Criminal Appeal (SJ) No.105 OF 1994 [Appeal against the judgment and order dated 31.3.1994 passed by the 1st Additional Sessions Judge, Saran at Chapra in Sessions Trial No.16 of 1990/ 3 of 1990] 1. JANAK MAHTO 2. MANAK MAHTO, BOTH ARE SONS OF SHEOPATI MAHTO, BOTH ARE RESIDENT OF VILALGE, P.O. AND P.S. DAUDPUR, DISTRICT SARAN …………………….. Appellants Versus THE STATE OF BIHAR ---------------------- Respondent For the Appellants : Mr. Pawan Kumar Mishra, Advocate Mr. Shashank Shekhar Jha, Advocate For the Respondent : Mr. Gauri Shankar Gupta, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s. 307 I.P.C. and sentenced to R.I. for seven years by a judgment dated 31.3.1994 passed by the 1st Additional Sessions Judge, Saran at Chapra in Sessions Trial No.16 of 1990/ 3 of 1990. The prosecution case is that in course of altercation between the parties the appellant no.1 gave two Fasuli blows on the neck and hand of Bhagelu Mahto and the appellant no.2 hurted a Fasuli blow on the informant’s son Ram Kishore Mahto which hit on his chest and right shoulder. The wife of appellant no.1 also assaulted the informant on the head, on account of which she was injured. During trial, the prosecution has examined eleven witnesses in all. Out of whom, P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 belong to informant’s family, whereas P.W.7, - 2 - P.W.8 and P.W.9 are co-villagers but not eye witnesses. P.W.8 has been declared hostile. P.W.10 is the Investigating Officer and P.W.11 is the doctor, who examined the injured. It appears that the occurrence had taken place on account of a minor issue in which the accused had charged the prosecution of encroaching on the lands of the accused persons while they were going to ease themselves. The doctor is P.W.11, who examined Tetari Devi (P.W.1) and found two injuries on her person and even though the first injury was superficial in nature he opined the same was grievous. Similarly the injuries of P.W.2 were opined to be simple in nature. The injury sustained by P.W.3 was merely scalp deep and simple in nature. On going through the evidence of the material witnesses, I do not find any ingredient of Section 307 I.P.C. and, therefore, the conviction of the appellants u/s.307 I.P.C. is held to be unsustainable. In the result, the conviction of the appellants is converted to one u/s.323 I.P.C. and they are sentenced to the period already undergone. With the modification stated above, the appeal is dismissed. Patna High Court Dated, 7th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )