Criminal Appeal (SJ) No.154 of 1997 **** Against the judgment, dated 09.06.1997, passed by Shri Baikunth Nath Sahi, Additional Sessions Judge, II, Nawadah, in S. Tr. No. 191 of 1993/35 of 1993 **** 1. Gaya Yadav, son of Suki Yadava 2. Sanjay Yadav, son of Prayag Yadav 3. Karu Yadav, son of Fagu Yadav 4. Sadhu Yadav, son of late Chhotu Yadav 5. Kuldip Yadav, son of Fagu Yadav 6. Hira Yadav @ Hiraman Yadav, son of Kishun Yadav 7. Rama Yadav, son of Chhotu Yadav 8. Prayag Yadav, son of Fagu Yadav 9. Barho Yadav, son of Mushari Yadav All residents of village Ghurmuriya, P.S. Govindpur, district Nawadah .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Gauri Shanker, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant no. 7 has been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for five years, appellants 4 and 5 have been convicted under Section 307 of the Penal Code, but, sentenced to undergo rigorous 2 imprisonment for two years, however, the other appellants have been sentenced under Sections 307/147 of the Penal Code and sentenced to undergo rigorous imprisonment for three years. The appellant no. 7 has, further, been convicted under Section 148 of the Penal Code and sentenced to undergo rigorous imprisonment for two years, appellants 4 and 5 have, further been convicted under Section 147 of the Penal Code and sentenced to undergo rigorous imprisonment for one year and appellants 1, 2 and 3 have, further, been convicted under Section 323 of the Penal Code and sentenced to undergo rigorous imprisonment for one years. 3. The prosecution case, as alleged that the occurrence took place when the accused persons were asked by the informant, along with the co-villagers, to furnish the accounts of the income and expenditure of Asadhi Puja held in the preceding year. In the said meeting the informant and his son insisted that the accused persons be asked to give accounts of income and expenditure of last year and this led to a verbal altercation, which terminated into physical assault. On the fardbeyan the first information report was lodged and after investigation the charge sheet submitted. 4. After framing of the charge, trial proceeded during the trial, nine witnesses examined and they supported the prosecution case. The trial Court, taking into consideration the evidence of the witnesses and the doctor that there is one grievous injury on the head of the informant and other accused persons also have participated in the occurrence causing assault and injuries found on the prosecution party, 3 convicted the appellants, as stated above. 5. The learned counsel for the appellants, however, contends that except injury no. 1 on the person of the informant, the others injuries are simple and, hence, not on the vital part of the body and it can not be inferred that there was intention to kill. The doctor has also not opined that the injuries were dangerous to life and the occurrence is of the year 1993 and several years have been elapsed and with regard to opinion that injury no. 1 is grievous is the only opinion without any confirmation of x-ray and since the occurrence is of the year 1993, a lenient view may be taken. 6. However, having regard to the facts and circumstances of the prosecution case alleged that the occurrence took place in a meeting of the villagers in which the accused persons were persuaded to give the accounts of expenditure and expenses of the Asadh Puja and the informant and other persuaded the accused persons to give the accounts, which led to verbal altercation and in a fit of moment the physical assault took place and, hence, in such a situation it can not be inferred that the assault was made with an intention to kill. However, so far the injuries are concerned, three persons have been inured. The injuries on the persons of other two except the informant have been found to be simple and superficial and the injuries are not on the vital part of the body and, hence, it can not be inferred that there was any intention to kill. So far the injury on the person of informant is concerned, injury no. 1 is said to be a sharp cut over the top of the head of the informant, the other three injuries found on the chest, left arm 4 and abdomen was only swelling and abrasion and was found to be simple in nature. However, with regard to injury no. 1 there is nothing on the evidence to suggest that any x-ray was made or the said injury was confirmed to be grievous though in the judgment it has been stated that on the basis of x-ray report the opinion of medical officer was confirmed. However, in the deposition of the doctor it has been specifically mentioned that the said x-ray was done with regard to injury no. 3 on the person of the informant, which was found to be simple and no x-ray report has been proved with regard to injury no. 1. The doctor has also not opined that the injuries were dangerous to life and, hence, I find and hold that taking into consideration the facts and circumstances and the injury on the person of the informant was not, as such, to have been inflicted with intention to kill. Hence, I find and hold that neither the offence under Section 307 nor 325 of the Penal Code is made out. However, having regard to the fact that the injuries are inflicted by Rama Yadav, appellant no, 7, does not fall within the category of Section 307 of the Penal Code rather it falls under the category of Section 324 of the Penal Code as well as under Section 323 of the Penal Code Against Rama Yadav, hence, the order of conviction recorded under Section 307 and 307/149 of the Penal Code is hereby set aside and is substituted. 7. However, having regard to the facts that the occurrence is of the year 1993 and Rama Yadav has remained in jail for four months during the trial and about thirteen days after the conviction and, hence, end of justice shall meet by sentencing appellant no. 7, Rama 5 Yadav, for the period already undergone. So far the other appellants are concerned, since their conviction are under Sections 323 and 147 of the Penal Code, hence, the benefit of Probation of Offenders Act may be extended to them and they are ordered to be released on due admonition. 8. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 15th day of September, 2011, N.A.F.R., S.A.