Crl.A. 381/2003 BEFORE HON’BLE MR. JUSTICE B D AGARWAL This criminal appeal is directed against the Judgment and Order dated 15.11.2003 passed by Smti D B Devi, Learned Additional District Judge ( Adhoc) , Darrang, Mangaldoi in Sessions Case No. 78 (DFMT) of 2002 ( G R Case No.448 of 2000). 2. By this impugned Judgment, the learned Trial Court has convicted all the 16 (sixteen) appellants under section 323 and 324 read with section 34 of the IPC. At the same time, the appellant Nos. 1 and 2, Mohar Ali and Aman Ali have a lso been convicted under section 379 and 354 IPC in addition to the offence unde r section 323 and 324 / 34 IPC. Except appellant Nos. 1 and 2, all the remaining appellants have been sentenced to undergo Rigorous imprisonment for 1(one) year with fine of Rs. 500/- and default sentences 6(six) months rigorous imprisonmen t for offence under section 323/ 324/ 34 of the IPC. However, the appellant Moha r Ali and Aman Ali have been sentenced to undergo 1 ‰ year for offence under sec tion 324 IPC. As usual, the aforesaid appellants have also been sentenced to rig orous imprisonment for 1(one) year and a fine of Rs. 500/-with default rigorous imprisonment for 6 (six) months for the offence under section 323/ 34 of the IPC . At the same time, Appellant Mohar Ali and Aman Ali have been sentenced for 6 ( six) months rigorous imprisonment for offences under section 379/ 354 IPC respec tively. 3. Being aggrieved with the conviction and sentences, all the appellants ha ve filed this composite appeal. 4. Heard Ms. K. Deka and Mr. W. Imran, learned counsels on behalf of the ap pellants under authority of Mr. A B Choudhury, learned senior counsel also heard Mr. B S Sinha, learned Addl. P.P. for the State. 5. The prosecution case in brief is that the appellant Mohar Ali had an agr eement with the victim Jainal Abedin about 1 (one) Bigha land at a consideration of Rs. 11,400/- and advance payment of Rs. 6000/- was made to the land owner. It is the further case of the prosecution that without paying the remaining cons ideration amount, the appellant Mohar Ali was insisting for executing the sale d eed in his favour. The remaining appellant are brothers, cousins and closely rel ated to the said Mohar Ali. It is also the case of the prosecution that on 14.10 .2000 at about 6.30 in the morning, the appellants came to the house of Jainal A bedin and demanded execution of the sale deed and on his refusal, without paymen t of the balance amount , said Jainal Abedin was assaulted with spear, lathi and wooden piece. Hearing the shouting of Jainal Abedin, his mother and brothers al so came to the scene and they were also assaulted at random. Thereafter, the inj ured were hospitalized and FIR was lodged under section 147/ 148/ 323/ 354/ 427 / 395 read with Section 34 of the IPC being Majbat Police Station Case No. 73 of 2000. After investigation, chargesheet was also laid accordingly. However, accu sed persons were tried only under section 148/ 324/ 354/ 395 and 323 of the IPC and after trial, the appellants have been convicted as indicated in the judgment earlier. 6. After going through the impugned judgment and evidence on record, it is clear that there was no dispute from the side of the accused persons about the i ncident and ’mar pit’. However, the defence case was that the disputed land was in their possession and as such the informant and the prosecution witnesses had come to re-occupy the same and appellant/ accused persons were assaulted. 7. During the course of arguments, Ms. Deka submitted that the prosec ution failed to prove the exact place of occurrence and on this ground alone, th e appellants may be acquitted on benefit of doubt. Learned Counsel for the appel lants also contended that the conviction under section 379 and 354 IPC against M ohar Ali and Aman Ali respectively has been recorded without any evidence. With regard to the sentence, learned counsel submitted that in view of mutual fight a rising out of rival claim of possession of a piece of land, the sentence is on t he higher side. 8. With regard to the place of occurrence, the record reveals that the house of Jainal Abedin and his brother was contiguous to the vegetable field. On the other hand, some of the appellants also lived nearby and some of the appellants were from adjacent village. 9. Relying upon the testimony of PW-8, learned counsel for the appellant su bmitted that since a bicycle was recovered from the field, it has to be inferred that the incident took place in the filed and not in the house of Jainal Abedin . After going through the testimony of witnesses, it is clear that the field was situated adjacent to the house of Jainal Abedin and the bicycle was also recove red after 15 to 20 days. Hence, recovery of bicycle from the field cannot be con sidered as a conclusive proof that the ’mar pit’ had taken place altogether at a different place or far away from the house of the injured persons. Hence, the t heory of contradiction about the place of occurrence is mis-placed and rejected. 10. The record reveals that out of ten witnesses, as many as seven witne sses are victims of the assault. The other witnesses are medical officer and the I.O. . It is the settled position of law that injured are less likely to implic ate innocent persons allowing main culprits to go scot-free. At the same time wh en a large number of people are involved in the ’mar pit’ , it is also difficult to pinpoint as to which accused assaulted whom and give precise evidence of the use of specific weapon used by the assailants. However, in the present case, al l the injured persons have implicated all the appellants, except Kasem Ali in th e assault. 11. It is true that a plea was taken in the Trial Court that some of the acc used persons were from different villages and, as such, it would not have been p ossible for them to attack the informant and other persons early in the morning. However, the testimony of independent witnesses corroborates the prosecution st ory and the record do not support this plea. Be that as it may, no defence evide nce was tendered to prove that the appellants were living in different villages and at sufficient distance from the place of occurrence. 12. The victims’ testimony about the assault has also been corroborated by m edical evidence. Two doctors were examined by the prosecution to prove the injur y. PW-1 , Dr. Manjula Medhi has proved the injury upon as many as four persons, whereas PW-2, Dr. DN Saikia has proved the injuries upon Jainal Abedin. Accordin g to PW-2, Jainal Abedin had sustained penetrating injury over left side of the chest, ephysema of left lung and fracture of left arm. According to PW-3, the in jury of Jainal Abedin has been described to be grievous one. Be that as it may, the said Jainal Abedin had taken nearly one month treatment in government hospit al. Hence, conviction of the appellants under section 323/ 324 read with section 34 of the IPC cannot be faulted, except to Kasem Ali. In other words, the conv iction of all the appellants for the aforesaid offences is hereby upheld. Since, no victim has implicated Kasem Ali for the offence the, conviction of Kasem Ali is hereby set aside from all the offences. 13. With regard to the conviction of Mohar Ali under section 379 IPC, ther e is no conclusive evidence of stealing any property from the house of the victi ms nor is there any evidence of recovery of any stolen property. Hence, convicti on of the said appellant under section 379 IPC is hereby set aside. 14. Similarly, the conviction of Aman Ali under section 354 IPC is also un- sustainable on facts. It is true that Jainal ’s mother Musstt. Zohara Begum was also assaulted with blunt weapon. In my considered opinion, just because a woman is assaulted with a weapon, it will not attract the offence under section 354 IPC. In other words, the prosection has to prove that force of any kind was used with intention to outrage the modesty of such woman. In the present cas e, PW-4 was assaulted when she herself came running to the place of occurrence h earing ’hulla’ and as such, Amar Ali had no intention to outrage her modesty. Ac cordingly, conviction of Aman Ali under section 354 IPC is also hereby set aside . 15. With regard to the sentence, it appears from the impugned judgment that the learned Additional Sessions Judge has directed that all the sentences shall run separately, meaning thereby consecutively. Having regard to the fact that th e incident took place due to refusal of the Jainal Abedin to execute the sale d eed without full payment of value of the land, it would be just and proper to or der that the sentences would run concurrently. However, it is made clear that th e quantum of sentences does not require interference. 16. In the result, appeal stands dismissed. However, conviction of the remai ning appellants Kasem Ali under section 323/ 324/ 34 IPC is hereby set aside. He is set at liberty. Similarly, conviction of Mohar Ali and Aman Ali under sectio n 379/354 IPC respectively are also set aside. At the same time, it is directed that all the sentences shall run concurrently. The appellants are directed to s ent the trial to seve out the remaining period of sentences. 17. The Registry is directed to return the LCR with a copy of this judgment to the Trial Court. On receipt of this Judgment, learned Additional Sessions Judge, Darrang shall issue modified custody of warrant in terms of this judgment.