Abhijit Sinha, J.
1. The four appellants herein are aggrieved by the judgment and Order dated 4th July 1992 passed by Sri Mandhata Singh, the then 2nd Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 48/200 of 1981/87, whereby and whereunder the four appellants have been found guilty for the offences under Sections 323 and 147 IPC and have been sentenced to undergo simple imprisonment for one year for the offence under Section 323, IPC and simple imprisonment for one year for the offence under Section 147, IPC. The sentences have been directed to run concurrently.
2. The four appellants along with one Chandrika Dubey (since deceased) were charged under Sections 304/34, 325/34, 323/147 and 447, IPC on the allegation that on 3-12-1978 at village Bhandar, P.S. Dhaka in the District of East Champaran they committed culpable homicide not amounting to murder by causing the death of Kapildeo Dubey in furtherance of common intention of them all, and in course thereof they voluntarily caused grievous hurt to informant Rajendra Dubey being members of an unlawful assembly and also committed the offence of rioting and lastly committed criminal tresspass by entering up on the lands of informant Rajendra Dubey with the intention to commit an offence.
3. The prosecution case as disclosed in the First Information Report In brief is that on 3-12-1978 at about 8 a.m. the four appellants along with Chandrika Dubey (since deceased) went to the field of the informant Rajendra Dubey (P.W. 6), where accused Vishwanath Dubey attempted to cut the ridge of the informant's land by Kudal (spade) in an effort to amalgamate it with his own lands and when the informant's brother Kapildeo Dubey asked them to desist accused Chandrika Dubey gave out that he would be able to do nothing and the lands would be amalgamated. The informant and his brother again raised protest whereupon Chandrika Dubey allegedly dealt a lathi blow on the head of Kapildeo Dubey whereas Ramjanam Dubey dealt a lathi blow on the head of the informant. Kapildeo as a result of the assault fell to the ground but the informant managed by ward of the assault by means of the lathi in his hand and in self defence he also started wielding his lathi which resulted in injury to the accused persons. It is said that thereafter accused Bishwa Nath, Vinod and Pramod repeatedly dealt blows with lathi on the informant and his brother as a result whereof the brother fell to the ground unconscious. However, in the meantime several witnesses including Mewalal Ojha, Nathuni Ojha, Robin Jha, Tripit Dubey and Langer Dubey arrived and intervened to separate the two parties and thereby saved the informant and his brother from further assault. It is said that thereafter the informant and his brother went to Dhaka Hospital for treatment where Kapildeo subsequently succumbed to his injuries. On the basis of the said fardbeyan Dhaka P.S. Case No. 5(12) of 1978 was registered.
4. After due inquiry the police submitted a charge sheet against all the 5 accuseds under Sections 147, 149, 325, 323, 304, IPC and on commitment charges under Sections 304/34, 325/34, 323, 147 and 447, IPC were framed against all five accused who pleaded not guilty and claimed to be tried. The defence plea was one of innocence and false implication.
5. In support of its case the prosecution sought to examine as many as 9 witnesses including the Informant (P.W. 6), the doctor (P.W. 8) and the I.O. (P.W. 7).
6. It appears that during the pendency of the Sessions Trial one of the accused Chandrika Dubey expired and the proceeding so far as he was concerned was dropped.
7. The fact that there had been a free for all where lathis were wielded by both parties is not in dispute. The only probable reason for the same appears to be the fact that Bishwa Nath Dubey was attempting to cut the ridge of the lands allegedly claimed by both parties in order to amalgamate the same with his own lands.
8. The learned Trial Judge has ascribed cogent reason for arriving at a finding that all the four appellants were guilty of the offence under Sections 147 and 323, IPC only and sentenced them accordingly. He also found accused Chandrika Dubey guilty of the offence under Sections 304, 147 and 323, IPC but his death has saved him from substantive sentence.
9. Before this Court the learned Counsel for the appellants sought to submit that the prosecution in its eagerness had failed to establish the origin, genesis, manner and place of occurrence of the case. Learned Counsel for the appellants was critical of the fact that there was absence of blood at the P.O. which creates a doubt over the prosecution case. It is also submitted that there being no explanation for the admitted injury on the person of the accused persons renders the origin and genesis of the occurrence doubtful and as such the appellants are entitled to an acquittal. It was also submitted that having rejected the evidence of P.Ws. 2 and 4 the learned Judge should have rejected the evidence of P.Ws. 1, 3 and 6 also as they are highly interested and untruthful witnesses. It was also sought to be submitted that having found and held that the appellants had not formed an unlawful assembly, the learned Court below had erred in law in convicting the appellants for the offences under Section 147, IPC.
10. I have perused the materials available on record along with argument advanced by the learned Counsel for the appellants as also the State and I find no reasons to interfere with the judgment of conviction awarded by the learned trial Court.
11. The plea relating to interested witnesses is a regular feature in almost every criminal trial. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relationship would not conceal actual corroboration and make allegations as against the innocent person. Foundation has to be laid if a plea of false allegation is made. In the instant case there is no such foundation made to the plea of false implication. In the instant case the witnesses had not axe to grind with the accused persons and as such the plea of interested witnesses cannot be accepted.
12. So far as the plea of the accused having sustained injury is concerned the prosecution has been able to explain the same and I do not find any reason to differ from the same as it has come in the evidence of the informant that he had wielded the lathi in his hand in self defence causing injury of the person on the some of the accused.
13. Admittedly the Sessions Trial is of the year 1981 and original Dhaka P.S. case is of the year 1978 which means that the appellants have suffered the ordeal of prosecution for almost 29 years which has not only affected them mentally and physically but also has been a source of drainage of financial resources.
14. Due regard being had to the facts and circumstances of the case and the ordeal, harassment and hardship faced by the appellants herein while maintaining the conviction under Sections 147 and 323, I.P.C. I am of the opinion that the interest of justice would be served if the sentence pronounced by the learned trial Judge is modified to the period already undergone.
15. In the result the appeal is dismissed with modification in sentence.