Anant Bijay Singh, J. - All the three criminal appeals have been heard together and are being disposed of by a common Judgment as the three criminal appeals arise out of the same F.I.R. i.e. Dandai P.S. Case No.12/2013 corresponding to G.R. No.393/2013.

2. Two criminal appeals i.e. Cr. App. (DB) No.539/2015 has been preferred by the appellants Mahtab Ansari and Zahir Ansari and Cr. App. (DB) No.540/2015 has been preferred by the appellant Tajmi Bibi @ Hafizi Bibi being aggrieved by and dissatisfied with the judgment of conviction dated 1.7.2015 and order of sentence dated 9.7.2015 passed by Addl. Sessions Judge, F.T.C.-IV, Garhwa in Sessions Trial No. 363 of 2014 whereby and whereunder, the learned trial court held the appellants Tajmi Bibi @ Hafizi Bibi, Zahir Ansari and Mahtab Ansari guilty under Section 307/34 of the Indian Penal Code and sentenced them to undergo R.I for 10 years and fine of Rs. 5,000/ each for the charge under Section 307/34 of Indian Penal Code and in default of payment of fine, they have been directed to further undergo S.I. of six months and the period already undergo by the appellants has been ordered to be set off in terms of their respective sentences.

3. Cr. App. (DB) No.977/2015 has been preferred by the appellant Zawed Ansari being aggrieved by and dissatisfied with the judgment of conviction dated 1.7.2015 and order of sentence dated 05.10.2015 passed by Addl. Sessions Judge, F.T.C.-IV, Garhwa in Sessions Trial No. 363 of 2014(A) whereby and whereunder, the learned trial court held the appellant Zawed Ansari guilty under Section 307/34 of the Indian Penal Code and sentenced him to undergo R.I for 10 years and fine of Rs. 5,000/ for the charge under Section 307/34 of Indian Penal Code and in default of payment of fine, he has been directed to further undergo S.I. of six months and the period already undergone by the appellant has been ordered to be set off in terms of his respective sentence.

4. The case of prosecution, as per written report given by informant, namely Anugrah Narain Sao (not examined) as he died subsequently addressed to S.I. P. Kispotta, Officer-in-charge of Dandai Police station, District Garhwa on 6.3.2013 at 9.30 hours at Sadar Hospital Garhwa Room No. 8, Bed no. 19 is that at 7.30 a.m. on 6.3.2013, the informant sat near to door of his house. His elder son Ram Pratap Gupta(P.W 5) and Zahir Ansari were altercating bilaterally taking to the land situated in north direction to the house of the informant. The informants son Ram Pratap Gupta (P.W 5) told that if he had purchased the land, then why he did not get measured the land and also to remove his house constructed in the land of the informant. Having heard altercation, the wife of Zahir Ansari namely, Hafizi Bibi went there. The informant also went there to intervene into the matter, but, Hafizi Bibi threw a thing like chilli powder towards the informant. At the same time, Zahir Ansari gave a blow of an Axe at the head of the informant, due to which he sustained bleeding injury on his head. The informants son Ram Pratap Gupta (P.W 5) came in rescue of the informant, then Zahir Ansari, Zaved Ansari and Mahtab Ansari started assaulting with an Axe. Having seen the occurrence, Irshad Alam, elder daughter-in-law of the informant namely Sarswati Devi wife of Rajendra Sao, Birendra Sao and other women came and intervened in the occurrence. The informant sustained grievous injury at his head and also injuries to above his left eye, left hand and was suffering from enough pain in the chest. His elder son namely, Ram Pratap Gupta(P.W 5) also sustained bleeding injury at right side of his head and at on the wrists of both hands. The genesis of the allegation is that there was a land of the informant in southern corner to his house and the accused persons had constructed a house in their land committing tress-pass in about / decimal land of the informant. The informant several times exhorted with accused persons to vacate his land and this occurrence took place taking to the said land.

5. On this basis of the fard-beyan (Ext.1) a formal F.I.R (Ext. 3) in connection with Dandai P.S Case No.12 of 2013 on 6.3.2013 under sections 341/323/324/307/504/34 of the Indian Penal Code was registered and the investigation of this case was entrusted to A.S.I. Dallu Singh. After completion of investigation of the case, the police submitted final form and accordingly, on 25-06-2014, the then In-charge, A.C.J.M., Garhwa took cognizance of the offences and the case was committed to the court of Sessions on 11.12.2014. The case record was received in the court of Sessions Judge, Garhwah on 15.12.2014 where the case was registered S.T No. 363 of 2014 and charges were framed under section 341/323/324/307/504/34 of the Indian Penal Code against the appellants on 22.12.2014.

6. The prosecution in support of its case examined altogether 08 witnesses to prove and substantiate the charges against the appellants i.e. P.W.-1 Sarswati Devi, elder daughter-in-law of the informant, P.W.-2 Shamsuddin Ansari, who has been declared hostile, P.W.-3 Lal Mohammad Ansari, who has also been declared hostile, P.W.-4 Irshad Alam, who has also been declared hostile, P.W.-5 Ram Pratap Gupta (Elder son of the informant and victim), P.W.-6 Dr. Sushil Kumar Raman, P.W.-7 Nand Jee Raman and P.W.-8 Dallu Singh. The prosecution also got exhibited some documents which are Ext.-1 Signature on fardbeyan of P. Kispota, Officer-in-charge of Dandai Police station, Ext.-1/1 endorsement on fard-beyan made by the then Officer-in-charge of P.S Dandai regarding registration of the case, Exts. 2 to 2/1 injury reports, Ext.-3 formal F.I.R, Exts.-4 and 4/1 requisitions issued by the police to get both the victims medically examined respectively and Ext.-5 death certificate of Anugrah Narain Sao who died on 17.12.2014. The defence has also got exhibited document which is Ext.-A, Sale deed.

7. The main point arises out for consideration of this case as to whether the prosecution has been able to prove its case regarding manner of the assault or not under section 307/34 of the Indian Penal Code.

8. The learned defence counsel, in course of his argument, submitted that admittedly Anugrah Narain Sao received injury and subsequently died on 17.12.2014 and F.I.R was lodged on 6.3.2013.

9. The defense counsel further submitted that except P.W.-1 Sarswati Devi, elder daughter-in-law of the informant and P.W.-5 Ram Pratap Gupta, other witnesses like P.W.-2, P.W.-3 and P.W.-4 have been declared hostile and they have not supported the prosecution case.

10. The learned defense counsel while referring the evidence of P.W.-1 Sarswati Devi submitted that she claims to an eye witness in the Fardbeyan and she stated that the occurrence took place on 6.3.2013 at 7.30 a.m. and at that time, she was in her house.

11. She stated that the accused persons Zahir Ansari, Mahtab Alam, Javed Ansari and Tazmi Bibi were surrounding the land of this witness having equipped with an Axe and were trying to erect the boundary over the land and her father-in-law Anugrah Narain Sao forbade them. Her husband also were there.

12. Hearing the hulla, she came out and then saw that Hafiza Bibi sprinkled chilli like powder in the eyes of her husband as well as father-in-law and Jahir assaulted her father-in-law on the left side of his head by means of an axe due to which he fell down on the earth and thereafter he became unconscious. Mehtb Alam and Javed Ansari assaulted her husband with Lathi like Danda (stick) due to which he lost his consciousness and started floundering. Jahir assaulted on her husbands neck by means of axe, though he save himself, but it hit in the backside his right ear.

13. It is further stated that the other person also assaulted with an axe to which her husband saved by his hand. The treatment of her husband and father-in-law was done at the Sadar Hospital, Garhwa. She also stated that her father-in-law lost his eye-sight for one year.

14. Though the incident was witnessed by Rajendra Sao, Birendra Sao and Kabutari Devi, but they have not been examined.

15. In cross-examination, she stated that on this very day of incident, a criminal case was lodged against them. The house of Jahir is situated at a distance of 2-4 steps in front of her house. She deposed that she came out from her house after 5-10 minutes to see the occurrence and she cannot say as to how many persons assembled at that point of time.

16. When she reached there, her father-in-law had fallen down as unconscious and blood was oozing out.

17. Her husband was lying there and blood was oozing out. Looking the blood oozing out form the body of her husband, she also became unconscious.

18. In para-4 of cross examination, she deposed that she had not given any written information to the Sub-Inspector.

19. The sub-Inspector did not record her statement at that time and she could not say exact number of injuries sustained.

20. In para-6 of cross examination, she deposed that she has not seen the incident and no such incident took place as stated.

21. The learned defense counsel stated that P.W.-1 has changed the place of occurrence and has given different version which prima facie proves that P.W.-1 is not the eye witness as she has made such statement for the first time before the learned trial court, as such, her statement as an eye witness cannot be relied upon in this case in the eye of law as she is not the witness to the actual occurrence of assault.

22. The learned Defence counsel while referring the evidence of the P.W.-5 (Ram Pratap Gupta) submitted that he is elder son of the informant and is also the injured witness. He has made contradictory statements on material points. He has stated that there was a land dispute between the parties and he has further stated that the alleged occurrence was witnessed by Kabutari Devi, Birendra Sao and Rajendara Sao, although three witnesses have not been examined by the prosecution. He has stated that his father has died after one year of the date of occurrence, but from the death certificate issued by Department of Planning and Development (Directorate of Economics and statistics) on 12.3.2015, it appears that his father died on 17.12.2014, although date of occurrence occurred on 6.3.2013

23. On the contrary from the deposition of the P.W.5 should we say, prima facie in appeal on law and fact that incident occurred on 6.3.2013 at 7.30 OClock and at the relevant time, he was in the house and he was also a victim of the occurrence. He supported the prosecution case. He deposed that while altercation, hot exchange took place between the parties. This is corroborated by P.W 6.

24. Zahir Ansari attacked his father by means of an axe on the left side of his head due to which he sustained grievous injury and blood started oozing out from his head.

25. This witness has deposed that the accused Zahir Ansari gave a blow of axe left side to head of the informant for which he sustained cut bleeding injury and he tried to save his father, then Mahtabn Alam and Zaved Ansari attacked on him.

26. He further deposed that Hafiza Bibi @ Tazmi sprinkled chilli like powder on the body of the informant. The incident was witnessed by Kabutari Devi, Birendra and Rajendra Sao, although they have not been examined by the prosecution.

27. He further deposed that the statement of his father was recorded by Sri Kispotta, the Officer-in-charge, Dandai P.S. at Garhwa hospital in his presence. This witness identified the handwriting and signature of P. Kispptta, the signature of his father and his own statement on ferdbeyan.

28. The written report is marked as Ext.1. In para-2 of his cross-examination, this witness has deposed that the accused assaulted him from front side. There are 10-12 injuries of lathi inflicted all over his body. In para 3 of his cross examination, he deposed that the accused persons were trying to fence his land after grabbing it and his father advised them to get it measured.

29. He further deposed that Jahir assaulted his father with an axe and due to which he sustained head injury and from there, blood was oozing out.

30. P.W 6 Dr. Sushil Kumar Raman has deposed that he was posted as medical officer on 6.3.2013 at Sadar Hsopital Garhwa. On that date at 9 a.m. he examined Anugrah Narain Sao and found the following injuries on his body.

Injury No. I- Lacerated wound over left scalp frontal side size 3"x 1".

Injury No. II Ecliymosis at left eye.

Injury No. III Swelling over left m.p joint at 5th finger and swelling over right elbow 2 cm x 2cm

Injury No. IV Deep abrasion over left knee 2 cm x 2 cm.

These injuries would be inflicted within six hours from the time of medical examination. He advised to get X-Ray for all of these injuries. The X- ray of this victim was conducted on 6.3.2013 at Sadar Hospital Garhwa. All the injuries inflicted on person of Anugrah Narain Sao were simple in nature. The victim was referred to RIMS for C.T Scan of his brain. The witness has proved and identified the injury report and his hand writing and signature which is marked as Ext.-1. The injury No. I of the victim is possible by inflicting with a weapon like Axe and other injuries by hard and blunt substance.

On the same day at 9.05 a.m., he also examined Ram Pratap Gupta and found the following injuries on his person.

Injury No. I Injury over right thumb 1.1 c.m. x 1.cm.

Injury No. II long linear would over scalp behind external ear 2" x 1" till bone deep Injury No. III Contusion over left forearm 5 "x 2"

Injury No. IV Abrasion over right zygamatic area 1 cm x / cm. The injured was advised to get X-ray of his scalp and left forearm. Except to Injury No.II of this victim, other injuries may be caused by hard and blunt substance and Injury No. II may be caused by a sharp cut weapon. His injuries were within six hours and simple in nature. This witness has proved and identified injury report of this witness in his handwriting and signature which is marked as Ext. 2/1.

31. While referring to the evidence of the P.W.-7, the learned defence counsel submitted that he identified the formal F.I.R i.e. Ext.3. P.W.7 Nand Jee Ram has stated that after his transfer he handed over the investigation of the case to A.S.I Dallu Singh on 28.2.2014.

32. P.W 7 identified endorsement containing the statement on the fardbeyan regarding registering the case in handwriting of the then Officer-in-charge of Dandai P.S. namely, S.I Sri. P. Kispotta, which is marked Ext.-1/1.

33. He has also described the place of occurrence which is situated adjacent to the land of the appellants.

34. While referring to the evidence of the P.W.-8, Dallu Singh the learned defence counsel submitted that he is the Investigating Officer of the case, but after transfer of P.W.7 he took over the investigation of the case. It is necessary to deal with the deposition of the P.W.-8. He has deposed that he was assigned the investigation of this case.

35. At the relevant time, he was posted as A.S.I. at Dandai P.S.. In course of investigation, he had recorded the statement of the informant.

36. He also recorded the statements of the other witnesses and son of the informant, Ram Pratap Sao. He had visited the place of occurrence and had described the place of occurrence.

37. The place of the occurrence is an uncultivated land of the appellants and also place of occurrence of this incident is the house of the appellants itself.

38. The house is built in the vacant land which is situated in the village Dandai.

39. There is a house of Rahgir in north, P.C.C. road in south, house of the informant in east and uncultivated land of the appellants and informant in west to the place of the occurrence.

40. This witness proved and identified the requisition issued for getting medical treatment of both victims, which are marked as Exts.-4 and 4/1.

41. In para-2 of his cross examination, this witness has stated that Sarswati Devi did not state in para-12 of the case diary that Tazmi Bibi threw chilli powder in the eyes of her husband and father-in-law and Zahir Ansari inflicted at left side on head of her father-inlaw with an Axe. To which he fell down as unconscious and Mahtab Alam and Javed Ansari assaulted at head of her husband with lathi, to which he became unconscious and Zahir Ansari also attacked with an Axe at neck of her husband, but he saved himself and injury inflicted at back to right ear of her husband. Her husband saved himself from second attack of an Axe through his hand.

42. In para-4 of his cross examination, he has deposed that witness Ram Pratap Gupta did not state in para-9 of the case diary that Zahir Ansari attacked with an Axe and inflicted a blow at left side to head of his father and his father sustained a cut bleeding wound, and Mahtab Alam and Javed Ansari assaulted with lathi at back to his right ear.

43. In para 6 of his cross examination, this witness has admitted that he found in course of the investigation that the land-in-question was registered in the name of accused person.

44. He did not seize any bloodstained cloth or bloodstained earth.

45. D.W.-1 Rama Prasad and D.W.-2 Muslim Sheikh have been examined on behalf of the defence. The defence has also exhibited one document (Ext.-A) i.e. sale deed executed by the informant Anugrah Narain Sao in favour of Md. Zahir Ansari.

46. Rama Prasad D.W.-1 has deposed that there was 3 /4 decimal land of Anugrah Narain Sao. Taking to this land dispute arose between Zahir Ansari and Anugrah Narain Sao. Hence, the villagers intervened and consideration of this 3/4 decimal was given to Anugrah Narain Sao and thereafter, Anugrah Narain Sao transferred the land bearing Khata No. 64 Plot no. 846, area 3.04 decimal in favour of Gafar and Zahir Ansari, but his son did not obey the same done by his father. He also deposed that he came to know that the occurrence of assault happened between both parties and in this course, the victims of this occurrence sustained injury on his head and in this regard, they lodged a counter case.

47. D.W.-2 Muslim Sk has deposed that altercation started between the parties due to land dispute. Ram Pratap Gupta claimed that 3 /4 decimal land was belonging to him while this land had been purchased by younger brother of Zahir Ansari namely, Jabbar Ansari on consideration Rs. 100/-. He further deposed that there is sale deed regarding the land of Khata No. 64, plot no. 846 area 3 /4 decimal which is executed by Anugrah Narain Sao in favour of Zabbar Aansari which is marked as Ext.-A.

48. The learned defence counsel has argued that Ext.5 is the death certificate issued by the Department of Planning and Development to show that the informant Anugarh Narain Sao had died on 17.12.2014 and as such, he could not be examined in this case by the prosecution.

49. It appears that prosecution has examined two material witnesses i.e. P.W.-1 Sarswai Devi and P.W.-5 Ram Pratap Gupta (Injured). But it further appears from the deposition of P.W.-1 Sarswati Devi who is wife of Ram Pratap Gupta and daughter-in-law of the informant that she is not the witness to the actual occurrence of assault.

50. So far as P.W.-5 is concerned, as per report of Doctor Sushil Kumar Raman he had sustained simple injury.

51. The learned defence counsel further argued that out of 8 prosecution witnesses, P.Ws.-2, 3 and 4 have been declared hostile and they have not been examined by the prosecution.

52. The whole prosecution case depends upon the deposition of P.W.-1, P.W.-5 and P.W.-7. From the deposition of P.W.-7, it appears that P.W.-1 Sarsawati Devi had not made any statement under section 161 Cr.P.C., 1973 before the police to the effect that Chilli like powder was thrown by convict Tajmi Bibi @ Hafiji Bibi and Zahir Ansari had assaulted the informant with Tangi and thereafter, Mahtab Ansari and Zaved Ansari had assaulted P.W.-5 with Lathi.

53. It is stated that P.W 1 is not eye witness to the occurrence, as she made such type of statement for the first time before the trial court. Therefore, her statement as an eye witness cannot be relied upon in this case.

54. The learned defence counsel has further argued that nowhere Doctor (P.W.-6) stated that injuries sustained by the informant are not sufficient to cause death in normal course of nature and so far as injuries sustained by the P.W.-5 is concerned, Doctor has found only simple injury.

55. As such, in view of the medical evidence, no case is made out under section 307 of the Indian Penal Code and therefore, conviction and sentence awarded by the learned trial court is unsustainable in the facts and circumstance of the case.

56. The learned defence counsel further argued that there is no criminal antecedent against the appellants and present occurrence took place due to land dispute. According to the I.O, the land-in-question was registered in the name of Zahir Ansari vide registered sale deed i.e. Ext.-A which has been brought on record.

57. The learned Defence counsel has further argued that neither any weapon, nor bloodstained cloth has been seized by the prosecution and produced before the trial court.

58. The learned A.P.P has submitted that It is evident from the Ext.- 5 death certificate issued by the Department of Planning and Development (Directorate of Economic and Statistics) of Jharkhand government that Anugrah Narain Sao has died on 17.12.2014 and so, he could not be examined by the prosecution, but another victim i.e. elder son of the informant P.W.-5 and wife of P.W.-5 namely, P.W.-1 Sarswati Devi has categorically supported the prosecution case that on 6.3.2013 i.e Wednesday at 7.30 a.m., the victim P.W.-5 Ram Pratap Gupta was altercating with the accused Zahir Ansari regarding erecting of boundary and in this way, when the informant came and intervened into matter, the accused Zahir Ansari inflicted blow of an Axe at head of the informant, to which he sustained head broken bleeding injury and at the same time, Mahtab Alam, Zaved Ansari also attacked on P.W.-5 to which he sustained injury at back of his right ear.

59. Both the witnesses have categorically supported the fact that Tazmi Bibi threw chili powder on the informant at the very outset of this occurrence.

60. The learned A.P.P has further argued that P.W 6 has proved injury report of the informant and his son in his handwriting and signature which are marked as Exts.-2 and 2/1.

61. The learned A.P.P has also pointed out that injury no. II of Ram Pratap Gupta is a long linear wound over scalp being external ear 2"x1" x bone deep found grievous in nature by the Doctor and may be caused by a Sharp cutting weapon and simple in nature.

62. P.W.-7 and 8 have supported the prosecution case and the P.W.-8 has identified the place of occurrence.

63. Cr. Appeal (DB) No. 977 of 2015 was admitted vide order dated 20th December, 2015 and it was ordered to tag this case along with Cr. Appeal (DB) No.539 of 2015 and Cr. Appeal No. (DB) No. 540 of 2015.

64. From perusal of the records, it transpires that appellants namely, Tajmi Bibi @ Hafizi Bibi, Mahtab Ansari and Zawed Ansari were all along on bail during trial and vide order dated 18.5.2016 passed by this Court, they were granted bail during pendency of the criminal appeals, whereas appellant Zahir Ansari was all along in jail custody during trial and his prayer for bail was rejected by this Court vide order dated 18.5.2016. Accordingly, appellants Tajmi Bibi @ Hafizi Bibi, Mahtab Ansari and Zawed Ansari have remained in jail custody in this case from 01-07-2015 to 18-05-2016 i.e. for more than 10 months and the appellant Zahir Ansari is in jail custody since 02-06-2014 to till date.

65. After hearing the learned counsels for the parties and in view of the discussion of the evidences available on record, we are of the considered view that prosecution has failed to prove its case beyond reasonable doubt under section 307/34 of the Indian Penal Code. Further prosecution has not been able to fully prove the case against the appellant Tajmi Bibi @ Hafizi Bibi in Cr. Appeal (D.B) No.540 of 2015 that she sprinkled chilli like powder on the informant, namely Anugrah Narain Sao and therefore, she is acquitted from the charge under section 307/34 of the Indian Penal Code. She is discharged from the liability of her bail bonds.

66. So far as appellant Zahir Ansari in Cr. Appeal (DB) No. 539 of 2015 is concerned, who has been convicted under section 307/34 of the Indian Penal Code, his conviction is converted into under sections 324 read with 34 of the Indian Penal Code. Taking into consideration the fact that he is in jail custody since 2.6.2014 to till date i.e more than four years, he is directed to be released from jail, if not wanted in any other case, forthwith.

67. So far appellant no. 2 Mahtab Ansari in Cr. Appeal (DB) No. 539 of 2015 and appellant Zawed Ansari in Cr. Appeal (D.B) No.977 of 2015 are concerned, their conviction under section 307/34 is converted into 323/34 of the Indian Penal Code. In view of the fact that they have remained in jail custody in this case from 1.7.2015 to 18.5.2016 i.e. for more than 10 months, punishment confined to the period already served, they are discharged from the liability of their bail bonds.

68. Accordingly, Cr. Appeal (D.B) No.540 of 2015 is allowed and Cr. Appeal (DB) No. 539 of 2015 and Cr. Appeal (D.B) No.977 of 2015 are dismissed with modification in the sentence of the appellants Zahir Ansari, Mahtab Ansari and Zawed Ansari as indicated above.