JUDGMENT : Ratnaker Bhengra, J. The present appeal is directed against the judgment of conviction and order of sentence dated 12.06.2003 passed in Sessions Case No. 124 of 1982 by learned Additional Sessions Judge, Fast Track Court No. V, Deoghar, whereby and where under all the appellants were convicted under section 307 of Indian Penal Code and appellant no. 1,2,4 and 6 to 10 were convicted under sections 323 and 147 of Indian Penal Code. Further, appellant no. 3 and appellant no. 5 were convicted under section 324 and 148 of Indian Penal Code. All the appellants were sentenced to R.I. for 5 years under section 307 of Indian Penal Code and Appellant no. 1,2,4 and 6 to 10 were sentenced to 1 year R.I under section 147 of Indian Penal Code and for 6 months under section 323 IPC. Further, Appellant no. 3 and Appellant no. 5 were sentenced to undergo R.I for 2 years under section 148 of Indian Penal Code and R.I. and for 3 years under section 324 of Indian Penal Code. All the sentences were ordered to run concurrently. 2. As per report submitted by police inspector-cum-officer-incharge, Madhupur-Police Station vide memo no.158/18 dated 23-2- 2018, Appellant no.-5 Jegun Biwi and Appellant No.-10 Sabir Sheikh @ Md. Sabir have died. Hence, appeal of Appellant no.-5 Jegun Biwi and Appellant No.-10 Sabir Sheikh @ Md. Sabir stands abated. 3. The prosecution case, in brief, as per the fardbeyan dated 15.7.78 of the informant P.W. 8 Abdul Rajjak, resident of village Lalgarh, P.S. Madhupur, Distt- Santhal Pargana is that they have an ancestral land at village- Patharia and his elder brother Latif Sheikh (P.W-7) is living in the ancestral house at village- Patharia. Informant further stated that his elder brother Latif Sheikh had purchased a BClass Railway land in village- Patharia itself from Jegun Biwi wife of Dhako Sheikh of village Korokado, P.S. Madhupur. On 15.7.1978, at about 8 a.m. while, he along with his two brothers Latif Sheikh (P.W.-7) and Suleman Sheikh ( P.W.-9) were ploughing their field, the accused persons, who were 14 in numbers, variously armed with weapons, all of the sudden, came there. The informant further stated that accused Ajiz Sheikh was armed with barchha, Idris Sheikh was armed with lathi, Babujan Sheikh was armed with farsa and accused Dhako Sheikh and his wife Jegun Biwi were armed with sword. The informant further stated that accused Ajiz Sheikh was armed with barchha, Idris Sheikh was armed with lathi, Babujan Sheikh was armed with farsa and accused Dhako Sheikh and his wife Jegun Biwi were armed with sword. Thereafter, accused persons namely Bijli Sheikh, Dhako Sheikh, Aziz Sheikh and Idrish Sheikh started assaulting the informant as a result informant fell down. His brothers Latif Sheikh and Suleman Sheikh also sustained injury and they also fell down. Informant further stated that Nur Mohammad ( P.W. 3), Nemul Sheikh ( P.W. 2), Basir Sheikh ( P.W. 1) and Abdur Rahman (P.W. 6), who were present at the place of occurrence restrained the accused persons and any how they were able to save their life. 4. On the basis of the fardbeyan of the informant, Madhupur Police Case no. 8/1978 was registered against the accused persons under sections 147, 148, 323, 324 and 307/149 of the Indian Penal Code. After completion of investigation charge sheet was submitted and the cognizance of the offences were taken and the case was committed to the court of sessions. Charges were framed against the accused persons accordingly and trial was held and at the conclusion of trial accused persons or appellant herein were convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution had examined altogether 11 witnesses in support of its case out of whom Abdul Rajjak P.W.-8 is the informant of the case. P.W.-7 Latif Sheikh and P.W.-9 Suleman Sheikh are the brothers of the informant. P.W.-1 is Basir Sheikh; P.W.-2 is Nemul Sheikh; P.W.-3 is Nur Mohammad; P.W.-4 is Amir Sheikh, P.W.-5 is Kurban Mian; P.W.-6 Abdur Rehman is a tendered witness, P.W.-10 Shankar Prasad is the investigating officer of the case and P.W.-11 is Dr. S.S Daruka, who had examined the injured persons. D.W.-1 Jegun Biwi was examined as defense witness. 6. P.W.-8 Abdul Rajjak is the informant of the case. He has stated in his evidence that on the day of occurrence at about 8 a.m., he along with his brother Suleman and Latif were in their field situated at village Pathariya. In the meantime all the accused persons, 14 in numbers came there armed with deadly weapon. Accused Ajiz was armed with barcha, Babujan Sheikh was armed with farsa, Dhako Sheikh and Jegun Biwi were armed with sword and remaning accused persons were armed with lathi. In the meantime all the accused persons, 14 in numbers came there armed with deadly weapon. Accused Ajiz was armed with barcha, Babujan Sheikh was armed with farsa, Dhako Sheikh and Jegun Biwi were armed with sword and remaning accused persons were armed with lathi. Thereafter, accused Ajiz Sheikh ordered to kill and said that he will contest the case after selling his land. Upon which, accused Ajiz Sheikh assaulted the informant by barcha on his head and accused Dhako Sheikh assaulted the informant by sword on his head. Accused Bijli Sheikh and Idrish Sheikh assaulted him by lathi on his left hand and leg a result his left hand was fractured. Informant further stated that his two brothers were also assaulted by the accused persons. Informant has proved his signature on the fardbeyan which was marked as Ext-2. 7. P.W.-7 Latif Sheikh and P.W. -9 Suleman Sheikh are the brothers of the informant. They have stated in their evidence that on the day of occurrence at about 8 a.m. they were ploughing the field. In the meantime, all the accused persons arrived there variously armed with deadly weapons and assaulted them. P.W.-7 Latif Sheikh stated that accused Dhako assaulted him with sword on his head, accused Babujan assaulted him with farsa on his head and accused Ajiz had assaulted him with barcha on his head and due to assault by lathi he fell down. P.W.-7 further stated that Bijli Sheikh and Charka Sheikh assaulted him by lathi on his right hand and Idris Sheikh also assaulted him with lathi. P.W.-9 Suleman Sheikh stated in his examination-in-chief that he was assaulted by Ajiz Sheikh with barcha on his head from behind and Jegun Biwi assaulted him with sword on his head. P.W.-9 further stated that Idris and Shamsul assaulted him by lathi on his left leg and hand and Sabir had assaulted him with lathi on his left leg. 8. P.W.-1 Basir Sheikh, P.W.-2 Nemul Sheikh, P.W.-3 Nur Mohammed and P.W.-4 Amir Sheikh have stated in their evidence that on the day of occurrence they were nearby the place of occurrence. These witnesses have stated in their evidence that the accused persons had arrived on the place of occurrence armed with weapon and had assaulted the informant side and injured them. These witnesses have stated in their evidence that the accused persons had arrived on the place of occurrence armed with weapon and had assaulted the informant side and injured them. P.W.1 Basir Sheikh has stated in his evidence that accused Aziz Sheikh ordered to kill, thereafter Aziz assaulted with barchha to Suleman on his head from back-side and Babujan assaulted with farsa to Suleman. Rajjak was also assaulted with barchha by Ajiz Sheikh and Babujan assaulted with farsa and other accused persons assaulted with lathi. Latif was also assaulted by Dhako with sword and Aziz Sheikh and Babujan assaulted Latif with barchha and farsa respectively. P.W.2 Nemul Sheikh has stated in his cross-examination that accused Aziz Sheikh has filed a case against him and his wife. P.W.-2 further stated that injured persons are his cousin brothers. P.W.3 Nur Mohammad has stated in his evidence that on the day of occurrence at about 8 A.M., he was talking to Nemul Sheikh on the pitch road where he saw 14 accused persons variously armed with weapon going to the north side of railway line. P.W.-3 further stated that accused Aziz Sheikh ordered to kill and thereafter, Aziz assaulted Latif with barcha and Babujan assaulted with farsa and Dhako Sheikh assaulted him by sword. P.W.-4 has stated in his evidence that Aziz Sheikh ordered to kill and thereafter, Aziz assaulted Latif by barcha, Babujan assaulted him by farsa on his head and Dhako Sheikh assaulted by sword. P.W.-4 further stated that Aziz, Babujan and Jegun Biwi had assaulted by means of barcha, farsa and sword to Suleman and other accused persons assaulted with lathi. P.W.-4 further stated that Rajjak was assaulted by Dhako Sheikh by means of sword. After committing assault accused persons fled away. 9. P.W.-11 Dr. S.S. Daruka had examined the injured P.W.-7 Latif Sheikh, P.W.-9 Suleman Sheikh and P.W.-8 Abdul Rajjak on 15-7- 1978. Doctor found five injuries on the person of P.W.-7 Latif Sheikh and all the injuries were simple in nature which were caused by sharp cutting weapon and hard and blunt substance. On examination of injured Suleman Sheikh, doctor had found five injuries on the person of Suleman Sheikh and opined that all the injuries caused to Suleman Sheikh were simple in nature and were caused by sharp cutting weapon and hard blunt substance. On examination of injured Suleman Sheikh, doctor had found five injuries on the person of Suleman Sheikh and opined that all the injuries caused to Suleman Sheikh were simple in nature and were caused by sharp cutting weapon and hard blunt substance. Further, on examination of P.W.-8 Abdul Rajjak, doctor had found three injuries on his person. The injuries caused to P.W.-8 Abdul Rajjak were simple and caused by hard and blunt substance. Doctor has proved the injury report of these injured which were marked as Ext.-3 to Ext.-5 10. P.W.10 Shankar Prasad is the investigating officer of this case. investigating officer has stated in his evidence that he had registered Madhupur P.S. Case no. 8 dated 15-7-1978 on the oral statement of Abdul Rajjak. Investigating officer has proved his writing and signature on the fardbeyan which was marked as Ext.-2/1. Investigating officer further stated that informant Abdul Rajjak along with his two brothers Suleman Sheikh and Latif Sheikh had come to the police station in an injured condition. He had prepared the injury slip of all the three injured and sent them to Madhupur Hospital. Investigating officer further stated he visited to the place of occurrence, which was a field and half the field was ploughed. The land was situated in the north side of railway line and there was water in the field, therefore, he did not succeed in obtaining blood stained earth. Investigating officer further stated that on 15-8-1978, he handed over the investigation of the case to S.I., Brahdeo Singh, who after completion of the investigation submitted charge-sheet against all accused persons. 11. Defence had examined D.W.-1 Jegun Biwi w/o Dhako Sheikh, who is also an accused of this case. She has stated that firstly she was married with Samsul Sheikh of village Pathariya and her father-in-law was Smile Sheikh. D.W.-1 further stated that no child was born from her first husband Samsul Sheikh. After the death of her husband she had got share in her husband’s property at village Pathariya. She further stated that she had never executed any deed of sale at Calcutta in favour of Latif Sheikh. She is in possession over the place of occurrence land. ARGUMENTS ON BEHALF OF APPELLANTS 12. After the death of her husband she had got share in her husband’s property at village Pathariya. She further stated that she had never executed any deed of sale at Calcutta in favour of Latif Sheikh. She is in possession over the place of occurrence land. ARGUMENTS ON BEHALF OF APPELLANTS 12. Learned counsel for the appellants has argued that in this case the main conviction has been done under section 307 IPC solely without the assistance of either section 34 or section 149 of the IPC and in the facts and circumstances of the case conviction under section 307 of IPC cannot be applied to all the appellants together without the assistance of the aforesaid relevant IPC sections. He pointed out that as per the FIR, all the surviving appellants except Babujan were holding lathi. Babujan was allegedly holding farsa. The informant Abdul Rajjak was assaulted by Bijli, Dhako and Aziz had also assaulted Abdul Rajjak. However, all these three persons have passed away. 13. Learned counsel for the appellants further submitted that allegedly the sale deed regarding the relevant plot of land was executed in Kolkata however Jegun Biwi , whose is the vendor of the land says that she had never visited Kolkata and she is also not the executants of such sale deed and hence, the entire prosecution case becomes doubtful. 14. Learned counsel for the appellants further points out that as per deposition of the informant, Aziz Sheikh was holding barcha, Babujan was holding a farsa and Dhako and Jegun Biwi were holding a sword. Counsel however, says though these persons are alleged to have holding such weapons but in the FIR only Bijli, Dhako and Aziz Sheikh and Idrish are indicated as having made assaults. Counsel argues that therefore, it is seen from the evidence that after the main assailants or the main accused persons have passed away then the blame has been shifted onto Jegun and Babujan. 15. Learned counsel for the appellants also argues that from the FIR also it is revealed that section 307 IPC cannot be made applicable because in the fardbeyan itself it is indicated that if the other people standing nearby had not objected then they would have killed them. Therefore, it cannot be said that they were determined to commit such injuries that would have resulted fatal or anything coming near to section 307 of the IPC. Therefore, it cannot be said that they were determined to commit such injuries that would have resulted fatal or anything coming near to section 307 of the IPC. Learned counsel for the appellants submitted that conviction of appellant Babujan Sheikh under 324 IPC and 148 IPC is without evidence because as per the fardbeyan no assault has been attributed to appellant Babujan Sheikh. Therefore, whatever evidence subsequently that has been given is a development which is away from the fardbeyan. 16. Learned counsel for the appellant raised a question that whether the individual act of each accused can hold all of the individuals together responsible is accused may be convicted under section 307 IPC individually, in absence of the assisting sections of section 34 or section 149 IPC. Learned counsel says that even so, the main assailants for the sections 307 IPC and section 324 IPC would be Aziz Sheikh and Dhako as per the fardbeyan and they have already passed away and therefore, no other appellants can be convicted for sections 307 and section 324 IPC. Learned counsel for the appellants says that because Aziz Sheikh and Dhako have passed away that is why in the evidence there is an attempt made by the prosecution witnesses to shift the blame to Jegun Biwi and Babujan. 17. Learned counsel has referred to the evidence of P.W. 1 who is Basir Sheikh and pointed out that in para 1 of his deposition he has stated that Babujan had assaulted Suleman with farsa. Learned counsel for the appellants says that this is not so in the FIR therefore, evidence of P.W.-1 is highly inconsistent. Learned counsel further submitted that P.W. -2 Nemul Sheikh had in para -1 deposed that Babujan assaulted Latif on his head with farsa, however, counsel for the appellants says that this is inconsistent with the FIR as well as evidence of P.W. 1 where it is said Babujan had assaulted Suleman. 18. Learned counsel for the appellants then points out para 5 of the evidence of P.W.-2 Nemul Sheikh wherein P.W.-2 has stated that the agricultural field was of Jegun Biwi. Learned counsel for the appellants therefore, submitted that it can easily be said that the appellants were aggressors in the case because the land belongs to Jegun Biwi. 18. Learned counsel for the appellants then points out para 5 of the evidence of P.W.-2 Nemul Sheikh wherein P.W.-2 has stated that the agricultural field was of Jegun Biwi. Learned counsel for the appellants therefore, submitted that it can easily be said that the appellants were aggressors in the case because the land belongs to Jegun Biwi. Learned counsel for the appellant has also pointed out from the cross examination P.W.-2 and submitted that Aziz Sheikh had filed a counter case where the wife of P.W. 2 is an accused. 19. Learned counsel for the appellants further submitted that P.W. 3 Nur Mohammad had in para -2 deposed that Babujan assaulted Latif with farsa on his head and Aziz assaulted Latif with barcha on his head. Counsel for the appellants says it is to be noted that both Babujan and Aziz had caused injury to Latif on his head. But, as per the evidence of doctor or P.W.-11, injury caused to Latif on the head was lacerated which is not possible by injury by barchha or farsa and hence, the injury as alleged caused to Latif becomes doubtful. 20. Learned counsel for the appellants has further taken this Court to the evidence of doctor or P.W. 11 and submitted that doctor had found five injuries on the person of Latif and all the injuries caused to Latif were simple in nature. Doctor opined that injury no. 1 and injury no. 2 were caused by sharp cutting weapons and injury no. 3 to injury no. 5 were caused by hard and blunt substance. On Suleman Sheikh, it is indicated that he had received five injuries, injuries no. 1 and 2 by sharp cutting weapons and on the head, Injury no. 3 was bruise on left elbow, injury no. 4 was abrasions on lower part of left elbow and injury no. 5 was swelling on left hand. It is also indicated that all the injuries caused to Suleman were simple in nature and he had not been admitted to the hospital. Injuries on Abdul Rajak are indicated as injury no. 1 being lacerated wound on scalp, injury no. 2 is also lacerated wound on parietal region and injury no. 3 is swelling on left arm. Counsel for the appellants here submits that all injuries alleged to be caused to Abdul Rajjak are also simple and caused by hard and blunt substance. Injuries on Abdul Rajak are indicated as injury no. 1 being lacerated wound on scalp, injury no. 2 is also lacerated wound on parietal region and injury no. 3 is swelling on left arm. Counsel for the appellants here submits that all injuries alleged to be caused to Abdul Rajjak are also simple and caused by hard and blunt substance. 21. Learned counsel for the appellants further submits that Appellant no. 5 Jegun Biwi has also died during pendency of the appeal and hence appeal of only Babujan has to be decided for his conviction under section 324 and section 148 of IPC . Learned counsel for the appellants however, submits that as has been already pointed out from the evidences of P.W. 1, P.W. 2 P.W. 3 read along with the FIR, the inconsistency or contradiction, cannot bring Babujan within the ambit of section 324 IPC any way. 22. Learned counsel then takes us to the evidence of informant Abdul Rajjak P.W. 8 and points out that in para-1 informant has not said anything about Babujan assaulting any one. Counsel for the appellants further submitted that as per the doctor or P.W.-11, injures sustained by the informant was simple in nature. In para 7, it is indicated that land was sold by Jegun Biwi however, counsel says that Jegun has denied the sale and of being in Kolkata any way. Counsel, for the appellants says that the sale deed was not proved by the informant. He has also pointed out that the sale deed which is Ext.- 1 has been marked with objection. Counsel for the appellants has then pointed out that as per Ext.- A, filed by the accused, this is the letter of Deputy Commissioner, Santhal Pargana which basically says that the land is not transferable and therefore no such sale deed would have been made out any way. He has also pointed out from Ext.–B, which is the extract of khatiyan and submitted that considering the nature of land in Santal Pargana, the land in question cannot be transferred in Santhal Pargana to third parties. He has also pointed out from Ext.–B, which is the extract of khatiyan and submitted that considering the nature of land in Santal Pargana, the land in question cannot be transferred in Santhal Pargana to third parties. Learned counsel has also pointed out from Ext.- C, which is a copy of the final decree in Partition Suit No. 103 of 1951 and submitted that the said land or relevant land is in the share of Jegun Biwi, was allotted to Jegun Biwi by the decree in partition suit on 7.5.1956. Counsel for the appellant says that in the deposition of P.W. 7 in para 4, P.W.-7 says that he had purchased the land for Rs. 2000/- while in the deed in many places, it is mentioned that the sale purchase amount was Rs. 8000/-. Counsel says this is a very vital contradiction because P.W. 7 is the purchaser himself and this contradiction in amount simply cannot be ignored and this itself vitiates the entire case of prosecution. Counsel for the appellants says that the sale deed of Kolkata has no reference to the partition suit by which the land was allotted to Jegun Biwi by family arrangement. 23. Learned counsel for the appellants lastly submitted that the date of occurrence is of the year 1978 and more than 40 years have passed and the surviving appellants are also in their old age and this circumstances may be considered by this appellate court in deciding this appeal. ARGUMENTS OF THE APP 24. Learned counsel for the State, learned A.P.P. has argued that this is a case in which there is sufficient evidence to convict the appellants for crime they have committed and hence the sentence imposed on them by learned court below is fully justified. In this case there are as many as three injured witnesses and they are P.W. 8 Abdul Rajjak, P.W. 9 Suleman Sheikh and P.W.-7 Latif. Counsel says that as per the fardbeyan and as per the evidence of the informant P.W.-8 Abdul Rajjak, these three witnesses, who are brothers, were assaulted by the appellants side and they had sustained injuries. The injuries as alleged is fully supported by P.W.-11 or the doctor who had examined all the three injured and had issued the injury report of the injured which were marked as Ext.- 3,4, and 5 wherein the extent and nature of injuries were indicated. The injuries as alleged is fully supported by P.W.-11 or the doctor who had examined all the three injured and had issued the injury report of the injured which were marked as Ext.- 3,4, and 5 wherein the extent and nature of injuries were indicated. Therefore, counsel says that the ocular evidence is fully supported by the medical evidence and hence impugned judgment of conviction and order of sentence passed by the learned court below shall be sustained and upheld by this court. FINDINGS 25. Having heard both counsels; having gone through the record of the case and in the facts and circumstances , this case is one in which there is clear cut enmity involved with the both the sides and seems to be going back for many years in fact some decades. The trial court itself has pointed out that it is not the duty of the court to come to a conclusion regarding the title of the land and in a criminal appeal it is also not the duty of this court. 26. From the record, I find that charges were framed against 13 accused persons under section 307 of IPC. Further, 4 accused persons Aziz Sheikh, Babujan Sheikh, Dhako Sheikh and Jaigun Biwi were separately charged under section 148 and section 324 of IPC and remaining 9 accused persons were separately charged under section 147 and section 323 of IPC. During trial three accused persons Aziz Sheikh , Bijli Sheikh and Dhako Sheikh died and hence only 10 accused persons or appellants herein faced trial. Further, during pendency of this appeal two appellants namely appellant no.5 Jegun Biwi and appellant no. 10 Sabir Sheikh @ Md. Sabir have died and hence at present there are 8 surviving appellants. 27. First of all coming to the charge under section 307 of IPC, I find that all the 10 appellants were convicted under section 307 of IPC by the learned trial court. From the fardbeyan of the informant P.W.-8 and the evidence of the other prosecution witnesses, it is seen that as many as ten appellants herein and few more accused persons totaling 13-14 in numbers had arrived on the place of occurrence variously armed with weapons such as barcha, farsa, sword and lathi. All these accused persons including the appellants herein had assaulted the informant side as a result three persons P.W.-7,P.W.-8 and P.W.-9 had sustained injuries. All these accused persons including the appellants herein had assaulted the informant side as a result three persons P.W.-7,P.W.-8 and P.W.-9 had sustained injuries. These injured persons were examined by the doctor or P.W.-11 and doctor viz injury report Ext.-3, Ext.-4 and Ext.-5 had found only simple injuries on the person of all these three injured. Therefore, whether the offence of section 307 can be made out is a big question mark or doubt. If these 13-14 accused persons including the appellants herein really wanted to inflict serious or grievous injury on the informant side then, being armed with lathi and other sharp cutting weapon and out numbering the informant side totally, they could have surely inflicted grievous injuries which would have surely brought the case within the ambit of section 307 of the Indian Penal Code. But this is not the case, therefore, the allegation under section 307 IPC is very much doubtful and hence, charges under section 307 of IPC against the appellants are not proved. 28. So, far as charges under section 148 and section 324 of IPC are concerned, I find that two appellants i.s. appellant no.3 Babujan Sheikh and appellant no.5 Jegun Biwi were convicted under section 148 and section 324 of IPC out of whom appellant no.5 Jegun Biwi has died during the pendency of this appeal and hence, only the guilt of the remaining appellant i.e. appellant no.3 Babujan Sheikh has to be decided. In the FIR, informant has stated that appellant No.3 Babujan Sheikh was holding farsa. But, from the evidence of P.W.-1 Basir Sheikh, who is the eye-witness of the occurrence of assault has in para-1 stated that Babujan had assaulted Suleman with farsa but, on which part of the body has not been stated. P.W.-2 Nemun Sheikh, who is also an eye witness to assault has deposed in para-1 that Babujan had assaulted Latif on his head with farsa and hence the deposition of P.W.-2 is inconsistent with the evidence of P.W.-1 as P.W.-1 has deposed that Babujan had assaulted Suleman. Therefore, there is conflicting evidence regarding the assault made by Babujan, both in the evidence of both P.W. 1 and P.W.-2 and as to on whom the assault was made whether on Latif or whether on Suleman. Therefore, there is conflicting evidence regarding the assault made by Babujan, both in the evidence of both P.W. 1 and P.W.-2 and as to on whom the assault was made whether on Latif or whether on Suleman. Therefore, charges under section 148 and section 324 of IPC against the appellant no.3 Babujan Sheikh for assault with farsa is not proved and hence, his conviction is modified to one under section 147 and 323 of IPC. 29. Regarding, charges under section 14 7 and section 323 of IPC against the remaining appellants i.e. appellant no.1 Chiraguddin Sheikh @ Chiraguddin, appellant no.2 Idris Sheikh @ Md. Idris Sheikh, appellant no.4 Mustakin Sheikh, appellant no.6 Nasruddin Sheikh, appellant no. 7 Habib Sheikh @ Md. Habib Sheikh, appellant no.8 Ashique Sheikh @ Md. Ashique and appellant no.9 Charka Sheikh, I find from the evidence that three person from the informant side i.e. P.W.-7, P.W.-8 and P.W.-9 had sustained injury due to assault by the appellants and their injuries have been supported by the evidence of P.W.-11 or the doctor viz injury report Ext.-3 to Ext.-5. It is also seen from the evidence of doctor P.W. 11 that the injuries of P.W.-7 Latif Sheikh though being five in number but, all the injuries were simple in nature including the injuries of P.W.-9 Suleman Sheikh being also five in number and also all simple in nature and finally the injuries sustained by the informant P.W.-8 Abdul Rajjak Sheikh numbering three were also all simple in nature. Hence, prosecution has been able to prove the charges against these appellants under section 323 IPC and section 147 of IPC. 30. Accordingly, impugned judgment of conviction dated 12.06.2003 of all the appellants under section 307 of IPC and its corresponding sentence passed in Session Case no. 124 of 1982 by the learned court below is set aside. However, conviction of appellant no.1 Chiraguddin Sheikh @ Chiraguddin, appellant no.2 Idris Sheikh @ Md. Idris Sheikh, appellant no.4 Mustakin Sheikh, appellant no.6 Nasruddin Sheikh, appellant no. 7 Habib Sheikh @ Md. Habib Sheikh, appellant no.8 Ashique Sheikh @ Md. Ashique and appellant no.9 Charka Sheikh, passed under under section 323 of the Indian Penal Code and section 147 of the Indian Penal Code is sustained and upheld. Further, conviction of appellant no. Idris Sheikh, appellant no.4 Mustakin Sheikh, appellant no.6 Nasruddin Sheikh, appellant no. 7 Habib Sheikh @ Md. Habib Sheikh, appellant no.8 Ashique Sheikh @ Md. Ashique and appellant no.9 Charka Sheikh, passed under under section 323 of the Indian Penal Code and section 147 of the Indian Penal Code is sustained and upheld. Further, conviction of appellant no. 3 Babujan Sheikh under section 324 IPC and section 148 IPC is modified to one under section 323 IPC and section 147 of IPC. 31. So, far as sentence is concerned, the occurrence took place more than 40 years ago in 1978, appellants have faced rigors and vigors of trial and some of the appellants specifically appellant no.1 Chiraguddin Sheikh @ Chiraguddin is now about 80 years old, appellant no.2 Idris Sheikh @ Md. Idris Sheikh and appellant no.6 Nasruddin Sheikh both are now about 70 years old, appellant no. 8 Ashique Sheikh @ Md. Ashique is now about 65 years old and other appellants are also in their fifties and sixties. Hence, considering these mitigating circumstances appellant no. 1 Chiraguddin Sheikh @ Chiraguddin, appellant no. 2 Idris Sheikh @ Md. Idris Sheikh and appellant no.6 Nasruddin Sheikh and appellant no. 8 Ashique Sheikh @ Md. Ashique are no longer required to sent jail at this stage and only imposed a consolidated compensation amount of Rs. 12,000/- to be paid to the three injured P.W.-7 Latif Sheikh, P.W.-8 Abdul Rajjak and P.W.-9 Suleman Sheikh which shall be apportioned equally among these three injured ( i.e. Rs.4,000/- each) within two months of the date of receipt of the copy of this judgment and in default they will undergo simple imprisonment of 15 days. The remaining appellants i.e. appellant no.3 Babujan Sheikh, appellant no.4 Mustakin Sheikh, appellant no. 7 Habib Sheikh @ Md. Habib Sheikh and appellant no. 9 Charka Sheikh are sentenced to undergo 3 months S.I and any period already undergone to be subtracted from the newly imposed sentence of 3 months and consolidated compensation of Rs. 21,000/- is imposed on these appellants to be paid to the three injured P.W.-7 Latif Sheikh, P.W.-8 Abdul Rajjak and P.W.-9 Suleman Sheikh which shall be apportioned equally among these three injured ( i.e. Rs 7,000/- each) and in default they will undergo imprisonment of 2 months S.I. The compensation amount as ordered aforesaid, may be deposited in the concerned court below. Bail bonds of the appellant no.3 Babujan Sheikh, appellant no.4 Mustakin Sheikh, appellant no. 7 Habib Sheikh @ Md. Habib Sheikh and appellant no. 9 Charka Sheikh are cancelled. 32. Accordingly, this appeal is dismissed with the above modification in conviction and sentence. Appeal dismissed.