Criminal Appeal (SJ) No.252 of 1998 Against the judgment dated 04. 07. 1998 and order of sentence dated 06. 07. 1998, passed by Shri Harballava Chandra Prasad, 4th Additional Sessions Judge, Aurangabad, In Sessions Trial No. 166 of 1985/112 of 1997. Bijay Prasad, son of Late Mohan Lal Sahu, resident of village- Maharajganj, Police Station- Rafiganj, District-Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant: Mr. P. N. Shahi, Advocate. Mr. Patanjali Rioli, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 326 of Indian Penal Code and sentenced to undergo rigorous imprisonment for four years, further convicted for offence under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged by the informant that when he reached of his land Plot No. 31, Khata No. 190, he found that some portion of a wall was 2 already erected there and some bricks were also lying there and when he enquired in the meantime, accused Mohan Lal, Murari Prasad, Binod Prasad, Binay Prasad and Bijay Prasad came there. It was alleged that accused Mohan Lal was armed with garasa, the appellant was armed with katta and other accused persons had lathi in their hands. When the brother of the informant told the accused persons that why they have constructed the wall while the lands belongs to them, then on the order of Mohan Lal the accused persons assaulted the brother of the informant with garasa, lathi and katta. When the informant tried to intervene he was also assaulted. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and then case was committed to the Court of Sessions. During trial nine witnesses were examined on the behalf of the prosecution and only one witness was examined on behalf of the defence. The trial court on considering the evidence of prosecution witnesses that P.W. 1, 2, 3, 5 and 7 have supported the prosecution case on time, place and manner of occurrence and evidence of P.W. 6, the doctor who 3 found injury no. 1 and 2 on person of Rajeshwari Prasad grievous, convicted the appellant under Section 326 and 148 I.P.C. and sentenced as mentioned above. 5. Learned counsel for the appellant, though, contended that there was land dispute and land belongs to the appellant and occurrence took place while erecting the wall and the injury on the person of the accused also shown to be grievous but the evidence of the Doctor fall spent to bring the injury no. 1 and 2 of Rajeshwari Prasad in view of Section 320 of I.P.C in view of the fact that no X-ray was done and no X-ray report has been brought on record. 6. On perusal of record and going to the evidence, it is apparent that both the parties claiming the land. Further discrepancy pointed out that no blood stains was found at the place of occurrence and other contradiction pointed out does not go to the root of the prosecution case to discredit the evidence of the witnesses regarding the place, time and manner occurrence. But the evidence of doctor about injury no. 1 and 2 on the person of Rajeshwari Prasad shown to be grievous does not inspire confidence. 4 7. P.W. 6, Doctor has proved the injury on the person of Rajeshwari Prasad and found the following injuries; (i) incised wound 3/1/4” x 1/4” bone deep upto 1/6” in thickness on the left side of the forehead. (ii) incised wound 3”x1/2’ bone deep upto 1/6”of thickness transverse on front part of right side of the crown; (iii) incised wound 1/2"x 1/4"x1/4” vertical about 1/1/4” outside and behind injury no. (ii) (iv) abrasion 3/4"x 1/6” with swelling on the back part of the left side of the crown of head. (v) Bruise with swelling 2/1/2”x 1/1/4” on front of the lower part of the leg. (vi) Bruise with swelling 2/1/2” x 2” on back of middle of the left hand. (vii) Bruise 1/1/2”x 1” on front of upper part of right chest. 8. The doctor has stated that the injury nos. 1 to 3 were caused by sharp cutting weapon. The injury nos. 1 to 3 may be caused by katta and injury no. 2 by garasa. The injury no. 4 to 7 were caused by hard and blunt substance like lathi. The injury no. 1 and 2 is 5 grievous in nature and the others were simple. The Doctor has also examined Rambriksha Prasad and found injuries which are as follows; (i) lacerated wound on the front part of the left side of crown of head. (ii) Abrasion with swelling on the back of the middle part of left forearm. (iii) abrasion with swelling on the back of middle part of right forearm. (iv) bruise with swelling on the upper part of right of the front chest (v) bruise on the outer part of right arm. 9. All the injuries were simple caused by hard and blunt substance like lathi. 10. It is further submitted injury nos. 1 to 3 on the person of Rajeshwari Prasad are caused by katta and injury no. 2 by garasa and injury no. 4 to 7 caused by hard blunt substance. The injury no. 1 and 2 are stated to be grievous other are simple. However, in cross- examination he has stated injury on the person of Rajeshwari Prasad, no X-ray was done nor he visited the patient. However, no X-ray report has brought on record 6 to suggest any fracture and hence evidence of the Doctor that injury no. 1 to 2 are grievous without any X-ray report which does not fulfill the requirement under Section 320 of the Indian Penal code. Hence, order of conviction and sentence under Section 326 I.P.C. is not sustainable and hence the case fallen under Section 324 I.P.C. 11. However, taking into consideration the fact that occurrence is of the year 1984 and the appellant suffer a rigor of the prosecution since 1984. Further the appellant remained in jail for about six months during investigation and trial and further some 10 to 15 days after conviction till bail granted by Hon’ble High Court. 12. Hence to end of justice shall meet by sentencing the appellant for offence under Section 324 I.P.C. for the period already undergone. Hence with this modification of sentence the appeal is allowed in part. Patna High Court, The 11th August,2011. NAFR/m.p. ( Gopal Prasad, J.)