JUDGMENT : RATNAKER BHENGRA, J. 1. Heard the parties. 2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 22.02.2003 passed by the learned Sessions Judge, Pakur in Sessions Case No. 130 of 2001, whereby and where under, the learned court below has convicted all the appellants for the offence under sections 307/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of 7 years for the offence under sections 307/34 of the Indian Penal Code and the period already undergone in custody was ordered to be set off. 3. The prosecution story in brief, as per the fardebyan dated 03-5-2001 of the informant Afsar Ali PW-3 is that informant deals in sell and purchase of ox. On the day of occurrence on 03-5-2001 informant was returning from village Bhera Pokhar after purchasing ox. At about 7:30 p.m. in the evening when the informant reached in between the village Bhera Pokahr and village Naya Pitambara there the informant’s son-in-law Ashikul Sk. and Zahirul Sk. and Tarikul Sk. all sons of Ekramul Sk. and one Ramjani Sk. all resident of village-Naya Pitambara surrounded the informant. All the accused persons were armed with hansua and chheni. First of all informant’s son-in-law Ashikul Sk. inflicted hansua blow on the neck and nose and thereafter three other remaining accused persons inflicted hansua and chheni blows on the informant as result informant sustained injury. The informant raised hulla and then villagers and informant’s family members came then the accused persons fled away. The reason behind the occurrence as stated by the informant is that informant's daughter Archan Bibi (PW-2) was married to the accused Ashikul Sk. about five years ago and after the marriage Ashikul Sheikh demanded Rs. 5000/- in cash and radio in dowry. But, because of the poverty, the informant could not fulfill the demand. 4. On the basis of the fardbeyan of the informant FIR being Pakur (M) police station case no. 97/2001 was registered against the accused persons under 341, 323, 324, 307 and 34 of IPC. After investigation charge-sheet was submitted and the cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges under sections 307/34 of IPC was framed against the accused persons or appellants herein. On conclusion of trial appellants herein were convicted and sentenced as aforesaid. After investigation charge-sheet was submitted and the cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges under sections 307/34 of IPC was framed against the accused persons or appellants herein. On conclusion of trial appellants herein were convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution in order to prove its case has examined altogether seven witnesses. PW-3 Afsar Ali is the informant of this case. PW-1 Suhar Banu and PW-2 Archan Bibi are the wife and daughter of the informant respectively. PW-4 and PW-5 are hostile witnesses. PW-6 is Dr. Lalit Kumar Bhagat who examined the injured informant. PW-7 is the investigating officer of this case. 6. PW-3 Afsar Ali is the informant of this case. He has stated in his evidence that on the day of occurrence at about 6:30 p.m. in the evening he was returning home from village Bhera Pokhar after purchasing cow. When he reached near Sarla Pokhar accused persons Ashikul, Tarikul and Zahirul were sitting there. He moved ten hands ahead then accused Ashikul assaulted him by chheni, which is like hansua, near his neck as a result he fell down. He tried to flee away but all the three accused persons surrounded him and Zahirul assaulted him by stick and Ashikul assaulted him by chheni and Tarikul assaulted him by hansua causing injuries on his neck, nose, chin, ear and hand. He further stated that on hearing hulla his wife, daughter and son aged about 10 years came there and then the accused persons fled away. He was brought to hospital and there he stated about the occurrence to the police at 12 O’clock in the night. Informant further stated that Ashikul is his son-in-law and had demanded Rs. 5000/- in cash and one bicycle after marriage and this demands were not been fulfilled and for this reason the accused persons assaulted him. 7. PW-1 Suhar Banu is the wife of the informant. She has stated in her evidence that on hearing hulla at about 7:30 p.m. she went to the West of Bhera Pokhar and there she saw that three persons were going and her husband was fallen. Ramjan had caught the hand of her husband. PW-1 further stated that there was bleeding from the hand, head, nose and chin of her husband. Ramjan had caught the hand of her husband. PW-1 further stated that there was bleeding from the hand, head, nose and chin of her husband. The three accused persons who were going away were Ashikul, Zahirul and Tarikul and Ashikul and Tarikul had hansua in their hands and Tarikul had threw hansua from his hand. She further stated that Ashikul is her son-in-law and Zahirul and Tarikul are his brothers and they had misappropriated the money after selling the ornaments of her daughter and were further demanding Rs. 5000/- and due to this they have committed this occurrence. In her cross-examination PW-1 stated that when she reached the place of occurrence she saw those three persons fleeing away at a distance of forty hands. 8. PW-2 Archan Bibi is the daughter of the informant. She has stated in her evidence that her husband Ashikul Sk., Zahirul and Tarikul had caused injuries to her father and on hulla of her father when she reached the place of occurrence she saw her father was fallen and had injuries on his head, nose, chin and hand and she had seen her husband fleeing away. While fleeing away she saw hansua in hand of Tarikul and stick in hand of Zahirul. In her cross-examination, PW-2 stated that she had seen the accused persons fleeing away at a distance of forty hands. 9. PW-4 Kamiruddin Sk. and PW-5 Najrul Sk. were declared hostile but in their examination-in-chief both have stated that on hulla when they reached the place of occurrence, they saw informant in injured condition. 10........... (I) PW-6 is Dr. Lalit Kr. Bhagat who had examined the injured informant. 9. PW-4 Kamiruddin Sk. and PW-5 Najrul Sk. were declared hostile but in their examination-in-chief both have stated that on hulla when they reached the place of occurrence, they saw informant in injured condition. 10........... (I) PW-6 is Dr. Lalit Kr. Bhagat who had examined the injured informant. Doctor found following injuries on the person of injured Afsar Ali: (i) One incised wound at the back of head at occipital region measuring 10” x 2” x ½” (ii) Two incised wounds at back of head at occipital region measuring 5” x 1” x 1” and 7” x 1” x 1” (iii) One incised wound on nose measuring 3” x 1” x 1” (iv) One incised wound on left forearm lower part measuring 5” x 1” x 1” (v) One incised wound on right hand dorsum middle finger measuring 2” x ½” x ½” (vi) One incised wound on chin measuring 5” x 1” x 1” (vii) One incised wound on right ear measuring 1” x ½” x ½” (viii) One incised wound on right cheek measuring 2” x ½” x ½” (ix) One incised wound on right eye-brow measuring 1” x ½” x ½” (x) Fracture of lower end of ulna bone of left hand. (II) Regarding injuries doctor opined that injuries nos. (i) to (ix) were simple in nature caused by sharp weapon like hansua and injury no. (x) was grievous caused by the blow of sharp weapon. Doctor has proved the injury report of the injured Afsar Ali which was marked as Ext.1 and the X-ray plates have been marked Ext.2, 2/1 and 2/2. In his cross-examination doctor has stated that he took about three hours in stitching the wound and in treating the injuries. He had used local anesthesia and three to four bottles of saline was administered to the injured. In his cross-examination doctor further stated that he had not written about injury no. (x) whether it was caused in left hand ulna or right hand ulna and that this injury connects with injury no. (iv) i.e. one incised wound on left forearm lower part. 11. PW-7 Tarakant Thakur is the investigating officer of this case. He has proved the fardbeyan, endorsement of the Officer-in-Charge in the fardbeyan and the formal FIR which were marked as Ext.3, Ext.4 and Ext.5 respectively, drawn on the basis of fardbeyan of the informant. (iv) i.e. one incised wound on left forearm lower part. 11. PW-7 Tarakant Thakur is the investigating officer of this case. He has proved the fardbeyan, endorsement of the Officer-in-Charge in the fardbeyan and the formal FIR which were marked as Ext.3, Ext.4 and Ext.5 respectively, drawn on the basis of fardbeyan of the informant. The investigating officer has further stated about the place of occurrence and the description of the place of occurrence at paragraph-5 of his deposition. Arguments of the learned counsel for the appellants: 12. Learned counsel for the appellants submitted that the place of occurrence is itself not determined. Learned counsel submitted that PW-1 Suhar Banu wife of the informant has deposed that the place of occurrence is Bhera Pokhar, PW-3 informant himself has deposed that the place of occurrence is at Sarla Pokhar but PW-7 Investigating Officer of this case has on the other hand has stated the place of occurrence is 100 yards west of village Naya Pitambara. Learned counsel has submitted that place of occurrence has been variously placed by different prosecution witnesses and hence the prosecution is itself doubtful. Learned counsel for the appellants has also argued that there is delay in lodging of the FIR because the occurrence is of 02.05.2001 at 6:30 p.m. but the FIR is lodged on 03.05.2001 and there is no explanation for the delay. 13. Learned counsel for the appellant further submitted that visibility of moon was about 30% and in view of that it could not have been possible for the victim to have been seen the assailants, therefore, identification of the accused or the current appellants is not possible and cannot lead to his guilt or conviction of the appellants. Learned counsel for the appellants has also argued that there is variations or inconsistencies regarding the state of mind or consciousness of the victim informant as PW-6 doctor who treated the informant has stated that injured was conscious whereas PW-7 Investigating officer has stated that injured was unconscious. PW-3 who is injured himself apparently has never said he was unconscious. 14. Learned counsel for the appellants has then pointed that there is also inconsistency regarding the weapons used by the assailants or the appellants. PW-1 has said Ashikul Sk. had a hansua. However, PW-2 has stated Zahirul had a stick and Tarikul had a hansua. PW-3 who is injured himself apparently has never said he was unconscious. 14. Learned counsel for the appellants has then pointed that there is also inconsistency regarding the weapons used by the assailants or the appellants. PW-1 has said Ashikul Sk. had a hansua. However, PW-2 has stated Zahirul had a stick and Tarikul had a hansua. PW-3 informant victim has on the other hand stated that Ashikul had a chheni and Zahirul had stick and Tarikul had a hansua. Learned counsel for the appellants further submitted that there is thus inconsistency in the weapons used therefore, on the facts and evidences a definite picture regarding the manner of occurrence particularly the manner of assault does not emerge. Further the prosecution case is that assault were made by hansua or chheni or stick but no weapons were seized by the police during investigation which makes the prosecution case doubtful. 15. Counsel for the appellants also argues that PW-6, the doctor, has stated that he examined the injured at 12:05 a.m. and it took him 30 minutes to examine his injury and thereafter for the next three hours injured was under treatment which would mean that till 3:25 a.m. the injured was under the observation or treatment of the Doctor, so how the PW-7 investigating officer stated that he recorded the fardbeyan at 1:30 a.m. as indicated in para-10 of PW-7. Counsel therefore says that the evidence of the IO seems doubtful and hence the fardbeyan is also doubtful. PW-7 in para-11 has said that after taking the statement the injured informant became unconscious. It has also not been revealed whether PW-7 or the IO had taken necessary permission from the Doctor for taking the fardbeyan. 16. Regarding injuries learned counsel for the appellants submitted that PW-6 doctor listed the injuries caused to the informant and from the evidence of doctor it is clear that injury no. (i) to (ix) are simple while only injury no. (x) is grievous but doctor has stated in para-4 of his evidence that injury no. (x) may be caused by fall therefore, this injury is either not grievous or even if it is grievous it is not due to the assault by any of the appellants. 17. PW-6 doctor in para-9 of his evidence has stated that after seeing the X-Ray plate he cannot say as to whose X-ray plates are and hence injury no. (x) may be caused by fall therefore, this injury is either not grievous or even if it is grievous it is not due to the assault by any of the appellants. 17. PW-6 doctor in para-9 of his evidence has stated that after seeing the X-Ray plate he cannot say as to whose X-ray plates are and hence injury no. (x) is doubtful. Counsel for the appellants submitted that this shows the totally unprofessional attitude of the doctor and therefore it is a serious issue that whether the evidence of the doctor should be relied upon. 18. Learned counsel further submitted that witnesses PW-4 and PW-5 who reached to the place of occurrence have not supported the prosecution case and were declared hostile. 19. Learned counsel further submitted that as per the evidence there is indication of some prior enmity between the parties as there is allegation by the informant’s side that certain demands were being made by the appellant no. 1 or son-in-law of the informant which were not met. Further PW-2 or Archan Bibi, who is the daughter of the informant, was divorced by Ashikul Sheikh or appellant no. 1 and therefore there was ample grievances on the part of the informant side to lodge a false case against the appellants. Arguments of the learned counsel for the State: 20. Learned counsel for the State has on the other hand submitted that in this case certain inconsistencies or contradiction have been pointed out by the counsel for the appellants. However, in this case there is an injured victim, who is the informant or PW-3 Afsar Ali himself and in his fardbeyan informant has stated that the three appellants had assaulted him and all three were armed with hansua and chheni. In his fardbeyan, informant has further stated that informant's son-in-law Ashikul Sheikh was carrying hansua with which he was assaulted on his neck and nose and thereafter, all three appellants assaulted with hansua and chheni. In his evidence, informant has reiterated the same and stated out that Ashikul Sheikh had assaulted him near his neck with chheni which is like hansua and thereafter three of them had assaulted. Ashikul Sheikh assaulted with chheni and Tarikul Sheikh assaulted with hansua and Zahirul had assaulted him with stick as a result he sustained injuries on his neck, nose, ear and hand. Ashikul Sheikh assaulted with chheni and Tarikul Sheikh assaulted with hansua and Zahirul had assaulted him with stick as a result he sustained injuries on his neck, nose, ear and hand. In para-12 and 13 of his deposition also, the injured informant had described as to the manner of assault on him. Learned counsel for the State submitted that with the passage of time there may be some minor inconsistencies in the evidence of prosecution witnesses but the major substance of the evidence has remained. Learned counsel has then pointed out the medical evidence of the Doctor PW-6 who fully supports the ocular evidence of the prosecution witnesses and in fact there are as many as 10 injuries on the person of the informant and one of them being grievous. Number of injuries and nature of injuries inflicted on the informant suggest that injury is not fabricated and no person will inflict such number injuries on himself. There may be some minor contradictions in the evidence of the Doctor and the investigating officer but if does not subtract from the major theme of the prosecution case that due to certain prior differences the informant or the victim was attacked and assaulted by the three accused or appellants which resulted in as many as ten injuries on the person of informant. Lastly learned counsel for the state submitted that the impugned judgment of conviction and order of sentence passed by the learned court below is proper and based on evidence and requires to be sustained and upheld by this court. FINDINGS: 21. Having heard both counsels, having gone through the records of the case and in the facts and circumstances, it is noted that learned counsel for the appellants has raised many grounds, however, some of the grounds such as delay in FIR is not of much consequence because it was lodged so on the next day. Appellants have taken the plea that visibility of the moon was about 30% and the assaults could not have been seen is also not a good ground because assailants were known to the injured as appellant no. 1 is the son-in-law of the injured informant. Appellants have taken the plea that visibility of the moon was about 30% and the assaults could not have been seen is also not a good ground because assailants were known to the injured as appellant no. 1 is the son-in-law of the injured informant. Appellant's plea that there is variation in evidence of the witnesses regarding the place of occurrence is also not tenable because PW-1, PW-2, PW-4 and PW-5 had reached the place of occurrence on hulla and saw the informant in injured condition. PW-4 and PW-5 were declared hostile by the prosecution. So, here it will be fruitful to see the judgment of Hon'ble Apex Court regarding evidence of hostile witnesses. Apex court in case of Mrinal Das and Others vs. State of Tripura, (2011) 9 SCC 479 , at paragraph-67 of its judgment has held that corroborated part of evidence of hostile witness regarding commission of offence is admissible. In the case in hand also both PW-4 and PW-5 have stated in their examination-in-chief that on hulla when they reached at the place of occurrence they saw the informant in an injured condition and hence this part of deposition can be taken as evidence as it supports the prosecution to this extent. 22. Regarding inconsistencies of the weapons used in the assault is also not tenable because injured PW-3 Afsar Ali was assaulted by the three appellants and the doctor found out as many as ten injuries on the person of the injured informant which is evident from the injury report Ext.1 of injured Afsar Ali. Injured PW-3 stated in his examination-in-chief that he was assaulted by the appellants by hansua, chheni and stick as a result he sustained injuries on his neck, nose, chin, ear and hand. Hence, the ocular evidence of injured informant is corroborated by the medical evidence of the doctor. But, there is some doubt regarding injury no. (x). On perusal of the injury report Ext.1 of the injured, I find that in injury no. (x) it is written fracture of lower end of ulna bone and in his evidence doctor has stated that injury no. (x) was grievous caused by blow of sharp weapon. But, in his cross-examination PW-6 doctor stated regarding injury no. (x) that he had not written about injury no. (x) whether it was caused in left hand ulna or right hand ulna and hence the injury no. (x) was grievous caused by blow of sharp weapon. But, in his cross-examination PW-6 doctor stated regarding injury no. (x) that he had not written about injury no. (x) whether it was caused in left hand ulna or right hand ulna and hence the injury no. (x) is doubtful. 23. Hence, eliminating the injury no. (x), injury no. (i) to (ix) remains which are simple in nature as stated by the doctor. As only simple injuries were caused to the informant which were not on the vital part of the body in such circumstances, it may be more appropriate to convict the appellants under section 324/34 of IPC. 24. Accordingly, the judgment of conviction under section 307/34 of IPC and order of sentence therein both dated 22.02.2003 passed by the learned Sessions Judge, Pakur in Sessions Case No. 130 of 2001 are set aside. The appellants are rather convicted under section 324/34 IPC and imposed punishment of three months simple Imprisonment. Any period already undergone by the appellants will be set off. The bail bond of the appellants are cancelled. As, the appellants caused injury to the informant Afsar Ali and hence appellants are also directed to pay a consolidated compensation of Rs. 15,000/- or Rs. 5,000/- each to the injured Afsar Ali, in default of which appellants will undergo simple Imprisonment of one month. 25. Accordingly, appeal is dismissed with modification in conviction and sentence.