Criminal Appeal (SJ) No.367 of 1998 **** Against the judgment, dated 31.08.1998, passed by Shri Bindeshwari Prasad Yadav, Additional Sessions Judge, III, Banka, in Sessions Case No. 518 of 1994 **** 1. Shukar Sah, son of Ganori Sah 2. Bhudeo Sah, son of Ganori Sah 3. Ganori Sah, son of late Sumari Sah All residents of village Rajabar, P.S. Rajaun, district Banka .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Arun Kr. Tripathi, Adv. as Amicus Curiae For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No one appears on behalf of the appellant. 2. Heard Mr. Arun Kumar Tripathi, appointed as amicus curiae and the State. 3. The appellants 2 and 3 have been convicted under Section 304 part II of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and appellant 1 has been convicted under Section 323 of the Penal Code and sentenced to 2 undergo rigorous imprisonment for one year. 4. The prosecution case is that the appellants are Ganori Sah and his two sons Shukar Sah and Bhudeo Sah are the appellants. The informant, Saudagar Sah, P.W. 4, is the son of Modi Sah. The deceased, Anmana Devi, is the wife of Modi Sah. The witness Sandhya Devi, P.W. 3, is the daughter of Modi Sah. P.W. 2 is the wife of the informant. The appellants, Ganori Sah and Modi Sah, were full brother. The appellants are Ganori Sah and his sons and the prosecution party is the descendants of Modi Sah. Both the families live in same premises having same court yard and using one well in the court yard. However, there was a dispute for raising wall and for exit (rasta). Both have their exit towards north. There was no wall in the court yard. There was some dispute between the parties about two and half months prior to the occurrence and in this connection a notice for a proceeding under Section 107 of the Criminal Procedure Code served on the appellants at the instance of the informant. After receipt of the notice, it is alleged that the accused persons, Shukar Sah was armed with garasa, Ganori Sah was armed with lathi and Bhudeo Sah armed with iron rod came. Saudagar Sah assaulted and when the mother of Saudagar Sah came to his rescue, she was also assaulted by Bhudeo Sah and Ganori Sah and the mother of the informant got unconscious, she was taken to hospital. In the hospital they were examined by doctor and the victim was further referred to Bhagalpur Hospital where she succumbed to injury after 3-4 days of the treatment. 5. With regard to the occurrence, the first information report lodged and during investigation the charge sheet submitted and 3 case committed to the Court of sessions. 6. During the trial, eight witnesses were examined, who are P.W. 1, Shyam Singh, P.W. 2, Sumitra Devi, the wife of the informant, P.W. 3, Shambha Devi, the deceased and the mother of the informant, P.W. 4, the informant, himself, P.W. 5, the doctor, who examined the deceased, P.W. 6, the investigating officer, P.W. 7, the doctor who did the autopsy and P.W. 8, formal witness. Further, the witnesses supported the prosecution case about the assault. The doctor found a swelling injury on the person of the deceased and also found the injury on the person of the informant and his wife and there is evidence that Bhudeo Sah and Ganori Sah assaulted the deceased. The injury found on the person of the deceased as swelling on the head, proved by the doctor and the post mortem report suggests that the injury on head is ante mortem. 7. The learned Advocate appearing as amicus curiae, however, has not challenged the order of conviction, however, contended that Ganori and Bhudeo Sah charged under Section 302/34 of the Penal Code, Shukar Sah charged under Section 323 of the Penal Code. Allegation is that Shukar Sah assaulted the informant’s and wife of informant came to her rescue, they were assaulted by Ganori by lathi and by Bhudeo by rod assaulted the informant. 8. In the instant case appellant no. 3 is more than ninety years old and appellants 1 and 2 are his sons. It is contended that both the families are descendant of common ancestor. It is case of family feud and seventeen years have elapsed. 9. P.Ws. 2 and 4 supported the prosecution case. Shukar 4 gave garasa blow to informant and when mother and wife of informant came to rescue they were assaulted by Ganori Sah and Bhudeo Sah by lathi and rod. However, the deceased received only one injury on head, but, it is not specific who gave the blow on the head and the doctor, P.W. 5, found only one swelling on the head and the other doctor, P.W. 7, found that there is no apparent injury except swelling and cause of death is intra ceramal haemorrhage, anamic and hypo protein. Hence, under the facts and circumstances, since, the occurrence took place with regard to the dispute of land and the parties are descendants of common ancestor and the injuries inflicted is by hard and blunt substance and occurrence took place for the family feud. However, having regard to the fact that occurrence took place in the year 1993 and more than seventeen years have elapsed, hence, appellant no. 1 is ordered to be released after due admonition under Probation of Offenders Act and so far appellants 2 and 3 have remained in jail for about two months after conviction and sentence, taking into consideration their age and the facts and circumstances the end of justice shall meet by sentencing them for the period already undergone. 10. With this modification in sentence, this appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 16th day of September, 2011, N.A.F.R., S.A.