JUDGMENT : Heard the learned counsel for the appellants P.S. Dayal and learned counsel for the State, learned APP Mr. Vikash Kishore. 2. As per the report dated 02.06.2018 of Chandankeyari Police Station, it is indicated that appellant nos. 1, 3, 7 and 9 i.e. Tinkauri Mahto son of Niwarn Mahto, Parikshit Mahto son of Late Chando Mahto, Debilal Mahto son of Janki Mahto and Kalipado Mahto son of Late Shiveshwar Mahto have passed away and therefore, their appeals stand abated. 3. This criminal appeal is directed against the judgment of conviction and order of sentence dated 15.07.2003 and 18.07.2003 respectively passed in S.T. Case No. 240 of 1987 by learned Additional Sessions Judge, F.T.C. IIIrd, Bokaro whereby and where under the appellants have been convicted under sections 307/149 and 148 of the I.P.C. and sentenced to undergo R.I. for seven years under section 307/ 149 of the I. P.C. and two years R.I. under section 148 of the I.P.C. Both sentences were ordered to run concurrently. 4. The prosecution case, in brief, as per the fardbeyan dated 6-8-1987 of the informant Santosh Kumar Mahto P.W.-5 is that on 06.08.1987 in the morning at about 6:00 a.m., the informant had gone for grazing his ox in the field. In the mean time Parikshit Mahto, who happens to be brother-in-law of accused Tinkauri Mahto of his village armed with gupti, Yudhisthir Mahto,Tinkauri Mahto, Sitaram Mahato, Bhagirath Mahto, Kalipado Mahto, Debilal Mahto, Parikshit Mahto S/o Chando Mahto , Karno Mahto all armed with stick and Bhoothnath armed with gupti arrived at the place of occurrence and surrounded him. Yudhisthir Mahto ordered to kill him and on this Kalipado Mahto gave stick blow on his head as a result he fell down. Thereafter, Parikshit Mahto, who happens to be the brother-in-law of accused Tinkauri Mahto and Bhootnath Mahto assaulted him with gupti and when he tried to save himself, both Parikshit Mahato brother-in-law of accused Tinkauri Mahto and Bhootnath Mahto assaulted by gupti over both his legs and arms as a result the informant sustained several injuries on both his legs and both hands and blood oozed out. The other remaining accused persons assaulted him by stick as a result his right leg and right hand was fractured. When he raised hulla his brother Vidhyadhar Mahto and Mahanad Mahato, son Gopal Mahto and villager Tarapad Mahto came and rescued him. The other remaining accused persons assaulted him by stick as a result his right leg and right hand was fractured. When he raised hulla his brother Vidhyadhar Mahto and Mahanad Mahato, son Gopal Mahto and villager Tarapad Mahto came and rescued him. Informant further stated that \the reason for the occurrence is litigation since 1982 with the accused persons. 5. On the basis of the fardbeyan of the information FIR was lodged as Chandankeyari Police Station case no. 62 of 1987 against the accused persons under sections 147, 148, 149, 323, 324, 325, 341 and 307 of the IPC. After completing the investigation, charge sheet was submitted and cognizance of the offences were taken and the case was committed to the court of sessions. After, conclusion of trial accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. 6. Prosecution has examined altogether six witnesses in support of its case out of whom PW-5 Santosh Kumar Mahto is the informant of the case. PW-2 Mahanand Mahto and PW-4 Vidhyadhar Mahto are the brothers of the informant and PW-3 Gopal Mahto is the son of the informant. PW-1 is Dr. Bharat Prasad who examined the injured informant and PW-6 Prahalad Singh is the investigating officer of the case. 7. P.W.-5 Santosh Mahto is the informant of this case has stated in his evidence that on the day of occurrence on 6.7.1987 at about 6:00 a.m. in the morning he had gone to graze ox in the field Gundugara.When he reached then accused persons Yudhisthir Mahto, Tinkauri Mahto, Sitaram Mahto, Bhagirath Mahto, Parikshit Mahto (brother-in-law of accused Yudhisthir Mahto), Debilal Mahto, Kalipado Mahto, Bhootnath Mahto, Karno Mahto and one other Parikhit Mahto surrounded him. The accused Parikhit Mahato (brother-in-law of accused Tinkauri Mahto) and Bhootnath Mahto were armed with gupti and remaining other accused persons were armed with stick. Informant further stated that the accused Yudhisthir Mahto exhorted the other accused persons to kill him. On this Kalipado Mahto assaulted him by stick on his head as a result he fell down. Thereafter, brother-in-law of accused Yudhisthir Mahto and Bhootnath Mahto assaulted him with gupti on his both arms and legs and blood oozed out. The remaining other accused persons assaulted him by stick as a result his both leg and right hand was fractured. On this Kalipado Mahto assaulted him by stick on his head as a result he fell down. Thereafter, brother-in-law of accused Yudhisthir Mahto and Bhootnath Mahto assaulted him with gupti on his both arms and legs and blood oozed out. The remaining other accused persons assaulted him by stick as a result his both leg and right hand was fractured. On hulla, his brother Vidhyadhar Mahto and Mahanand and son Gopal came and then the accused persons fled away. Informant further stated that his younger brother Mahanand went to the police station and informed the police. Police came at about10.30 a.m. and recorded his statement. Thereafter, police sent him to Barmashiya Hospital for treatment. After five to six days of his admission, he was referred to Nirsha, for X-ray. He was admitted in hospital for about two and half months. Informant further stated that prior to this occurrence, in the year 1982 also there was quarrel with the accused party for the plot no. 1375 & 376 of Mouza Amai Nagar which is still continuing. In para-12 of his cross-examination informant stated that first blow was given by stick on his forehead and he fell down. Accused Bhootnath inflicted one gupti blow while accused Parikshit Mahto gave two gupti blows on his person. Informant further stated that informant sustained injuries on his left leg due to gupti blow given by Bhoothnath and Parikshit Mahto gave gupti blow on his left leg and right leg and hand. Informant further stated that remaining other accused persons assaulted him repeatedly by stick as a result his both leg and right hand was fractured. 8. P.W.-2 Mahanand Mahto and P.W.-4 Vidhyadhar Mahto, who are brothers of the injured informant and PW-3 Gopal Mahto is the son of the informant have reiterated the evidence of informant in their examination-in-chief as to manner of assault by the accused persons on the informant. 9. P.W.-6 Prahalad Singh is the investigating officer of the case. He has stated in his evidence that he had recorded the fardbeyan of the informant. Investigating officer has proved the fardbeyan to be in his handwriting and signature which was marked as Ext.-3. PW-6 has also proved the formal FIR which was marked as Ext.-4. Investigating officer further stated that he had prepared the injury slip of injured Santosh Mahto and had send the injured for treatment. Investigating officer has proved the fardbeyan to be in his handwriting and signature which was marked as Ext.-3. PW-6 has also proved the formal FIR which was marked as Ext.-4. Investigating officer further stated that he had prepared the injury slip of injured Santosh Mahto and had send the injured for treatment. PW6 has described the place of occurrence in detail in para-5 of his deposition. In his cross-examination PW-6 stated that he did not get X-ray report from doctor. He received the injury report from doctor on 17.8.1987 and doctor did not give him the X-ray report. 10. P.W. 1 is Dr. Bharat Prasad had examined the injured informant Santosh Mahto and found following injuries on the person of the informant- 1.Fracture of right and left Tibia due to hard substance like lathi. 2. Fracture of right ulna by hard object like lathi. 3.Penetrated wound 1/2”deep on the left upper arm by pointed weapons. 4. Penetrated wound 3/4” deep. Doctor opined that injuries no.1 and 2 were grievous in nature and could be caused by lathi and injuries no.3 and 4 were simple in nature and could be caused by gupti. Doctor has proved the injury report of the injured Santosh Mahto which was marked as Ext.-1. ARGUMENTS OF THE APPELLANTS 11. Learned counsel for the appellants has first and foremost submitted that as per the fardbeyan, informant was assaulted by Kalipado Mahto on his head with stick. When informant fell down then accused Bhootnath Mahto and Parikshsit Mahto, who happens to be brother-in-law of the accused Tinkauri Mahto, assaulted the informant with gupti on hands and legs due to which he received multiple injuries. Rest of the accused persons assaulted indiscriminately with sticks. Counsel for the appellants argues that the ocular evidence is not supported by the medical evidence. Counsel for the appellants submitted that the injuries as indicated in the FIR and the evidence of the injured informant is not corroborated by the evidence of P.W.-1 Dr. Bharat Prasad. Counsel for the appellants has pointed out that injury no. 1 is fracture of right and left tibia due to hard substance like lathi. Injury no. 2 is fracture of right ulna by hard object like lathi, injury no. 3 is penetrated wound ½'' deep on the left upper arm by pointed weapon and injury no. Bharat Prasad. Counsel for the appellants has pointed out that injury no. 1 is fracture of right and left tibia due to hard substance like lathi. Injury no. 2 is fracture of right ulna by hard object like lathi, injury no. 3 is penetrated wound ½'' deep on the left upper arm by pointed weapon and injury no. 4 is penetrated wound ¾'' deep and submitted that when comparison between the injuries as indicted in the FIR and as compared with the injuries as given in the evidence of the Doctor is made, then it cannot be said that the assault has occurred as alleged and resulted in the said injuries. There is no injury on the head though as per the fardbeyan there is an assault made on the head and in the evidence of prosecution witnesses, it is stated that after the assault on the head informant had fallen down which would mean that the assault on the head was a rather severe assault. However, in the medical evidence of the doctor there is no such injury which goes against the version in the fardbeyan as well as version as given by the prosecution witnesses. 12. Learned counsel for the appellants has also argued that a major question arises regarding the evidence of the doctor. It is the evidence of the doctor PW-1 on whose evidence much of the case centers around and it pertains to the injury report which will prove whether there was any assault of such nature as alleged. Counsel points out that in para 3 and 5 of his deposition the doctor while indicating the injuries mentioned that he had noted the injuries after having seen noting from the X-ray report. However, subsequently in his cross-examination doctor stated in para-12 and 13 that X-ray report was provided by the other doctor, Dr. T.P. Verma, only on 12.8.1987. Therefore, learned counsel submitted that this is a glaring and deliberate false statement made on the part of the doctor which goes into the root of the matter and this falsity will lead to the entire evidence of the doctor of being no value and because of this itself, all the allegations that have been alleged against the appellants cannot be sustained and upheld. Counsel for the appellants has also argued that as per the evidence of P.W.-5 informant at para-5, it has been revealed that the doctor had sent the injured informant for X-ray after 5 to 6 days of the alleged occurrence. Learned counsel therefore, submitted that this would means that the doctor who is P.W. 1 had no occasion to see the X-ray report earlier any way and therefore this surely indicates that there is surely a fabrication on point of doctor. 13. Learned counsel for the appellants has also argued that the present FIR is also not sustainable and section 162 of the Cr.P.C. applies since it is indicated in the evidence of informant P.W.-5 that Mahananda Mahto had gone to inform and then only subsequently the police came and recorded the FIR at the place of occurrence. Counsel for the appellants says the first information regarding the incident was given by Mahananda Mahto and therefore it is his information which should have been the basis of the FIR but the said first information has been suppressed by the prosecution. 14. Learned counsel for the appellants has further submitted that in this case altogether six prosecution witnesses have been examined including the doctor and the I.O apart from the other witnesses i.e. P.W.-2, P.W.-3, P.W.-4 and P.W.-5 who are all related and hence interested witnesses. Counsel argued that the evidence of such interested witnesses cannot be taken when there is also a background of enmity or land dispute between the parties. Counsel further argued that there were many persons grazing the cattle nearby the place of occurrence and it is more shocking as to why none among them were enlisted as prosecution witnesses and examined. 15. Learned counsel for the appellants further pointed out the poor or perfunctory nature of the investigation from the deposition of P.W.-6 or the investigating officer wherein in at para-6 and 9 he deposed that he had seized blood stained earth from the place of occurrence, however, he did not send the blood stained earth for forensic examination. Counsel, thus submitted that this only proves the poor manner of investigation by the police and on such investigation conviction of the appellants cannot be sustained. Learned counsel further argued that moreover the seizure list witnesses were also not examined. Counsel, thus submitted that this only proves the poor manner of investigation by the police and on such investigation conviction of the appellants cannot be sustained. Learned counsel further argued that moreover the seizure list witnesses were also not examined. Referring to the evidence of the investigating officer, counsel also argued that in para-14, it is revealed that the investigating officer had received the injury report on 17.08.1987. However, the investigating officer admits that no X-ray report was sent to him. Learned counsel, therefore, submitted that taken with the faulty or falsified nature of the evidence of the doctor as is apparent from the para-3, 5 and 13 of the doctor’s evidence and read along with the evidence of investigating officer in para-14 wherein he has said that no X-ray report was sent, the question is surely raised whether any fracture as said in injury no.1 and injury no.2 was at all present. Learned counsel further submitted that doctor who had prepared the X-ray report was also not examined and therefore it would not be proper to proceed on the basis of a doubtful X-ray report. Counsel also raised plea of alibi for appellant no. 8 Yudhisthir Mahto on the ground that during the time of occurrence, he was on duty at BCCL. However, it has only been disbelieved because it has been revealed that BCCL does not keep records older than 10 years old and therefore, the benefit of alibi was not given to this appellant. Learned counsel submitted that it was incumbent upon the investigating officer to go to the company to investigate regarding the truth of the matter but that has not been done by the investigating officer and therefore, the defense of alibi shall be accepted and acquittal should be made in the case of appellant no. 8 on the basis of defense of alibi itself. 16. Learned counsel for the appellants further submitted that evidence that has been led by prosecution no offence under section 307 IPC along with section 149 of the IPC can be made out because there is no injury on any vital part of the body and hence there was no intention to commit murder. 16. Learned counsel for the appellants further submitted that evidence that has been led by prosecution no offence under section 307 IPC along with section 149 of the IPC can be made out because there is no injury on any vital part of the body and hence there was no intention to commit murder. Learned counsel for the appellants further argued that the appellants were 10 in numbers and allegedly two of them had guptis while 8 of them had sticks and they were in sufficiently large numbers so, if there would have been any intention to kill or murder the injured then appellants would have then and there with such force and number would have done so however, it was not done, therefore, no offence under section 307/149 of the IPC can be sustained. 17. Learned counsel for the appellants also submitted that it has to be noted that there is a history of land dispute behind this occurrence and it is the admission of the prosecution witnesses themselves that there is a litigation going on between the parties since 1982. So given this background along with the nature of evidence that has come, the appellants surely deserve acquittal in this case. Learned counsel for the appellants has relied on the judgment of Hon’ble Apex Court delivered in case of Surajit Sarkar v. State of West Bengal reported in (2013) 2 SCC 146 and Sunil Kumar and others v. State of M.P reported in (1997) 10 SCC 570 in support of his case regarding faulty investigation and institution of FIR. Finally, learned counsel for appellants, in alternative, submitted without admitting guilt that if at all any conviction is done it will be under section 323 of the IPC for which they have already undergone rigors and vigors of the trial and also spent some custody and therefore period undergone may be considered as sentence sufficiently served. ARGUMENTS OF THE APP 18. Learned counsel for the State learned APP Mr. Vikash Kishore first and foremost read out from the fardbeyan and pointed out the nature of assault. He has then taken us to the evidence of family witnesses including that of the injured informant and pointed out that their evidence substantially corroborate the assault that has been indicated in the fardbeyan. Learned counsel for the State learned APP Mr. Vikash Kishore first and foremost read out from the fardbeyan and pointed out the nature of assault. He has then taken us to the evidence of family witnesses including that of the injured informant and pointed out that their evidence substantially corroborate the assault that has been indicated in the fardbeyan. Learned counsel has argued that it is indicated in the fardbeyan and in the evidence of the prosecution witnesses that initially there was an assault made by lathi by one Kalipado on the head of the injured subsequent to which he had fallen down and thereafter assault was made by two persons Bhootnath and Parikshit by gupti and then assault was made by remaining appellants with lathi resulting in injuries including the fracture injuries to the informant. Learned counsel further submitted that in the evidence of doctor P.W.-1 it has come that right feet and right hand was broken. Pointing to the evidence of P.W. 6, the investigating officer, counsel pointed out that investigating officer had prepared the requisition slip regarding the injuries sustained by the informant which was forwarded to the medical officer or the doctor on the basis of which the injury report was prepared and the said injury report has been marked as Ext.-1. Counsel for the State then argued that injuries sustained by the informant is corroborated by the medical evidence of the doctor that injury no. 1 is a fracture of right and left tibia due to lathi, injury no. 2 is fracture on right ulna due to lathi and injury no. 3 is penetrated wound on the left upper arm by a pointed weapon of ½” deep and injury no. 4 is penetrated wound ¾ “deep. Counsel for the State points out that injury no. 1 and 2 were caused by lath and injury no. 3 and 4 were caused by gupti and injury no. 1 and 2 are said to be grievous in nature and injury no. 3 and 4 are said to be simple. Counsel further submitted that the date of occurrence is 6.8.1987, the requisition by the investigating officer has been made on the same day and the injury report of the doctor i.e. Ext. 1 and 2 are said to be grievous in nature and injury no. 3 and 4 are said to be simple. Counsel further submitted that the date of occurrence is 6.8.1987, the requisition by the investigating officer has been made on the same day and the injury report of the doctor i.e. Ext. – 1 is also of the same day and therefore the ocular evidence is fully corroborated by medical evidence and there is no way the appellants can argue that the assault has not taken place and the informant was not the injured. Counsel has also argued that the place of occurrence has also been proved by the investigating officer and he had visited the field where the occurrence has taken place and he has described the place of occurrence. Learned counsel also submitted that the recovery of blood stained earth or soil was made by the investigating officer and only because blood stained soil was not sent for forensic examination, the case against the appellants cannot fall and for the fault of the police, injured should not suffer. Finally, counsel argued that the appellants are surely guilty for the offence under section 149 of the IPC apart from the other sections of the IPC because they had come in an unlawful assembly fully prepared and armed and they had intention which is made out and there is enmity and they assaulted the informant and appellants were doing that in pursuance of enmity. Appellants Bhootnath Mahto and Parikshit Mahto, who happened to be brother-in-law of the accused Tinkauri Mahto were carrying gupti and the others were all carrying lathi and therefore the offence under section 148 of the IPC is also made out. Therefore, appellants conviction under section 307/149 of the IPC and also conviction under section 148 IPC be sustained and upheld. FINDINGS AND CONCLUSIONS 19. Having heard both counsels; having gone through the records of the case and the evidences in the facts and circumstances the issue has to be seen in the background that there was land dispute litigation already going on between the parties concerned. The conviction of the appellants are under section 307/149 and 148 of the IPC and the significant term of punishment is under section 307/149 of IPC which is for seven years. 20. The conviction of the appellants are under section 307/149 and 148 of the IPC and the significant term of punishment is under section 307/149 of IPC which is for seven years. 20. As per the fardbeyan and evidence the main assault is on the head with stick by Kalipado Mahto and Parikshit Mahto and Bhootnath Mahto assaulted with gupti on his leg and hand and also undisclosed part of body. The fardbeyan further says that the other accused assaulted by sticks as a result his right leg and right hand was fractured. The FIR is well-known is not an encyclopedia, however, at the first instance the informant himself alleges assault on head by Kalipado Mahto and by gupti by Parikshit Mahto and Bhootnath Mahto and the rest assaulted by stick attributing offence under section 307 IPC. 21. Learned counsel for the appellants has cast doubt on the injury report and pointed out that the doctor has said in his evidence that he had noted the injuries no. 1 and 2 after having seen the noting from the X-ray report. However, from the cross-examination of the doctor it seems it is not the case because the X-ray report was provided by the other doctor i.e. Dr. T.P. Verma only on 12.8.1987. Hence, injury no. 1 and injury no.2 which are fracture of right and left tibia and fracture of right ulna respectively and which were stated by the doctor to be grievous in nature becomes doubtful. But, regarding the remaining injury i.e. injury no. 3 and injury no.4 which are penetrated wound 1/2'' deep on the left upper arm and penetrated wound 3/4'' has been proved from the medical evidence of doctor and ocular evidence of injured informant Santosh Kumar Mahto P.W.-5 and injuries sustained by the informant has also been corroborated by the evidence of P.W.2, P.W.3 and P.W.4. 22. Learned Counsel for the appellants has raised plea of alibi as regard to appellant no. 8 Yudhisthir Mahto. From the evidence on record, I find that the appellant no. 8 has failed to prove that at the time of occurrence he was at his duty at colliery and the same issue has also been dealt by the learned trial court at para 21 of the impugned judgment. 23. 8 Yudhisthir Mahto. From the evidence on record, I find that the appellant no. 8 has failed to prove that at the time of occurrence he was at his duty at colliery and the same issue has also been dealt by the learned trial court at para 21 of the impugned judgment. 23. Hence, on the basis of injury no.3 and injury no.4 which is stated by the doctor to be simple in nature, appellants cannot be convicted under section 307/149 of IPC. Rather, appellants are convicted under section 324/149 of IPC for the injuries no. 3and 4 caused to the informant P.W.-5. 24. Learned Counsel for the appellants has relied on the judgment of Sunil Kumar and others (Supra) and submitted that the first information was given to the police by P.W.2 Mahanand Mahto, brother of the injured and that information has been suppressed by the prosecution. But this argument of the Learned Counsel is not tenable as the investigating officer P.W.6 had himself recorded the fardbayan of the injured informant at the place of occurrence itself. 25. In the result, impugned judgment of conviction and order of sentence dated 15.07.2003 and 18.07.2003 respectively passed in S.T. Case No. 240 of 1987 by learned Additional Sessions Judge, F.T.C. IIIrd, Bokaro as regards to conviction of the appellants under section 307/149 of IPC is set aside and the conviction of the appellants is modified to under section 324/149 of IPC. The conviction of the appellants under section 148 of IPC remains. 26. Regarding, sentencing I, find that occurrence took place more than 30 years ago in 1987 and out of nine appellants four appellants have died. Remaining appellants are in their 50's or 60's and have faced rigors and vigors of trial. From the record it appears that surviving or remaining appellants have undergone almost two months in custody and hence at this stage period already undergone by the surviving appellants shall be considered as sentence sufficiently served. Appellants are discharged from the liabilities of the bail bonds. 27. Accordingly, the appeal is dismissed with modification in conviction and sentence.