JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. Heard Mr. Anurag Kashyap, learned counsel appearing for the appellants as well as Mr. P.D. Agarwal, learned Spl.P.P. appearing for the State. 2. Present appeal is directed against the judgment and order dated 31.03.2006 passed by Learned Sessions Judge, Hazaribagh in Sessions Trial No. 203 of 1992, whereby and whereunder the appellants have been held guilty and sentenced for the offences under Section 307 and 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.2,000/- each and they are further sentenced to undergo R.I. for five years along with fine of Rs.1,000/- each under Section 452 of the I.P.C. with default stipulation. Both the sentences were directed to be run concurrently. Factual Matrix 3. The factual matrix giving rise to this appeal is that on 30.11.1989 at about 04:00 PM, informant Arun Kumar Jain was in his shop at “Okni Road Wool House.“ Meanwhile, his father came to the shop and told that 5-6 persons entered the house, then the informant rushed towards his home and saw that present appellants and some others have entered in the house after breaking the lock. Upon protest, they assaulted the informant by hammer and bhujali. It is further alleged that informant’s father and brother were also assaulted by the accused persons and received injuries. Hearing commotion, local persons also gathered and informed the police. The injured were brought to Sadar Hospital for medical examination where Fardbeyan of the informant was recorded by the police. 4. On the basis of aforesaid information, Sadar P.S. Case No. 448/89 was registered for the offences under Sections 452, 307, 323 read with Section 34 of the Indian Penal Code. 5. After completion of investigation, charge-sheet was submitted against the above appellants for the offences under Section 307, 452, and 323 read with Section 34 of the Indian Penal Code. Further, the case was committed to the court of Sessions where the charges were framed and explained to them which were denied by the appellants and claimed to be tried. 6. After conclusion of trial, the impugned judgment and order of conviction and sentences were passed in which has been assailed in this appeal. 7. In order to prove the charges altogether eight witnesses were examined by the prosecution. 8. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced. 6. After conclusion of trial, the impugned judgment and order of conviction and sentences were passed in which has been assailed in this appeal. 7. In order to prove the charges altogether eight witnesses were examined by the prosecution. 8. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced. Exhibit 1 : Injury report of Rajesh Kumar Jain Exhibit 2 : Injury Report of Arun Kumar Jain Exhibit 3 : Injury report of Deep Chand Jain Exhibit 4 : Fardbeyan of Arun Kumar Jain. Exhibit 5 : Signaure of Soyeb Akhtar on Seizure list Exhibit 6 : Seizure list. Exhibit 7 : Formal F.I.R. 9. The case of defence is denial from the charges and further defence is that appellants are innocent who have not committed any offence and they have falsely been implicated in this case. 10. Being aggrieved with the impugned judgment of conviction and order of sentence dated 31.03.2006; this Criminal Appeal has been preferred on behalf of the appellants. 11.An interlocutory application was filed by the appellants for deletion of name of appellant no.3 (Nagi Singh @ Nageshwar Singh @ Nagendra Singh @ Nagi) as he had died on 08.03.2016, Hence, the appeal so far relates to the appellant no.3 stands abated. 12. Learned counsel for the appellants has argued that the injury report of the informant, his father and brother clearly shows that there is one grievous injury on the ribs and other injuries are simple in nature caused by hard and blunt substance. P.W.3, the brother of the informant has sustained grievous injury in the ribs. The totality of circumstances under which the occurrence took place and injury sustained by the informant party does not attract the commission of offence under Section 307 of the I.P.C. It is further submitted that there is a land dispute is going on between the parties in respect of same place of occurrence, title suit no.50/91 was instituted after this occurrence and that was decided and decreed in favour of the appellants. Since it appears from the occurrence that there was no premeditation or intention to kill any of the injured persons and since there was a bona fide land dispute itself, therefore, offence under Section 307 not attracted and at best the case comes under Sections 323 and 325 of the Indian Penal Code. Since it appears from the occurrence that there was no premeditation or intention to kill any of the injured persons and since there was a bona fide land dispute itself, therefore, offence under Section 307 not attracted and at best the case comes under Sections 323 and 325 of the Indian Penal Code. It is further submitted that it was appellants’ first offence and there were no previous conviction credited to them. Hence, appellants deserve the benefit of Section 4 of Probation of Offender Act, 1958. It is further submitted that about 35 years has been expired from the date of occurrence and both parties have settled in their life and separated in their residence. The appellants have maintained peace and harmony post-occurrence also. Hence, taking lenient view in the matter, appellants may be extended the benefit of Section 4 of Probation Offenders Act, 1958 instead of awarding substantive imprisonment as awarded by the learned trial Court. 13. On the other hand, learned Spl.P.P. has opposed the contentions raised on behalf of the appellants and submitted that the appellants have acted in a consented manner and indiscriminately assaulted to the informant and his family members with intention to kill them. The learned trial court has very wisely and aptly considered the overall aspects of the case and appropriately sentenced to them. There is no need to interfere with impugned judgment and order hence, this appeal is fit to be set aside. 14. I have given anxious consideration to the aforesaid contentions raised on behalf of both side and also perused the impugned judgment and order along with materials available on record. P.W.6:- Arun Kumar Jain, the informant himself, in his evidence, has said that on 30.11.1980 at about 4-5 PM, when he was sitting in his shop at Okni Road Wool House. His father came to him and told that 5-6 persons have entered into the house by breaking the lock and when the informant rushed to his home he saw that accused persons were trying into enter in his house forcibly and upon protest the all of them started assaulting him, his father and brother mercilessly in which they received grievous injuries. P.W.5:- Deep Chand Jain is the father of the informant. P.W.5:- Deep Chand Jain is the father of the informant. In his evidence he has stated that on the day of occurrence, he was sitting in his shop, then he was informed that some persons had entered into his house forcibly, then he along with his son came to his house and saw that some persons were near the door of his house and some had already entered inside the house. When they objected the same, all the accused persons started assaulting them mercilessly, in which they received injuries. P.W.4:- Dr. A.A. Farooqui: who has examined the injured. In his evidence he has stated that on 30.11.1989 at about 04.45 PM, he examined Rajesh Kumar Jain and found abrasion on right side of chest in front abrasion below it, abrasion right side of chest, abrasion on the left side of chest below left nipple and rib on right side posteriorly. Further, he stated that abrasion injuries were simple in nature, but the injury of fracture was grievous and were caused by hard and blunt substance. P.W.2 Md. Wakil & P.W.7 Shoaib Akhtar have been declared hostile by the prosecution. They are the charge-sheet witnesses. P.W.8:- Bejoy Kumar Singh is the investigating officer of this case. In his evidence, this witness has stated that during the course of investigation he recorded the statement of the witnesses as well as statement of the apprehended accused persons and after investigation submitted charge-sheet. 15. Having considered the facts and circumstances of the case, the offences for which the appellants have been convicted and sentenced does not attract the case under Section 307 and 452 indeed there is land dispute. Hence, at best this case falls under Section 325 of the I.P.C. 16. Therefore, conviction and sentence of appellants for offences under Sections 307/452 of the Indian Penal Code is hereby set aside. Considering the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, I am of the considered view that the trial court has failed to record any special reason for not extending the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants instead of awarding substantive sentence of imprisonment, for which the appellants appear to be entitled. 17. 17. In view of above discussions and reasons, this appeal is dismissed on merits with modification in sentence to the extent that the appellants are directed to be released under Section 4 of the Probation of Offenders Act on furnishing the bond of Rs.5,000/- with one surety instead of undergoing substantive sentence of imprisonment passed by the concerned trial court, with condition that they shall be of good behavior and shall maintain peace for a period of one year from the date of furnishing bond. 18. Appellants are further directed to appear before the concerned trial court within three months from the date of this order and furnish the bond as per direction of this Court. 19. The learned trial court shall obtain report from the District Probation Officer periodically and in case of violation of terms and conditions of the bond, the appellants shall be called upon to receive the sentence as may be awarded by learned trial court. 20. Let a copy of this judgment along with trial court records be sent back to the court concerned for information and needful. 21. Pending I.A., if any stands disposed of.