JUDGMENT :

This appeal is directed against the Judgment of Conviction and order of sentence dated dated 23rd August 2004, passed by learned Additional Sessions Judge, FTC-III, Daltonganj, in S.T. No.131 of 1994, arising out of Patan P.S. Case No.119/1992, corresponding to G.R. Case No.1443 of 1992 whereby and where under all the three appellants were convicted for the offences punishable under Sections 323, 324 and 452 read with Section 34 of IPC and further they were directed to undergo S.I. for a period of six months under Section 323 of IPC, one year S.I. under Section 324 of IPC and three years S.I. under Section 452 of IPC and all the sentences were directed to run concurrently.

2. The prosecution story arose in the wake of fardbayan of Ramcharittar Upadhyay PW – 4, whose statement was recorded by S.I., L.B. Rai of Daltonganj Town police station on 21.09.1992 at 14.30 hours at the Sadar hospital, Daltonganj. The informant PW – 4 alleged that on 20.09.1992 while the informant was sleeping in his house in the night, he heard some sound of gunshot firing. After some time, some miscreants came and knocked his door. They were asking him to open the door. When the door was not opened, the miscreants entered into his angan by breaking back door of his house. The informant concealed himself in an earthen kothi out of fear. Four miscreants were armed with deadly weapons, such as bhala, gadasa, revolver and lathi and they started searching him out. They were having a torch also and in the flash of torch light, they confined all the female members of the family in a room after collecting them from different rooms. They recovered him from the earthen kothi and abused him in filthy languages. The informant could identify the miscreants as Binod Shukla, Niranjan Tiwary, Harbans Dubey and Surendra Dubey in the flash of torch light. Binod Shukla was holding bhala. Niranjan Tiwary @ Dablu Tiwary was holding a revolver, whereas Haribans Dubey was having a gadasa and Surendra Dubey was holding a lathi. It has been alleged in the fardbeyan that Niranjan Tiwary fired from his revolver but nobody received any bullet injury. Surendra Dubey, Binod Shukla and Harbans Dubey started assaulting him. Surendra Dubey inflicted lathi blows in his left leg below knee, neck and back; whereas Binod Shukla inflicted Bhala blow causing bleeding injury in his forehead, head and left elbow. Haribans Dubey inflicted gadasa blow causing injury in his right leg below knee. There was profuse bleeding from the injuries. He raised alarm but not a single co-villager came forward to save him. The accused persons took away clothes, jewellery, cash and utensils with them. They damaged some house-hold articles also. The female members of his family informed him that other 8 to 10 persons were also in the gang with these accused persons who were watching from outside the house. It has also been alleged that there is a land dispute with Binod Shukla, so he along with his other associates, committed the crime and fled away. The informant was taken to Daltonganj Sadar Hospital on a cot by the villagers where, his statement was recorded.

3. On the basis of fardbeyan, Patan P.S. Case No.119 of 1992 was registered against the named accused persons and 8 to 10 unknown persons under Sections 147, 148, 149, 324, 307, 452, 380 and 427 of IPC and Section 27 of Arms Act. After institution of case, investigation was started and after completion of investigation, charge-sheet was submitted against the accused Binod Shukla, Haribans Dubey and Surendra Dubey under Sections 147, 148, 149, 324, 307, 452, 380, 427 of IPC and Section 27 of Arms Act, showing accused Niranjan Tiwary as not sent up for trial and accordingly cognizance was taken and the case was committed to the Court of Sessions. Assistant Sessions Judge Palamau at Daltonganj has framed charge on 22.05.2000 under sections 452, 380, 427, 147, 148, 307/149, 324 of IPC. The learned trail court after conducting the full-fledged trail,