IN THE HIGH COURT OF JUDICATURE AT PATNA. Criminal Appeal (S.J.) No. 66 0f 1997 (Appeal against the Judgment and Order dated 20.2.1997 passed by the 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 130 of 1987/70 of 1993) ------------ 1. SIDHESHWAR YADAV 2. RAM PRAVESH YADAV BOTH SONS OF LATE NANHAK YADAV 3. RAM SUNDER YADAV 4. CHOUDHARY YADAV 5. MADHURI YADAV SONS OF LATE BARAN YADAV 6. SURESH YADAV, S/O LATE CHANDRADEO YADAV 7. YUGESHWAR YADAV, S/O LATE PANCHU YADAV 8. GOPAL YADAV, S/O SRI SITARAM YADAV ALL ARE RESIDENTS OF VILLAGE BATWAN, P.S. JAMHORE, DISTRICT AURANGABAD. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. ------- For the Appellant : Mr. Birendra Kumar Singh, Adv. For the State : Mr. R.B. Roy ‘Raman’, A.P.P. P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants No. 1, 3, 4, 5, 6 and 7 have been convicted under Section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years whereas Appellant No. 2 and 8 have been convicted under Sections 307/149 of the Indian Penal Code and sentenced to rigorous imprisonment first seven years. The Appellants No. 1, 2, 6, 7 and 8 have been convicted under Section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for one year whereas Appellants No. 3, 4 and 5 have been convicted under Section 148 of the Indian Penal Code and sentenced to two years rigorous imprisonment. All the Appellants have been convicted also under Section 379 of the Indian Penal 2 Code and sentenced to one year rigorous imprisonment by the 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 130 of 1987/70 of 1993. 2. The case of the prosecution according to the Informant PW-8 Rama Singh is that on 13.12.1986 while he was sowing wheat seed along with his brother, the accused persons suddenly came there and on the order of the Appellants No. 4, Appellant Nos. 1, 4, 5 and 3 assaulted him with various Arms whereas the Appellant No. 4 assaulted his brother Kapildeo Singh (PW-5) on his head with Bhala. The accused persons also committed theft of the three bags of wheat seeds kept at the place of occurrence. 3. The prosecution examined ten witnesses out of whom PW-1 and PW-6 are formal whereas PW-10 is the part Investigating Officer. PW-9 is the Doctor who examined the two injured, PW-5 and PW-8 whereas PW-2, PW-3, PW-4, PW-5 and PW-8 are alleged eye witnesses or belong to the same family. 4. The defence brought many documents on record vide exhibits A, B, C and D series to demonstrate the fact that there was active land dispute between the parties and in fact the land in question was in possession of the accused persons and, therefore, they put forward the plea that in fact the prosecution was aggressor and on the date of occurrence attempted to encroach their lands in which resistance, the present occurrence took place. 5. On going through the evidence of the material witnesses, I find that it is a case where there is a general allegation of assault against all the accused persons except Appellants No. 3, 4 and 5. From the manner of occurrence, it does not appear that the 3 Appellants had intended to cause death of the two injured since despite there being no intervening circumstance, most of the injury sustained by the two injured are superficial and simple in nature. Only one injury each on the person of the PW-5 and PW-8 were found to be grievous in nature by the Doctor (PW-9) which undoubtedly is on the head but from this injury also it can not be inferred that the accused persons had intended to cause the death of PW-5 or PW-8 since there was no repetition of the blows. 6. In the result, all the Appellants are acquitted of the charge under Section 307 and 307/149 of the Indian Penal Code but, the Appellants No. 3, 4 and 5 are convicted under Section 325 of the Indian Penal Code and sentenced to a period already undergone. The Appellants No. 2, 3, 4, 6, 7 and 8 are convicted under Section 323/149 and their sentence to the period already undergone by them during trial. As for the conviction of the Appellants under Sections 147, 148 and 379 of the Indian Penal Code, the same is maintained but the sentence is modified to the period already undergone by them during trial. 7. In the result, the Appeal is dismissed with the aforesaid modifications. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 5th July, 2011. NAFR/S.ALI.