Criminal Appeal (SJ) No.323 of 1998 Against the judgment and order of conviction dated 24. 08. 1998 and order of sentence dated 27. 08. 1998, passed by Shri Kali Dayal Mishra, 1st Additional Sessions Judge, Aurangabad, in Sessions Trial No. 211 of 1994/ 83 of 1995. 1. Jhapsi Nonia, son of Late Nemchand Nonia. 2. Deosharan Nonia, son of Jhapsi Nonia. 3. Purnawasi Nonia, son of Jhapsi Nonia. 4. Sikandar Nonia, son of Deonarayan Nonia. 5. Ram Prasad Nonia, son of Jhapsi Nonia. 6. Pramod Nonia, son of Ram Prasad Nonia. 7. Bhadwa Nonia, son of Deo Narayan Nonia. 8. Ashok Nonia, son of Ram Prasad Nonia. All are resident of Village-Mahatha,P.S.Baroon,District- Aurangabad(Bihar). .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Krishna Pd. Singh, Senior Advocate. Ms. Meena Singh, Advocate. Mr. Rakesh Singh, Advocate. For the informant : Mr. Kamteshwar Prasad, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard Amicus Curiae for the appellants and learned counsel for the State. 2. The appellants Deosharan Nonia, Purnavasi Nonia and Sikandar Nonia have been convicted under Section 307 and sentenced to undergo rigorous imprisonment for seven years. Further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Further convicted under Section 447 I.P.C. and sentenced to undergo rigorous 2 imprisonment for two months. Further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. Further, appellant Ramprasad Nonia has been convicted under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Further convicted under Section 324 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Further convicted under section 447 I.P.C. and sentenced to undergo rigorous imprisonment for two months. Further appellants Jhapsi Nonia, Bhadwa Nonia and Pramod Nonia convicted under Section 307/149 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Further convicted under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment for six months. Further convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months and further convicted under Section 447 and sentenced to undergo rigorous imprisonment for two months. The appellant, Ashok Nonia has been convicted under Section 307/149 and sentenced to undergo rigorous 3 imprisonment for seven years. Further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year and further convicted under Section 447 I.P.C. and sentenced to undergo rigorous imprisonment for two months. All the sentences shall run concurrently. 3. The prosecution case as alleged that for land dispute and cutting Masur crop occurrence took place. The accused persons came and Deosharan Nonia fired causing injury to Laxman Nonia of left hand. Ramprasad Nonia gave garasa blow to the father of the informant and in the meantime Purnawasi fired from country made pistol and Ramprasad Nonia also assaulted accused persons assaulted the brother of the informant by lathi and garasa. 4. On the Fardbeyan F.I.R. was lodged. After investigation, charge sheet submitted. During trial seven witnesses were examined. The trial court taking into consideration that occurrence took place for the land dispute and both parties are descendent of common ancestor and evidence of the doctor found three persons injured. Laxman Nonia have six injuries on his person. Injury no. 5 was simple and rest 1 to 4 and 6, opinion 4 reserved and he advised for x-ray and on x-ray, injury no. 1 found to be simple and injury no. 3 and 4 are grievous and injury no. 6 also found grievous caused by hard blunt substance. Injury no. 3 on the left fore arm just below the left elbow. Injury no. 4 received fore arm and injury no. 6 swelling on the lower part of right leg. X-ray report and x-ray plate has not been proved or marked. Injury found on the person of Babulal Nonia are three injuries. Injury no. 1 is simple and injury no. 2 and 3, opinion reserved and advised for x-ray, but x-ray report has not been received. Injury on the person of Sitapati found to be simple in nature by hard blunt substance. Injury on Triveni Nonia one bruise and advised for x-ray, but x-ray report not received. Pramod Nonia was also examined and found injury having bruise from the left fore arm causing hard blunt substance and injury report on these persons marked as Ext. 1. The trial court taking into consideration the evidence of the witnesses convicted and sentenced the appellants as stated above. 5. Learned Amicus Curiae however, submitted that occurrence with regard to land dispute between both parties and they are descendent of common ancestor. 5 There is no allegation of assault by fire arm, though, taking into consideration injuries are not inflicted with intention to kill. However injuries on the injured of Laxman Nonia has been found grievous with regard to injury no. 3 4 and 6, but those injuries are not on vital part of the body, nor x-ray plate has been proved and it has not established that who conducted the x-ray hence offence under Section 307 I.P.C. is not made out. Further the occurrence is of the year 1993 and the appellants suffer a lot and remained in jail during investigation as well as after conviction also remained in jail for about a month. 6. I perused the evidence in the light of the submissions that matter concerned with land dispute. The occurrence took place for cutting of Masur crop, both parties are descendent of common ancestor. Hence from nature of allegation and evidence there is no intention to kill. However, witnesses have supported the case about assault. However, the allegation of assault are omnibus and the injuries are found to be simple and not on vital part of the body, though, some of the injuries are stated to be grievous on the basis of x-ray, but neither the x-ray 6 report nor x-ray plate has been proved and hence the finding about the injury being grievous is not on basis of admissible evidence and is not acceptable. The injury found to the grievous are also not on the vital part of body to attract Section 307 I.P.C. 7. Hence taking into consideration the entire evidence that offence under Section 307 is not made out and is substituted by Section 324 I.P.C. 8. Having regard to the fact that occurrence is of the year 1993 and both parties are descendent of common ancestor and occurrence took place for land dispute. 9. Hence the end of justice shall meet by sentencing the appellants for the period already undergone during investigation as well as after conviction and hence with this modification of sentence the appeal is allowed in part. Patna High Court, The 2nd September, 2011. NAFR/m.p. ( Gopal Prasad, J.)