Criminal Appeal (SJ) No.68 of 1999 Against the judgment and order of conviction dated 25. 02. 1999 and order of sentence dated 26. 02. 1999, passed by Shri Braj Nandan Sahay, 7th Additional District & Sessions Judge, Chapra, in Sessions Trial No. 619 of 1992. 1. Pukar Singh, son of Bharat Singh, 2. Rajeshwar Singh, son of Janardan Singh. Both are resident of Village- Bagdiha, P.S.- Panapur, District- Saran (Chapra). .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned Amicus Curiae for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 307 read with 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged in the Fardbeyan by the informant Lalit Narayan Singh that on 03. 07. 1992 at about 12.30 afternoon, Pukar Singh aged 2 about 20 years start plucking guava from the informant’s tree when the informant protested then he abused and went to his house and came along with Daab and assaulted him by the Daab on the back of his head by which he got injured blood started oozing. It is further alleged that Rajeshwar Singh aged about 21 years assaulted him by his Bhala on his fore head by which he fell down. Thereafter Bharat Singh assaulted him with lathi and Janardan Singh assaulted him by slaps and fists. On hulla co-villagers Raj Nath Singh, Ganga Singh and others came and rescued him and then he taken to Government hospital Rajkiya, for treatment. 4. On the Fardbeyan, F.I.R. was lodged and charge was framed under Section 307/34 of Penal Code. However, during trial five witnesses were examined. P.W. 3 is the informant, P.W. 1 and 2 are witnesses who come to support the prosecution case have been named in the Fardbeyan as witnesses. P.W. 4 is the I.O. and P.W. 5 is the doctor who examined the informant. 5. The trial court taking into consideration the evidence of P.W. 3, the informant and evidence of P.W. 1 and 2 found that P.W. 1, 2 and 3 have supported the 3 prosecution case with regard to the occurrence stated in the Fardbeyan that occurrence took place with regard to pluck of guava then accused persons came and assaulted. However, take notice of the contradiction pointed out about place of occurrence as some stated that occurrence took place near the guava tree and some stated that occurrence took place near the door of the informant. However, this guava tree itself situates at the door of the informant and hence contradiction as pointed out has no significance. Further assault having alleged in the back of the head and injury found on the left side of the head of the informant found to none significance as the nature of the contradiction pointed out minor which did not go to the root of the prosecution. 6. The trial court however taking into consideration fact that injury found by the doctor that one incised wound 3” x 1/2"x deep to bone on the head right side and cut injury 2”x 1/2"x 1/2” on the right side of the eye brow of the informant and marked on the back of the body. However, found the nature of injury no. 1 and 2 by sharp cutting weapon such as Bhala and Daab and doctor reserved opinion regarding injury no. 1 and 2 for x-ray 4 and injury no. 1 and 2 was found to be grievous on the basis of x-ray report and hence taking into consideration the fact, held that appellants are guilty for offence under Section 307 I.P.C. and sentenced as mentioned above. 7. Learned Amicus Curiae for the appellants contends that order of conviction for offence under Section 307 I.P.C. is not sustainable as the injury, though, found to be grievous is not as such to have been caused with intention to kill. Further x-ray report or x-ray plate has not been brought in evidence which proved the injury. 8. Learned counsel for the State however, contends that witnesses have supported the prosecution case and injury has been found by the doctor said to have been grievous. 9. However, taking into consideration the respective submission in the light of the evidence adduced, P.W. 1, 2 and 3 have supported the prosecution case. However, prosecution case is with regard to the occurrence took place regarding plucking of guava from the tree of the informant and hence motive alleged with regard to pluck of guava is not as such serious that can be inferred that there was intention to kill. 5 10. So far allegation that Pukar Singh gave Daab blow and Rajeshwar Singh gave Bhala blow. However, there is no repeation of the blow either by Pukar Singh or Rajeshwar Singh and others alleged to have been assault with lathi, slaps and fists. However, no injury by lathi and fists found on the person as the doctor found one injury by Daab, other injury by Bhala and rest is only pain. 11. Hence having regard to the fact that role attributed by the appellants is only found Daab blow and one Bhala blow. However, injury found on the person of the informant is one incised wound 3”x1/2”x deep to bone on the head right side and cut injury 2”x1/2”x1/2” on the right side of eye brow . Hence two injuries cannot be said as such to have been inflicted with intention to kill. However, doctor opined that injury no. 1 is grievous and on the basis of x-ray report opined that there was linear scar in the scull indicates fracture line. The said x-ray plate or x-ray report on the basis of which opinion has been given has not been brought in evidence and this witness in his cross-examination has stated that injury which has been marked as Ext. 6 and 6/1, he has recommended for x-ray and he has given his opinion as 6 per Ext. 6/1. However, x-ray report on the basis of which opinion has been recorded has not been brought in evidence and the basis of the report is found missing in evidence. 12. From the evidence, it is apparent that injury found on the person of the accused as well as motive for the occurrence is not as such to indicate that assault was made with intention to kill and hence order of conviction and sentence recorded under Section 307/34 I.P.C. is not sustainable in the eye of law. 13. Having regard to the fact that fracture of the informant has not been established for not bringing x-ray plate and x-ray report and hence conviction under Section 326 and 325 I.P.C. is also not maintainable. However, having regard to the fact, injury by by Daab and Bhala and hence conviction is maintainable under Section 324 of Penal Code is maintainable 14. However, from perusal of the record, it appears that occurrence is of the year 1992 and appellants have remained in jail after conviction about three months till bail granted by Hon’ble Court. 15. Hence end of justice shall meet by sentencing 7 the appellants for the period already undergone. Hence this appeal is allowed in part. Patna High Court. The 20th December, 2011. NAFR/m.p. ( Gopal Prasad, J.)