Criminal Appeal (SJ) No.361 of 1998 **** Against the judgment, dated 10.09.1998, passed by Shri Krishnakant Sahaya, Additional Sessions Judge, III, Nawadah, in S. Tr. No. 73 of 1991/380 of 1989 **** 1. Brajnandan Prasad, son of late Soudagar Mahto 2. Awadhesh Prasad, son of late Chhotan Mahto 3. Rajendra Prasad, son of late Chhotan Mahto All residents of village Bhawar, P.O. Birnawan, P.S. Kashichak, district Nawadah .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. B.K. Bariar, Adv. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. The appellants have been convicted under Section 323/34 of the Penal Code and sentenced to undergo rigorous imprisonment for six months each. 3. The prosecution case, as alleged that on21.02.1987 at about 04.00 p.m. the informant, Parmeshwar Prasad, P.W. 5, while standing at his door Awadhesh Prasad, Rajendra Prasad and 2 Brajnandan Prasad came with lathi, khanti and paina and surrounded the informant and Rajendra Prasad gave khanti blow on the head of the informant as a result of which is received bleeding injury and Awadhesh Prasad and Brajnandan Prasad gave lathi blow on the left thumb and shoulder of the informant and when the mother of the informant, Tetari Devi, came to his rescue, she has also been assaulted by Rajendra Prasad by khanti on her head. 4. On the basis of the fardbeyan, the first information report lodged and after investigation the charge sheet submitted for offence under Section 307 and allied sections of the Penal Code and consequently an offence taken and the case committed to the Court of sessions. A charge under Section 307/34 of the Penal Code was framed against the appellants. 5. During the trial eight witnesses were examined by the prosecution case. P.W. 1 is the doctor. P.W. 2 is Dinesh, a formal witness. P.W. 5 is the informant who has supported the prosecution case about assault, however, admitted that the immediate cause of action that while the sister of the informant has gone to fetch water then Awadhesh Prasad has pushed her and the occurrence took place for quarrelling, it has also been admitted that there is land disputed between the parties. P.Ws. 3 and 4 also supported the prosecution case. 6. The trial Court taking into consideration the evidence and the facts and circumstances as well as the defence of the accused that this is a case of case and counter case and the prosecution had 3 supported the prosecution case about the assault. There is land dispute between the parties as both are claiming a land and the immediate cause of occurrence is pushing the sister of the informant. The doctor, P.W. 1, had found the injury and, hence, convicted the appellants, as mentioned above. 7. The defence has also examined one witness and has proved Exhibit “A”, the first information report of counter case, with regard to the same time and place of occurrence. 8. The trial Court, taking into consideration the evidence of prosecution convicted the appellants, as mentioned above. 9. The learned counsel for the appellants, however, contended that this is a case of case and counter case and there was land dispute and there are contradictions in the evidence of the witnesses. Hence, taking into consideration the evidence and the facts and circumstances, having regard to the facts that there is case and counter case with regard to the same place and time of occurrence and, hence, the occurrence is admitted. However, P.Ws. 3, 4 and 5 have supported the prosecution case, about assault contradiction is minor in nature and the doctor has found the corresponding injury and has proved the injury report and, hence, the prosecution has been able to prove the injury and assault and, hence, the offence under Sections 323 of the Penal Code is established. 10. However, having regard to the fact that occurrence is of the year 1987 and there is land dispute between the parties and the occurrence took place with regard to the trifle matter between them, 4 however, the appellants have been convicted under Section 363 of the Penal Code, but, the lower Court did not take into consideration Section 363 of the Penal Code and 3 of the Probation of Offenders Act, hence, under the facts and circumstances, the appellants are entitled for benefit under Probation of Offenders Act and, hence, the appellants are ordered to be released on due admonition. 11. The appeal is dismissed with modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 28th day of November, 2011, N.A.F.R., S.A.