JUDGMENT : 1. This appeal is directed against the judgment of conviction and order of sentence dated 25.08.2003 passed by the Additional District & Sessions Judge-cum-Fast Track Court-III, Garhwa by which the appellants Raj Bali Bind and Santosh Bind have been convicted for the offences punishable u/s 323 and 324 of IPC respectively corresponding to Garhwa P.S. Case No. 187 of 2001, G.R. Case No.758 of 2001 vide Sessions Trial No. 26 of 2003 and the appellant no. 1 Raj Bali Bind was sentenced to undergo R.I. for six months and to pay a fine of Rs. 1000/-(Rs. One Thousand only) to be given to the informant Sihvapati Bind and if the fine is not paid, the accused-appellant Raj Bali Bind to undergo further imprisonment for three months under section 323 of IPC and the appellant no. 2 Santosh Bind is sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 2000/- (Rs. Two Thousand only) to be given to the informant Sivpati Bind and if the fine is not paid, the accused-appellant Santosh Bind to undergo further imprisonment for six months for the offence punishable under section 324 of IPC . 2. The prosecution story arose in the wake of the fardbeyan of Shivpati Bind- P.W. 6, which has been recorded on 29.10.2001 and this FIR has been lodged. It is said that on 29.10.2001 in the evening Karmu Bhuian came to his house as he used to work as a labourer and the informant had some dues amounting to Rs. 800/- and for that the informant asked to refund the money. There was a talk going on in between the informant and the said Karmu Bhuian, in the mean time Raj Bali Bind came their and took Karmu Bhuian to his house. The informant-P.W.6, objected and said to the accused appellant no.1 not to do so and on this the accused persons came armed with Lathi, Iron road, etc. and started assaulting informant and his wife Sumitri Devi due to assault the informant and his wife sustained injuries. In the mean time upon Hulla the neighbours arrived and the accused persons fled away and thereafter his son Narad and other co-villagers came and took him and his wife to hospital where they had gone under treatment. 3. and started assaulting informant and his wife Sumitri Devi due to assault the informant and his wife sustained injuries. In the mean time upon Hulla the neighbours arrived and the accused persons fled away and thereafter his son Narad and other co-villagers came and took him and his wife to hospital where they had gone under treatment. 3. On the basis of the statement of Shiv Pati Bind P.W. 6, a formal FIR was drawn, the investigation of the case commenced, after completion of the investigation, the charge sheet was submitted against the appellants Raj Bali Bind and Santosh Bind along with one Ram Parvesh. Thereafter, the case was committed to the Court of Sessions for trial. Learned trial court framed the charges against them for the offences punishable under sections 341, 323, 307/34 of IPC and after concluding the trial the impugned judgment of conviction and order of sentence was passed which is under challenge. Arguments on behalf of the appellants There was a land disputed between the parties and the case and counter case was there and the learned trial court did not appreciate these facts. There is no legal evidence to connect the appellants with the alleged crime. Oral evidences and medical evidences are contradictory to each other and they cannot be relied upon. And without appreciating the evidences, the impugned judgment of conviction and order of sentence have been passed in absence of legal evidences, which are fit to be set aside. Arguments on behalf of the State:- On the other hand, learned A.P.P. has vehemently opposed the contentions of the learned counsel for the appellant and submitted that the trial court after appreciating the evidences adduced on behalf of the prosecution, in a holistic manner has rightly held that the appellant no.1 Raj Bali Bind was held guilty u/s 323 of IPC and the accused appellant Santosh Bind was held guilty for the offence punishable u/s 324 IPC and thus there is no legal point to interfere in the impugned judgment of conviction and order of sentence. The testimony of the injured victim P.W. 6 Shivpati Bind and another injured victim P.W. 5- Sumitri Devi along with deposition of P.W. 8 Dr. The testimony of the injured victim P.W. 6 Shivpati Bind and another injured victim P.W. 5- Sumitri Devi along with deposition of P.W. 8 Dr. R.N.S. Diwakar by which it is established that these appellants had inflicted injuries upon both the victims and thus the conviction of the appellants are based on the material evidences available on record and hence this appeal is fit to be dismissed. FINDINGS 4. Heard Mr. Jai Shankar Tripathy, learned counsel for the appellants and Mrs. Niki Sinha, learned A.P.P. for the State. Perused the documents available on record including the Lower Court Records. 5. It is found that altogether 11 witnesses have been examined. P.W.1 Narad Bind, P.W. 2 Rekha Devi, P.W.3 Akhilesh Kr. Bind- all are eye witnesses to the occurrence. P.W.5 Sumitri Devi & P.W.6 Shivpati Bind are both injured victim and P.W.6 is the informant also. P.W.7 & 10 being the formal witnesses have identified the handwriting and signature on the fardbeyan of ASI Garhwa Sri Murlidhar Pandey, which has been marked as Ext-2 and the handwriting of Officer In-Charge, Garhwa station on the formal FIR has been marked as Ext.-3. This witness has also identified the signature of Officer In Charge Garhwa, P.S. on two other places in the formal FIR marked as Ext. 1/2. P.W. 4 Ramnath Bind has been declared hostile. P.W.8 Dr. R.N. Singh Diwakar had prepared the injury report of the victim P.W. 6 & P.W. 5 and proved injury reports Ext. 4 and 4/1. P.W.9 Uday Bind is the neighbor of the informant and P.W.11 Sri Murlidhar Pandey, the I.O., had conducted the investigation in the case and submitted the charge sheet. The defence has also examined one witness D.W.1 Nand Kishore Pandey who has identified the handwriting and signature of A.S.I., Garhwa Shri Murlidhar Pandey on the forwarding note for preparing the injury report of P.W. 6 which is marked as Ext. B as per the deposition of P.W.11. The certified copy of the FIR, Garhwa P.S. Case 188 of 2001 U/s 341, 323, 504/34 has been exhibited and marked as Ext. A on behalf of the defence. 6. P.W.1 Narad Bind in his examination-in-chief stated that on 29.10.2001 at about 06 PM he was giving tuition at his home. He heard halla that his father Shiv pati Bind was asking for refund of Rs. A on behalf of the defence. 6. P.W.1 Narad Bind in his examination-in-chief stated that on 29.10.2001 at about 06 PM he was giving tuition at his home. He heard halla that his father Shiv pati Bind was asking for refund of Rs. 800/- given to Karmu Bhuian in advance and in between Raj Bali Bind taking side of Karmu Bhuian tried to take Karmu Bhuian to his house which was protested by his father Shivpati Bind- P.W. 6. Thereafter, the sons of Raj Bali Bind, Santosh Bind armed with Iron rod and Rampravesh Bind armed with Lathi arrived at the place of occurrence and assaulted his father P.W.6 Shivpati Bind on his head by lathi and on left hand. Santosh Bind also hit P.W. 6 on his head with Iron rod from behind. The cloths were drenched with blood on this P.W.5 Sumitri Devi (mother of P.W. 1) and P.W.2 Rekha Devi (Wife of P.W. 1) ran to save P.W.6 Shivpati Bind. Upon which both of them were also assaulted by the accused appellants by fists, slaps and legs. Thereafter, this witness took his father hospital from the Thana where the statement of his father Shiv Pati Bind P.W. 6 was recorded. Further, he stated that along with his statement, the statement of Rekha Devi, Sumitri Devi , Prem & Uday were recorded by the police and he also admitted that the accused person had filed a cross case against them, but, he denied that he had cause head injury to Santosh Bind. 7. P.W.2 Rekha Devi supported the incident as narrated by P.W.1 Narad Bind. She stated that the victim P.W.6 was her father-in-law and P.W.5 was her mother-in-law who were beaten by Raj Bali Bind. In the meanwhile, Rampravesh and Santosh came there and had beaten her father-in-law and on protest by her and her mother-in-law Raj Bali Bind assaulted both of them. Santosh arrived with an Iron rod and assaulted Shiv Pati Bind on his head due to which blood started oozing out and at the time of assault Prem, Uday and Akhilesh were present. In her cross examination she admitted that her father-in-law was the contractor and dealing labourers of Chimney Bhatta. She further admitted that the counter case was also filed by the accused person with regard to the same occurrence. 8. In her cross examination she admitted that her father-in-law was the contractor and dealing labourers of Chimney Bhatta. She further admitted that the counter case was also filed by the accused person with regard to the same occurrence. 8. P.W.3 Akhilesh Kumar Bind echoed the version of P.W. 1&2.He admitted that the informant and the accused persons were his uncle and he along with Prem and Uday and others were present at the place of occurrence. He also admitted that there was a proceeding under section 107 Cr.P.C. was pending with the family of the accused persons but they denied the false implications. 9. P.W.4 Ram Nath Ram @ Ram Nath Chadravanshi was a hearsay witness and he only saw that the P.W.6 was lying on the ground and there was injury on his head and on the left hand. He heard that accused-appellants had assaulted the victims. 10. P.W.5 Sumitra Devi was the injured victim and in her examination-in-chief she has stated the same fact as narrated by P.W. 1 and submitted that her husband P.W.6 asked Karmu Bhuian to refund Rs. 800/- on which Karmu replied to return the same but in the meanwhile Raj Bali Bind arrived and forcibly started taking Karmu to his house and when the P.W.6 asked not to do so, Raj Bali Bind assaulted P.W. 6 Shivpati Bind by lathi on his head, arms & wrists. Thereafter, Santosh Bind came with Iron rod and assaulted on his head and Ramparvesh Bind another son of Raj Bali Bind assaulted P.W. 6 and when she tried to save him, she was also beaten by them with fists, slaps and legs. After that she and her husband were taken to hospital where they were treated. In cross examination she stated that Bacchan Bind was his Sasur (Father-in-law) and he had two wives and Sita Ram Bind was his bhaisur (elder brother-in-law) with whom she had good relationship. His father-in-law had distributed the properties between his four sons, but, she was not known about the documents prepared with regard to the same or not. She stated that the next day her statement was recorded because she was unconscious on the day of incident. 11. His father-in-law had distributed the properties between his four sons, but, she was not known about the documents prepared with regard to the same or not. She stated that the next day her statement was recorded because she was unconscious on the day of incident. 11. P.W. 6, Shivpati Bind was the informant himself and has fully supported his own statement given in the fardbeyan during examination in chief that Raj Bali Bind had hit him on his head and left arm by lathi. His son Santosh assaulted him with iron rod on his head and Rampravesh hit him by lathi on his back. He also stated that Raj Bali Bind assaulted his wife P.W. 5 - Sumitri Devi by fists and legs. Due to which she became unconscious where Narad, Akhilesh, Prem and subsequently Ram Nath assembled and the accused fled away. He was in conscious position all the time. He stated in his examination in chief that there is no dispute between them about any property. 12. P.W. 7 and P.W. 10 was Advocate clerk Tapeshwar Singh who proved the fardbeyan and formal FIR marked as Ext. 2. and endorsement of Murlidhar Pandey, ASI on FIR which has been marked as Ext. 3. He also identified the signatures of Officer-in- Charge of Garhwa Police Station at two places which have been marked as Ext.1/2. 13. P.W. 8 Dr. R.N.S. Diwakar, the doctor who had examined the Shiv Pati Bind on 29.10.2001 at 7.15 pm and found the following injuries on the person: Cr. Appeal (SJ) No. 1379 of 2003 (i) Lacerated wound 3x1/3xbone deep, 2 1/2x1 1/3x bone deep , 1 apart of occipital region. (ii) Lacerated wound 2x1/3x1/4 on left side of the fore head. (iii) Red bruise 3x1 on upper part of the left forearm. (iv) Swelling with tenderness on left wrist and for arm. (v) Red bruise 4x1, 3x1, 3x1 on back. Age of injury within six hours. Weapon used hard and blunt substance like Iron rod and lathi. Nature of the injuries were simple. He identified his handwriting and signature on the injury report and the same has been marked as Ext. 4. On the same day at 7.45 pm he also examined Sumitri Devi and found no external injury. She was treated symptomatically for pain and panting. Her injury report was written in his pen and signature is marked as Ext. 4/1. He identified his handwriting and signature on the injury report and the same has been marked as Ext. 4. On the same day at 7.45 pm he also examined Sumitri Devi and found no external injury. She was treated symptomatically for pain and panting. Her injury report was written in his pen and signature is marked as Ext. 4/1. In the cross examination he said that all the injuries were simple in nature and cannot cause death. 14. P.W. 9 Uday Bind in his examination-in-chief reiterated the same thing as by other witnesses. He identified all the accused persons. He had denied of taking loan from the accused appellant or pendency of any criminal case between themselves. 15. P.W. 11 Murlidhar Pandey was the I.O. who investigated the case and submitted the charge sheet. He narrated about the sign of assault after visiting the place of occurrence. He investigated the case and submitted the charge sheet in the counter case filed with regard to the cause of action of present case marked as Ext. A in Grahwa P.S. Case no. 188 of 2001 lodged by Santosh Bind one of the accused appellant no.2 against Narad Bind, Sumitri Devi, Rekha Devi and Shivpati Bind-(informant) of this case. He also stated that the cause of the occurrence was that there was a land dispute pending between the parties. And the injury report of Santosh Bind has been proved by D.W. 1 and has been marked as Exhibit- B and the doctor has found the following injuries on the person: (i) Lacerated wound 1x1/4x1/4 on vault of skull. (ii) Complain of paint in the lower portion of right forearm. (iii) Complain of pain in the back. It has further been stated that the age of the injures within six hours and the weapons used were hard and blunt substance and nature of injury was simple. 16. On the other hand, from the defense side one witness has been examined as D.W. 1 Nand Kishore Pandey. From the perusal of the deposition of D.W. 1 it appears that the accused appellant wanted to defend themselves by stating that there had been a case and counter case and there was a free fight between the parties and certified copy of the FIR instituted by the appellant no. 2 Santosh Bind vide Garhwa P.S. Case no. From the perusal of the deposition of D.W. 1 it appears that the accused appellant wanted to defend themselves by stating that there had been a case and counter case and there was a free fight between the parties and certified copy of the FIR instituted by the appellant no. 2 Santosh Bind vide Garhwa P.S. Case no. 188 of 2001 dated 29.10.01 for the offences punishable u/s 341, 323, 34 IPC and the certified copy of the same vide Ext. has been brought on record. From the perusal of the FIR it is found that the informant of this case is the appellant no. 2 Santosh Bind and accused persons were named as Narad Bind- P.W.1, Sumitra Devi- P.W.5, Rekha Devi- P.W. 2 and Shivpati Bind-P.W. 6 and further the injury report of the accused appellant no. 2 Santosh Bind vide Ext. B has been brought on record as proved by I.O. of this case From the perusal of the Ext. B it appears that injuries found upon the accused appellant no. 2 Santosh Bind were simple in nature and caused by hard and blunt substance. 17. Recapitulating the aforesaid appraisal of the evidences adduced on behalf of both the parties, it appears that it is the case of the prosecution that the informant Shivpati Bind P.W. 6 was holding conversation with one Karmu Bhuiyan for the repayment of his dues amount of Rs.800.00, upon which the appellant no. 1 Raj Bali Bind had interfered and supported the said Karmu Bhuiyan and started taking away the said Karmu Bhuiyan to his house, upon which a quarrel between the informant Shivpati Bind and the appellant no.1 Raj Bali Bind had taken place. Thereafter, Raj Bali Bind (the appellant no. 1) and his sons appellant no. 2 Santosh Bind and one Ram Pravesh Bind came holding lathi and iron rod in their hands and started assaulting the informant Shivpati Bind P.W. 6 and his wife P.W.5 Sumitri Devi by which both of them got injured. Thereafter the son of the informant Narad Bind P.W. 1 took them to the hospital where they had gone under treatment. 18. P.W. 1 Narad Bind had supported the case of the prosecution and stated that at the place of occurrence he was giving tuition to the students and thus he is stated to be the eye witness of the occurrence. 18. P.W. 1 Narad Bind had supported the case of the prosecution and stated that at the place of occurrence he was giving tuition to the students and thus he is stated to be the eye witness of the occurrence. He also stated that appellant no. 1 Raj Bali Bind had assaulted his father Shivpati Bind, P.W. 6 on his head by lathi and the appellant no. 2 Santosh Bind had assaulted by fists, slaps and legs and thus the injuries were inflicted by both the appellants upon the injured P.W. 6 Shiv Pati Bind and P.W. 5 Sumitri Devi. Another witness examined P.W. 2 Rekha Devi who was also said to be present at the place of occurrence and she had come to save the injured Shivpati Bind P.W. 6 upon which she was assaulted by the appellants Raj Bali Bind and Santosh Bind and in the cross examination also she supported the case of the prosecution about the assault by these two appellants upon which P.W. 5 Sumitri Devi and .P.W. 6 Shiv Pati Bind got injured and they specifically stated that she used lathi and iron rod for assaulting the injured P.W. 5 and P.W. 6. whereas Sumitra Devi was assaulted by fists and slaps P.W. 3. Akhilesh Kumar Bind who is also said to be present near the place of occurrence and supported the case of the prosecution by stating that the appellant no. 1 Rajbali Bind with iron rod and appellant no. 2- Santosh Bind with lathi had assaulted P.W. 6 Shiv Pati Bind and thereafter Santosh Bind assaulted Sumitri Devi with fists and slaps. It has been admitted by this witness that there had been some litigation pending between the parties, but the same does not affect case of the prosecution. 19. Another witness P.W. 4 Ram Nath Ram @ Ram Nath Chandravanshi had also supported the case of the prosecution and he had seen the P.W. 6 lying on the ground and also saw the injuries on his head and left hand although he is a hearsay witness. P.W. 4 has been declared hostile and his statement has supported the case of the prosecution that he had seen the injured P.W. 6 lying on the ground. P.W. 5 Sumitri Devi being the wife of the informant P.W. 6 Shivpati Bind, was assaulted by the appellants and became unconscious. P.W. 4 has been declared hostile and his statement has supported the case of the prosecution that he had seen the injured P.W. 6 lying on the ground. P.W. 5 Sumitri Devi being the wife of the informant P.W. 6 Shivpati Bind, was assaulted by the appellants and became unconscious. P.W.5 Sumitri Devi stated that her husband and she had taken to the hospital where they had gone under treatment. She had admitted in her cross examination that both the parties were relative to each other and there was a land dispute between the parties though despite stating these facts, she stated in conformity with the case of the prosecution by which the accused persons had quarreled with the informant and had assaulted which is categorically supported by the injured eye witness P.W. 6 Shivpati Bind who is the informant of this case also. He said in his examination-in-chief very candidly that the appellant no. 1 had also assaulted on his head with lathi and Santosh Bind assaulted him from the back of his head with an iron rod and he also stated that P.W. 5 Sumitri Devi was also assaulted by those accused appellants and she became unconscious. Nothing significant material has bring on record to convert or disbelief the version of this witness. Testimonies of these witnesses established the facts that there had a quarrel between the informant and the accused appellants by which the appellant no.1 namely Raj Bali Bind had assaulted the P.W. 6 Shivpati Bind by lathi and appellant no.2 Santosh Bind assaulted by iron rod by which he sustained injuries. P.W. 5 was also assaulted by fists and slaps by which she became unconscious and, thus, the version have been fully supported by the depositions of P.W. 8 Dr. R.N.S. Diwakar, who had examined the victim injured P.W. 6 Shiv Pati Bind and also P.W. 5 Sumitri Devi (injured wife of the informant) and injuries discussed above have been found on the person. He had also proved injury reports which is marked as Ext. 4 and 4/1 and P.W. 9 Uday Bind was a hearsay witness and he had come to know about the occurrence on hulla and he had gone to the place of occurrence and saw Shiv Pati Bind and Sumitri Devi were lying on the ground. He had also proved injury reports which is marked as Ext. 4 and 4/1 and P.W. 9 Uday Bind was a hearsay witness and he had come to know about the occurrence on hulla and he had gone to the place of occurrence and saw Shiv Pati Bind and Sumitri Devi were lying on the ground. He had also seen the co-accused persons Raj Bali Bind and Santosh Bind were holding lathi and rod in their hand and thus supported the case of the prosecution that the Santosh Bind had used the iron rod and appellant used lathi in assaulting the P.W. 6 and apart from this they assaulted with fists and slaps to the wife of the informant Sumitri Devi who had become unconscious. 20. P.W. 11 is the I.O. of this case. He has narrated the entire processes of investigation under which the statements of the witnesses were recorded and other aspects of the investigation was conducted, he had also identified the fardbeyan and Formal FIR. The defence had drawn the attention of this I.O. about the counter case which is said to have been instituted by the accused people against the informant. This witness has stated about the description of the place of occurrence and no material contradictions have come out to disbelief the version of prosecution. 21. In the backdrop of the evidence adduced on behalf of the both the parties during the course of the trial, it is well founded that the Learned trial court has rightly appreciated the evidences and arrived at the crystalized finding correctly and flawlessly under which the accused appellant no. 2 Santosh Bind have been found guilty for the offence punishable under section 324 of IPC and is convicted for the offence punishable u/s 324 IPC and appellant no. 1 has been found guilty for the offence punishable under section 323 IPC and convicted therein, therefore in view of the above elaborated discussions in the foregoing paragraphs, this Court does not find any material to interfere in the impugned judgment of conviction. 22. On the point of sentence, it is found that it is the case of the year 2001 and these appellants are suffering trauma and misery for a long time of period and the accused appellant no. 1 Raj Bali Bind is about 70 years old and appellant No. 2 Santosh Bind has now become 45 years old. 22. On the point of sentence, it is found that it is the case of the year 2001 and these appellants are suffering trauma and misery for a long time of period and the accused appellant no. 1 Raj Bali Bind is about 70 years old and appellant No. 2 Santosh Bind has now become 45 years old. There is nothing on the record to reveal their criminal antecedents. There is a case and counter case. There is a dispute regarding landed properties. Therefore, no useful purpose would be served to award sentence of imprisonment in view of above facts and it is found just and fair in awarding sentence of fine by way of compensation only and not sentence of imprisonment under aforesaid facts and circumstances of the case. 23. Accordingly, this Court sets aside the sentence of imprisonment imposed by the learned trial court and instead, this Court imposes only sentence of fine by way of compensation to be paid collectively by both the appellants to a sum of Rs. 10,000/-(Rupees ten thousand only) in their respective counts in a composite manner in order to give it to the victim P.W.6 Shiv Pati Bind. In this way after upholding the conviction of the appellants Nos. 1 & 2 for the offence punishable U/ss 323 and 324 of IPC respectively, this Court imposed only sentence of fine collectively to both the appellants to a sum of Rs. 10,000/- (Rupees ten thousand only) by way of compensation to be paid to P.W.6. Shivpati Bind (informant-injured). 24. Since both the appellants are on bail and therefore they are directed to pay the fine of Rs. 10,000/-(Rupees ten thousand only) by way of compensation imposed by this Court within a period of 03(Three) months from today, failing which they are sentenced to undergo imprisonment for a period of 06 (six) months. The learned Trail court shall take all necessary steps to ensure that the appellants serve the sentence of imprisonment in case of default of fine in due course of time. 25. The concerned trial court is further directed to ensure that if the amount of fine of Rs. The learned Trail court shall take all necessary steps to ensure that the appellants serve the sentence of imprisonment in case of default of fine in due course of time. 25. The concerned trial court is further directed to ensure that if the amount of fine of Rs. 10,000/- (Rupees ten thousand only) is paid by the appellants, the same shall be paid to the victim P.W. 6 Shiv Pati Bind by sending proper notice to P.W.6 and by securing his attendance and in case he could not appear by any reason, the amount of Rs.10,000.00 (Rupees ten thousand only) so paid shall be given to any one of his closest kith and kin within one month from the date of deposit of said fine by appellants. 26. Accordingly, this appeal is dismissed with modification in the order of sentence as above. 27. Let the LCR be sent back to the concerned court with a copy of this judgment for its compliance.