Criminal Appeal (SJ) No.206 of 1999 **** Against the judgment, dated 05.08.1999, passed by Sri Baikuntha Nath Shahi, Additional Sessions Judge, III, Begusarai, in S. Tr. No. 230 of 1990 **** 1. Kusho Thakur 2. Bharat Thakur, both sons of late Triloki Thakur 3. Laxmi Thakur 4. Arun Thakur, sons of Kusho Thakur All residents of village Manjhaul P.S. Cheria Bariarpur, district Begusarai .. Appellants Versus The State of Bihar .. Respondent **** For the Appellant .. Mrs. Mira Kumari, Adv. For the Respondent .. Mr. Suresh Prasad Singh,APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellants have been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as allege that between the parties is descendants of common ancestor and living in the same court yard having same entrance. The water has been accumulated in the court yard due to heavy rain and the accused, Kusho Thakur, started leaping 2 over the accumulated water in front of the door of the informant on which the informant protested and this led to an altercation and it is alleged that Arun Thakur came with spade and gave a spade blow on the head of the informant and when Badami Devi, the mother, Gopal Thakur and Ashok Thakur, the brothers of the informant, came to rescue then they were also assaulted by Laxmi Thakur, Bhrat Thakur and Kusho Thakur by lathi and brick bat. 4. The fardbeyan of Ramudgar Thakur was recorded on the basis of which the first information report drawn and the police after investigation submitted the charge sheet for offence under Sections 307, 326, 325 and allied sections of the Penal Code, the Chief Judicial Magistrate took cognizance and committed the case to the Court of sessions. The charge was framed before the Court of sessions for offence under Section 307 of the Penal Code and the trial proceeded. 5. During the trial eight witnesses were examined on behalf of the prosecution. The witnesses supported the prosecution case about the occurrence and have stated that on the date of occurrence due to heavy rain the water has accumulated and Kusho Thakur was leaping the water of his nala at his door and on which the occurrence took place by spade, brick bat and lathi. However, the doctor, P.W. 6, found injury on the person of Ashok Thakur, Ramudgar Thakur and Badami Devi. The injury found on the person of Ashok Thakur by sharp cut injury on the right side of the fore head, but, the said injury found to be simple in nature. The injury found on Gopal Thakur a sharp cut injury 1(1/2)” x ½” x ½” occipital region 3 and on mid scalp 1” x ½” x ½” found to be simple. The injury on the person of Ramudgar Thakur was found to be a sharp cut wound ½” x ½” x ½” on left side of the perital region and sharp cut wound on the joint above lacerate left ear with a conjunctvital haemorrhage with impairment of vision and this injury no. (iii), impairment of vision, has been stated to be a grievous injury and other injuries found to be simple. The injury on the person of Badami Devi was a sharp cut wound 1” x ½” x ½” on the mid of fore head and second injury is multiple small lacerated wound with multiple bruises and finger prints around the neck with swelling sign of suffocation and, hence, injury no. (ii) has been shown to be grievous. However, the injury found on the neck has been stated to be grievous, but, it does not conform to the definition of grievous injury as per Section 320 of the Penal Code. However, taking into consideration the injury on the person of prosecution party, only two injuries have been said to be grievous, which are the injury the injury of impairment in vision of the informant and the sign on the neck of Badami Devi, but, the two injuries are not, as such, to be said to have been inflicted with an intention to kill. However, other injuries found by the doctor are to be simple though on the vital part of the body. It is pertinent to mention that to hold conviction under Section 307 of the Penal Code what is required to be considered is the weapon used, the part of the body chosen for inflicting injury and the impact by which the assault has been made. However, the weapon used is said to be spade and the lathi which are traditional weapon though the part of the body chosen is said to be head, which is a vital organ, but, the impact by which the 4 injury has been given is apparent as the doctor has found the injury though on the vital part of the body, but, all the injuries are found to be simple in nature and, hence, from the nature of the injury it can not be inferred that there was intention to kill. However, the injuries found, which is said to be grievous is only impairment of the vision and the sign of the pressing of the neck. These injuries is not by the dangerous weapon or dangerous wound and it can at best be under the definition of Section 325 of the Penal Code and merely because some of the injuries are grievous which is not on the vital part of the body and on that basis it can not be inferred that there is intention to kill, hence, the injury a per the evidence of the doctor is not, as such, to infer that either any of the injuries signally or even the cumulative effect of all the injuries taken together, as such, to have been caused with intention to kill. 6. More over, the prosecution case is that the informant and the accused belong to same family as are descendant of common ancestor living in the same court yard. The occurrence took place for taking out the drain water from the court yard in heat of the moment. Hence, under the facts and circumstances it can not be inferred that the motive of the occurrence was, as such, to infer that there was intention to kill. The evidence of the witnesses and the back ground in which the occurrence initiated it can not be inferred that the accused persons has any intention to kill. Hence, I find and hold that under the facts and circumstances of the case neither the accused persons are having any motive to kill nor the injury inflicted, as such, indicates that there was intention to kill and, hence, the offence under 5 Section 307 of the Penal Code is not made out. 7. However, having regard to the fact that there was assault it can at best be an offence under Sections 324 and 325 of the Penal Code and, hence, the conviction recorded under Section 307 of the Penal Code is hereby altered by Sections 324 and 325 of the Penal Code. However, having regard to the fact that the occurrence is of the year 1989 and the accused persons has suffered due to the protracted litigation and, further, taking into consideration the fact that between the parties is descendant and the occurrence took place with regard to the taking out of the drain water and, hence, the end of justice shall meet by sentencing the appellants for the period already undergone by them during investigation as well as after conviction till release by the High Court on bail. However, having regard to the fact that Arun Thakur has remained in jail for about 13 days during the investigation and 15 days after the conviction till bail granted by the High Court and other appellants remained in jail for 15 days after conviction till they were released on bail by the Hon’ble Court and, hence, the ends of justice shall meet by sentencing the appellants for the period already undergone. 8. The appeal is allowed in part. ( Gopal Prasad, J.) The Patna High Court, The 22nd day December 2011, N.A.F.R., S.A.