JUDGMENT : Heard Mr. Manoj Kumar Sah, learned counsel appearing on behalf of the appellants and Ms. Ruby Pandey, learned APP appearing on behalf of the State. 2. This appeal is preferred against the judgment of conviction and the order of sentence dated 22.03.2010, passed by the learned District & Sessions Judge, Godda in Sessions Case No. 105 of 2009, whereby, the appellant No.1 has been convicted and sentenced to undergo SI for six months and fine of Rs.500/-for the offence under Section 323 of the Indian Penal Code, in case of default of payment of fine, the appellant No.1 has further been directed to undergo SI for fifteen days. The learned District & Sessions Judge also convicted and sentenced to the appellant No.2 to undergo RI for five years and also fine of Rs.5000/-for the offence under Section 307 of the Indian Penal Code, in default of payment of fine, the appellant No.2 has further been directed to undergo SI for two months. 3. The case of the prosecution, in brief, as per the fardbeyan dated 12.09.2008 by the informant Majiya Khatoon is that on the day of occurrence, the children of her house has swept the house and messed up the dust near the door of the appellants. For this matter, the accused Bibi Noorjahan Khatoon who is the ‘Chachia Sas’ of the informant had abused the informant. When the informant forbade her to do so, then the accused Bibi Noorjahan Khatoon holding a stick (danda) in her hand and her husband -the accused Jahir Mansoor armed with spade (Kudali) came and started assaulting the informant. The accused Bibi Noorjahan Khatoon assaulted on the wrist of the right hand of the informant which caused bleeding injury on her hand. Her elder sister-in-law (gotni) namely, Chano Khatoon was assaulted by the accused Jahir Mansoor with kudali on her head. Because of the said assault her gotni Chano Khatoon sustained bleeding injury on her head and fell down and became unconscious. Thereafter, the villagers came and saved the victims from being further assault. 4. On the basis of the fardbeyan of the informant police registered Mehrama P.S. Case No.149/08 and took up investigation of the case. Because of the said assault her gotni Chano Khatoon sustained bleeding injury on her head and fell down and became unconscious. Thereafter, the villagers came and saved the victims from being further assault. 4. On the basis of the fardbeyan of the informant police registered Mehrama P.S. Case No.149/08 and took up investigation of the case. Charge-sheet was submitted under sections 341, 323, 325, 307, 504/34 IPC against the two accused persons, on which, cognizance was taken by the learned Chief Judicial Magistrate, the case was committed to the court of sessions and after framing of charges under sections 307/34, 323/34 and 341/34 IPC the trial court convicted the accused No.1, namely, Bibi Noorjahan Khatoon under section 323 and accused No.2, namely, Jahir Mansoor under section 307 IPC. 5. In order to prove its case, the prosecution had examined altogether eight witnesses. P.W.-1 is Sarda Prasad Singh; P.W.-2 is Md. Saboor Mansoor, who is the husband of the injured Chano Khatoon; P.W.-3 is Nirbhay Singh; P.W.-4 is Tirth Narayan Singh; P.W.-5 is Chano Khatoon, who is the injured eye-witness; P.W.-6 is Brij Mohan Prasad, who is the Investigating Officer of this case; P.W.-7 is Majiya Khatoon, who is the informant as well as injured of this case, and P.W.-8 is Dr. Prabhat Kumar Sinha, who is the doctor of the informant. 6. P.W.-7, Majiya Khatoon is the informant/injured of the case. She has stated in her examination-in-chief that the occurrence took place about a year ago. Jahir Mansoor assaulted Chano Khatoon with a kudali on her head. Bibi Noorjahan Khatoon had also assaulted Chano Khatoon. Due to said assault, Chano Khatoon sustained bleeding injury and became senseless. In her cross-examination, she has stated that Chano and Jahir shared a common door. Quarrel was going on between them regarding exit through the common door. Jahir Mansoor had assaulted Chano Khatoon at the forehead. By that time it was dark. She further stated that the accused Noorjahan assaulted on the right hand of Chano Khatoon by danda. 7. P.W.-5, Chano Khatoon is one of the injured eye-witness. She stated in her evidence that the occurrence took place about 10 months ago. On the day of occurrence at about 06:00 pm, Jahir Mansoor assaulted her with a spade on her head due to which there was a cut injury and blood started oozing out from her head. 7. P.W.-5, Chano Khatoon is one of the injured eye-witness. She stated in her evidence that the occurrence took place about 10 months ago. On the day of occurrence at about 06:00 pm, Jahir Mansoor assaulted her with a spade on her head due to which there was a cut injury and blood started oozing out from her head. Noorjahan Khatoon had assaulted Majiya Khatoon by lathi on the wrist of her right hand which resulted in bleeding injury. Firstly, Noorjahan Khatoon assaulted her sister-in-law (gotni) and thereafter Jahir assaulted her with kudali. She became senseless after sustaining the injury. In her cross-examination, she has stated that she and the accused persons have a common door for exit. She further stated that she sustained injury by the sharp edge of the spade (kudali). 8. P.W.-1 is Sharda Prasad Singh. He stated in his evidence that the occurrence took place on 12.09.2008 at about 06:30 pm Jahir Mansoor and his wife Bibi Noorjahan and Chana Khatoon were quarreling with each other. At that time accused Jahir Mansoor armed with a kudali and his wife Noorjahan armed with a ‘lathi’ came near the door. P.W.-1 heard that there was an assault by kudali. Chano Khatoon fell down after sustaining bleeding injury. The blood sustained spade was falling at the place of occurrence. Chano Khatoon sustained cut injury on her head. P.W.-1 identified the accused Jahir Mansoor to be the assailant of Chano Khatoon. In his cross-examination, he has stated that he did not make any effort for rescuing the victim. He has not seen anybody assaulting. 9. P.W.-2 is Md. Saboor Mansoor. He deposed that the occurrence took place on 12.09.2008 at about 06:30 pm Jahir Mansoor had assaulted Chano Khatoon on her head by cutting edge of the shape. Blood started oozing out from the head of Chano. She fell down and became unconscious. The wife of Jahir Mansoor, namely, Bibi Noorjahan Khatoon assaulted Majiya Khatoon, by lathi due to which she sustained injury on the right hand’s wrist. In his cross-examination, he has stated that Jahir Mansoor is his parental uncle. He was in his house at the time of occurrence. Many people assembled at the spot. He further stated that he made an attempt to save his wife. 10. P.W.-3 is Nirbhay Singh. He deposed that the occurrence took place on 12.09.2008 at 06:30 pm. In his cross-examination, he has stated that Jahir Mansoor is his parental uncle. He was in his house at the time of occurrence. Many people assembled at the spot. He further stated that he made an attempt to save his wife. 10. P.W.-3 is Nirbhay Singh. He deposed that the occurrence took place on 12.09.2008 at 06:30 pm. From 05:00 pm, Jahir Mansoor and Majiya Khatoon were quarrelling. Jahir Mansoor armed with spade and his wife Bibi Noorjahan Khatoon armed with lathi came to the door of Saboor. Bibi Noorjahan assaulted Majiya Khatoon on her hand with a lathi, resulting in bleeding injury on her hand. Majiya ran away towards her elder sister-in-law (gotni) namely Chano Khatoon in order to save herself. Jahir Mansoor went there and assaulted on the head of Chano Khatoon with the spade, due to which, Chano Khaoon sustained bleeding injury on her head and she fell down. In his cross-examination, he has stated that he did not make any effort to intervene or restrain the parties from quarrelling. He was in his house at 06:30 pm, he was feeding his cow at his door. He saw Jahir assaulting Chano by the cutting edge of the spade. 11. P.W.-6 is Brij Mohan Prasad, who is the Investigating Officer of this case. He deposed about the investigation of this case including recording of statement and describing the place of occurrence on being proved by him, the formal FIR has been marked as Ext.-1. The fardbeyan has been marked as Ext.-2. The requisition by which Majiya Khatoon and Chano Khatoon were sent for medical examination which is marked as Ext.-3 and 3/1. He also proved the place of occurrence to be the door of the house of the accused Jahir Mansoor. In his cross-examination, he has stated that he felt that an offence punishable under Section 307 IPC is made out in view of the injury report. 12. P.W.-8 is Dr. Prabhat Kumar Sinha, is the doctor who examined the injured victims. He deposed that on 12.09.2008, he examined Majiya Khatoon and found on abrasion on her right elbow posteriorly 1" x 1/3" into skin deep. The injury was caused by hard and blunt substance and was simple in nature. 12. P.W.-8 is Dr. Prabhat Kumar Sinha, is the doctor who examined the injured victims. He deposed that on 12.09.2008, he examined Majiya Khatoon and found on abrasion on her right elbow posteriorly 1" x 1/3" into skin deep. The injury was caused by hard and blunt substance and was simple in nature. He also examined Chano Khatoon and found one lacerated wound over skull of the side 3" x 1/2" x 1/3" the further injury was caused by hard and blunt substance. The injury requisition reports which is marked as Ext.-4 and 4/1. He further stated that the injury of Majiya is possible by assault with lathi and the injury of Chano is possible by assault with spade. ARGUMENTS ON BEHALF OF THE APPELLANTS:- 13. Learned counsel for the appellants has argued that, first and foremost, it is to be noted that this is a case which has to be viewed in the background of the prior enmity between both the parties. Apparently, both the parties lived in a common residence and there was a common door for entrance and exit, which they used and for this they often had an altercation amongst themselves and this was already pre-existing from before and due to this only, the case has been lodged against the appellants. It is apparent from the FIR as well as the evidence that an altercation had taken place between both the parties and therefore, one can say that both the parties were equally involved and there was no intention on the part of the appellants, particularly, the appellant No.1 to cause any such hurt or injury that would bring the offence under the purview of Section 307 IPC. Moreover, learned counsel has submitted that hurt was actually caused by the hitting of the door and not by assault of the appellants and, therefore, the FIR was wrongly lodged by the informant side. Learned counsel for the appellants has further submitted that the innocence can also be established because both the appellants did not run away from the place of occurrence after the so-called or alleged incident and they were very much available at their residence and in the village itself. 14. Learned counsel for the appellants has further submitted that the innocence can also be established because both the appellants did not run away from the place of occurrence after the so-called or alleged incident and they were very much available at their residence and in the village itself. 14. Learned counsel for the appellants has further submitted that no incriminating article or any weapon of assault such as ‘Lathi’ or ‘Kudali’ was seized, so in the absence of any weapon of assault, the offence is surely not established that can be attributed to any of the appellants. Learned counsel for the appellants further submitted that neither blood nor bloodstains of the injured were seized nor any bloodstained cloths were seized from the place of occurrence which would have indicated that the assault by the appellants to the injured persons. 15. Learned counsel for the appellants has referred to the paragraph-5 of the evidence of PW-8, Dr. Prabhat Kumar Sinha, which reads as under: “The injury of the Chano might be possible by hitting a door frame. The injury of Maziya is possible by fall on hard surface.” 16. Learned counsel for the appellants, thus, said that from the evidence of the doctor itself no offence is made out against either of the appellants. 17. Learned counsel for the appellants finally argued that both the parties are closely related as appellant No.1 is Chachia Sas and appellant No.2 is Chacha Sasur of the victim Chano Khatoon and is fall out domestic dispute at the most and therefore, the incident, if any needs to be viewed in that light. ARGUMENTS ON BEHALF OF THE STATE:- 18. Mrs. Ruby Pandey, learned counsel for the State has submitted that the informant of the case has supported the prosecution story by stating that the appellant No.2, namely, Jahir Mansoor assaulted Chano Khatoon with a spade on her head due to which she sustained bleeding injury. P.W.-8, doctor has also proved the injury through medical report. Learned counsel for the State has further submitted that the appellant No.1, namely, Bibi Noorjahan Khatoon assaulted her by danda on the wrist of her which is also supported by the medical report of the doctor. Learned counsel for the State has further submitted that the evidence of P.W.-2, P.W.-3 and P.W.-4 are consistent and have not been demolished in any manner. Learned counsel for the State has further submitted that the evidence of P.W.-2, P.W.-3 and P.W.-4 are consistent and have not been demolished in any manner. She also submitted that P.W.-5, Chano Khatoon also supported assault made by Jahir Mansoor on her head by spade resulting in injury on her forehead. Learned counsel further submitted that Noorjahan Khatoon assaulted Majiya Khatoon on the wrist of her right hand by danda. 19. Learned counsel for the State has further submitted that the evidence of witness is sufficient and enough to establish that Jahir Mansoor assaulted with spade on the head of Chano Khatoon causing profuse bleeding injury which is sufficient to bring he charge punishable under Section 307 IPC against the accused Jahir Mansoor. The evidence is sufficient to establish that the accused Bibi Noorjahan Khatoon voluntarily caused hurt to Majiya Khatoon by assaulting her with a lathi on her hand which is sufficient to establish the charge punishable under Section 323 IPC against the accused Bibi Noorjahan Khatoon. On the basis of facts and circumstances conviction and sentence against the appellants may be sustained and upheld. FINDINGS 20. Having heard both the counsels, gone through the evidences and the facts and circumstances of this case, I find that this is a case in which the informant P.W.-7, Majiya Khatoon had stated in her fardbeyan that the appellant No.1 had assaulted her with danda on her right hand due to which she sustained bleeding injury, which was also corroborated by the doctor P.W.-8 who examined her. Doctor had stated that the injury sustained by the informant was simple in nature. P.W.-5, Chano Khatoon who was the eyewitness as well as injured also supported the fact that appellant No.1, Bibi Noorjahan Khatoon had assaulted her sister-in-law (gotni) Majiya Khatoon on the wrist of her right hand. So, the ocular evidence of the injured eyewitness is supported by medical evidence of the doctor proves that the appellant No.1 Bibi Noorjahan Khatoon had committed hurt on the injured Majiya Khatoon’s hand by means of danda. 21. Regarding the appellant No.2, the learned trial court had imposed a conviction and sentence under Section 307 IPC. To bring a case under Section 307 IPC it is necessary that the intention to cause death must be proved. 21. Regarding the appellant No.2, the learned trial court had imposed a conviction and sentence under Section 307 IPC. To bring a case under Section 307 IPC it is necessary that the intention to cause death must be proved. By looking into the fardbeyan of the informant Majiya Khatoon as well as her evidence and the evidences of other witnesses that the accused Jahir Mansoor had assaulted the injured Chano Khatoon on her head for only one time. No other witnesses even the injured witnesses said about the repetitive blows or continuous blows given by the accused Jahir Mansoor. Doctor, who examined Chano Khatoon has not described the nature of injury in his medical report, particularly, when the concerned doctor has not indicated any grievous injury or injuries on the injured persons. So, no offence under Section 307 IPC was made out. Therefore, the judgment of conviction and the order of sentence dated 22.03.2010 against the appellant No.2, namely, Jahir Mansoor under Section 307 IPC is set-aside. But the injured Chano Khatoon had sustained injury on her head which was also proved by the doctor P.W.-8 in his medical report which is marked as Ext.4/1. Injured Chano Khatoon has further stated in her evidence that she was assaulted with the sharp side of kudali on her head which was supported by P.W.-2, Saboor Mansoor and P.W.-3, Nirbhay Singh in their deposition. The injured eye-witness P.W.-7, Majiya Khatoon also supported the fact that the appellant No.2 came with kudali in his hand and assaulted her sister-in-law (gotni) Chano Khatoon on her head, due to which she sustained bleeding injury. Therefore, the ocular evidence of the injured Chano Khatoon is supported by the medical evidence of the doctor. Therefore, it is proved that the appellant No.2 had voluntarily caused hurt to the injured Chano Khatoon on her head by sharp cutting edge kudali which comes under the category of sharp cutting edge weapon. 22. Regarding the sentence it has come from the cross-examination in para-3 of the deposition of injured Majiya Khatoon and from para-4 of the cross-examination of the deposition of the injured Chano Khatoon that there was an old dispute regarding the entrance and exit through the common door and at the time of occurrence dispute was because of the children messed up with the dust near the door of the appellants. So, in my opinion it is proper to be lenient in sentencing the appellants. 23. Therefore, this Court upholds the conviction of Bibi Noorjahan Khatoon under Section 323 IPC. However, there is a modification in sentence to the effect that there is no imprisonment, but, appellant No.1, namely, Bibi Noorjahan Khatoon will have to pay a compensation amount of Rs.2000/-to be paid to the informant or injured within two months from the date of receipt of copy of this judgment, in default of which, she will undergo one month simple imprisonment. Her bail-bond stands discharged 24. For appellant No.2, namely, Jahir Mansoor, his conviction under Section 307 IPC is set aside, he is now convicted under section 324 IPC and directed to undergo sentence for three months imprisonment and the fine amount which he was directed to pay is converted into compensation of Rs.5000/-to be paid the injured Chano Khatoon within two months from the date of receipt of copy of this judgment, failing which, the learned trial court is at liberty to take action in accordance with law. His bail bond stands cancelled he be taken into custody to serve the remaining sentence. 25. The Cr. Appeal (S.J.) No. 378 of 2010 is dismissed with above-modification.