Criminal Appeal (SJ) No.62 of 1997 Against the judgment and order dated 31st January, 1997 passed in Sessions Case No. 834 of 1990/TR No. 385/1990 by Sri. D.N. Barai, 1st Additional Sessions Judge, Bhagalpur. 1. SHIVNANDAN MANDAL SON OF DHONESHWAR MANDAL. 2. GUDESHWAR MANDAL SON OF DHANESHWAR MANDAL. 3. AWADHESH KUMAR @ AWADHASH MANDAL SON OF SHIBNANDAN MANDAL. 4. VARUN KUMAR @ VARUN MANDAL SON OF GUDESHWAR MANDAL, ALL OF VILLAGE KARHARIYA P.S. BATH (SULTANGANJ) DISTRICT BHAGALPUR. ……APPELLANT/S VERSUS STATE OF BIHAR.... .... RESPONDENT/S For the Appellant/s : Mr. Suresh Prasad Singh, Adv. For the Respondent/s : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the respondent. 2. All the appellants accept appellant no. 3 have been convicted for an offence under Section 337 of the Indian Penal Code and they have been sentenced to undergo R.I. for two years. The appellant no. 3 has been given the benefit under section 360 Cr.P.C. and Probation of Offenders Act and has been ordered to be released on execution of bond of Rs. 1000/- with two sureties to keep peace and good behaviour. The appellant nos. 1 and 4 were further convicted for an offence under Section 324 of the Indian Penal code and sentenced to undergo R.I. for two years each. 3. The prosecution case is that on 17.07.1990 at about 9 A.M. the appellants started constructing drain by Patna High Court CR. APP (SJ) No.62 of 1997 dt.04-07-2011 2 digging on the road by means of spade. The drain road goes towards the house of the informant. The informant protested had to verbal altercation. They started pelting brickbats and stones pieces as a result of which the informant sustained several injuries. The investigation was taken up by the officer- in-charge himself and after investigation charge sheet was submitted against all the four accused persons under the aforesaid sections and cognizance was taken accordingly. 4. Learned counsel for the appellant contended that there was enmity between the parties and there is allegation of pelting stone but no stone found and hence appellants have falsely been implicated. It has further been contended that both the parties are Gotias of common ancestor. The appellant facing the trial and appeal since last 20 years but has not been provided the benefit under Section 360 Cr.P.C. and Section 3 and 4 of the Probation of Offenders Act. 5. Having regard to the submission I perused the record P.Ws. 1, 2, 3 and 5 supported the prosecution case and P.W. 4 the doctor has found the compounding injury. The place of occurrence has been established by the evidence of witness and non-examination the I.O. has not caused any prejudiced. Hence, having regard to the facts and circumstances, I do not find any illegality in the order of conviction recorded by the lower court. 6. However, having regard to the facts that the parties are descendent of common ancestor and twenty years Patna High Court CR. APP (SJ) No.62 of 1997 dt.04-07-2011 3 elapsed and hence I find that the appellants are entitled to benefit under Section 360 Cr.P.C. as well as 3 and 4 of the Probation of Offenders Act and hence the appellant is ordered to be released on executing a bond of Rs. 2000/- with two sureties for keeping peace for one year and shall appear as and when require to face sentence and order of sentence and the appeal is allowed to that extend. Patna High Court, Patna Dated 4th July 2011 N.A.F.R/Devendra/ ( Gopal Prasad, J.)