Criminal Appeal (SJ) No.159 of 1998 **** Against the judgment, dated 03.04.1998, passed by Sri Sarju Prasad, Additional Sessions Judge, I, Saharsa, in Sessions Case No. 203 of 1989 **** 1. Maujilal Mehta, S/O Jamun Mehta 2. Anant Kumar Mehta @ Anant Mehta, S/O Khusilal Mehta 3. Khusilal Mehta, S/O Jamun Mehta 4. Amod Mehta, S/O Khusilal Mehta All resident of village Hanuman Nagar, P.S. Sourt Bazar, district Saharsa .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Praveen Kumar Agrawal & Radhe Shyam Pd., Advs. 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. 3, Khusilal Mehta, has been convicted under Section 147 of the Penal Code and sentenced to undergo rigorous imprisonment for six months and others convicted under Section 325 of the Penal Code and sentenced to undergo rigorous imprisonment for three years and rest of the appellants are convicted under Sections 147 and 323 and sentenced to undergo rigorous imprisonment for six 2 months and, further sentenced under Sections 325/149 of the Penal Code and sentenced to undergo rigorous imprisonment for three years. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case, as alleged in the fardbeyan that at 08.30 a.m. on 03.11.1988, the informant asked his cousin brother, Khusilal Mehta to show deed regarding partition by the Panchayati of the ancestral land otherwise he will break the ridge and will consolidate the land on which there was verbal altercation and then Khusilal Mehta came armed with lathi and then the informant started fleeing away and when he reached at the darwaza then he indiscriminately assaulted and when his wife and daughter protested then Maujilal Mehta, Jamuna Mehta, Anant Kumar Mehta and Amod Mehta came and assaulted the wife and daughter causing fracture of clerical bone. 4. On the fardbeyan, the first information report lodged, after investigation charge sheet submitted, cognizance taken and the case was committed to the Court of sessions where charge was framed under Sections 147, 149 and 307/149 of the Penal Code and during the trial nine witnesses examined by the prosecution case and three witnesses examined by the defence and the trial Court taking into consideration the evidence of the witnesses as well as the injury report on the informant and his wife and daughter and found the injuries simple except one on the person of Sheela Devi, the wife of the informant, a simple fracture of medial 1/3rd of left clerical bone alleged to be inflected by Khusilal Mehta, convicted him for offence under 3 Section 325 of the Penal Code and other appellants under Section 325/149 of the Penal Code and sentenced as stated above and acquitted the appellants for charged under Section 307 of the Penal Code. 5. The learned counsel for the appellants, however, contends that Khusilal Mehta is a person who is seventy years old at the time of judgment in the year 1998 and both the appellants and the accused persons are descendant to common ancestors living in the same house and the occurrence is of two family feud and the weapon used is lathi and though the conviction has been maintained under Section 325 of the Penal Code holding it a grievous offence, but, the x-ray report has not been proved and, further, as per the nature of the allegation, itself, the offence under Section 149 of the Penal Code is not made out and there is no common intention and the accused persons come one after other and only four persons are facing trial though the charge sheet has been submitted against five persons. 6. However, I perused the record though the witnesses supported the prosecution case and though there is allegation of assault and the injury report has been proved, however, the injuries have been shown to be simple, except two injuries on the persons of the informant and other on the person of the informant’s wife shown to be grievous on the basis of the x-ray report, however, the x-ray report has not been proved and, hence, the conviction under Section 325 of the Penal Code is not maintainable and, hence, the conviction under Section 325 of the Penal Code is converted to Section 323 of the Penal Code and, further, taking into consideration that the occurrence took place for showing the 4 papers with threat to removing the brick and there was verbal altercation between Khusilal Mehta and the informant with regard to the partition of the land and after assault when wife and daughter of the informant came they were assaulted by other inmates and, hence, the occurrence took place on the spur of moment and there is no common object. 7. Having regard to the facts and circumstances, since, the x-ray report has not been proved the order of conviction under section 325 of the Penal Code is not maintainable and is substituted by Section 323 of the Penal Code, however, taking into consideration the fact that the occurrence is of the year 1988 and both the parties are descendant of common ancestors living in the same house, hence, the benefit of Section 360 of the Probation of Offenders Act required to be given and, hence, the benefit of Section 360 of the Probation of Offenders Act is given to the appellants and they are ordered to be released with due admonition. 8. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 16th day of August 2011, N.A.F.R., S.A.