JUDGMENT : 1. This appeal has been preferred against the judgment of conviction and order of sentence dated 22.07.2003 passed by the Additional District & Sessions Judge, Fast Track Court No. IVth Bokaro in S.T. No. 206 of 1997 and T.R. No. 118 of 2002 by which the appellants have been convicted u/s 148, 307/149 of IPC and they have been sentenced to undergo Rigorous Imprisonments for one year under section 148 of IPC and R.I. for 5 years under sections 307/149 of IPC. All the sentences were directed to run concurrently. 2. The case of the prosecution as disclosed in the written report dated 13.11.1996 by the informant Sukhdeo Gope @ Jangli Gope (P.W. 6) is as under: There was an altercation between Nandlal Gope (brother of the informant Sukhdeo Gope @ Jangli Gope) and Fatick Gope on the occasion of Diwali with respect to “Karakhutta” function. The hot talk got aggravated and on call of the accused appellant Fatick Gope co-accused persons namely Arun Gope, Ganesh Gope (Appellant no. 3), Mani Gope (Appellant no. 2), Sudhir Gope and Bhim Lal Gope (Appellant no. 4) came with deadly weapons such as Tangi, Farsha and Lathi and surrounded Nand Lal Gope. Mani Gope and Sudhir Gope assaulted Nand Lal Gope with Farsha and Tangi and Bhim Lal Gope assaulted him with Lathi. Nand Lal Gope received injuries. Informant Shukh Deo Gope was also assaulted by Fatick Gope with Tangi when he tried to pacify the matter. Informant received injury in his left cheek. Arun Gope and Ganesh Gope inflicted lathi blow on his back and arm. The villagers came on hullah and intervened. The occurrence took place at about 5 p.m. in front of the informant‘s house. 3. On the basis of the written report Chas (M) P.S. Case No. 63/1996 dated 13.11.1996 u/sec. 147/148/323/324/307 of IPC was registered against Fatick Gope, Mani Gope, Arun Gope, Ganesh Gope, Sudhir Gope and Bhim Lal Gope and investigation was started. After completion of the investigation charge sheet was submitted against Mani Gope, Arun Gope, Sudhir Gope, Ganesh Gope, Fatcik Gope and Bhim Lal Gope under Sections 147/148/323/324/325/326/307 of IPC. Accordingly, cognizance was taken by the learned J.M. Ist Class Bokaro. After commitment of the case, the charges were framed for the offences punishable u/s 148, 307, 149 of IPC against six accused persons on 06.08.1999 and trial of the case commenced. Accordingly, cognizance was taken by the learned J.M. Ist Class Bokaro. After commitment of the case, the charges were framed for the offences punishable u/s 148, 307, 149 of IPC against six accused persons on 06.08.1999 and trial of the case commenced. After conclusion of the trial, the impugned judgment of conviction and order of sentence was passed in which all the appellants were found guilty for the offence punishable u/s 148, 307/ 149 of IPC and accordingly, the sentence was passed, which is under challenge in this appeal. 4. Heard Mr. G.P. Roy, learned counsel for the appellants and Mr. P.K. Appu, learned A.P.P. for the State. Arguments on behalf of the appellants:- 5. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellants submitted that the appellants are innocent and there was a counter case instituted by the Fatick Gope (appellant no. 1) against the informant P.W.6-Sukhdeo Gope and P.W. 3 Nandlal Gope bearing Chas (M) P.S. Case No. 64 of 1996 and in fact the informant P.W.6 Sukhdeo Gope and his brother P.W. 3 Nand Lal Gope had received the injuries from the ox which were involved in Karakhutta function on the occasion of Deepawali and the witnesses examined on behalf of the prosecution failed to prove the case and the appellants were entitled for acquittal. 6. It has also been pointed out by the learned defence counsel appearing on behalf of the appellants that there are large number of contradictions which have been pointed out during the course of the trial before the learned court below, but, the same has not been considered by the concerned court below and, therefore, the impugned judgment of conviction and order of sentence is non-application of judicial mind and fit to be set aside. 7. Further, it has been pointed out that the most important witness under the circumstance of the case is the Doctor to hold the guilt of the appellants, but, the doctor has not been examined in the court and, therefore, the nature, manner and intensity of the injury could not be appreciated and, therefore, conviction and sentence for the offence punishable u/s 307 with the aid of section 149 of IPC is bad in law. 8. 8. Further, it has been pointed out that the I.O. in this case has also not been examined and the witnesses who have been examined on behalf of the prosecution are interested witnesses and, therefore, the conviction cannot be relied upon the deposition of the interested witnesses in absence of the examination of the I.O. and the doctor for the offence punishable u/s 307 of IPC, particularly when there are contradictions and inconsistencies in the earlier statements of the witnesses examined on behalf of the prosecution. Arguments on behalf of the State:- 9. Learned A.P.P. submitted that the non-examination of the I.O. did not cause prejudice to the defence and the learned trial court has rightly appreciated the evidence and it has also been pointed out that there was repeated blows as evident from the injury report which is marked as Exts. 2 & 3 of both the injured persons P.W. 3 Nand Lal Gope and P.W. 6 Sukhdeo Lal Gope by which it can be easily inferred that there had been intention to kill them and the learned trial court has rightly found the guilt of the accused appellant for the offence punishable u/ss 148, 307/149 of IPC as neither any irregularity nor any illegality has been found in the impugned judgment of conviction and order of sentence. It has further been contended on behalf of the prosecution that there are several eye witnesses who have been examined as P.W. 1 Indar Gope, P.W. 2 Jitu Gope, P.W. 4 Laxman Gope, P.W. 5 Smt. Liliya Devi (wife of the informant) P.W. 7 Kamli Devi who had fully corroborated and supported the versions of injured persons P.W. 3 Nand Lal Gope and P.W. 6 Sukhdeo Gope and the learned trial court has rightly found the consistency and uniformity in their depositions and, therefore, there is no legal point to interfere in the impugned judgment of the conviction and order of sentence. Appraisal and Findings 10. Having heard the learned counsels for the parties, perused the materials available on the record. 11. Appraisal and Findings 10. Having heard the learned counsels for the parties, perused the materials available on the record. 11. The case of the prosecution is that on the occasion of Deepawali a game called Karakhutta was going in the village where the fighting between the oxen took place as a game and during the course of the said game a quarrel took place between the Nand Lal Gope, P.W. 3, (who is the brother of the informant Sukhdeo Gope, P.W. 6) and the co-villager Fatick Gope (appellant no. 1) and thereafter, it is alleged that on the call of the Fatick Gope several accused persons reached there holding different weapons including tangi, farsha, in their hand and a mar-pit (beating) took place between the parties. The informant P.W. 6 Sukhdeo Gope and his brother P.W. 3 Nand Lal Gope got injured. It is also admitted case of the prosecution that there is a case and counter case between the parties. 12. The informant P.W. 6 Sukhdeo Gope @ Jangli Gope examined on behalf of the prosecution stated that a quarrel took place between P.W. 3 Nand Lal Gope and appellant no. 1 Fatick Gope and thereafter on the call of Fatick Gope several accused persons came and assaulted him and his brother Nand Lal Gope by which both of them got injured. There is a specific allegation of assault in the deposition of this witness P.W. 6 by the appellant Fatick Gope who assaulted with tabli causing injury in the right hand of the informant P.W. 6, Mani Gope had inflicted farsa blow upon the Nand Lal Gope and he received injury in his left palm and middle finger. Arun Gope, since the deceased appellant, had inflicted balua blow on the right arm of informant P.W. 6. Another appellant Bhimlal Gope had assaulted with Lathi on his (Informant) brother Nand Lal Gope. There is no specific averment of assault made by Ganesh Gope by this witness although this witnesses had spoken that Ganesh Gope had accompanied the other accused persons. This witness has proved his signature on the fardbeyan which is marked as Ext. 1. This witnesses has accepted that a counter case lodged against them was also pending for the same occurrence. The version of this witnesses has been corroborated by another injured person P.W. 3 Nand Lal Gope, who is the brother of the informant, P.W. 6. This witness has proved his signature on the fardbeyan which is marked as Ext. 1. This witnesses has accepted that a counter case lodged against them was also pending for the same occurrence. The version of this witnesses has been corroborated by another injured person P.W. 3 Nand Lal Gope, who is the brother of the informant, P.W. 6. This witness (P.W.3) has stated that his ox had sustained bleeding injury during the game of Karakhutta and he had requested the appellant Fatick Gope to dis-continue the game with his ox and thereafter a hot talk aggravated between them over the matter and the appellant no. 1 Fatick Gope rushed to his house and raised alarm that he was assaulted by Nandlal Gope and then all the accused persons came with farsa, tangi and lathi in their hand. He further stated that Mani Gope inflicted farsa blow on him (P.W. 3 Nand Lal Gope) and he received injury in the middle finger of his left hand and he also got injured his arm and back portion of his neck. One Sudhir Gope had inflicted Tangi Blow and the deceased appellant Arun Gope inflicted balua blow upon him. He further stated that the appellant no. 1 Fatick Gope had inflicted by tabli causing injury in his hand and he further stated that he raised hulla and his brother Sukhdeo Gope reached there and he (his brother Sukhdeo Gope P.W.6) was also assaulted by the appellant no. 1 Fatick Gope. He had stated that he was senseless after being assaulted by the accused and he regained his sense in the hospital after 3 to 4 days. From the version of these two injured persons P.W. 3 Nand Lal Gope and P.W. 6 Sudkhdeo Gope it is found that there had been a mar-pit between both the parties and there was a case and counter case and the dispute had arisen because of game of fighting of oxen between both the parties where the ox of the informant side belonging to the P.W. 3 was injured and, therefore, the dispute arose and free marpit took place between both the parties under which the P.W. 3 and P.W. 6 were injured. The version of P.W. 3 and P.W. 6 have been supported by P.W. 1 Indar Gope and P.W. 2 Jitu Gope. The version of P.W. 3 and P.W. 6 have been supported by P.W. 1 Indar Gope and P.W. 2 Jitu Gope. Although minor discrepancies have been found in their deposition where P.W.2 Jitu Gope stated that Mani Lal had inflicted injury by talwar whereas there was no whisper of the use of talwar by the injured eye witnesses P.W. 3 and P.W. 6 as both of them had consistently and uniformly stated that the appellants had inflicted the injury either by farsa or tangi or tabali or balua, lathi. P.W. 4 Laxman Gope had also supported the case of the prosecution to the extent by stating that the game of ox (Karakhutta) was going on his village when some altercation took place between Nandlal and Fatik, then the appellants including Fatick Gope, Mani Gope, Ganesh Gope, Bhim Lal Gope had assaulted the injured persons P.W. 3 and P.W. 6. Similarly P.W. 5 Smt. Liliya Devi stated that scuffle took place due to Karakhutta (Game of ox) between Nandlal and Fatick for untying the ox and thereafter quarrel took place by which Nandlal was assaulted, although she did not state specifically about the assault on the informant Sukhdeo Gope, but, this witness P.W.5 stated that the both of them were admitted in the hospital. P.W.7 Kamali Devi stated that some altercation took place between Nandlal and Fatick in the game of said Karakhutta and thereafter the appellants had assaulted Nandlal and Sukhdeo. P.W.1 Inder Gope clearly stated that a quarrel took place between Fatick and Nandlal in the game of Karakhutta and thereafter appellants assaulted Nandlal Gope and Sukhdeo Gope. Thus it is found that P.W.1 Inder Gope, P.W.2 Jitu Gope, P.W. 4 Laxman Gope, P.W. 5 Liliya Devi, P.W. 7 Kamli Devi supported the assault by the appellants upon injured P.W. 3 and P.W. 6 and there are some minor discrepancies with respect to the weapons used in the commission of the alleged offence. It is found from the analysis of the testimonies of these witnesses in foregoing paragraphs in a holistic manner, it is found that two persons were injured P.W. 3 and P.W. 6 which appears from their injury reports which have been proved and marked as Ext. 2 and Ext. 3. The Doctor Ratan Kejriwal has been examined as P.W.8 and he has stated that he had examined the injured Mr. 2 and Ext. 3. The Doctor Ratan Kejriwal has been examined as P.W.8 and he has stated that he had examined the injured Mr. Nand Lal Gope on 13.11.1996 at 7.15 and found the following injuries on his person : (i) Incised wound emasculation of extenser side mid of the right arm up to poriostium. (ii) Incised wound and emasculation or extenser side of mid area of right forearm up to poriostion. (iii) Incised wound on the middle 1/3rd of left arm. (iv) Fracture and incison of the ligament muscle of the right middle finger. (v) Incised wound over left shoulder 2.5 c.m. deep and 10 c.m. long incising the hand of the humurus up to poriostium. (vi) Incised wound on the left chick 4 c.m. x 0.7 c.m. It is found from the deposition of P.W. 8 that the cause of injury was sharp cutting instrument and (i), (ii), (iii), (iv) and (iv) are grievous in nature and injury no. (vi) was simple. He has proved the injury report of the injured Nand Lal Gope which has been marked as Ext. 2. 13. This witness further stated that he had examined another injured P.W. 6 – Sukhdev Gope and fond the following injuries: (i) Incised wound 18 c.m.x 0.6 c.m. from lower side of left eye to manubrium sternae (ii) Bruise on the left shoulder. Age of injuries: within six hours. Injury no. (i) was caused by sharp instrument which is grievous in nature while the injury no. (ii) by blunt object and simple in nature, and he had proved the injury report of this witness and marked as Ext. 3. From the injury reports vide Ext.2 & Ext.3 it is founded that both the persons namely P.W. 3 and P.W. 6 had sustained the injuries including grievous injuries as well simple injuries. The defence taken on behalf of the appellant that the doctor P.W. 8 Dr. Ratan Kejriwal was not a Government doctor and, therefore, the veracity and truthfulness of this doctor is doubtful. It is also found from his deposition in the cross-examination that the learned trial court has noted at the end of the cross-examination below para (5) “To be continued”, indicating that the examination of the doctor is not complete as this witness was not recalled to complete the examination. It is also found from his deposition in the cross-examination that the learned trial court has noted at the end of the cross-examination below para (5) “To be continued”, indicating that the examination of the doctor is not complete as this witness was not recalled to complete the examination. Nevertheless in the cross examination conducted on behalf of the defense neither any irregularity nor any illegality appeared in the depositions of this witness related to the medical examination of the injured persons, the medical treatment of the injured people and the injury reports prepared by this witness and therefore, the defence of the appellants that the doctor examined in this case is not the Govt. Doctor is not ipso-facto a ground to discard his convincing testimonies and it is a baseless defence in the light of the consistent testimonies of the injured persons including informant P.W. 6 Sukhdeo Gope and his brother P.W. 3 Nand Lal Gope apart from the witnesses including P.W.1 Inder Gope, P.W.2 Jitu Gope, P.W. 4 Laxman Gope, P.W. 5 Liliya Devi, P.W. 7 Kamli Devi. Further, this Court does not find any force in the contentions raised on behalf of the appellants in view of the categorical depositions of doctor P.W. 8 in a very pointedly and specific manner and in unequivocal words. 14. P.W. 9 - Tapeshwar Paswan is a police official examined on behalf of the prosecution is said to be the I.O. of this case stated in para 1 of his examination in chief that officer In charge Ranjit Singh had entrusted him the investigation of this case and, therefore, the plea taken on behalf of the appellants that he was not the I.O. of this case is non-existent. However, it is found that this witness in fact did not investigate the entire case and recorded the statement of the witnesses during the course of investigation, but, after the transfer of his predecessor who had investigated the case, he took the charge as I.O. of this case and submitted the charge sheet against the accused-appellants. This witness has proved the formal FIR which has been marked as Ext. 4. This witness has proved the formal FIR which has been marked as Ext. 4. He had honestly stated that he did not record the deposition of the witnesses u/s 161 of Cr.P.C. and since the defence did not ask from this witnesses about the earlier statement of witnesses and therefore their plea of defence that non examination of the I.O. has caused prejudice to the case of the defence is not tenable in the eyes of law. 15. Another defence taken on behalf of the appellants that that the injured persons Nanad Lal Gope and Sukhdeo Gope had received injuries caused by the attack of the ox where admittedly the game of Ox-Fighting (Karakhutta) was going on and not by the assault of these appellants and in support of their defence, the defence had examined two witnesses namely D.W. 1 Jagarnath Gope and D.W. 2 Mantu Gope. D.W. 1 Jagarnath Gope deposed that on the date of occurrence 13.11.1996 the villagers were witnessing the Karakhutta festival on the occasion of Deepawali and the ox of informant’s brother P.W. 3 had received injury on the nose during the said game and thereafter there was a dispute arose between the appellant no. 1-Fatick Gope and P.W. 3 Nandlal Gope with regard to the continuation of the Karakhutta game (fighting of game) with the injured ox of P.W.3 Nandlal Gope. This witness has further stated that the informant Sukhdev Gope @ Jangli Gope had set free his injured ox by which Fatick Gope received injury along with Nandlal Gope P.W. 3 and Sukhdeo Gope P.W. 6 and there was no such mar-pit (Quarrel) between the parties. 16. Further, D.W. 2 Mantu Gope had also stated that both P.W. 6 Sukhdev Gope and P.W. 3 Nand Lal Gope had received injury by the ox and they were never assaulted by the accused appellants. 17. Recapitulating, the aforesaid testimonies of the witnesses and the evidences adduced on behalf of both the parties it is well founded that it is an admitted case of the prosecution that on the occasion of deepawali festival a local game namely Karakhutta game (fighting between the ox) was going on in which the ox of P.W.3 Nandlal Gope was injured and a dispute arose for continuation of the game. Further, it is an admitted case of the prosecution that due to the said dispute in the game a marpit had taken place between both the parties and a case and counter case was instituted. But, the fact remained to be taken into consideration that both the injured P.W. 3 and P.W. 6 have consistently and uniformly deposed that the injury has been inflicted upon them by the assault of the appellants supported by the witnesses P.W.1 Inder Gope, P.W.2 Jitu Gope., P.W. 4 Laxman Gope, P.W. 5 Liliya Devi, P.W. 7 Kamli Devi in a coherent manner. 18. But, taking into consideration that both the parties were covillagers and playing the game between them and also taking into consideration the nature of the injury, it is not a case of intention and knowledge within the meaning of section 307 of IPC in order to attract the guilt of the accused persons for the offence committing attempt to murder of P.W. 3 and P.W. 6. It is admitted case of the prosecution that the dispute arose in playing the game of Karakhutta and thereafter marpit took place and co-villagers intervened and the matter was pacified and resolved and, therefore, the offence to commit the murder is not sustainable in the light of the deposition of the witnesses as appraised in the foregoing paragraphs. Neither any weapon has been seized nor has it been brought on record in order to corroborate the case of the prosecution that tangi, farsa, and lathi were used in the commission of the offence. 19. Learned trial court has committed gross error in the appreciation of the evidence in totality and in a holistic manner and wrongly held the guilt of the accused appellants for the offence punishable u/s 307 of IPC. From the testimonies of the defense witnesses and taking all the facts of this case together, this Court does not find any act or intention or knowledge on the part of the appellants to hold the guilt of the accused-appellants for the offence punishable under section 307 of IPC and therefore, this Court finds that it is a case of the offence for causing injury by dangerous weapons including lathi, farsa, balua, dabli for the offence punishable under section 326 of IPC. 20. In the result, this Court alters the conviction of the accused appellants from the offence punishable u/ss. 20. In the result, this Court alters the conviction of the accused appellants from the offence punishable u/ss. 148, 307/149 of IPC to Sections 326 /149 of IPC and thus, the impugned judgment of conviction and order of sentence passed against the appellants namely Fatick Gope, Mani Gope, Ganesh Gope and Bhim Lal Gope for the offences punishable u/ss. 148, 307/149 of IPC are set aside and all the accused appellants are convicted for the offence punishable u/ss. 326 /149 of IPC. 21. Learned counsel for the appellants submitted that taking into consideration the mitigating factors that it is a very old case of the year 1996 and the appellants have been suffering with the trauma and agony of the criminal proceeding for a long period of time, therefore, a lenient view may be taken in awarding the sentence for the offence punishable u/s. 326 / 149 of IPC. It has also been pointed out that the appellant no. 1 Fatick Gope is now 55 years old, Manik Gope is now 60 years old, Ganesh Gope is 45 years old and Bhimlal Gope is about 80 years old and there is nothing on the record to show about their criminal history and all of them had remained in jail in the past in this case and, therefore, the sentence may be awarded accordingly. 22. Having taken into consideration the aforesaid submissions, it is found that all the appellants had already remained in jail for a considerable period during the course of pending this criminal case against them and, therefore, all the appellants are sentenced to imprisonment for a term of the period which is already undergone by the appellants. Further, it is also found just and fair to award sentence of fine by way of compensation to a sum of Rs.10,000/- (Rupees ten Thousand) collectively and jointly for the offence punishable u/ss 326 /149 of IPC by all the appellants in a composite manner in order to give Rs.5000/- (Rupees Five Thousand Only) to each of the injured persons namely the informant P.W. 6 - Sukhdev Gope and P.W. 3 Nandlal Gope. 23. 23. Accordingly, all the appellants are directed to deposit the said fine by way of compensation to a sum of Rs.10,000/- (Rupees ten Thousand only) collectively and jointly in a composite manner in order to give Rs.5000/- (Rupees Five Thousand Only) to each of the injured persons namely the informant P.W. 6 - Sukhdev Gope and P.W. 3 Nandlal Gope. 24. Since all the appellants are on bail, they are directed to pay the fine amount so awarded by this Court by way of compensation within three months from today and in default of payment of fine so awarded each of the appellants shall undergo Simple Imprisonment for a period of one year. 25. If the sentence of fine by way of compensation so awarded as above is deposited by the appellants within the stipulated period of time in the Govt. Exchequer through the Nazarat Civil Court, Bokaro, i.e. within three months from the date of the judgment, the learned court below shall ensure the disbursement of the said fine amount in the manner as directed above to each of the injured persons namely the informant P.W. 6 - Sukhdev Gope and P.W. 3 Nandlal Gope gets Rs. 5,000/- (Rupees five thousand only). 26. It is also directed to the learned Trial Court that if the said amount of fine so awarded, is not deposited within the stipulated period of time, the learned court below shall take all necessary steps as per the provisions of law to ensure that each of the appellants serves the sentence for one year S.I. in case of default of payment of fine. The moment the fine amount so awarded is deposited by the appellants, they shall be set free if they are in jail in case of default of payment fine. 27. Since all the appellants are on bail they shall be discharged from the liabilities of their bail bonds accordingly. 28. Let the LCR be sent back to the concerned court with a copy of this judgment for its compliance and needful.