Criminal Appeal (SJ) No.139 of 1998 ****** Against the judgment of conviction and order of sentence dated 09.03.1998 respectively passed by Sri Rameshwar Tiwary, learned Additional Sessions Judge 3rd, Madhubani in Sessions Trial No. 95 of 1989. 1. Krishna Kumar Singh, Son of Kali Prasad Singh. 2. Ram Naresh Singh @ Naresh Singh, Son of Nathuni Singh. Both resident of village – Chananpura, P. S. Arer, District – Madhubani. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Vishunath Prasad Sinha, Sr. Advocate. Mr. Durgesh Kumar Singh, Advocate. Mr. Nand Kishan Singh, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A. P. P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1, namely, Krishna Kumar Singh has been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and the appellant no. 2, namely, Ram Naresh @ Naresh Singh has been convicted for the offence under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged by the informant is that on 2 04.04.1985 at 5:30 P.M. while the informant Dasrath Yadav along with his nephew Fakirchand Yadav was sitting at his Darbaza, in the mean time, the accused Krishna Kumar Singh along with 15 were assembled on the road and they were armed with Lathi, Bhala and Garasa. Accused Indal Yadav ordered to loot the property of the informant and then accused persons started brick batting towards the house and Darwaza of the informant. In the mean time on Halla Sheonarayan Singh came and tried to reach on the Darwaza of the informant then accused Krishna Kumar Singh gave a Bhala blow on the person of Sheonarayan Singh on the abdomen and the accused persons fled away. 4. On the fardbeyan, FIR was lodged and after investigation the charge-sheet was submitted. During the trial seven witnesses were examined by the prosecution. P. Ws. 1, 2, 3 and 4 are the material witnesses who have supported the prosecution case. P. W. 5 is the doctor. P. Ws. 6 and 7 are the formal witnesses. The Investigating Officer has not been examined. 5. The trial court considered the evidence and the fact that there was enmity between the parties due to a land dispute. The trial court also considered the evidence of the witnesses as well as non- examination of the I.O. while convicting Krishna Kumar Singh for the offence under Section 307 of the Indian Penal Code for the alleged assault on the person of Sheonarayan Singh and further convicted Ram 3 Naresh Singh @ Naresh Singh for the alleged assault on the person of Rabinder Singh, however, acquitted all the persons who were facing trial under Sections 307/149, 323 and 147of the Indian Penal Code. 6. Learned counsel for the appellants, however, contended that the Investigation Officer has not been examined in this case and the offence under Section 307 of the Indian Penal Code is not made out as the doctor has found injury simple in nature and has not mentioned that it is dangerous to life. 7. The doctor who examined Sheo Narain Singh P. W. 3 has stated in his evidence that he found sharp cutting injury over the right side of chest 6” below right nipple and 3” lateral to mid line about 1-1/2” length x 1/2" x 1-1/2” deep down wards cutting intercostals muscles in between 8th and 9th ribs. Wound of entrance was at 7th rib. However, the doctor said that the above injury caused by sharp cutting weapon within six hours, was simple in nature. 8. Having regard to the facts that there is only one injury on the person of Sheo Narain Singh and there is no repetition of blow as well as the injury has also been stated to be simple in nature. There is no mention in the injury report or in the evidence of the doctor that the injury was dangerous to life. The prosecution parties alleged had been armed with deadly weapons and there was no intervening circumstance to leave Sheo Narain Singh but there is no repetition of blow and hence 4 apparently the offence under Section 307 of the Indian Penal Code is not made out. 9. However, there is no mention that the injury was grievous and hence even on believing the evidence of the witnesses about the assault the offence under Section 307 of the Indian Penal Code is not made out and hence the order of conviction and sentence for offence under Section 307 of the Indian Penal Code is hereby set aside. 10. However, having regard to the fact that there is injury and evidence of assault by dagger so offence under Section 324 of the Indian Penal Code is made out. The appellant has remained in jail for about two and half months at the time of investigation and trial as well as one month and ten days after conviction. 11. Hence, taking into consideration the fact that the occurrence is of the year 1985 and the appellants suffered long due to protracted litigation and hence the ends of justice shall meet by sentencing the appellants for the period already undergone and hence this appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 16th September, 2011. N.A.F.R./Kundan.