence was committed. Shyampad Pandit (P.W.6) is also a hearsay witness. Teju Pandit (P.W.7) is an eye-witness to the occurrence. 17. This Court is of the opinion that the prosecution evidence is consistent to the prosecution case, but the conviction of the appellant under Section 307/34 I.P.C. is not sustainable in the eyes of law, as the ingredients for constituting an offence under Section 307 I.P.C. is lacking against the accused in commission of offence. 18. From perusal of the 'fardbeyan' of the informant (P.W.11-Hanu Pandit) and the evidence brought on record by the prosecution, this Court is of the view that the accused/appellants had no intention to commit murder, as because there was no intervening circumstances for them. It is apparent that the accused persons after assaulting the injured persons, gave threatening to the informant and went their house, though the accused persons were having weapons of offence i.e. sword, bhala and lathi without actually committing murder of the victims. 19. Under the aforesaid circumstances, the conviction of the appellant under Section 307/34 I.P.C. is modified to Section 324/34 I.P.C. and the conviction of the appellants under Section 341/34 is upheld and affirmed. So far the sentence is concerned, learned counsel for the appellant, Mr. Sanjay Kumar has submitted that the appellants have suffered rigours of trial for a long period of about 16 years, as the occurrence is of the year 2002 and at that time, the appellants were aged about 30 years, 28 years and 22 years, as such, they have crossed 40 years and above and instead of sending them jail, it would be appropriate, if they are saddled with fine of Rs.10,000/-(ten thousand) each to be payable to the victims/injured persons. The State counsel has no objection to it. The State counsel has no objection to it. Considering the same, the sentence awarded by the learned trial court under Section 307 I.P.C., which is being modified to Section 324/34 I.P.C., is also modified to the period already undergone by the appellants, subject to payment of Rs.10,000/- (ten thousand) each, which the appellants shall deposit before the learned trial court, within a period of eight weeks from the date of receipt of a copy of the notice issued by the learned trial court. The learned trial court shall issue notice to the appellants for payment of Rs.10,000/-(ten thousand) each i.e. total Rs.30,000/-(Thirty Thousand) and after deposit of the said amount, the trial court will issue notice to the injured persons, Shibu Pandit (P.W.3), Susto Pandit (P.W.8) and Bimal Pandit (P.W.9) and will disburse the same after due verification to the injured persons. The bail bonds of the appellants are hereby cancelled by directing them to comply the order/judgment passed by this Hon'ble Court within eight weeks from the date of receipt of a copy of the notice issued by the learned trial court. The learned trial court shall not take any legal action for eight weeks after receipt of a copy of the judgment and in case, the appellants do not deposit the said amount within the stipulated time, the learned trial court is directed to take all coercive methods to apprehend the appellants to serve rest of the sentence of rigorous imprisonment for three years. With the aforesaid observation, the instant Criminal appeal is partly allowed with modification in conviction from Section 307/34 I.P.C. to 324/34 and sentence from rigorous imprisonment of seven years to fine of Rs.10,000/-(ten thousand) each and in default of payment of fine, to undergo sentence of rigorous imprisonment for three years. 20. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal partly allowed.