Criminal Appeal (SJ) No.101 of 1999 **** Against the judgment, dated 20.04.1999, passed by Shri Kali Dayal Mishra, 1st Additional Sessions Judge, Aurangabad, in S. Tr. No. 391 of 1990/36 of 1993 **** 1. Judagir Yadav, son of Jagdeo Yadav 2. Satyendra Yadav, son of Judagir Yadav Both residents of village Ajania, P.S. Baroon, in the district of Aurangabad .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Shakil Ahmad Kha, Sr. Adv. with Mr. Humayanu Kha, Adv. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. The appellants have been convicted under Sections 307/34, 148 and 323 of the Penal Code and have been sentenced to undergo rigorous imprisonment for seven years for offence under Section 307/34 of the Penal Code and have further been sentenced to undergo rigorous imprisonment for six months for offence under Section 148 of the Penal Code and rigorous imprisonment for six 2 months for offence under Section 323 of the Penal Code. 3. The prosecution case, as alleged in the fardbeyan of Baijnath Yadav that while he was washing his mouth, in the meantime, Judagir Yadav armed with iron rod and his son Satyendra Yadav armed with garasa came and assaulted him and on his cry her mother Jiramani Devi, wife, Surajmani Devi, sister, Phool Kumari Devi came to rescue, it is alleged that Judagir Yadav assaulted his mother and his son Satyendra Yadav gave a garasa blow on the head of his mother and they also assaulted the sister and wife of the informant. On hulla, the witnesses, Indradeo Yadav, Banshi Yadav and Dharichhan Yadav. On the fardbeyan the first information report lodged and after investigation the charge sheet, cognizance taken and the case committed to the Court of sessions. 4. During the trial nine witnesses were examined. However, P.Ws. 1, 2 and 3 are the witnesses of the occurrence P.Ws. 4, 5, 6 and 7 are injured witnesses. P.W. 8 is the doctor and P.W. 9 is the investigating officer. However, witnesses supported the prosecution case regarding the assault. The doctor, P.W. 8 has proved the injury on the person of Jiramani Devi, Phool Kumari Devi, Surajmani Devi and the informant, Baijnath Yadav. The injuries on the person of injured are simple except injury no. (ii) on the person of Jiramani Devi shown to be grievous is dislocation of incisor teeth and for the injury (ii) on the person of Baijnath Yadav x-ray has been suggested. However, in his evidence the doctor has stated that the x- ray plate and the report has been produced and he perused on 3 29.05.1989 and found fracture of the lower end of the radius of the right hand and has opined that the nature of the injury is grievous. However, in his cross examination he has sated that the x-ray plate and the report were not in the Court and, hence, neither the said x-ray report nor x-ray plate has been produced in the Court nor brought in evidence, hence, the evidence on the basis of which the opinion has been based is missing. 5. However, taking into consideration the injury, which has been marked as Exhibit 2 series of the injuries found on the injured are of simple in nature except one of the injuries on the person of Jiramani Devi, dislocation of lower incisor teeth and fracture of radius on person of Baijnath Yadav, but, no supporting document has been produced with regard to the dislocation of teeth and the fracture of radius on person of Baijnath, however, be that it may be even the allegation of assault and dislocation of incisor teeth and the allegation of assault in hand, does not indicate that these injuries were dangerous to life and, hence, on the basis of these injuries it can not be inferred that the injuries inflicted with intention to kill. 6. Hence, I find and hold that the offence under Section 307 of the Penal Code is not made out and the said offence under Section 307 of the Indian Penal Code is substituted by offence under Section 324 of the Indian Penal Code. The motive for the occurrence, alleged, is the land dispute going on between the parties and both are descendent of the common ancestor, occurrence is of the year 1989 and the prosecution has suffered the rigour of the prolonged litigation 4 and, further, appellant no. 1 is aged about 77 years as his age has been assessed in the judgment, dated 20th April, 1999, as 65 years, hence, having regard to the facts and circumstances that the appellants have remained in jail during the trial as well as after conviction, hence, the ends of justice shall meet by sentencing the appellants for the period already under gone. 7. The appeal is allowed in part with modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 14th day of November, 2011 N.A.F.R., S.A.