JUDGMENT : (Ratnaker Bhengra, J.) : These criminal appeals are directed against the judgment of conviction and order of sentence both dated 12th August, 2010, passed by learned Sessions Judge, Godda in sessions case No. 104/2009, whereby and where under all the appellants were convicted under sections 307/149 and section 148 of the Indian Penal Code. The appellant Deo Narayan Yadav was sentenced to undergo Rigorous Imprisonment for four years and fine of Rs. 2000/-and in default to undergo simple imprisonment for 15 days for his conviction under section 307/149 of IPC and remaining remaining appellants were sentenced to undergo Rigorous imprisonment for two years and fine of Rs. 2,000/-each and in default to undergo simple imprisonment for 15 days for their conviction under section 307/ 149 of IPC. All the appellants were sentenced to undergo Rigorous imprisonment for one year and fine of Rs. 1,000/-each and in default to undergo simple imprisonment for 10 days for their conviction under section 148 of IPC. Both the sentences were ordered to run concurrently. 2. A letter has been sent by officer-in charge of Pathargama Police station, stating that appellant no. 2 Madan Lal Yadav, in Criminal Appeal(SJ) no. 763/2010 has died. Hence, appeal of Madan Lal Yadav stands abated. 3. The case of the prosecution, in brief, as per the written report dated 16.04.2008 of the informant PW-8 Kalachand Yadav is that on 16.04.2008, at about 2 pm, the informant was sitting in his house. In the meantime the accused persons Ramjee Yadav, Deo Narayan Yadav, Sita Yadav, Jailal Yadav, Madan Yadav, Robin Yadav, Bunti Devi, wife of Ram Jee Yadav and wife of Madan Yadav, armed with weapons entered into the house of the informant with intention to murder the informant. The accused persons dragged the informant and assaulted the informant on his head with iron rod as a result informant sustained injury and fell down on the ground and thereafter, the accused persons assaulted the informant with lathi, danda and fist blows. Informant further stated that his wife Nilima Devi, wife of his brother Birbal Yadav and Birbal Yadav’s son Sushil Yadav came to the place of occurrence, then, the accused persons assaulted them as a result they also sustained injuries. Ramjee Yadav took away Rs. Informant further stated that his wife Nilima Devi, wife of his brother Birbal Yadav and Birbal Yadav’s son Sushil Yadav came to the place of occurrence, then, the accused persons assaulted them as a result they also sustained injuries. Ramjee Yadav took away Rs. 500/- from the pocket of the informant and Deo Narayan Yadav took away the silver 'pahuchi' weighing 12 bhars of the informant’s wife and Madan Lal Yadav took away the silver chain of the informant’s bhabhi. Informant further stated that on halla villagers assembled and pacified the matter. 4. On the basis of written report FIR being Pathargama P.S. Case No. 69 of 2008 dated 16.04.2008 was registered against the appellants under sections 147, 148, 149, 448, 323, 307, 379 and 504 of IPC. After completion of investigation charge sheet was submitted against the appellants and cognizance of the offences were taken and the case was committed to the court of sessions. Charges were framed against all the appellants under sections 307/ 149, 323, 448 and 148 IPC and trial was held. At the conclusion of the trial appellants were convicted and sentenced as aforesaid, hence, this appeal. 5. Prosecution had examined altogether 9 witnesses out of whom PW-8 Kalachand Yadav is the informant of the case; PW-1 is Yudhistir Yadav, who is the nephew of the informant; PW-2 is Birbal Yadav, who is the brother of the informant; PW-3 is Gopal Yadav; PW-4 is Dr. Dilip Kumar Choudhary; PW-5 is Dr. Jaishree; PW-6 is ASI Ajay Kumar Singh, who is the Investigating Officer of the case; PW-7 is Bhukhan Yadav, who is another brother of the informant and PW-9 is Naru Yadav. 6. Defence had examined one witness DW-1 Deen Dayal Yadav and exhibited certified copy of FIR of Pathargama P.S. Case No. 67/2008 dated 16.04.2008 which has been marked as Ext.-A and certified copy of order dated 06.02.2009 of J.M., 1st. Class, Godda in G.R. Case No. 399/2008, corresponding to T.R. No. -788/2009 which has been was marked Ext.-B. 7. PW8 Kalachand Yadav is the informant of the case. Informant has stated in his evidence that on 16.04.2008 at 2.00-2.30 pm, Ramjee, Jailal and Sita dragged him out from his house. Deo Narayan Yadav assaulted him on his head with sabbal (iron rod). Madan Yadav was armed with rod, Jailal Yadav and Ramjee were armed with lathi and they also assaulted him. Informant has stated in his evidence that on 16.04.2008 at 2.00-2.30 pm, Ramjee, Jailal and Sita dragged him out from his house. Deo Narayan Yadav assaulted him on his head with sabbal (iron rod). Madan Yadav was armed with rod, Jailal Yadav and Ramjee were armed with lathi and they also assaulted him. Informant further stated that Sita and Robin were also armed with lathi. The ladies Yasoda, Bunti and wife of Madan were assaulting with bricks and stones. Birbal, Sushil Yadav, informant’s wife and wives of Birbal and Sushil had also sustained injury. Due to assault by Deo Narayan, informant fell down and become unconscious and regained sense after reaching Pathargama. In his cross-examination, Informant stated that he returned from Godda Hospital to his house on 29.04.2008 and till that time the informant was admitted in Godda hospital. 8. PW-1 is Yudhistir Yadav and he is the nephew of the informant. PW-1 has stated in his evidence that on the day of occurrence on 16.04.2008 at 1:30-2:0 pm, Deo Narayan Yadav, Ramjee Yadav, Jailal Yadav, Sita Yadav, Madan Lal Yadav, Robin Yadav, wife of Deo Narayan, wife of Madan Lal and wife of Ramjee had assaulted Kalachand Yadav, Sushil Yadav, his wife and Birbal Yadav. They also assaulted the wife of Kalachand Yadav with lathi, rod and bricks and stones. Kalachand had sustained injury on his head and he was assaulted with lathi and danda, all over his body. In his cross-examination, PW-1 stated that Kalachand Yadav became senseless. Deo Narayan Yadav was armed with a rod. Kalachand had sustained 2-3 rod blows on his head and other accused persons were armed with lathi. 25-30 lathi blows were given all over the body of Kalachand Yadav. 9. PW2 Birbal Yadav is the brother of the informant. PW-2 has stated in his evidence that on 16.04.2008 at 2 pm, accused persons Deo Narayan Yadav, Ramjee, Sita, Jailal, Madan, Robin, wife of Deo Narayan Yadav, namely, Bunti Devi and wives of Ramjee and Madan dragged Kalachand from his house on the road and assaulted him on his body and head. Kalachand Yadav had sustained injury on his head and Deo Narayan Yadav was armed with rod and others were armed with lathi. PW2 further stated that when he went to rescue, then, he was also assaulted. Accused persons also assaulted Sushil, Sushil’s wife Urmila Devi, Nilima and Sushila Devi. Kalachand Yadav had sustained injury on his head and Deo Narayan Yadav was armed with rod and others were armed with lathi. PW2 further stated that when he went to rescue, then, he was also assaulted. Accused persons also assaulted Sushil, Sushil’s wife Urmila Devi, Nilima and Sushila Devi. In his cross-examination, PW-2 stated that the ladies were assaulting with bricks and stones and they had sustained injuries by bricks and stones. 10. PW-4 is Dr. Dilip Kumar Choudhary, who was posted as C.A.S, in Sadar Hospital, Godda. PW-4 has stated in his evidence that on 08.05.2008 he had examined Kalachand Yadav and Kalachand Yadav was primarily examined at PHC, Pathargama and was referred to Sadar Hospital, Godda. PW-4 further stated that no grievous injury was found on the person of Kalachand Yadav. Doctor proved the injury report of report of Kalachand Yadav, which was marked as Ext.-1. 11. (I) PW-5 is Dr. Jayashree, who was posted as M.O., at P.H.C., Pathargama and she had examined the injured informant PW-8 Kalachand Yadav and PW-2 Birbal Yadav. Doctor has stated in his evidence that on 16.04.2008 she had examined Kalachand Yadav and found following injuries on his person:- (i) An abrasion 2”x 2” x 1/10” on left shoulder. (ii)A lacerated wound 4”x 1/2”x 1/4” on vertex, left aside above hair line. (II) On the person of PW-2 Birbal Yadav, PW-5 doctor had found an abrasion 1/14” x 1/10” in nail bed of left index finger. Doctor had proved the injury report of PW-8 Kalachand Yadav and PW-2 Birbal Yadav, which were marked as Ext.-2 and Ext.-2/1 respectively. In her cross-examination doctor had stated that injury of Kalachand Yadav and Birbal Yadav were possible by fall on hard surface and the injury of Birbal is possible in ordinary course of business also. 12. PW 6 Ajay Kumar Singh, is the Investigating Officer of the case. Investigating officer has stated in his evidence that he had investigated the Pathargama P.S. Case no. 69/2008. Investigating Officer had proved the formal FIR and endorsement on the FIR which were marked as Ext.-3 and Ext.-4 respectively. 13. PW-7 Bhukhan Yadav is the brother of the informant. PW-7 has stated in his evidence that on the day of occurrence, at 2.00 to 2.30 pm, Deo Narayan Yadav, Ramjee Yadav, Sita, Madan, Jailal, Robin and three ladies came to the door of Kalachand. 13. PW-7 Bhukhan Yadav is the brother of the informant. PW-7 has stated in his evidence that on the day of occurrence, at 2.00 to 2.30 pm, Deo Narayan Yadav, Ramjee Yadav, Sita, Madan, Jailal, Robin and three ladies came to the door of Kalachand. Deo Narayan Yadav assaulted Kalachand Yadav on his head with sabbal due to which Kalachand Yadav fell down. PW-7 further stated that other accused persons were armed with lathi. They assaulted Birbal, Sushil, wives of Kalachand Yadav, Birbal Yadav and Sushil Yadav. 14. Defence had examined one witness DW-1 Deen Dayal Yadav. DW-1 has stated in his evidence that on 16.04.2008 at 2.00 pm, Kalachand Yadav and others assaulted him and regarding this he had instituted Pathargama P.S. Case No:-67/2008. When villagers assembled then Kalachand and other started fleeing away and during fleeing they fell down and sustained injury. DW-1 further stated that Kalachand Yadav had instituted a false case against Ramjee and others. In his cross-examination, DW-1 stated that Ramjee is his distant agnate. ARGUMENTS OF THE APPELLANTS 15. The learned counsel for the appellants Mr. Pankaj Kumar, has first and foremost submitted that the appellants have been convicted for offences under sections 307/149 of the Indian Penal Code and also under section 148 of the IPC, however, appellant Deo Narayan Yadav, who is the appellant in Cr. Appeal (SJ) No. 714 of 2010, has been sentenced for four years for the offence under section 307/149 of IPC, while the rest of the accused persons who are appellants in Cr. Appeal (SJ) No. 763 of 2010 i.e. as many as eight appellants have been convicted also under sections 307/149 of IPC however, these eight appellants were sentenced only for two years under section 307/149 of IPC and this indicate some defect or arbitrariness in the trial itself. 16. Learned counsel has also submitted that the place of occurrence has not been decided and hence, the trial court had acquitted the appellants for the offence under section 448 of the IPC. Learned counsel has also pointed out that the collection of evidences from the prosecution witnesses is also very defective as some material witnesses including the informant were examined after the examination of the Investigating Officer and hence contradiction in the evidences could not be taken from the IO and the concerned witnesses, such as, PW7, PW8 and PW9. 17. Learned counsel has also pointed out that the collection of evidences from the prosecution witnesses is also very defective as some material witnesses including the informant were examined after the examination of the Investigating Officer and hence contradiction in the evidences could not be taken from the IO and the concerned witnesses, such as, PW7, PW8 and PW9. 17. The learned counsel also submits that the doctor did not find any injury over two persons Nilima Devi and Sushil Yadav. The nature of injury also needs to be gone into and it has been mentioned in the injury report of the informant that injury on the person of informant was not of grievous nature and doctor also said that the injuries were possible by fall on the hard surface. Therefore, with such indication of simple injury and even though as many as nine persons had come to assault then they could have finished the informant and others but that is not the case and therefore section 307/149 IPC surely cannot be sustained against the appellants. 18. Learned counsel further argues that prior to this case, a case being Pathargama PS Case no. 67 of 2008 dated 16.04.2008 was earlier lodged by the appellant’s side and current case i.e. Pathargama PS Case No. 69 of 2008 was lodged later, which clearly indicates that the case in hand was an afterthought and only a reaction to the first case lodged by the appellant’s side and is thus a defensive mechanism. Learned counsel points out that Ext.-A, which is an FIR of Pathargama P.S. case no. 67/2008 has been exhibited so by the appellants side and submitted that on perusal of Ext.-A it is clear that the case lodged by the informant herein is reactive, manufactured and concocted. 19. Learned counsel also points out that the reasons as indicated in the FIR is not indicated in the evidence that the altercation was a result of dispute over distribution of khichdi. But, this reason is absurd and cannot or should not be reason for leading to an altercation and that is why the belief is strengthened that it is only an reactive accusation leading to the current case against the appellants herein. 20. Counsel for the appellants argues that there is no x-ray report though injury on vertex above hair line is claimed. 20. Counsel for the appellants argues that there is no x-ray report though injury on vertex above hair line is claimed. Counsel also submits it would have been necessary to prove the injury above hair line to sustain the conviction and that could have been possible by x-ray evidence but that is not the case. 21. Learned counsel further argued that there is another crucial aspect of the case and that should have been gone into as the matter relates to case and counter case and hence both the cases should have been tried together by the same Judge but that has not been done. So, which party is the aggressor has not been clearly decided by the learned court below. Learned counsel lastly submitted that for all the aforesaid reasons, appellant Deo Narayan Yadav in Cr. Appeal (SJ) No. 714 of 2010 and Ramji Yadav and others, the appellants, in Cr.Appeal (SJ) No. 763 of 2010, deserves to be fully acquitted of the charges by this court. ARGUMENTS OF THE APP 22. Learned counsel for the State, learned APP, on the other hand, has argued that the case against the appellants can be fully made out because first and foremost there is no denial of either side that occurrence did not take place and the case and counter case itself establishes that the occurrence did take place. Secondly, there is injury report of the doctor which indicates that there was assault on the informant side resulting in injuries on the persons of informant PW-8 and PW-2 and therefore, medical report corroborates the case of the prosecution as laid out in the FIR. Further, PW-1, PW-2 and PW-3 are also eye witnesses to the occurrence and they had deposed about assault on the informant side. The motive for assault is that there was rivalry between the parties regarding non serving of foods in the school to children. Lastly, learned counsel submitted that impugned judgement of conviction and order of sentence are based on evidence and requires to be sustained and upheld by this court. CONCLUSION 23. I have heard learned counsel for the parties, gone through the record and facts and circumstances of the case. I find that the case in hand pertains to Pathargama P.S. Case no. CONCLUSION 23. I have heard learned counsel for the parties, gone through the record and facts and circumstances of the case. I find that the case in hand pertains to Pathargama P.S. Case no. 69/2008 dated 16.04.2008 registered under sections 147, 148, 149, 448, 323, 307, 379 and 504 of IPC, in which PW-8 Kalachand Yadav is the informant. A counter case, apparently registered earlier, being Pathargama P.S. Case no. 67/2008 dated 16.04.2008 was registered under sections 341, 323, 504 and 379/34 of IPC, in which DW-1 Deen Dayal Yadav, was the informant. Here, it is pertinent to note the case of Nathi Lal and others v. State of UP and another reported in 1990 (Supp) SCC 145, wherein Apex Court has held that both the case and counter case must be tried by the same learned judge one after another and both the judgments must be pronounced one after the other. But, the judgement of the counter case is not on record, hence, this court is unable to ascertain whether the ratio laid down in Nathi Lal (supra) was followed i.e. both the case and counter case were tried together. So, the issue, who being the aggressor i.e. informant side or the appellant side is not known. 24. Ongoing through the evidence of doctor, I find that there are two injured persons in this case PW-8 informant Kalachand Yadav and PW-2 Birbal Yadav. Informant PW-8 Kalachand Yadav, has deposed that appellant Deo Narayan Yadav, had assaulted him with sabbal (iron rod) on his head. On examination of Kalachand Yadav, doctor PW-5 had found two injuries on his person (i) An abrasion 2”x 2” x 1/10” on left shoulder, and (ii) A lacerated wound 4”x 1/2”x 1/4” on vertex, left aside above hair line. On perusal of Ext.-2, which is the injury report of PW-8 Kalachand Yadav, I find that injury no. (i) is simple and caused by hard and blunt substance. Regarding injury no. (ii) sustained by Kalachand Yadav, the opinion was reserved and injured Kalachand Yadav was referred to Sadar Hospital, Godda. Thereafter, PW-4 Dr. Dilip Kumar Chaudhary, C.A.S., had examined Kalachand Yadav, and PW-4 doctor in his deposition had deposed that no grievous injury was found on the person of PW-8 Kalachand Yadav, meaning thereby that injury no.(ii) sustained by the Kalachand Yadav was simple in nature. Thereafter, PW-4 Dr. Dilip Kumar Chaudhary, C.A.S., had examined Kalachand Yadav, and PW-4 doctor in his deposition had deposed that no grievous injury was found on the person of PW-8 Kalachand Yadav, meaning thereby that injury no.(ii) sustained by the Kalachand Yadav was simple in nature. Hence, fact remains that both the injuries sustained by the informant Kalachand Yadav were simple in nature and so, conviction of the appellant Deo Narayan Yadav, is modified to one under 324 of IPC for causing simple injury on the head the informant with sabbal(iron rod). 25. Further, on examination of PW-2 Birbal Yadav, doctor PW-5 had found one injury on his person viz an abrasion 1/14” x 1/10” in nail bed of left index finger and in his injury report Ext.-2/1, this injury was opined as simple. But, in his examination-in-chief, PW-2 has simply stated that he was assaulted and did not say, on which part of his body, he had sustained injury. In his cross-examination, at para-4, PW-2 has specifically stated that, he had sustained injury by stone, in his back, but, doctor did not find any injury on his back. Hence, the injury sustained by PW-2 on his index finger, which is very meagre and PW-5 doctor had opined that the injury sustained by Birbal Yadav, is possible in ordinary course of business and so, injury of Birbal Yadav, becomes doubtful. 26. As far as appellants in Criminal Appeal (SJ) No. 763 of 2010, who are eight in numbers, are concerned, I find that Informant Kalachand Yadav, in his examination-in-chief has stated that Appellant no.2 Madan Lal Yadav was armed with rod, Appellant no. 8 Jai Lal Yadav and Appellant no. 1 Ramji Yadav were armed with lathi and they had also assaulted him. Informant has also deposed that Appellant no. 6 Yasoda Devi and Appellant no. 7 Butani Devi and wife of Madan i.e. Appellant no. 5 Hiria Devi had assaulted with bricks and stones. But, question arises when all these aforesaid appellants i.e. Appellant no. 1, Appellant no. 2, Appellant no. 5, Appellant no. 6, Appellant no. 7 and Appellant no. 8 were assaulting the informant with rod, lathi and bricks and stones, then more injuries should have been reflected in the injury report Ext.-2 of Kalachand Yadav, but, this is not the case. But, question arises when all these aforesaid appellants i.e. Appellant no. 1, Appellant no. 2, Appellant no. 5, Appellant no. 6, Appellant no. 7 and Appellant no. 8 were assaulting the informant with rod, lathi and bricks and stones, then more injuries should have been reflected in the injury report Ext.-2 of Kalachand Yadav, but, this is not the case. Only two injuries are reflected in the injury report of Kalachand Yadav and they too are simple in nature. Further, ongoing through the evidence of PW-1 Yudhistir Yadav, who is the nephew of the informant and had witnessed the occurrence, has deposed in Para-7 of his cross-examination that 2530 lathi blows were given on the body of Kalachand Yadav, but, there are only two injuries in the injury report of Kalachand Yadav. Hence, the ocular evidences pertaining to the injury sustained by the injured Kalachand Yadav, does not corroborate with his injury report Ext.-2, Hence, prosecution has failed to prove the charge under section 307/149 of IPC against these 7 surviving appellants in Criminal Appeal (SJ) No. 763 of 2010. 27. In the case in hand, there are 8 surviving appellants and these 8 surviving appellants were also convicted under section 148 of IPC. But, all the 7 surviving appellants in Criminal Appeal (SJ) No. 763 of 2010, have been acquitted of the charge under section 307/149 of IPC, hence, charge against all the 8 surviving appellants including the sole appellant Deo Narayan Yadav in Criminal Appeal (SJ) No. 714 of 2010 under section 148 of IPC will not survive and so, all the appellants are acquitted of the charge under section 148 of IPC. 28. Accordingly, impugned judgment of conviction and order of sentence of the appellant Deo Narayan Yadav, under section 307/149 of IPC, dated 12th August, 2010, passed by learned Sessions Judge, Godda in Sessions case No. 104/2009, are set aside and modified to one under section 324 of IPC. Further conviction of the appellants in Criminal Appeal(SJ) No. 763 of 2010, under section 307/149 of IPC and order of sentence, cannot be sustained and are hereby set aside. Conviction of all the appellants under section 148 of IPC and its order of sentence are also set aside. All the 7 surviving appellants in Criminal Appeal(SJ) No. 763 of 2010, are discharged from the liabilities of bail bond. 29. Conviction of all the appellants under section 148 of IPC and its order of sentence are also set aside. All the 7 surviving appellants in Criminal Appeal(SJ) No. 763 of 2010, are discharged from the liabilities of bail bond. 29. So, far as sentence of appellant Deo Narayan Yadav, for his conviction under section 324 of IPC, is concerned, I find that occurrence is of 2008 and more than 10 years have elapsed and appellant has faced rigor and vigor of trial and appeal. Hence, at this stage appellant Deo Narayan Yadav, is sentenced to undergo 6 months SI and directed to pay Rs. 20,000/-as compensation, to the injured informant Kalachand Yadav, and in default of payment of compensation amount, he will undergo one month SI. Period already undergone by the appellant shall be deducted from the imposed sentenced. Bail bond of the appellant Deo Narayan Yadav is cancelled. 30. Accordingly, Criminal Appeal(SJ) No. 714 of 2010 is dismissed with aforesaid modification in conviction and sentence and Criminal Appeal(SJ) No. 763 of 2010 is allowed.