JUDGMENT : Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. The present appeal has been preferred against the Judgment of conviction and order of sentence dated 28th January 2004 passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No.52 of 1999/55 of 2001 (arising out of Jamtara P.S. Case No.128 of 1996, corresponding to G.R. No.304 of 1996) whereby the Trial Court has convicted Shibnarayan Sah, appellant No.1 for charge under Section 324 of the Indian Penal code and awarded sentence of simple imprisonment for three years and the appellant Nos.2 and 3 Manoj Sah and Nimai Sah were convicted for the charge under Section 323 of the Indian Penal Code and sentenced to undergo simple imprisonment for nine months. Appellant No.1 Shibnarayan Sah had died and thus, this appeal preferred by appellant no.1 is abated. The present appeal has only been pressed for Manoj Sah and Nimai Sah, appellant No.2 and 3 respectively, who have been convicted and sentenced for charge under Section 323 of the Indian Penal code and sentence them to undergo simple imprisonment for nine months. 3. The prosecution case is based upon the fardbeyan of informant, Surendra Prasad Sah recorded by Sub-Inspector K.P. Singh of Jamtara P.S. on 3.7.1996 at Jamtara Hospital at 5 O’ clock. The informant has alleged that when he came out of his house, his co-sharers Shibnarayan Sah with tangi, Manoj Sah with lathi, Nimai Sah also with Lathi came there and started assaulting him at the door. It is alleged that, Shibnarayan Sah caused hurt to the informant by Tangi due to which informant fell down. When daughter of the informant came for rescue, the accused persons also caused hurt to her. Some ornaments and utensils were also taken away by the accused persons. The cause of occurrence is said to be distribution of share of land of their brother Laxmi Sah, who died without any legal heir. The informant in the fardbeyan has also stated, that the accused persons have also got some hurt. It is also stated, that Mansu Mahato, Kamdeb Prasad Sah, Prabhu Mahato came there. The informant has sustained injury on his head and back. The informant in the fardbeyan has also stated, that the accused persons have also got some hurt. It is also stated, that Mansu Mahato, Kamdeb Prasad Sah, Prabhu Mahato came there. The informant has sustained injury on his head and back. On the basis of the fardbeyan, the police registered Jamtara P.S. Case No.128 of 1996 dated 3.7.1996, under Sections 341, 324, 323, 379 and 34 of the Indian Penal Code against three accused persons and started investigation and during investigation, informant Surendra Prasad Sah died at Asansol Hospital. Thus the Investigating officer, vide order dated 12.01.1996, has prayed for addition of Section 302 of the Indian Penal Code which was allowed and Section 302 of the Indian Penal Code has been added. 4. After completion of investigation, the police submitted the charge-sheet No.104 dated 20.9.1996 for the offence under Section 323, 341, 324 and 302/34 of the Indian Penal Code against all the three accused persons. The cognizance of the offence has been taken on 11.10.1996 and the case was committed to the Court of Sessions vide notification dated 7.5.1999. The charge was framed against the appellants under Sections 323, 341, 324 and 302/34 of the Indian Penal Code, to which, the appellants have pleaded innocence and not guilty. Thus, they were put for trial. 5. The prosecution has examined altogether 10 witnesses. PW – 1 is Mansu Mahato, PW – 2 Kamdev Prasad Sah, PW – 3 Dr. Ashok Kumar, PW – 4 Prabhu Mahato, PW – 5 Birendra Prasad Sah, PW – 6 Janardan Prasad Sah, PW – 7 Mukta Devi, PW – 8 Sabitri Devi, PW – 9 Dr. Satinath Banerjee, who has conducted the post mortem of the deceased Surendra Prasad and PW – 10 Kamla Prasad Singh, Investigating officer of the case. The prosecution has also adduced documents, as Ext. 1 is injury report of Surendra Prasad Sah. Ext. 1/1 is injury report of Direndra Sah, Ext. 2 is the signature on the fardbeyan of Surendra Sah, Ext. 2/1 is Signature of Janardan Prasad Sah made on the fardbeyan, Ext. 3 is the post mortem report, Ext. 4 is the signature of officer in-charge on the FIR, Ext. -5 is the fardbeyan, Ext. 6 is endorsement over the fardbeyan. Ext. 7 to 7/1 is Police requisition of both the injured, Ext. 2/1 is Signature of Janardan Prasad Sah made on the fardbeyan, Ext. 3 is the post mortem report, Ext. 4 is the signature of officer in-charge on the FIR, Ext. -5 is the fardbeyan, Ext. 6 is endorsement over the fardbeyan. Ext. 7 to 7/1 is Police requisition of both the injured, Ext. – 8 is photo copy of discharge slip dated 5.7.1996 and 6.7.1996 of Surendra Prasad Sah and Ext. 9 is the certified copy of the Judgment of G.R. No.305 of 1996 /T.R. No.310 of 2000. 6. That after closure of the prosecution evidence, the statements of the appellants were also recorded under Section 313 of the Cr.P.C., in which, they pleaded not guilty and prayed for adducing evidence on behalf of the defence. The defence has also examined three witnesses, i.e. DW – 1 Hemawati Devi, DW – 2 Debnarayan Mahato, DW – 3 Rabindra Kumar. 7. Learned counsel for the appellants has submitted, that all the ten witnesses, examined on behalf of the prosecution are related witnesses and they are agnates. There is case and counter case between the parties and the disputes is with respect to share of their brother Laxmi Sah, who died issueless. Learned counsel for the appellant has further submitted that the witnesses of both the parties have sustained injuries and the charge-sheet have been submitted by the police against both the sides in their respective cases, but subsequently, the case, filed by the appellant, in which, the present prosecution party is accused and in that case, the accused persons got acquitted by the learned Trial Court and these appellants Nimai Sah and Manoj Sah have been convicted for the offence under Section 323 of the Indian Penal Code and awarded simple imprisonment for nine months, out of which, they served the sentence of seven months. Learned counsel for the appellants has further submitted, that considering the relationship between the parties and material available on record, the appellants may be given the benefit of Section 4 of Probation of Offenders Act, as they have been awarded simple imprisonment for nine months under Section 323 of the Indian Penal Code. 8. Learned counsel for the State Mr. Learned counsel for the appellants has further submitted, that considering the relationship between the parties and material available on record, the appellants may be given the benefit of Section 4 of Probation of Offenders Act, as they have been awarded simple imprisonment for nine months under Section 323 of the Indian Penal Code. 8. Learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor has submitted, from perusal of the evidence on record and the charge framed against the appellants, the same has been proved and the learned Trial Court below has rightly convicted the appellants. 9. It is true that the appellants Sibnarayan Sah has been convicted for the charge under Section 324 of the Indian Penal Code and sentenced him for three years simple imprisonment, but during the pendency of the appeal, said Sibnarayan Sah died. So far as material against these two appellants, i.e. Nimai Sah and Manoj Sah are concerned, they have rightly been convicted for the charge under Section 323 of the Indian Penal Code and have been awarded simple imprisonment for nine months and as such, they cannot be given the benefit of Section 4 of the Probation of Offenders Act. 10. Heard learned counsel for the appellant Nityanand Pd. Choudhary and learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor and perused the record, the FIR, depositions, Exhibits and materials on record, this Court is of the opinion that there is consistent evidence against these two appellants causing hurt to the prosecution party. They cannot take benefit of Section 334 of the Indian Penal Code, that whoever voluntarily causes hurt on grave and sudden provocation, as there is counter case filed by them, the accused persons have been acquitted. As such, the conviction of the appellant under Section 323 of the Indian Penal code requires no interference by this Court and thus, the same is upheld by this Court. 11. As such, the conviction of the appellant under Section 323 of the Indian Penal code requires no interference by this Court and thus, the same is upheld by this Court. 11. So far as quantum of punishment is concerned, this Court is of the opinion that the case has been filed in the year 1996, the impugned Judgment was passed in the year 2004, the present appeal has been taken up in the year 2018 and the dispute is between the agnates, in which the appellants have also suffered and out of simple imprisonment of nine months, the appellants have already served seven months and as such, the sentence is modified to the period already undergone by the appellants, as sufficient. 12. For the foregoing reasons, the sentence awarded to the appellant No.2 and 3, i.e. Manoj Sah and Nimai Sah, by the learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in S.C. Case No. 52 of 1999/55 of 2001, is hereby modified from the simple imprisonment of nine month to the period already undergone as awarded for punishment under Section 323 of the Indian Penal Code. 13. Thus, this appeal is accordingly dismissed with modification of sentence as aforesaid. Let the Lower Court Records along with a copy of this Judgment be sent back to the court concerned forthwith. 14. The appellant nos.2 and 3 are present in the Court as they have been brought by the Police on the direction of this Court. They are released. Accordingly, their presence is hereby dispensed with.