Criminal Appeal (SJ) No.117 of 1998 Against the judgment of conviction dated 05. 03. 1998 and order of Sentence dated 10. 03. 1998, passed by Shri V. N. Jha, 2nd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 343 of 1990. 1. Kamo Singh. 2. Dilip Singh. 3. Shambhu Singh. 4. Pradeep Singh. All sons of Anirudh Singh. 5. Anirudh Singh, Son of Late Inder Singh. All residents of English Chchiram, P.S. Sultanganj, District-Bhagalpur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr.Krishna Mohan, Advocate. Mr. Praveen Kumar, Advocate. Mr. Nihar Nandan Ambasta, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Appellant no. 2 Dilip Singh has been convicted under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Further convicted under Section 379 I.P.C. and sentenced to undergo rigorous imprisonment for six months and further convicted under Section 323 I.P.C. and sentenced to 2 undergo imprisonment for two months. Rest three appellants Kamo Singh, Shambhu Singh and Pradeep Singh have been convicted for offence under Section 379 I.P.C. and sentenced to undergo imprisonment for six months and further convicted under Section 323 I.P.C. and sentenced to undergo simple imprisonment for two months. Accused Anirudh Singh has been convicted for offence under Section 27 of the Arms Act and has been acquitted and enlarged after giving admonition of bond. 3. The prosecution case as alleged that when the informant harvesting the gram crop on his own land, then the appellants entered in his field and uprooting the crops of grams and on protest, Anirudh Singh armed with country made pistol fired and ordered that the crops of the field of the informant looted and also killed him and on such order Dilip Singh armed with Chura, Shambhu Singh, Kamo Singh and Pradeep Singh armed with lathi assaulted him and Dilip Sing assaulted him on his head with Chura. The informant further stated that Kamo Singh snatched away his H.M.T. watch and Shambhu Singh snatched his golden ring and Pradeep Singh took Rs. 165/- from his waist. 3 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, cognizance taken and the case was committed to the Court of Sessions. After commitment, charge was framed under Sections 379, 307, 147 and 148 of the Indian Penal Code and Section 27 of the Arms Act. 5. However, during trial six witnesses were examined. P.W. 1, Sk. Afzal, P.W. 2, Harinandan Singh, P.W. 3, Ram Nath Singh (informant), P.W. 4, Dr. Indudhar Narain Jha, P.W. 5, Rajneetee Singh and P.W. 6, Bandhu Harijan, Advocate Clerk. P.W. 6 is formal witness and P.W. 5 has been declared hostile. 6. Learned counsel for the appellants however, contends that appellants have falsely been implicated, though conviction has been recorded under Section 325 I.P.C., but there is no mentioned about confirmation of Section 320 I.P.C. nor any X-ray report has been produced and conviction under Section 379 I.P.C. is not maintainable. 7. However, P.W.1, 2 and 3 have supported the prosecution case. P.W. 4, the Doctor in his evidence proved the injury report. The injury report suggest 15 injuries on the person, though, the injuries are bruises and 4 tenderness. However, it has been stated that out of 15 injuries, injury no. IV, XI and XIV are grievous and rests are simple. However, injury nos. IV, XI and XIV are stated as follows; IV. Tender swelling with deformity on right forearm Size 4” x 4”. XI. Tendered swelling with deformity 4”x 5” on right Leg. XIV Lacerated wound 3”x 1/2” skin deep on scalp on the vertex posteriorly. 8. However, neither X-ray report nor X-plate has been brought on record, and it has not been mentioned how these injuries confirms under Section 320 I.P.C. to bring it under definition of grievous injury. Hence opinion of the Doctor that injuries are grievous is not acceptable and hence conviction and sentence under Section 325 is not maintainable and hence conviction under Section 325 I.P.C. is hereby set aside. With regard to conviction and sentence under Section 379 and 323 I.P.C. the occurrence is of the year 1987 and the appellants suffered the rigor of criminal proceeding and appeal and the appellants have remained in jail for more than a month. 9. Hence to end of justice shall meet under by sentencing the appellants for period already undergone and 5 hence the appeal is allowed in part with modification in sentence. Patna High Court. The 2nd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)