JUDGMENT :

1. Heard learned counsel for the parties.

2. This revision application is directed against the judgment dated 5.2.2004 passed by learned 3rd Addl. Sessions Judge, Deoghar in Criminal Appeal No.28 of 2003; whereby the judgment of conviction and order of sentence dated 10.3.2003 passed by the learned Assistant Sessions Judge-II, Deoghar in Sessions Case No.93 of 1993; whereby the petitioners have been acquitted u/s 307 IPC but petitioner No.1 has been convicted u/s 323 & 325 IPC and petitioner Nos.2 & 3 have been convicted u/s 324 IPC and sentenced were to undergo simple imprisonment for six months u/s 323 IPC and 2 years S.I. u/s 324 & 325 IPC and both the sentences were directed to run concurrently; has been affirmed against the petitioner Nos.2 and 3. So far as petitioner No.1 is concerned, considering his age the appellate court has modified his sentence and directed to release him on probation of good conduct for a period of two years on furnishing a bond with two sureties.

3. It is pertinent to mention here that as per service report petitioner No.1-Shekhar Jha has died. Hence, the instant application is dismissed as abated as against the petitioner No.1- Shekhar Jha.

4. The prosecution case in short is that on 28.8.1991 when the informant was going towards Kumhar Toli the above named petitioners surrounded him due to land dispute which was pending before the court and asked him to withdraw the case and when he replied that the matter be adjudicated by the court then Shekhar Jha (petitioner No.1) gave lathi blow result of which he sustained injury on hand and back and fell down. Thereafter Ashok Jha (petitioner no.2) assaulted with Farsa on his head and Puranand Jha (petitioner No.3) assaulted with spear as a result of which he sustained injuries on both leg. Blood was oozing and many persons gathered there and saved him. On the basis of the said fardbeyan, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the petitioners for which they pleaded not guilty and claimed to be tried and finally the petitioners were convicted.

5. Ms. Khusboo Kumari, learned amicus submits that no independent witness has been examined in this case even the I.O of the case has not been examined and the witnesses who have been examined are interested witnesses. She further contended that the doctor opined about the injuries which was simple in nature except fracture and the fracture was committed/caused by the petitioner No.1. and now the petitioner no.1 is no more. She further submits that the petitioner Nos.2 & 3 have already remained in jail custody for about 131 days and have faced the rigorous of trial. At present, the petitioner No.2 and 3 are aged about 58 and 50 years respectively; as such, she is confining her prayer only on the question of sentence as the petitioners are now aged persons and sending them back to jail at this stage even for short period will hamper the entire family; as such some leniency may be granted by modifying the sentence for the period already undergone.

6. Learned counsel for the State draws attention of this Court towards the deposition of several prosecution witnesses and submits that there was a land dispute between the parties and the incident took place only due to previous enmity. Further he supported the judgments and submits that there is no error in the findings given by the courts below. As such, the conviction cannot be set aside, however the sentence may be modified in lieu of fine.

7. After going through the impugned judgment including the lower court records and keeping in mind the limited submissions of the learned counsel for the parties and also the scope of revision jurisdiction, I am not inclined to interfere with the finding of the courts below and as such the judgment of conviction passed by the learned trial court and upheld by the learned appellate court is, hereby, sustained.

8. However, so far as sentenc