JUDGMENT : RATNAKER BHENGRA, J. It was informed by learned counsel for the appellants that appellant No. 1 Tej Narayan Singh in Cr. Appeal (D.B.) No. 906 of 2002 had already been passed away. The death certificate of the same is also annexed with I.A. No.1189 of 2010. It was also informed by I/c Additional Sessions Judge, FTC-III, Civil Court Bokaro Vide its letter No. 5 dated 10.3.2017 that appellant Tej Narayan Singh had already been died on 18.12.2003. In view of the aforesaid information, the appeal of Tej Narayan Singh stands abated. 2. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 13.12.2002 passed by Additional District and Sessions Judge, Fast Track Court 3rd , Bokaro in connection with S.T. Case No. 12 of 1993 arising out of Harla P.S. Case no. 129 of 1991, G.R. no. 994B of 1991 whereby and whereunder appellant Tej Narayan Singh was convicted u/s 307/149 of IPC and section 148 of IPC and sentenced to undergo R.I. for seven years u/s 307/149 IPC and R.I. for two years u/s 148 of the IPC. Both the sentences were ordered to run concurrently. The remaining five appellants namely Santosh Kumar, Dinesh Chandra Godain, Dhananjay Kumar Jha, Sunil Kumar, Nagendra Singh @ S.S. Bist were convicted u/s 307/149 and Section 147 of IPC and sentenced to undergo R.I. for 5 years u/s. 307/149 IPC and R.I. for one year u/s 147 of the IPC. All the sentences were directed to run concurrently 3. The prosecution case as per the fardbeyan of the informant PW-4 Sahadev Manjhi is that on 11.10.1991 at about 7:30 p.m. in the evening he was coming towards Sector-9 at his home from Chas along with one Ganesh Ram Mahato. When they reached at Sector IX B road near High School at a betel shop of one Yadav Jee, in the meantime, accused persons namely Tej Narayan Singh, Dhananjay Jha, Sunil Kumar, Nagendra singh, Dinesh Chandra Godain, Santosh Kumar all of them armed with bhala, farsa, bhujali and iron rod surrounded him and started abusing him. It is further alleged that accused Tej Narayan Singh assaulted him on his head by bhujali as a result he fell down on the ground. Thereafter, all the above named accused persons started assaulting him as a result he sustained injuries. It is further alleged that accused Tej Narayan Singh assaulted him on his head by bhujali as a result he fell down on the ground. Thereafter, all the above named accused persons started assaulting him as a result he sustained injuries. He raised hulla, then nearby people came there and the accused persons fled away. Informant further stated that his friend Ganesh Ram Mahato fled away seeing the accused persons. Reason behind the occurrence as stated by the informant was previous enmity between the parties with regard to money. 4. On the basis of fardbeyan of the informant, Harla P.S. case no. 129 of 1991 was registered under sectiosn 147,148,323 and 307 of the IPC against the accused persons. After investigation, police submitted charge-sheet against the accused appellants. Cognizance of the offence was taken and case was committed to the court of Sessions. Charges were framed against the accused persons u/s 147,148,323/149,342 and 307/149 of the IPC however they denied the charges. After the trial, accused appellants were convicted and sentenced as aforesaid. Hence, this appeal. 5. In support of its case, prosecution had examined altogether four witnesses : 1. PW-1 Dr. G.N. Patnayak, 2. PW-2 Shivnandan Yadav 3. PW-3 Tilo Mahato and 4. PW-4 Sahadev Manjhi 6. PW-4 Sahadev Manjhi is the informant of the case. He has stated in his evidence that on 11.10.1991 at 7:30 p.m. he was standing with one of his fried Ganesh Mahato near betel shop of one Yadavjee. The accused persons namely Tej Narayan Singh, Dinesh Chandra Gohain, Nagendra Singh Bist, Dhananjay Jha, Santosh Kumar, Toofani, Anil, Sunil and 8-10 others came there and surrounded him. Accused Tej Narayan Singh abused him and threatened to kill him and then Tej Narayan Singh assaulted him by bhujali upon his head, as a result, he sustained head injuries and blood oozed out and he fell down. Thereafter, rest of the accused persons assaulted him by stick and when he raised alarm, nearby people assembled there and then the accused persons fled away. Thereafter the informant was treated in Bokaro General Hospital. In para 2 the informant stated that he had previous enmity with Dinesh Chandra Godain regarding money. Informant has proved his fardbeyan which has been marked as Ext.2. 7. PW-1 Dr. G.N.Patnayak had examined the injured informant Sahdev Manjhi on 11.10.1991 and found following injuries on his person: 1. Thereafter the informant was treated in Bokaro General Hospital. In para 2 the informant stated that he had previous enmity with Dinesh Chandra Godain regarding money. Informant has proved his fardbeyan which has been marked as Ext.2. 7. PW-1 Dr. G.N.Patnayak had examined the injured informant Sahdev Manjhi on 11.10.1991 and found following injuries on his person: 1. Incised wound occipital region 5”x1/4” X bone deep. 2. Lacerated wound on forehead 3”x1/4”x1/4” 3. L.W. on vault ½”x1/4”x1/4” 4. L.W. on front of left ear 3”x1/4”x1/4” 5. Left hand web of thumb and index finger ¼” x very slight. 6. L.W. right elbow 1”x1/4”x1/4” and bruises. 7. Abrasion over right leg. Doctor has opined that injury number 1 is on head and it may be dangerous to life and it may be caused by sharp cutting weapon like bhujali. Other injuries may be caused by lathi and danda. He has proved his signature on injury report which has been marked as Ext.1. 8. PW-2 Shivnandan Yadav has stated that occurrence took place on 11.10.1991 at about 7:30 p.m. in the evening and that time he was at his betel shop. Informant S.D.Manjhi along with one of his friend came to his shop for betel. In the meantime, 10 to 15 miscreants armed with lathi, danda and bhujali came there and started assaulting the informant. When people assembled then accused persons fled away. The informant was taken to hospital. P.W.-2 further stated that police recorded his statement. He did not identify the accused persons. 9. P.W. 3 is Tilo Mahato. He stated that on the day of occurrence at about 7-7:30 p.m. in the evening he was at his tea shop. The informant S.D.Manjhi with one of his friend after taking tea from his shop went to betel shop. He heard hulla and 10-15 miscreants assaulted S.D.Manjhi as a result S.D.Manjhi fell down and he was taken to hospital. ARGUMENTS ON BEHALF OF APPELLANTS: 10. Learned senior counsel appearing on behalf of appellants referring to the evidence of P.W.-1 Dr. G.N.Patnayak, pointed out that though there are seven injuries reported in the injury report but except injury no.1 remaining injuries were committed by hard and blunt substance and not on vital part of the body. ARGUMENTS ON BEHALF OF APPELLANTS: 10. Learned senior counsel appearing on behalf of appellants referring to the evidence of P.W.-1 Dr. G.N.Patnayak, pointed out that though there are seven injuries reported in the injury report but except injury no.1 remaining injuries were committed by hard and blunt substance and not on vital part of the body. He also argued that in any way this first injury was committed by the accused Tej Narayan Singh which is indicated so in the fardbeyan and in the deposition of the informant PW-4 wherein it has been stated that bhujali blow on the head was given by Tej Narayan Singh. He has also submitted that since all the injuries except injury no.1 are not on vital parts of the body and injury no.1 is attributed to Tej Narayan Singh and hence no offence u/s 307 IPC can be made out against other remaning surviving appellants because no intention for committing the death can thus be inferred from injury No.2 to injury No.7 and these injuries are not at all of a grievous in nature. 11. Learned senior counsel again reiterates that as injury no.1 is attributed to Tej Narayan Singh and submitted that other injuries as per the doctor are said to have been caused by lathi, which is not a deadly weapons and hence conviction of the other remaining appelants u/s 307/149 of IPC is improper. 12. Learned senior counsel has then referred to the evidence of PW-2 Sheonandan Yadav who is the betel shop owner. Learned counsel submitted that this witness did not identify any of the assailants. Therefore, there is no evidence to connect the remaining appellants with the assault made on the informant PW-4. If any one of the assailants had been identified by PW-2 then the remaining appellants could have been associated with the crime. Referring to the evidence of PW-3 Tilo Mahto learned counsel submitted that this witness is rather unreliable because he is confused even about the date of occurrence and has given the date of incidence as 10.11.1991 which is not the date of occurrence. Learned counsel said that he had also more or less deposed like PW-2 as he has also supported the occurrence but has not been able to identify any of the assailants. Learned counsel said that he had also more or less deposed like PW-2 as he has also supported the occurrence but has not been able to identify any of the assailants. Therefore, the evidence of PW-2 and PW-3 are of not much value because they have not at all named or identified any of the appellants in their evidence or even recognized them in the dock. 13. Learned senior counsel for the appellants then referred to the evidence of the informant PW-4 Sahdeo Manjhi and pointed out paragraph no.2 of his evidence and argued that the entire incident may be a case of false allegation over dispute regarding money with one of the appellant Dinesh Chandra Gorai. Learned Counsel further submitted that FIR may have been proved as one of the exhibits but the FIR has not been proved by the prosecution and therefore, the FIR itself cannot be looked into while hearing the appeal and it should not have been looked even at the stage of trial. 14. Learned senior counsel for the appellants further argued that firstly in this case sufficient doubts have been raised as already indicated and hence it is clear that the case is not proved beyond the reasonable doubts and if any doubts remains then the benefit of such doubt should be extended to the appellants and conviction of the remaning appellants shall be set aside. Learned counsel also argued that the place of occurrence has not been proved by the prosecution because apart from the oral statement of the prosecution witnesses the I.O. was required to be examined but I.O. has not been examined and in his absence it is not possible to prove the place of occurrence. Other related aspects have also not been proved such as whether there was any blood stained clothes and seizure of weapons used in the assault. Hence, in absence of examination of the I.O. apart from the place of occurrence not been proved, other evidences in the alleged crime could also not be proved. 15. Learned senior counsel for the appellants then argued that the manner of occurrence also needs to be proved, however in the instant case manner of occurrence is only taken from the evidence of PW-4 only or the alleged victim informant. However, he has only stated regarding the assault by Tej Narayan Singh. 15. Learned senior counsel for the appellants then argued that the manner of occurrence also needs to be proved, however in the instant case manner of occurrence is only taken from the evidence of PW-4 only or the alleged victim informant. However, he has only stated regarding the assault by Tej Narayan Singh. There is no allegation of assault on remaining appellants and nothing would suggest that the assault being made by remaining appellant or any assault being made specifically by any of the appellant. Learned counsel also argued that from the records of the case and particularly from the evidences of PW-2, PW-3 and PW-4 it can be seen that apart from the remaining appellants there were 10-15 persons involved in the incidence. However, only eight accused persons were sent up for trial which means investigation was not done properly and the remaining unknown accused persons were left out. In such situation it could also be said that remaining accused who were responsible for the assault were set free and these accused persons or appellants were charge sheeted without evidence and hence this is the fault of the prosecution. He further submitted that there are two other persons who were sent up for trial namely Arun Kumar Singh and Tufani Yadav and they were acquitted on the same set of evidence by the learned court below and hence the present appellants may also be acquitted. 16. Learned counsel further pointed out from the statement made u/s 313 Cr.P.C. and submitted that no relevant questions being were put to the appellants and in absence of relevant questions put to them particularly regarding certain evidences then in such situation they should not be held guilty for the offences convicted for. He further argued that no question was put to the remaining appellants u/s 313 Cr.P.C. regarding the injury nos.2 to 7 and if these questions were put to them they could have controverted the same and therefore, they were denied this opportunity and hence no conviction u/s 307 IPC can be sustained against any of the remaining surviving appellant. Learned counsel further submitted even no question regarding formation of unlawful assembly was also put to the appellants u/s 313 Cr.P.C. and therefore, conviction u/s 147 IPC also cannot be sustained. Lastly learned counsel relied on the judgment of S. Harnam Singh Vs. Learned counsel further submitted even no question regarding formation of unlawful assembly was also put to the appellants u/s 313 Cr.P.C. and therefore, conviction u/s 147 IPC also cannot be sustained. Lastly learned counsel relied on the judgment of S. Harnam Singh Vs. State (Delhi Admn.) reported in (1976)2 SCC 819 and Shiv Balak Rai Vs. the State of Bihar reported in 1986 PLJR 604 and submitted that circumstances appearing against the accused were not specifically explained to the accused appellants and also due to non-examination of investigating officer appellants were prejudiced. Lastly, learned senior counsel for the appellants submitted that the impugned judgment of conviction and order of sentence passed against the appellants are based on no evidence and hence appellants be acquitted of the charges. ARGUMENTS ON BEHALF OF STATE: 17. Learned A.P.P. on the other hand submitted that the fardbeyan has been exhibited and it has been exhibited as Ext.2 without any objection and all the appellants have been named therein and therefore appellants cannot take an advantage of formal FIR not being proved. Learned counsel says that the initiation of the case begin on the launching of the case by the fardbeyan which actually forms the basis of the case and the formal FIR is formal in nature so the fardbeyan which has been marked as Ext.2 should not be discredited because of the lack of provement of formal FIR. Learned counsel has then argued that two other co-accused Arun Kumar Singh and Tufani Yadav were acquitted by the learned trial court because they were not named in the FIR, but as far as the appellants are concerned all of them have been named in the fardbeyan which is the basis of the crime and no way do they stand on the same footing as Arun Kumar Singh and Tufani Yadav. Learned counsel for the state further submitted that ocular evidence is fully supported by the medical evidence of the doctor PW-1 and hence, the fardbeyan is also corroborated and therefore, the fardbeyan, the injury report and the doctor’s evidence taken together will constitute substantial piece of evidence to convict all the aforesaid appellants. Learned counsel for the state further submitted that ocular evidence is fully supported by the medical evidence of the doctor PW-1 and hence, the fardbeyan is also corroborated and therefore, the fardbeyan, the injury report and the doctor’s evidence taken together will constitute substantial piece of evidence to convict all the aforesaid appellants. Learned counsel submitted that the first injury or injury no.1 was caused by bhujali and it may be attributed to Tej Narayan Singh however all the remaining appellants were also involved in the incidence with Tej Narayan Singh and it cannot be denied that as many as six others injuries were also found on the person of the informant apart from injury no. 1. Learned counsel further argued that the injury no.2 is on the forehead and is also on the vital part of the body and this cannot be disregarded. She has also referred to injury no.3 which is on vault and said this injury is also on the vital part of the body and therefore, it cannot be said that the offence u/s 307/149 of IPC cannot be made out. 18. Learned counsel further argued that from the evidences of PW-4 and taken along with the evidence of PW-2 and PW-3 who have indicated that the occurrence did take place and hence it cannot be denied that lathi and other weapons were not used at the incident of crime. There is evidence that assailants did not come unarmed, in fact they had come fully armed and prepared and therefore, there is no lack of motivation or intention on their part. Lastly learned counsel submitted that offence u/s 307/149 of IPC along with other offences are totally proved and thus judgment of conviction and order of sentence passed by the learned court below needs to be sustained and upheld. FINDINGS: 19. Having heard learned counsel for both sides and in the facts and circumstances of the case first of all it is pertinent to address the contention of the learned senior counsel for the appellants as to non-proving of the formal FIR. Learned senior counsel for the appellants argued that the FIR was not proved and it was only the fardbeyan that has been proved and therefore, without an acceptance of the formal FIR the case and the investigation could not have proceeded and therefore on this score the appellants deserve acquittal. Learned senior counsel for the appellants argued that the FIR was not proved and it was only the fardbeyan that has been proved and therefore, without an acceptance of the formal FIR the case and the investigation could not have proceeded and therefore on this score the appellants deserve acquittal. This court finds that the reply of the learned APP on this point cannot be denied because learned APP rightly submitted that the fardbeyan has been exhibited as Ext.2 wherein all the appellants have been named therein and on this basis the case was initiated and the investigations was done and the trial was also conducted. Therefore, only on the basis of lack of proving of formal FIR, the appellants cannot get advantage of such circumstances. 20. One of the main argument of the learned senior counsel for the appellants is based on the injuries sustained by the informant PW-4 and particularly the injuries caused due to assault by Tej Narayan Singh and he also tried to argue out that the other injuries were not on vital parts of the body. Learned counsel has rightly argued that PW-4 informant himself has stated in his fardbeyan and deposed in his examination-in-chief that Tej Narayan Singh had assaulted on his head by bhujali as a result informant sustained injury on his head. 21. I also find from the evidence that first injury i.e. injury No.1 was caused by bhujali which is attributed to the accused Tej Narayan Singh. Injury report Ext.1 of the doctor also indicates that injury No.1 is incised wound on occipital region 5”x1/4”x bone deep. Doctor PW-1 also deposed that injury No. 1 may be dangerous to life and may be caused by sharp cutting weapons like bhujali. The injury No.1 inflicted by the accused Tej Narayan Singh is corroborated by the medical report of the doctor PW-1 and ocular evidence of injured informant and hence I agree with the submission of the learned senior counsel for the appellants that since only injury No.1 which was inflicted by Tej Narayan Singh by a deadly weapon bhujali and is on vital part of the body and hence, section 307/149 IPC cannot be made out against the remaining other appellants and hence other remaining appellants are acquitted of the charges under Section 307/149 of IPC. 22. 22. However, excluding the injury No.1 attributed to Tej Narayan Singh then also there are as many as six injures ranging from injury no.2 to injury no.7 and injuries are in nature of lacerated wound on the forehead, L.W. on vault, L.W. on left ear, L.W. on right elbow and abrasion on the right leg and these injuries caused to the informant requires explanation. Hence, seeing the nature and number of injuries particularly injury no.2 to injury no.7 sustained by the informant PW-4, the evidence of informant particularly in his examination-in-chief informant has stated that after assault by bhujali by the accused Tej Narayan Singh, he fell down and after that all the other remaining appellants assaulted him with the stick. The deposition of the injured informant is also supported by the injury report Ext-1 and the evidence of doctor PW-1 who stated that remaining injuries i.s. injury no.1 to injury no.7 may be caused by stick. Hence, prosecution has been able to prove that other remaining appellants had assaulted the informant and caused hurt to him. 23. The judgment relied on by the learned counsel S.Harnam Singh (supra) and Shiv Balak Rai (Supra) regarding circumstances appearing against the accused persons and non-examination of investigating officer are not applicable in the facts and circumstances of this case due to Ext.1 which is the injury report of the informant. 24. In the result, impugned judgment of conviction and order of sentence dated 13.12.2002 passed against all the appellants of Cr.Appeal (S.J.) No. 880 of 2002 and appellant No.2 Dinesh Chandra Godain of Cr. Appeal (S.J.) No. 906 of 2002 so far as it concerns to their conviction under section 307/149 of IPC cannot sustain and is set aside, however all the aforesaid appellants are convicted under section 323 of IPC. However, conviction of all the aforesaid appellants u/s 147 IPC as passed by the learned court below remains .Regarding sentencing, I find that occurrence is of the year 1991 and almost 28 years have lapsed during which appellants have faced much hardship, rigor and vigor of trial as such all the aforesaid appellants will concurrently serve two months rigorous imprisonment for their conviction u/s 323 of IPC and 147 IPC and as the sentence is being modified to two months imprisonment hence, any period undergone by the aforesaid appellants shall not be subtracted from this modified sentence. Both these sentences will run concurrently. The bail bonds of all the aforesaid appellants of both these appeals are cancelled. 25. The learned concerned or successor court below is directed to take necessary steps as per law against the aforesaid appellants to serve out the modified sentence passed by this Court. 26. Accordingly, both these appeals are dismissed with above modification in conviction and in sentence.