Criminal Appeal (SJ) No.195 of 1998 **** Against the judgment, dated 04.05.1998, passed by Shri Subodh Paswan, Additional Sessions Judge, IV, Vaishali at Hajipur, in S. Tr. No. 274 of 1989 **** 1. Siya Ram Das, son of late Shiv Nanda, Das 2. Raghubans Choudhary, son of late Thakur Choudhary 3. Manoj Kumar @ Saroj Kumar, son of Siya Ram Das All are residents of village Kanhauli, P.S. Mahua, district Vaishali .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Ram Shankar Das, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellant no. 1 has been convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for one year and further convicted under Section 323 of the Penal Code and sentenced to undergo rigorous imprisonment for three months and appellants no. 2 and 3 have been sentenced to undergo simple imprisonment for three months under Section 323 of the Penal Code. 2 3. The prosecution case is that the dispute arose about the installing a hand pipe and in the said dispute it is alleged that accused Siya Ram Das took spade from the labourer and gave a blow on the head of the informant, Ganesh Paswan, and other accused assaulted with fists and slaps and when wife and bhabi of the informant come to rescue, they were also assaulted. 4. The trial Court after considering that seven witnesses have been examined in this case. P.Ws. 1, 2, 3 and 6 have supported the prosecution case about the assault by spade, slap and fist on person of Ganesh Paswan and Sushila Devi and bhabhi. However, P.W. 5 has been declared hostile and P.W. 4 is a tender. The defence of the accused is that this is a case of case and counter case and Exhibit “A” is certified copy of counter case. The investigating officer and the doctor have not been examined. The trial Court taking into consideration the evidence of the witnesses convicted the appellants under Sections 324 and 323 of the Penal Code absolving from charges under Section 307 of the Penal Code. 5. The learned counsel for the appellants submits that the investigating officer and the doctor have not been examined and there are various contradictions in the evidence of witnesses and the contradiction pointed out that one of the witnesses stated that he went to the shop and then he says that he went to take tea and with regard to the assault that he says that he took spade from a labourer and some times he says that from the informant. 6. From the perusal of record, it is apparent that witness 3 has supported the prosecution case of assault by spade and slaps and fists and the contradictions pointed out are not as such to go to the root of prosecution case to disbelieve the witness. 7. However, the conviction has been recorded under Sections 324 and 323 of the Penal Code, but, benefit of Probation of Offenders Act not given and the occurrence is of the year 1988, hence, the appellants are required the benefit of Section 360 of the Probation of Offenders Act and, hence, the appellants are ordered to be released on due admonition. 8. The appeal is disposed off with the modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 23rd day of August 2011, N.A.F.R., S.A.