JUDGMENT : This appeal is directed against the Judgment of Conviction and order of sentence dated dated 23rd August 2004, passed by learned Additional Sessions Judge, FTC-III, Daltonganj, in S.T. No.131 of 1994, arising out of Patan P.S. Case No.119/1992, corresponding to G.R. Case No.1443 of 1992 whereby and where under all the three appellants were convicted for the offences punishable under Sections 323, 324 and 452 read with Section 34 of IPC and further they were directed to undergo S.I. for a period of six months under Section 323 of IPC, one year S.I. under Section 324 of IPC and three years S.I. under Section 452 of IPC and all the sentences were directed to run concurrently. 2. The prosecution story arose in the wake of fardbayan of Ramcharittar Upadhyay PW – 4, whose statement was recorded by S.I., L.B. Rai of Daltonganj Town police station on 21.09.1992 at 14.30 hours at the Sadar hospital, Daltonganj. The informant PW – 4 alleged that on 20.09.1992 while the informant was sleeping in his house in the night, he heard some sound of gunshot firing. After some time, some miscreants came and knocked his door. They were asking him to open the door. When the door was not opened, the miscreants entered into his angan by breaking back door of his house. The informant concealed himself in an earthen kothi out of fear. Four miscreants were armed with deadly weapons, such as bhala, gadasa, revolver and lathi and they started searching him out. They were having a torch also and in the flash of torch light, they confined all the female members of the family in a room after collecting them from different rooms. They recovered him from the earthen kothi and abused him in filthy languages. The informant could identify the miscreants as Binod Shukla, Niranjan Tiwary, Harbans Dubey and Surendra Dubey in the flash of torch light. Binod Shukla was holding bhala. Niranjan Tiwary @ Dablu Tiwary was holding a revolver, whereas Haribans Dubey was having a gadasa and Surendra Dubey was holding a lathi. It has been alleged in the fardbeyan that Niranjan Tiwary fired from his revolver but nobody received any bullet injury. Surendra Dubey, Binod Shukla and Harbans Dubey started assaulting him. Binod Shukla was holding bhala. Niranjan Tiwary @ Dablu Tiwary was holding a revolver, whereas Haribans Dubey was having a gadasa and Surendra Dubey was holding a lathi. It has been alleged in the fardbeyan that Niranjan Tiwary fired from his revolver but nobody received any bullet injury. Surendra Dubey, Binod Shukla and Harbans Dubey started assaulting him. Surendra Dubey inflicted lathi blows in his left leg below knee, neck and back; whereas Binod Shukla inflicted Bhala blow causing bleeding injury in his forehead, head and left elbow. Haribans Dubey inflicted gadasa blow causing injury in his right leg below knee. There was profuse bleeding from the injuries. He raised alarm but not a single co-villager came forward to save him. The accused persons took away clothes, jewellery, cash and utensils with them. They damaged some house-hold articles also. The female members of his family informed him that other 8 to 10 persons were also in the gang with these accused persons who were watching from outside the house. It has also been alleged that there is a land dispute with Binod Shukla, so he along with his other associates, committed the crime and fled away. The informant was taken to Daltonganj Sadar Hospital on a cot by the villagers where, his statement was recorded. 3. On the basis of fardbeyan, Patan P.S. Case No.119 of 1992 was registered against the named accused persons and 8 to 10 unknown persons under Sections 147, 148, 149, 324, 307, 452, 380 and 427 of IPC and Section 27 of Arms Act. After institution of case, investigation was started and after completion of investigation, charge-sheet was submitted against the accused Binod Shukla, Haribans Dubey and Surendra Dubey under Sections 147, 148, 149, 324, 307, 452, 380, 427 of IPC and Section 27 of Arms Act, showing accused Niranjan Tiwary as not sent up for trial and accordingly cognizance was taken and the case was committed to the Court of Sessions. Assistant Sessions Judge Palamau at Daltonganj has framed charge on 22.05.2000 under sections 452, 380, 427, 147, 148, 307/149, 324 of IPC. The learned trail court after conducting the full-fledged trail, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mr. Jai Shankar Tripathy, learned defence Counsel appearing on behalf of the appellants and Mr. The learned trail court after conducting the full-fledged trail, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mr. Jai Shankar Tripathy, learned defence Counsel appearing on behalf of the appellants and Mr. V.N. Jha, learned APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel submitted that the learned trial court had ignored the vital fact in appreciation of evidence that both the parties are gotias and they are residing in same house, where the alleged incident is said to have taken place. It has further been pointed out that PW – 2, who was present at the time of occurrence, did not identify the miscreants, although all the appellants are said to be the close relatives being the gotias of the prosecution party and therefore it is contended on behalf appellants that it is not an offence punishable under Section 452 of IPC for the allegation of house breaking at night, in view of the fact that both the parties admittedly residing in the same house and the title suit was also pending between them and this is admitted fact between both the parties. Further learned defence counsel has pointed out that the I.O. in this case has not been examined and therefore neither any weapon alleged to have been used in the commission of offence have been recovered nor time, place and date of occurrence has been formally proved by the prosecution with the examination of I.O. and therefore, it has caused serious prejudice to the defence of the appellants. It has further been stated that all the witnesses examined on behalf of the prosecution are interested witnesses being the relatives of the informant as PW -1 is the wife, PW – 2 is bhabhi of the informant and she has been declared hostile, PW – 3 being the daughter and PW – 4 being the informant himself and therefore it is urged on behalf of the learned counsel for the appellants that the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside. 6. 6. On the other hand, learned APP appearing on behalf of the State opposed the contentions raised on behalf of the learned counsel for the appellants and submitted that although PW – 2 has not identified the miscreants, but all the other witnesses, examined on behalf of the prosecution including PWs – 1, 3 & 4 have specifically deposed in their depositions about the role of the appellants, by which, the victim informant was injured. Further it has also been pointed out that non-examination of the I.O. has not caused any prejudice to the case of the defence, because the allegations as set out in the FIR have been consistently and uniformly substantiated by the witnesses examined on behalf of the prosecution, particularly PWs, 1, 3 & 4 and the injuries have also been supported by the doctor, who has been examined as PW – 6 and therefore this appeal deserves to be dismissed for want of merit. Appraisal & Findings 7. Having heard learned counsel appearing on behalf of the parties, perused the record of the case including the lower court record. 8. It is found that altogether seven prosecution witnesses have been examined on behalf of the prosecution in order to substantiate the charges levelled against the accused appellants, who are PW – 1 Sonpati Devi, wife the informant, PW – 2 Asho Kunwar, bhabi of the informant, PW – 3 Manorma Devi, daughter of the informant and PW – 4 Ram Charittar Upadhyay is the informant himself, PW – 5 Ravi Kishore Tiwary and PW-6, Dr. Birendra Prasad, who have examined the injured and PW – 7 Binod Dubey. Four defence witness have been examined in support of the defence case, who are D.W.-1 Balbhadra Manjhi, D.W.-2 Sri Krishna Tiwary, D.W.-3 Ramashish Baitha, (who has proved the gift deed No. 278/1994 which has been marked as Ext. A) and D.W.-4 Parshuram Gupta (who has proved the plaint of T.S.13/1998 which has been marked as Ext. C) 9. It is admitted case of the prosecution that the accused appellants are the close relatives being the gotias of the same family. It is also admitted by the prosecution that there was enmity between the parties with respect to the landed property dispute and a civil suit was also pending between them. C) 9. It is admitted case of the prosecution that the accused appellants are the close relatives being the gotias of the same family. It is also admitted by the prosecution that there was enmity between the parties with respect to the landed property dispute and a civil suit was also pending between them. It is also admitted that the appellants were residing in the half portion of the same house, where the incident is alleged to have taken place and therefore the defence taken on behalf of the appellants that they have been falsely implicated in this case due to landed property dispute while the civil suit was also pending between them and since the appellants were residing in the same house and therefore the offence under Section 452 of IPC is not attracted at all, in view of the fact that there was no question of any house breaking. Further it is found from the testimonies of PW – 2 Asho Kunwar, the bhabi of the informant that she was present in the house at the time of alleged occurrence and she could not identify the accused persons and therefore this witness has been declared hostile. It has been pointed out that when the prosecution witness had started speaking truth during the course of trial and then witness was declared hostile, and therefore it has vitiated the fair trial and the defence taken on behalf of the appellants who were implicated in this false case due to the enmity and due to landed property dispute because of the family dispute as it is manifest from the testimonies of P.W.2 who in the cross-examination categorically stated that she could not identify any one of the accused. 10. As a matter of fact although this witness P.W.2 being the eye witness has negated the case of the prosecution, but the other witnesses, who have been examined on behalf of the prosecution, PW – 1 Sonapati Devi, PW – 3 Manorma Devi and PW - 4 Ram Charittar Upadhyay, [the informant] have consistently and uniformly supported the charges that these accused appellants had assaulted the informant Ram Charittar Upadhyay by weapons held by them including garasa, Bhala and lathi at night at about 11 PM as emanating clearly from the consistent and uniform depositions of P.W.1,P.W.3 and P.W.4 despite the fact that P.W.2 has being important witness has been declared hostile. 11. PW 1 Sonapati Devi, who is the wife of the informant has categorically stated in her examination-in-chief that all the accused appellants had entered into the angan in the house and they were looking for her husband Ram Charitra Upadhyay (PW – 4 informant) and all the three accused appellant Binod Shukla, Harbansh Dubey and Surendra Dubey were identified by this witness and she stated that they had assaulted her husband. 12. Similarly PW - 3 Manorma Devi had also stated that while she was in the house on the date of occurrence, all these accused appellants holding bhala, lathi and garasa entered into the house and assaulted her father, PW – 4 Ram Charittar Upadhyay and he was taken to hospital. 13. PW – 4 Ram Charittar Upadhyay being the informant stated that these appellants had entered into his house at 11 PM at night and he had identified all the three appellants namely Binod Kumar Shukla, Harbans Dubey and Surendra Dubey. He specifically stated that Binod Shukla had assaulted him by bhala and Surendra Dubey assaulted in his leg and right hand and Binod Sukla on his forehead. Thus, the testimonies of PW – 1, PW 3 and PW – 4 had consistently supported the case of the prosecution as stated in the FIR to the extent that these three appellants had assaulted the informant PW -4. Although they had stated that they (accused appellants) had entered into their house by breaking the house but the offence under Section 452 of IPC is not attracted because of the admitted case of the prosecution that these appellants were residing in the same house and they are gotias and landed properties dispute going on between them as stated categorically by P.W.3 in her depositions. Thus the prosecution has been failed to substantiate the offence punishable under Section 452 of IPC. But the proven facts remain to take into consideration that the injuries, which are said to have been inflicted upon the informant injured PW – 4. Further now the nature of the injuries as found by the doctor PW – 6 Birendra Prasad are simple in nature caused by hard and blunt substance, which is evident from his deposition. 14. PW – 6 Dr. Further now the nature of the injuries as found by the doctor PW – 6 Birendra Prasad are simple in nature caused by hard and blunt substance, which is evident from his deposition. 14. PW – 6 Dr. Birendra Prasad, who was posted as Civil Surgeon in Sadar Hospital, Daltonganj on 21.09.1992 had stated that on that day, he examined the informant Ram Charittar Upadhyay, and the injury report is marked as Ext. 3 and found the following injuries : “(i) Lacerated wound 2 1/2”x1/4”x1/6” over left side of forehead. (ii) Lacerated wound 3 1/2”x 2 1/2”x2” over left elbow (iii) Incised wound of size 2 1/2 “x1 1/6” x 1/3” over left leg below right knee. (iv) Bruise 2 1/2”x2” over upper part of right hand (v) Complain of pain whole over the body” The doctor has opined injury Nos. (i), (iii) and (v) to be simple in nature caused by hard and blunt substance and sharp cutting weapon, which are commensurate with the versions as set-out in the FIR that the appellants had used lathi, bhala and garasa for assaulting. This doctor has stated that with respect to the injuries No. (ii) and (iv), opinion reserved as X-ray was not done and therefore the injury No.(ii) & (iv) could not be opined by this doctor. From perusal of the nature of injuries Nos.(ii) & (iv), it is found that these are Lacerated wound 3 1/2”x 2 1/2”x2” over left elbows and Bruise 2 1/2”x2” over upper part of right hand and as such these are actually lacerated wound and bruise only and hence these are also simple in nature and therefore it is found that the learned trial court has rightly held the conviction of the appellants for the offences punishable under Sections 323 and 324 of IPC, but failed to appreciate the ingredients of offence of house breaking within the meaning of Section 452 of IPC as discussed in foregoing paragraphs. 15. Other witness, who have been examined on behalf of the prosecution PW-7 Binod Dubey is a formal witness and he has proved the signature of the officer-in-charge on the endorsement of fardbayan, which has been marked as Ext. 4. 16. 15. Other witness, who have been examined on behalf of the prosecution PW-7 Binod Dubey is a formal witness and he has proved the signature of the officer-in-charge on the endorsement of fardbayan, which has been marked as Ext. 4. 16. The appellants have also adduced the evidences during the course of trial and four defence witnesses were examined namely DW – 1 Balbhadra Manjhi, DW – 2 Sri Krishna Tiwary, DW-3 Ramashish Baitha and DW – 4 Parshuram Gupta and they have also adduced several other documents in order to establish that there had been landed property dispute between both the parties and civil suit was also going on between them and this fact is admitted, which is further substantiated by Ext.-A, which is gift deed, Ext. B is the cancellation of deed and Ext. C is plaint of Title Suit No.13/1998. All the defence witnesses and the documentary evidences including Exts. A, B & C have established the fact that both the parties are in dispute with landed property. 17. Having taking into consideration the testimonies of witnesses and the evidences available on record as evaluated in the foregoing paragraphs, it is well founded that both the parties are close relatives to each other and the landed property dispute was going on between the parties and civil suit to that effect was also pending before the lower court below and both the parties were residing in the same house, but at the same time, the evidences available on record are able to substantiate the charges that the appellants had assaulted the informant by which he sustained injuries as discussed in the foregoing paragraphs and therefore this Court finds that guilt of the appellants for the offences punishable under Sections 323 & 324 of IPC as held by the learned court below is proved and accordingly this Court upholds the conviction of the appellants for the offences punishable under Sections 323 and 324 of IPC and set-aside the conviction and sentences under Section 452/34 of IPC. 18. So far as the sentence for the offences punishable under Sections 323 & 324 of IPC is concerned, it is found that both the parties are close relatives to each other and they are gotias and the appellants were residing in the same house and the landed property dispute was going on between them. 18. So far as the sentence for the offences punishable under Sections 323 & 324 of IPC is concerned, it is found that both the parties are close relatives to each other and they are gotias and the appellants were residing in the same house and the landed property dispute was going on between them. It is a case of about 30 years old and the appellants were suffering miseries and hardships of the criminal proceedings for a long period of time. There is nothing on record to show about the criminal history and they have already remained in jail during the course of pendency of criminal case against them and therefore this Court does not find any justification for the appellants to send them again in jail and therefore, a lenient view is taken and the appellants are sentenced for a term of imprisonment, which have already undergone by them and further for the ends of justice, a composite sentence of fine by way of compensation of Rs.5,000/- collectively under both the counts is awarded by way of compensation to be paid to the victim PW – 4 and in case of default of payment of fine, each of the appellants shall serve the sentence of S.I. for one year. Thus the sentences imposed upon the appellants by the learned trial court for the offences punishable under Sections 323 & 324 of IPC are set aside and altered as above. 19. Since all the appellants are on bail, they are given four months’ time from today to deposit the fine amount of Rs.5,000/- collectively in a composite manner under both the counts by way of compensation in order to give it to the informant PW – 4 Ram Charittar Upadhyay. Learned trial court after the deposit of the fine amount, so awarded, shall send a notice to the informant PW – 4 Ram Charittar Upadhay and shall ensure his presence and the amount, so deposited, be disbursed in favour of him by way of compensation. In case the said Ram Charittar Upadhaya is not found/or traceless/or his whereabouts could not be known, then the fine amount shall be given to any kith and kin or close relative of the informant PW-4 as the learned court below may deem fit and proper. In case the said Ram Charittar Upadhaya is not found/or traceless/or his whereabouts could not be known, then the fine amount shall be given to any kith and kin or close relative of the informant PW-4 as the learned court below may deem fit and proper. Further the learned trial court is also directed to ensure that if the said fine amount, so awarded by this Court, is not deposited within the stipulated period of time, then the necessary steps shall be taken by the learned trial court to ensure that the appellants serve the sentence of one year Simple Imprisonment in case of default of payment of fine. 20. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment they deposit the fine amount they (appellants) shall be released forthwith on deposit of said fine amount and they shall be discharged from the liabilities of bail bonds accordingly. 21. In this result, this appeal is dismissed as above. 22. Let a copy of this Judgment be sent to the concerned lower court below for the compliance of the order through FAX. 23. Let the Lower Court Record be sent back forthwith to the concerned court below.