JUDGMENT : 1. These appeals are directed against the impugned judgment of conviction and order of sentence dated 02.04.2005 passed by the court of learned Additional Sessions Judge, F.T.C. II, Garhwa in S.T. Case No. 548 of 1993 whereby and where under the appellants were convicted and sentenced as under— S.N. ACCUSED/APPELLANTS HELD GUILTY (U/SS.) SENTENCE AMOUNT OF FINE 1 Anil Kumar Gupta (Appellant in Cr. App.(SJ) 495 Of 2005) 323 of IPC RI for 6 months 2 Ashok Kumar Gupta (Appellant in Cr. App. (SJ) 420 of 2005) 307 of IPC RI for 5 years And a fine of Rs. 2000/- and in default of payment fine simple imprisonment for 2 months 324 of IPC RI for 2 years 3 Pramod Kumar Gupta (Appellant in Cr. App. (SJ) 420 of 2005) 307 of IPC RI for 5 years And a fine of Rs. 2000/- and in default of payment fine simple imprisonment for 2 months 324 of IPC RI for 2 years 27 of Arms Act RI for 3 years And a fine of Rs. 1000/- and in default of payment fine simple imprisonment for 1 month All the sentences were directed to run concurrently. 2. The prosecution story arose in the wake of the statement of informant P.W. 5 Sit Ram Mahto who stated that on 3rd March 1991 Sunday at about 11.30 am the accused Ashok Kumar, Pramod Kumar, Anil Sao armed with garasa and pistol were getting the arahar (a kind of pulse) crop harvested with the help of 5 to 7 labourers standing in the field bearing plot no. 1388/2540 appertaining to khata no. 70 measuring an area of 2.62 ½ acres belonging to the informant Sita Ram Mahto (P.W. 5) for which a case was sub-judice before survey office. The informant Sita Ram Mahto went there and forbade them then the villagers had decided that the paddy, til, and urad crops would have been harvested by them (the accused) and he (the informant) was asked to harvest the arhar crop standing on the said land and thereafter, both the parties were asked not to go to the disputed land till the disposal of the case by the Court. The said decision was given by the villagers namely, Sewak Sao, Bechu Singh, Kauleshwar Singh (P.W.2), Naresh Ram (P.W.1) and others. The said decision was given by the villagers namely, Sewak Sao, Bechu Singh, Kauleshwar Singh (P.W.2), Naresh Ram (P.W.1) and others. Despite the said decision the aforesaid three accused were getting the arhar crop harvested standing on the said land and on being objected, the accused persons surrounded him and the accused Ashok Kumar gave garasa blows on his head and behind the neck with an intention to kill him and Pramod Sao fired at him from his illegal country-made pistol and hit on different places of right arm and on hulla, his son Sambhu Nath Mahto (PW4) came and he too was assaulted by accused Ashok Kumar with garasa on his head and rest two accused also assaulted him. The said occurrence was witnessed by Ram Prasad Ram P.W. 3 and other villagers. 3. On the basis of the FIR containing the aforesaid allegations a case was registered as Meral P.S. case No. 0020/1991 under sections 342, 324, 307/323 of IPC and 27 of Arms Act. After completion of investigation, a charge sheet was submitted against the accused persons named above and after taking cognizance the case was committed to the court of sessions for its trial and disposal by the C.J.M. on 27.09.1993. Learned trial court after framing the charges on 23.07.1996 for the offence punishable u/ss 342, 323, 324 and 307 of IPC and 27 of the Arms Act against all the three accused appellants in both the criminal appeals and after concluding the trial the impugned judgment of conviction and order of sentence was passed which is under challenge. 4. Heard Mr. Gopal Krishna Sinha, learned counsel appearing for the appellants in both the appeals and Mr. P.K Appu and Mrs. Nehala Sharmin, learned A.P.P. for the State. Arguments advanced on behalf of the appellants 5. The learned counsel appearing for the appellants contended that in this case neither the I.O. nor the doctor has been examined which caused serious prejudice to the defence of the appellants in view of the fact that the appellant no. 1 Ashok Kr. Gupta (in Cr. Appeal (SJ) 420/2005) was convicted u/ss 307 & 324 of IPC and appellant no. 2 Pramod Kumar Gupta (in Cr. Appeal (SJ) 420/2005) was convicted for the offence punishable u/s 307, 324 of IPC and u/s 27 of the Arms Act. 1 Ashok Kr. Gupta (in Cr. Appeal (SJ) 420/2005) was convicted u/ss 307 & 324 of IPC and appellant no. 2 Pramod Kumar Gupta (in Cr. Appeal (SJ) 420/2005) was convicted for the offence punishable u/s 307, 324 of IPC and u/s 27 of the Arms Act. It has further been pointed out that the learned trial court has miserably failed to appreciate that there was a case and counter case between the parties and these people including informant and injured in order to defend themselves instituted the present case because the earlier case was instituted by these accused appellants against the informant people where the accused persons had sustained the injury and these injuries were grievous in nature. Further, it has been pointed out that it is an admitted case of the prosecution that there is a landed property dispute between the parties and, therefore, the possibility of false implication also cannot be ruled out in view of the fact that the FIR named witnesses have not supported the case of the prosecution and they have been declared hostile including P.W. 2 and P.W. 3 who being the named witnesses in the FIR, have not supported the case of the prosecution. Further, the learned trial court has failed to appreciate the evidence which have been adduced on behalf of the accused appellants and, therefore, the learned court below has committed gross error of law in not appreciating the evidences on equal footing, adduced on behalf of the appellants. The injuries reports have been exhibited by the advocate’s clerks which is not tenable in the eyes of law. Because it is not proved in the prescribed procedure and the accused appellants were debarred from the opportunity in order to draw their attention with respect to the weapons alleged to have been used in the commission of the alleged offence as inflicted upon the injured persons or not and in absence of the proper proof of the injuries by a competent witness the conviction u/ss 307 324 and 323 of IPC and u/s 27 of Arms Act does not hold good. Therefore, it is urged on behalf of the appellants that the judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 6. Therefore, it is urged on behalf of the appellants that the judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 6. On the other hand, learned A.P.P. appearing on behalf of the State opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated entire evidences adduced on behalf of the prosecution and the impugned judgment of conviction and order of sentence is based on the depositions and testimonies of the two eye witnesses P.W. 4 and P.W. 5 and they have fully supported the case of the prosecution and there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 7. Having heard the learned counsel for the parties, perused the record of the case including lower court record. 8. It is admitted case of the prosecution that both the parties were on inimical terms inasmuch as there had been a landed property dispute between both the parties as evident from the contents of the FIR itself. 9. It is stated that the accused appellants had entered into the land appertaining Khata No. 70 measuring an area of 2.62 and ½ acres and started harvesting of Arhar crops with the help of the labourers and when the informant P.W. 5 protested to harvest the Arhar crop as belonging to his land then assault took place between them and the alleged injuries were said to have been inflicted upon the P.W. 4 and P.W.5. It is an admitted case of the prosecution that there was a case and counter case between the parties and in the counter case instituted by the accused appellants where Ashok Kumar Gupta and Pramod Kumar Gupta had sustained injuries in which one of them was grievous and to that effect the accused appellant adduced the evidence and brought on record the injury reports vide Exbt. B and B/1. 10. B and B/1. 10. In this background, this Court proceeds to evaluate the evidences and it is found that the prosecution, in order to substantiate its case, has been able to examine altogether 06 witnesses: P.W. 1 Ram Naresh Ram, P.W. 2 Kauleshwar Singh, P.W. 3 Ram Prasad Ram and P.W. 4 Shambhu Nath Mahto P.W. 5 Sita Ram Mahto and P.W. 6 Ganesh Prasad. 11. P.W. 1 Ram Naresh Ram examined on behalf of the prosecution has been declared hostile as he has not supported the case of the prosecution as he is one of the named FIR witnesses. 12. P.W. 2 Kauleshwar Singh another named FIR witness, who has been tendered for the reason best known to the prosecution. 13. P.W. 3 Ram Prasad Ram who stated in his evidence that there had been a mar-pit between the parties for the landed property dispute. This witness has not deposed about any assault or injury inflicted by the appellants upon the injured P.W. 4 & P.W. 5. Thus, it appears the prosecution case has not been supported by this witness although these witnesses are named witness in the FIR. 14. P.W. 4 Shambhu Nath Mahto is the son of the informant P.W. 5 Sita Ram Mahto, he claims to be the eye witness of the occurrence, but, from his deposition it is found that he reached to the place of occurrence after hearing an alarm and found that his father was fallen on the ground as it is evident form para 7 of his deposition and thus he was not present as an eye witness to the occurrence. In the cross examination, he categorically accepted that the accused persons had also instituted a case for this occurrence in which he along with his father was accused. The defence has drawn the attention of this witness with respect to his earlier statement recorded by the police u/s 161 Cr.P.C. about the specific role played by the accused appellants and weapon used in inflicting the injury, but, due to non-examination of the I.O., the appellants were debarred from their valuable right to cross-examine the I.O. in order to ascertain the veracity and truthfulness about their statements thus it has caused serious prejudice to the defence of the appellants. From the injury report of this witness it is also found that all the injuries inflicted upon this witness are simple in nature. From the injury report of this witness it is also found that all the injuries inflicted upon this witness are simple in nature. But, since the doctor has not been examined and the injuries had been brought on record by the advocate’s clerk and, therefore, the veracity and truthfulness of the injury report remain uncorroborated in the eyes of law. Nevertheless from the perusal of the injury report of this witness Shambhu Nath Mahto vide Ext. 2/1 is found that the injuries are simple in nature. 15. Further, P.W. 5 – Sita Ram Mahto who is the injured eye witness of the occurrence had also accepted that there was a case and counter case between the parties for the same occurrence indicating free fight between both the parties due to dispute of landed property between them which is evident from the para 16 of his deposition. This witness (as informant) has stated that he had been threatened and had sustained the gun shot injury inflicted by the accused appellant Pramod Sao, but, form the injury report of this witness Ext. 2 there was no gun shot injury upon this witness P.W. 5 Sita Ram Mahto and thus, the version of this witness gets totally falsified. Further, it is evident from the injury report that the injury which has been inflicted upon him that the injury no. 1, 2, 3 and 5 are simple in nature and the opinion after X-ray was reserved, but, still the opinion has been given with respect to the injury no. 4 by hard and blunt substance which is grievous in nature but this injury report has not been proved by the competent witness the doctor, and it has been brought on record by the advocate clerk P.W. 6 Ganesh Prasad, therefore, it is not a reliable evidence in the eyes of law. 16. The injury report Ext. 2 and 2/1 are injury reports of the two injured persons namely P.W. 5 Sita Ram Mahto and P.W. 4 Shambhu Nath Mahto. Injury report of the Sita Ram Mahto P.W. 5 is as under : i. Sharp cutting wound on temporal region of skull transursally mid part 6”x2” bone deep. ii. 1” posterior to wound no. 1 there is a sharp cutting wound 2”x1”x1/4”. iii. Injury report of the Sita Ram Mahto P.W. 5 is as under : i. Sharp cutting wound on temporal region of skull transursally mid part 6”x2” bone deep. ii. 1” posterior to wound no. 1 there is a sharp cutting wound 2”x1”x1/4”. iii. Multiple very small sized black spots wound on the inner side of right arm lateral upper aspect of right side chest pallets not felt. iv. Ecchymosis on right shoulder 4”x2” with dislocation of the right shoulder joint red in colour. v. Sharp cutting wound on posterior aspect of neck 1”x1/4”x1/8”. Injury upon the P.W. 4 Shambhu Nath Mahto is as follows (Ex.t 2/1): i. Sharp cutting wound on left parietal region of skull longitudinally 6”x2”xbone deep. ii. Lacerated wound 1” back to the injury no. 1-1”x1/2”x1/4”. iii. Lacerated wound below the right knee anteriorly 1/2”x1/4”x1/8”. iv. Ecchymosis on left thigh laterally 4”x2”red in colour. 17. These injury reports are Ext. 2 and 2/1 which have been proved by the advocate’s clerks P.W. 6 and, therefore, its admissibility into evidence is doubtful and the appellants have been debarred from their valuable right to cross examine the doctor who was the author of the injury reports Ext.2 and 2/1 in this case, in order to substantiate the charges levelled against the appellants under various sections of IPC including attempt to murder. From the perusal of the both the injuries reports it is found that no injury of gunshot has been found and, therefore, the case of the prosecution is totally falsified that the accused appellant Pramod Kumar Gupta had inflicted injures of the gun shot upon P.W. 5 and, therefore, in this view of the matter the learned trial court did not appreciate the evidences in a holistic manner and, hence, came to a wrong finding. It is also found that the learned trial court has failed to appreciate the evidences adduced on behalf of the defence, as Ext. A and A/1 and Ext. B and B/1. Ext. A and A/1 are rent receipts in order to show that there had been a landed property dispute and the land in question was belonging to him and there was a claim of ownership by the informant on the landed property and thus establishing the fact that there was enmity between both the parties and landed property dispute is an admitted fact. Further, two injuries reports have been brought on record which are of the counter case by the accused appellants where the appellants Ashok Kr. Gupta @ Ashok Kumar was examined on 03.03.1991 at 1.15 p.m. vide Ext. B as under : i. Sharp cutting wound on left parietal region of skull longitudinally and anteriorly 6”x2”x bone deep. ii. Lacerated wound on left wrist over dislocation left wrist joint 1”x1/2”x1/4” iii. Ecchymosis on upper of head 6”x2”red in colour. Nature of wound i & iii are simple & ii is grievous in nature. Injury no (i) caused by sharp weapon and (ii) & (iii) are caused by hard and blunt substance. Duration of wound within 12 hours. The Doctor had examined Pramod Kumar Gupta @ Pramod Kumar on 03.03.1991 at 1.30 p.m. and brought on record vide Ext. B/1 as under:- i. Lacerated wound the terminal phalanx on left index finger 1/8”x1/4”x 1/8” ii. Ecchymosis left side head 4”x2” (left side). Nature of injuries are simple, caused by hard and blunt substance. The duration of wound within 12 hours. 18. From the perusal of the injury report Ext. B, Ashok Kumar sustained grievous injury and these evidences have not been appreciated in the right perspective by the learned trial court below as evident from the impugned judgment and without an iota of evidence the appellants were convicted and sentenced for the offence punishable under section 307 of the IPC, but, the facts remain to take into consideration that there has been a case and counter case between both the parties and the injured witness P.W. 4 and 5 had categorically stated that the accused appellant had assaulted them by which they had sustained injuries and, therefore, the prosecution has been able to substantiate the offence punishable u/s 323 of IPC only and all the other sections of which the appellants have been convicted as discussed in foregoing paragraphs are not substantiated and proved beyond doubt by the prosecution. Neither the intention nor the knowledge against any of the appellants surfaced in the evidences adduced on behalf of the prosecution for the offence punishable u/s 307 of IPC for causing murder of the injured witnesses P.W. 4 and P.W. 5 in order to constitute the offence of attempt to murder further no any injuries of gunshot have been found in order to substantiate the charges of section 27 of Arms Act nor any weapon has been recovered and brought on record to substantiate that the weapons have been used to inflict injury and, therefore, the charges u/s 324 is also not substantiated under the circumstances against all the appellants and impugned judgment of conviction and order of sentence passed by the learned court below against the appellants are set aside and they are found guilty for the offence punishable u/s 323 of IPC only and accordingly, the impugned judgment of conviction is altered to hold the conviction of the appellants for the offence punishable under section 323 of IPC. 19. Having taking into consideration facts on the point of sentence, it is found that it is a case of the year 1991 and almost 30 years have elapsed and all the appellants have become older over a period of time and there was a case and counter case between the parties arising out of the property dispute and, therefore it is found that it is just and proper not to send them again in jail and instead of awarding sentence of imprisonment to them all the three appellants are sentenced to pay a fine of Rs.10,000/- (Rupees Ten Thousand)/- collectively in a composite manner by way of compensation in order to pay the victim informant P.W. 5 Sitaram Mahto. Since all the appellants are on bail, they are directed to deposit the fine amount of Rs. 10,000/- (Rupees Ten Thousand)/- collectively by way of compensation within four months to the informant P.W. 5 Sitaram Mahto and if the informant P.W. 5 Sitaram Mahto is not available/or traceless/or not found or/dead then any kith and kin of his family would be entitled to get the amount so deposited by the appellants and failing which each of the appellants shall go for imprisonment for one year in case of default of payment of fine. 20. 20. Learned court below is directed to ensure that in case of default of payment of fine each of the appellants serves the sentence for a period for one year and on payment of aforesaid fine amount they shall be released forthwith. 21. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. As soon as the appellants deposit the fine amount they (appellants) shall be released forthwith on deposit of the said fine amount and they shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notice shall be sent to the victim and on his appearance the said fine amount, if so, deposited by the appellants shall be disbursed to him. In case, if the said injured victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim as the concerned learned trial court may deem fit and proper. 22. This appeal is dismissed as above. 23. Let the LCR be sent back to the learned court below to comply the order of this Court and take the necessary action.