JUDGMENT : RATNAKER BHENGRA, J. 1. A report bearing memo no. 113 dated 24.3.2019 has been received from the officer-in- charge, Latehar Police Station, which is on record, stating that the appellant No. 1 Ratan Bhuiyan had died two years ago and as such appeal as regards Ratan Bhuiyan stands abated. 2. This appeal is preferred against the judgment of conviction and order of sentence dated 29th August, 2003 and 30th August, 2003 respectively passed by the learned 1st Additional District and Sessions Judge, Latehar in S.T. Case No. 296 of 1999 whereby and where under all the appellants were convicted under section 147/148/307/149 of IPC. Appellant no. 1 was sentenced to undergo six months each for offence u/s 147 and 148 of IPC and further under section 307/149 of the IPC to undergo R.I. for a period of 4 years and to pay a fine of Rs. 500/-. Appellant Nos. 2 to 5 were sentenced under sections 147 and 148 of the IPC to undergo R.I. for six months each and further under sections 307/149 of the IPC to undergo R.I. for 5 years each and to pay a fine of Rs. 500/- each. However, all the sentences were ordered to run concurrently. 3. The prosecution case, in brief, as per the fardbeyan of the informant Jogendra Paswan PW-1 is that on 18.7.1996 at about 7 a.m. o'clock in the morning, at informant's field situated at village Parsahi, the accused persons Ashok Bhuiyan, Chandra Kishore Bhuiyan, Barat Bhuiyan all sons of Ratan Bhuiyan armed with garasa, Kariman bhuiyan and Rajeshwar Bhuiyan armed with tangi and Ratan Bhuiyan armed with stick where ploughing the field of the informant. The informant along with his nephew Ashok Paswan and Basant Paswan protested then all the accused persons assaulted them with lathi, garasa and tangi as a result they sustained injury on their head and on body. 4. On the basis of fardbeayn of informant Latehar P.S. Case No. 74/1996 was registered under sections 147/148/323 and 324 of IPC and subsequently offences u/s 326 and 307 were added. After completion of investigation, charge-sheet was submitted against the accused persons and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the accused persons under 147,148 and 307/149 of IPC and on conclusion of trial appellants were convicted and sentenced as aforesaid. After completion of investigation, charge-sheet was submitted against the accused persons and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the accused persons under 147,148 and 307/149 of IPC and on conclusion of trial appellants were convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution in order to substantiate its case examined altogether six witnesses out of whom PW-1 Jogendra Paswan is the informant of the case. PW-2 Basant Paswan is the nephew of the informant and PW-4 Kameshwar Paswan is the gotiya of the informant. PW-5 is Dr. Dilip Kumar who examined the injured persons. PW-6 is a formal witness who has proved the formal FIR which was marked as Ext.3. Here, it is pertinent to note that informant Jogendra Paswan was also examined on 11-3-2003 as PW-3. 6. PW-1 Jogendra Paswan is the informant of the case. He has stated in his evidence that on the day of occurrence at about 7 O'clock in the morning at village Parsahi accused persons were ploughing his field. Ashok Bhuiyan, Barat Bhuiyan and Chandra Kishore Bhuiyan were armed with garasa , Rajeshwar Bhuiyan had tangi and lathi in his hands, Kariman Bhuiyan had tangi in his hand and Ratan Bhuiyan had lathi in his hand. Informant further stated that he himself, Ashok Paswan and Basant Paswan protested to which accused persons abused them. They were assaulted by lathi, garasa and tangi as a result he sustained injury on his head, both the arms and back of his body. Informant further stated that he sustained head injury by tangi and accused Rajeshwar Bhuiyan gave tangi blow. Informant has proved his signature on the fardbeyan which was marked as Ext.1. Informant in his cross-examination stated that Rajeshwar and Ratan Bhuiyan had assaulted him with lathi. 7. PW-2 Basant Paswan had accompanied the informant on the day of occurrence. He has stated in his deposition that accused persons were ploughing their field and when he, Jogendra Paswan and Ashok Paswan restrained the accused persons then accused persons assaulted them. Accused persons were armed with lathi and garasa. PW-2 further stated that he sustained injury on his arm, neck and head and he was assaulted by lathi and garasa. 8. PW-4 Kameshwar Paswan is the gotiya of the informant. Accused persons were armed with lathi and garasa. PW-2 further stated that he sustained injury on his arm, neck and head and he was assaulted by lathi and garasa. 8. PW-4 Kameshwar Paswan is the gotiya of the informant. He has stated in his evidence that he had gone to the place of occurrence on hearing alaram. When he reached at the place of occurrence fight was over. Accused persons had assaulted Basant, Ashok and Jogendra. In his cross-examination PW-4 stated that when he reached the place of occurrence, he saw the three accused persons from the informant party in injured condition. 9............ (i) PW-5 Dr. Dilip Kumar had examined the three injured Ashok Paswan, Jogendra Paswan and Basant Paswan. On examination of Ashok Paswan he found following injuries on the person of Ashok Paswan: 1. Abrasion on right shoulder measuring ½” x 1/4.” 2. Abrasion 1” x 1/4” on the right side of chest. 3. One lacerated wound ½” x 1/4” over the left forearm 4. One lacerated wound ½” x ¼” over left foot. 5. An incised wound measuring 1” x ½” x ½” over the scalp. Doctor stated that injury no. 1 to 4 were caused by hard and blunt substance and were simple in nature and injury no. 5 was caused by sharp cut weapon and was grievous in nature. Doctor has proved the injury report of Ashok Paswan which was marked as Ext.2. (ii) Doctor also examined the informant PW-1 Jogendra Paswan and found following injuries on his person: 1. Incised wound measuring ½” x1/4” over occipital region of scalp. 2. One lacerated wound measuring 1” x 1/4” over parietal region of scalp. 3. One bruise measuring ½” x 1/2” over left shoulder. Doctor stated that all the three injuries were simple in nature of which injury no. 1 was caused by a sharp cut weapon and remaining injuries were caused by hard blunt substance. Doctor proved the injury report of Jogendra Paswan which was marked as Ext.2/A. (iii) Doctor further examined PW-2 Basant Paswan and found following injuries on the person of Basant Paswan: 1. Lacerated wound measuring ½” x ¼” over frontal part of scalp. 2. Incised wound measuring 1½” x ½” muscle deep over occipital region of scalp. 3. One incised wound measuring ½” x 1/2” over back of the neck. 4. Lacerated wound measuring ½” x ¼” over frontal part of scalp. 2. Incised wound measuring 1½” x ½” muscle deep over occipital region of scalp. 3. One incised wound measuring ½” x 1/2” over back of the neck. 4. Incised wound 1” x ½’ over back of the left upper arm. Doctor further stated that injury no. 1 of Basant Paswan was simple caused by hard blunt substance. Injury nos. 2 and 3 were grievous in nature and were caused by a sharp cut weapon. Doctor has proved the injury report of Basant Paswan which was marked as Ext.2/B. ARGUMENTS ON BEHALF OF APPELLANTS: 10. Learned counsel for the appellants submitted that Ratan Bhuiyan one of the accused said to be armed with a lathi has passed away and another accused Rajeshwar Bhuiyan, who was armed with tangi, has also passed away. Referring to the evidence of the informant Jogendra Paswan, learned counsel submitted that incidence is of 18.7.1996 and informant PW-1 had gone to the police station to lodge the FIR on the same day and in fact FIR was registered on 18-7-1996 itself, which is conclusive that his injury was not at all serious and informant was quite fit. Therefore, no such injury was caused which can be considered to have come within the ambit of section 307 IPC. 11. Learned counsel further submits that from the fardbeyan and evidence of the informant and other prosecution witnesses, it is apparent that the appellant side were already ploughing the field from before and thereafter the informant Jogendra Paswan, Ashok Paswan (who is the nephew of the informant, however had not been examined as witness) and PW-2 Basant Paswan went there and objected to the ploughing of the field and then only the incidence took place. Learned counsel therefore submits that it indicates that appellants were not aggressor as the appellants party were already present at the place of occurrence and hence, section 149 of IPC will not apply. Learned counsel for the appellants further submitted that appellants were not knowing that there will be an altercation or a fight occurring against the informant’s side on protest by the informant side. Learned counsel submitted that the assault was only made by Rajeshwar who is now dead. 12. Learned counsel for the appellants further submitted that appellants were not knowing that there will be an altercation or a fight occurring against the informant’s side on protest by the informant side. Learned counsel submitted that the assault was only made by Rajeshwar who is now dead. 12. Learned counsel further submitted that informant Yogendra Paswan in his cross-examination dated 11-3-2003 as PW-3 stated that he had given written report in the police station and where is that report is not known. Learned counsel for the appellant submitted that the FIR is registered on the basis of fardbeyan and not the basis of said written report. Learned counsel further submitted that informant has deposed in his cross-examination that in the said written report he had said that Ratan Bhuiyan and Rajeshwar Bhuiya had assaulted with lathi. Learned counsel therefore, said that from this part of the evidence it appears that the assailants were mainly Ratan Bhuiyan and Rajeshwar Bhuiyan. 13. Learned counsel for the appellant further submitted that PW-4 Kameshwar Paswan is gotiya of the informant. PW-4 has deposed that he had heard alarm and then gone to the place of occurrence but on reaching there the assault was over. Counsel for the appellant therefore says that this witness is thus not an eye-witness. 14. Learned counsel for the appellant further submitted that it was most essential to have the investigating officer of the case to have been examined to conclusively prove the place of occurrence but the investigating officer of the case has not been examined. Hence, the appellants did not get opportunity to cross-examine the investigating officer and find out the contradictions from the evidence of other prosecution witnesses and hence benefit of doubt be extended to the appellants. Counsel for the appellant also submitted that once again section 114 (g) of the Indian Evidence Act is of relevance here since the investigating officer had not been examined and also the prosecution has withheld the land records and therefore the benefit of doubt at least should be extended to the appellants side on this basis also. 15. Learned counsel for the appellant further submitted that PW-4 has stated in his evidence that counter case was lodged by the accused appellant Ashok Bhuiyan for the same day of occurrence. PW-4 has admitted that informant is his gotiya and all the lands were joint in nature. 15. Learned counsel for the appellant further submitted that PW-4 has stated in his evidence that counter case was lodged by the accused appellant Ashok Bhuiyan for the same day of occurrence. PW-4 has admitted that informant is his gotiya and all the lands were joint in nature. Learned counsel further submitted that PW-6 is an advocate clerk and he has proved the formal FIR Ext-3, but PW-6 himself deposed that he does not know anything about the case and formal FIR i.e. Ext.3 was not prepared in front of him. There is no opinion of doctor that any injury was dangerous for life. If no injury had been indicated as dangerous to life, it cannot be inferred that there was a situation to cause death. Therefore, section 307 of IPC cannot be made out. If the accused really wanted to harm seriously or kill any person from the side of the informant then they could have easily inflicted gross injuries resulting in the death of someone but this has not occurred and neither is any death threatening injury has been inflicted and therefore offence under 307 IPC is not made out. Counsel further said that allegation of assault leading to injury is against Rajeshwar Bhuiyan or Ratan Bhuiyan who are no more. PW-2 has nowhere stated as to who had assaulted and with what weapon and on which part of the body. 16. Learned counsel further argued that there has been no recovery of any weapon or any dangerous weapon and neither have they been produced in court. Counsel for the appellant once again reiterated that in the case in hand the written report which is said to have been given by the informant should have been the basis of the investigation and no other information. Any other information subsequent to the said written report would be in the nature of section 161 Cr.P.C. So what was there actually in the first written report is not known and this has been omitted leading to much suspicion regarding the case. 17. Any other information subsequent to the said written report would be in the nature of section 161 Cr.P.C. So what was there actually in the first written report is not known and this has been omitted leading to much suspicion regarding the case. 17. Counsel further argued that the case is old one of the year 1996 and 23 years have passed from the date of occurrence and judgment of conviction and order of sentence is of the year 2003 and much rigors and vigors have been faced by the appellants and also on the aforesaid arguments presented by him that weakens the case of the prosecution and hence the benefit of doubt should be extended to the appellants. ARGUMENTS ON BEHALF OF STATE-APP: 18. Learned counsel for the State argued that informant PW-1 in paragraph-1 of his deposition has specifically named the accused persons who were ploughing his field and the accused persons were carrying weapons such as garasa and tangi with them. Counsel for the state therefore said that the accused persons or the appellant herein had fully came variously armed with deadly weapons on the land knowing very well that the land in question does not belong to them and then only on objection by the owners of the land i.s. informant side had committed the assault on the informant side and hence this is not a case for doing away with Section 307 of IPC r/w section 149 of IPC. 19. Learned counsel for the state further argued that no document of the counter case is produced by the defense or appellants side and therefore any reference of counter case is not a good defense on the part of the appellants. There is no evidence of long time enmity between the parties therefore the offence was clearly on the part of the accused persons or the appellants. Learned counsel has also argued that no documentary evidence of the land has also been produced on behalf of the accused persons and neither they have produced rent receipts of the land. 20. Learned counsel also argued that informant PW-1 and PW-2 have sustained injuries which is supported by the evidence of the doctor PW-5 who had examined them and therefore, the evidence is fully reliable and trustworthy. 20. Learned counsel also argued that informant PW-1 and PW-2 have sustained injuries which is supported by the evidence of the doctor PW-5 who had examined them and therefore, the evidence is fully reliable and trustworthy. Counsel further pointed out that Informant Jogendra Paswan received incised injury on the occipital region of scalp which is on a vital part of the body and therefore counsel says that the assault by the group of persons or the appellants surely makes out the case u/s 307 of IPC r/w of 149 IPC. Learned counsel further pointed out that Basant-Paswan had sustained grievous injuries which are injury no. 2 and injury no. 3. Lastly learned counsel for the State submitted that that from injuries of three victims it can be presumed that causing of death was the intention and therefore judgment of conviction and order of sentence passed by the learned court below be sustained and upheld. FINDINGS: 21. I have heard both counsels and gone through the records and evidences of the case. Some of the points raised by counsel for the appellants regarding the validity of the FIR that whether fardbeyan can be relied on when it has come in the evidence of the informant that he had filed a written report and therefore, what exactly was the initiating document has to be answered. Learned counsel for the appellant has submitted that the informant side were the aggressors since the appellants were already at the place of occurrence and therefore, appellant had not formed an unlawful assembly. From, the evidences on record, I find that incident is of 18.7.1996 at about 7:00 a.m. and the information is reported in the police station at about 8:30 a.m. itself, on the same day and therefore there is very little time for deliberation or concoction in the FIR and so there is no reason as to why FIR should not be relied upon. Further, whatever be the status of the concerned land the appellants also have not come out with any concrete documentation referring to the land in question. Therefore, the claim of the appellants that they are not aggressors, on the ground that informant himself has said that appellant side were ploughing the field, is not a good argument. Further, whatever be the status of the concerned land the appellants also have not come out with any concrete documentation referring to the land in question. Therefore, the claim of the appellants that they are not aggressors, on the ground that informant himself has said that appellant side were ploughing the field, is not a good argument. Further, the submission of the learned counsel for the appellants that appellant side had not formed an unlawful assembly and it is the informant side who had come there may also not be tenable because seeing the nature of injury sustained by the three persons from the informant side and specifically to PW-1 and PW-2 viz. injury report Ext.2/A and Ext.2/B and apparently there is nothing on record regarding the injury from the side of the appellants and hence it seems that the appellants were fully armed and prepared. Since. Ashok Paswan, one of the injured was not examined as a witness, I have not dealt with his case in the concluding part. 22. The counter-case would be relevant if it had been produced on record via some documentation by the appellants side. Moreover, in a counter case injuries sustained on the part of the appellants would also be crucial but no injury report to the effect has been brought on record by appellants. The non-examination of the investigating officer also did not cause any prejudice to the appellants side because of the evidence of informant Jogendra Paswan PW-1, who is himself an injured eye-witness and therefore his evidence carries much weight, further there is then also the evidence of PW-2 who is also injured and these two injured were examined by the doctor PW-5. 23. From the evidence of the doctor I, find that PW-2 Basant Paswan had sustained two injuries i.e. injury nos. 2 and 3 which were said to be grievous in nature and hence it is desirable to see whether injury sustained by PW-2 Basant Paswan was grievous in nature endangering life. Regarding this, from the evidence of the informant given on 11-3-2003 as PW-3, I find that informant has stated in his examination-in-chief that after assault he fell down and became unconscious. He regained his sense at his house and from house he came to police station and gave his statement. Regarding this, from the evidence of the informant given on 11-3-2003 as PW-3, I find that informant has stated in his examination-in-chief that after assault he fell down and became unconscious. He regained his sense at his house and from house he came to police station and gave his statement. Further, from the evidence of other injured PW-2 Basant Paswan, I find that he has stated in his cross-examination at para-6 that after assault they had gone to the police station. Hence, PW-2 directly went to the police station after sustaining injury which means that injury sustained by PW-2 Basant Paswan was not grievous in nature endangering life. Hence, from the evidence of informant PW-2 and injured PW-2, I come to the conclusion that PW-2 did not sustain grievous injury endangering life. 24. In the result, seeing the nature of injuries caused to the informant side, which are simple in nature, conviction of the appellants under section 307/149 of IPC dated 29-8-2003 and its corresponding sentence passed thereon cannot sustain and is hereby set aside and conviction of the remaining appellants is modified to one under section 324 of IPC. The conviction of the remaining appellants passed by the learned court below under section 147 and 148 of IPC is sustained and upheld. 25. Regarding sentencing, I find that occurrence is of the year 1996 and more then 22 years have passed, appellants have faced rigors and vigors of trial and have already spent custody ranging from around five months to more than six months and therefore, I modify the sentence to the extent that period already undergone by the appellants is considered as sentence adequately served and no further imprisonment is imposed by this court. As, informant PW-1 Jogendra Paswan and PW-2 Basant Paswan sustained injury, appellant No. 2 Barat @ Bartu Bhuiyan @ Bartu Ram, appellant No. 3 Chandra Kishore Bhuiyan @ Chandra Kishore Ram, appellant No. 4 Ashok Bhuiyan and appellant No. 5 Kariman Bhuiyan are directed to pay a consolidated compensation of Rs. 40,000/- to be paid to the injured informant PW-1 Jogendra Paswan and PW-2 Basant Paswan equally i.e. Rs. 20,000/- each. In default of payment of the compensation the appellants will undergo three months S.I. Appellants shall be discharged from the liabilities their bail bonds after payment of compensation amount. 26. Accordingly, appeal is dismissed with modification in conviction and sentence.