Criminal Appeal (SJ) No.346 of 1998 Against the judgment and order of conviction and sentence dated 04. 09. 1998, passed by Shri Krishnakant Sahaya, 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No. 40 of 1991/114 of 1988. 1. Mathura Mahto, Son of Mutar Mahto. 2. Binod Prasad, son of Mathura Mahto. Both residents of Village- Mahadeo Bigha, P.S. Kashichak, District- Nawadah. 3. Bindeshwar Prasad. 4. Parmeshwar Prasad. Both sons of Shibu Mahto. Both residents of Village- Bhoar, P.S. Kashichak, District- Nawadah. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 341 I.P.C. and have been sentenced to undergo rigorous imprisonment for one month and further convicted for offence under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months. 3. The occurrence dated 21. 02. 1987 and there is allegation that occurrence took place for taking paddy 2 from the khalihan. However, there is case and counter case. However, initially charge was framed under Sections 307 and 379 I.P.C. and other allied Sections of Indian Penal Code and tried as Sessions Case. After framing of the charge nine witnesses were examined. 4. The trial court taking into consideration the evidence of witnesses and other circumstance of the fact convicted the appellants for offence under Sections 341 and 323 of Indian Penal Code. However, acquitted the appellants for offence under Section 148 and 379 I.P.C. However, no finding recorded for offence under Section 307 I.P.C. 5. However, the trial court, though, considered that according to the doctor only one injury found on the head of Awadhesh Prasad (P.W.5) informant and only one injury found on the head of Rajendra Prasad (P.W.3) both injury was found simple in nature by hard blunt weapon. There was no order by Mathura to kill. However, has not recoded the finding with regard to the offence under Section 307 I.P.C., hence stand acquitted for the same, though, convicted the appellants for offence under Section 323 I.P.C. 3 6. However, having regard to the fact that occurrence took place on 21. 02. 1987 and appellants having faced rigour of the prosecution since then and there is case and counter case with regard to the land dispute. 7. Hence having regard to the fact and circumstance, the case arose due to case and counter case with regard to the same time and place of occurrence and both parties are litigating terms inimical to each other. However, the occurrence is of the year 1987 and learned lower court did not consider to give benefit under Section 360 Cr.P.C. or Section 3 and 4 of Probation of Offenders Act to the appellants. 8. Hence under the facts and circumstance of the case, I give the appellants for benefit of Probation of Offenders Act as well as Section 360 Cr.P.C. of Penal Code. Hence it is hereby ordered that appellants are ordered to be released on due admonition. Hence this appeal is dismissed with modification of sentence. Patna High Court The 15th November, 2011. NAFR/m.p. ( Gopal Prasad, J.)