JUDGMENT : RATNAKER BHENGRA, J. 1. This Criminal Appeal has been preferred against the judgment of conviction dated 13.1.2010 and order of sentence dated 14.1.2010 passed by 5th Additional Sessions Judge, Fast Track Court, Dumka in S.T. No. 319 of 2007 whereby and whereunder appellants were convicted and sentenced under sections 147, 448 and 307/149 IPC and sentenced to undergo R.I. for five years each u/s 307/149 of the IPC. They were further sentenced to undergo R.I. for one year u/s 147 of the IPC and R.I. for one year under section 448 of the IPC. However, all the sentences were directed to be run concurrently. 2. The brief facts of the case as narrated by the informant-PW-8 as per her fardbeyan is that she is the wife of Chhabilal Yadav-PW-11 and resident of village Nawadih. In the night of 19.11.2006 at about 1 a.m. all the six named accused forcefully entered in her house by breaking open the door and assaulted her mother Kunti Devi PW-3. When her mother raised hulla, then the informant PW-8 woke up and went to save her mother, then the accused assaulted her too. They were searching for her husband Chhabilal and said that where is he, they will kill him. She and her mother raised hulla, then the villagers Bisheshwar Yadav-PW-4, Manoj Mahato-PW-5, Lalmohan Singh PW-6 and many other persons came there in order to save them from the beatings of the accused. The accused persons broke open her suitcase and took away Rs. 1,000/- and silver chain of 40 grams. They have also exploded two bombs then the villagers were frightened. 3. Based on the aforesaid fardbeyan of the informant Jarmundi (T) P.S. Case No. 212 of 2006 was registered under sections 447,341,323,380 and 143 of the IPC and section 4 of the Explosive Substance Act. Thereafter, the investigation was taken up and the charge-sheet was filed against the accused persons. Cognizance was thereafter taken and case was committed to the court of Sessions. The contents of the charges were read over to the accused to which they pleaded not guilty and claimed to be tried. Hence, this appeal. 4. The prosecution had examined altogether eleven witnesses and at the conclusion of the trial the appellants were convicted and sentenced as aforesaid. 5. The contents of the charges were read over to the accused to which they pleaded not guilty and claimed to be tried. Hence, this appeal. 4. The prosecution had examined altogether eleven witnesses and at the conclusion of the trial the appellants were convicted and sentenced as aforesaid. 5. PW-8 Uma Devi who is the informant of this case has deposed in her examination-in-chief that the accused persons entered in her house. They were searching her husband with intention to kill him. The accused tied a rope in her mother’s neck due to which her mother became unconscious. When she tried to save her mother then the accused Lutan had assaulted her with chura and blood was started oozing out from her head. When she raised hulla then some of the villagers came there and saved them. She further deposed that the accused took one thousand rupees and a silver ornament with them. 6. PW-3 is Kunti Devi who is the mother of the informant. She has also supported the prosecution case and said that the accused entered her house by breaking the door of her house and started abusing and assaulting her and while so they asked her about her son-in-law. They tied a rope in her neck. She became unconscious. She further said that the accused also took away with them a silver ornament. 7. PW-9 is Dr. Anjay Pravin who has examined Kunti Devi, the injured and found following injuries on her person: “Circular mark 3 c.m. width around the neck running transversely in entire course except 1” on back of neck with redness and swelling. The age of the injury within six hours. The cause of injury is a ligature likely to be by a rope like object and this injury could have been dangerous to life.” The doctor has proved injury report of Kunti Devi as Ext.1. On the same day Dr. Anjay Pravin has also examined Uma Devi and found following injuries on her person: “Abrasion 2 m.m. x 2 m.m. on left side of fore head of within six hours. The injury was simple in nature, caused by hard and blunt object with rough edge. The injury report of Uma Devi is marked as Ext. 1/1.” 8. PW-4 is Bisheshwar Yadav, PW-5 Manoj Mahato and PW-6 Lalmohan Singh are the witnesses who have been named in the fardbeyan however they have declared hostile. The injury was simple in nature, caused by hard and blunt object with rough edge. The injury report of Uma Devi is marked as Ext. 1/1.” 8. PW-4 is Bisheshwar Yadav, PW-5 Manoj Mahato and PW-6 Lalmohan Singh are the witnesses who have been named in the fardbeyan however they have declared hostile. 9. PW-1 is Bibishan Yadav and PW-2 Satyanarayan Yadav are the sons of injured and they have supported the story of the prosecution. 10. PW-10 is Jagadish Prasad who is the investigating officer of the case. He has proved the fardbeyan. He also visited the place of occurrence and taken the evidence of the injured witnesses. He further deposed that blood was oozing out from the forehead of Uma Devi. He further deposed that the victim Kunti Devi was also lying in house. ARGUMENTS ON BEHALF OF APPELLANTS: 11. Learned counsel for the appellants has argued that this case has to be seen in the background of continuous and series of litigation between both the parties and, therefore, claimed that this is concocted case and there is no true allegation. He has argued that bomb was exploded but there is no piece of evidence regarding any bomb materials/splinters were found at the place of occurrence. He has further argued that in the FIR there is no reference to any weapon being used. It is further indicated that there was no intention of the accused persons to commit any serious offence at all. Learned counsel further submitted that even if it is accepted that there was an offence made definitely there was no intention because the injury that have been sustained by the injured are basically simple in nature and not a grievous injury and therefore, on the basis of the simple nature of injury also no offence under section 307 IPC is made out. It is also argued that PW-4, PW-5 and PW-6 who are said to be neighbours or people who reside near the place of occurrence came at alarm have turned hostile. Learned counsel further argued that apart from PW-4, PW-5 and PW-6 no other independent witnesses has supported the case of prosecution and on that basis no conviction can be made. It is also argued that PW-4, PW-5 and PW-6 who are said to be neighbours or people who reside near the place of occurrence came at alarm have turned hostile. Learned counsel further argued that apart from PW-4, PW-5 and PW-6 no other independent witnesses has supported the case of prosecution and on that basis no conviction can be made. Learned counsel further submitted that PW-8 and PW-3 can not be reliable witnesses because it has been revealed from the evidence of PW-3 that she was in hospital for almost seven days, but PW-8 states that they were not admitted for seven days however, when the investigating officer had gone to meet her she was not in the hospital. Learned counsel for the appellants also argued that it has been revealed in the evidence of the I.O. that PW-2 had informed him that thieves were entered in their house and assaulted her mother. Learned counsel also said mitigating circumstances are age of the case since 2006 and the appellants have already faced much hardships of trial and also custody. ARGUMENTS ON BEHALF OF STATE AND ON BEHALF OF INFORMANT: 12. Learned counsels for the state and informant have argued that the appellants have been rightly convicted in the same sections. It is a clear case of house trespass. The inmates of the house were assaulted and two of them PW-3 and PW-8 have been badly injured and the doctor PW-9 also said that the injuries on PW-3 is said to be dangerous to life and it is only fortunate that no other serious injuries took place. Therefore, section 307 IPC and other sections are also totally warranted. Counsel has also said that the doctor has also found injury on the head of Uma Devi-PW-8 which also reveals that the assault was made on the vital part of the body and therefore, offence under section 307 IPC is fully made out. FINDINGS: 13. Having heard counsels for both sides having gone through the records of the case, I find this is a case in which there are two injured witnesses PW-3 Kunti Devi and PW-8 Uma Devi. Their ocular evidence is supported by the evidence of doctor PW-9 saying that the injury sustained by PW-3 Kunti Devi is dangerous to life. So the injury is proved by the prosecution. Therefore, it cannot be denied that something has not taken place. Their ocular evidence is supported by the evidence of doctor PW-9 saying that the injury sustained by PW-3 Kunti Devi is dangerous to life. So the injury is proved by the prosecution. Therefore, it cannot be denied that something has not taken place. It has come in the evidence of the injured witness as well as evidence of PW-1, PW-2 who are the inmates of the house that the assault has taken place in the house and therefore, the offence of trespass by an unlawful assembly has also been made out and, therefore, section 448 and 147 IPC have been alleged in the fardbeyan. That there were six persons as per the evidences of the inmates of the house and no one from the informant’s side had denied or challenged their presence. Therefore, it can be clearly said that there were more than five persons so an unlawful assembly has clearly been made out with a common object of causing harm and injury and thus committed an offence of rioting. Thus, the conviction under sections 448 and 147 IPC are upheld. 14. Regarding offence of 307 IPC it is seen that the accused persons /appellants have stated in the fardbeyan that they were looking for Chabbilal it is admitted that they were threatening to kill him but not finding him they assaulted other members of the house. PW-3 and PW-8 are the injured witnesses and as per injury report of the doctor their injuries have not been indicated as grievous in nature. So this proves that there were no intention of the appellants to commit attempt to murder but they have assaulted the victims/injured which is proved by their injury report. 15. It is apparent that by not finding Chabbilal, their anger was redirected. Then it would not be proper to convict the appellants under section 307 of the IPC rather it would be appropriate to convict them under section 324 IPC. Therefore, judgment of conviction and order of sentence passed by the learned court below under section 307 IPC is set-aside. 16. PW-3 Kunti Devi has deposed in her evidence that the appellants/accused entered in her house, they were looking for her son-in-law. By not finding him present in the house their anger was redirected towards the other members of the family. 16. PW-3 Kunti Devi has deposed in her evidence that the appellants/accused entered in her house, they were looking for her son-in-law. By not finding him present in the house their anger was redirected towards the other members of the family. She further deposed that they tied her neck with a rope and tried to strangulate her due to which she became unconscious. PW-8 Uma Devi has also corroborated the story of PW-3 in her evidence. This fact was also corroborated by the evidence of the doctor who deposed in his evidence that “circular mark 3 cm width around the neck running transversely in entire course except 1” on back of neck with redness and swelling. The cause of injury is a ligature likely to be by a strong rope like object and as to the nature of the injury he said that the injury could have been dangerous to life. Rope here is considered as an instrument which is used as a weapon of offence is likely to cause death if strangulation pressure was more. But fortunately the victim only had suffered a minor injury. Therefore, it is established that the appellants had voluntary tied the neck of the victim/injured with a rope like object and causes hurt to the victim. 17. The consistencies in the statement of ocular witnesses which is also corroborated by the medical report clarifies that the accused/appellant had voluntarily caused hurt to the victim by means of rope which is considered to be an instrument which is likely to cause death of a person. 18. Based on the aforesaid reasonings conviction of the appellants, namely, appellant no.2 Butan Mahato @ Akhileshwar Mahato, appellant no.3 Lutan Mahato @ Gulabi Mahato, appellant no.4 Mahendar @ Basant Mahato and appellant no.5 Gaino Mahato under sections 324/149 IPC r/w section 448 IPC is upheld. The appellants are sentenced for six months simple imprisonment under section 324/149 IPC. Under section 448 IPC three months simple imprisonment is imposed and under section 147 of the IPC three months simple imprisonment is imposed. Sentences are modified in view of modified conviction and mitigating circumstance placed. All sentences to run concurrently, any period undergone to be set off. The appellants/accused, named above, are on bail hence, their bail-bonds are cancelled. They shall be taken into custody to serve out the remaining sentences. 19. Sentences are modified in view of modified conviction and mitigating circumstance placed. All sentences to run concurrently, any period undergone to be set off. The appellants/accused, named above, are on bail hence, their bail-bonds are cancelled. They shall be taken into custody to serve out the remaining sentences. 19. As far as the appellant no.6 Hiraman Mahato is concerned, it has been submitted by learned counsel that at the time of passing of judgment he was 67 years old and now he is about 77 years old. He has remained in custody for more than 4 months 15 days. In view of the submissions made, the period undergone by the appellant no.-6 Hiraman Mahato shall be considered as sentence sufficiently served. Hence, he is acquitted from the charges levelled against him and also discharged from the liability of his bail-bond. 20. It appears that appellant No.1 Supari Mahato @ Kedar Mahato son of Bhatu Mahato has already faced six months period in custody. Hence, he is acquitted of the charges levelled against him and discharged from the liability of his bail bonds. 21. Learned concerned or successor court shall take steps to arrest the appellant no.2 Butan Mahato @ Akhileshwar Mahato, appellant No.3 Lutan Mahato @ Gulabi Mahato, appellant No.4 Mahendar @ Basant Mahato and appellant No.5 Gaino Mahato for serving out the modified sentence. 22. This Criminal Appeal is partly allowed with modification in conviction and sentence.