Criminal Appeal (SJ) No.118 of 1998 **** Against the judgment, dated 09.03.1998, passed by Shri Manohar Prasad, Additional Sessions Judge, II, Gopalganj, in S. Tr. No. 78 of 1992 **** 1. Mahajan Sah, son of Ram Dhari Sah 2. Naresh Sah, son of Hira Sah 3. Raj Kumar Sah, son of Hira Sah All residents of village Khajuria P.S. Singhwalia, district Gopalganj .. Appellants Versus The State of Bihar` .. Respondent **** For the Appellants .. Mr. Naresh Chandra Verma, Adv. For the Respondent .. Mrs. Rina Sinha, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellant no. 1 has been convicted and sentenced to undergo rigorous imprisonment for seven years, appellant no. 2 for five years and appellant no. 3 for three years. 3. The prosecution case, as alleged, is that when the informant reached at the house of Nawab Mian then Naresh Sah, 2 Guddu Sah and Raj Kumar Sah armed with deadly weapons surrounded and on the command of Mahajan Sah, Naresh Sah gave farsa blow on the chest of the informant and other accused persons assaulted by lathi and the cry of the investigation, his brother, Ramayan Gupta, came for his rescue and brought him to hospital. The occurrence is of 24.11.1990 and the fardbeyan was recorded in hospital on the basis of which the first information report lodged and after investigation the charge sheet submitted. 4. During the trial, eight witnesses were examined. P.Ws. 1, 2 and 3 supported the prosecution case about the assault and P.W. 6 is the doctor, who found six injuries on the person of the informant, which are as follows : (i) One bruise 2(1/2)” x ¾” with fracture of middle third of left ulna of fore arm, (ii) A parallel bruise 3(1/2)” x ¾” on right lateral side of chest with tenderness and x-ray shows fracture of the 8th rib, (iii) One incised wound of 1(1/2)” x 1/3” x skull thickness of skin deep on scalp on the right side of occipital region, (iv) Parallel bruise 3(1/4)” x ¾” on back of chest, (v) Parallel bruise 2(1/2)” x ¾” on the right leg and (vi) Parallel bruise with swelling 3” x ¾” on the right forearm. 5. Injuries (i) and (ii) stated to be grievous confirmed by 3 x-ray, injuries (iii), (iv) and (v) stated to be simple in nature. He has proved the injury report in his pen, which has been marked as Exhibit 3 and has proved the x-ray report in the pen of Dr. R.E. Sinha, which has been marked as Exhibit 3/1. He has, further, stated that he has not mentioned in the injury report that he advised the patient to get injuries (i) and (ii) x-rayed. He has, further, stated that the patient are advised to obtain x-ray at the time of his treatment, but, at the time of examination of this witness the x-ray plate was with him even without any advice for x-ray. He was not present at the time x-ray was done. The injured was hospitalized and he (the doctor) did not accompany the patient for obtaining the x-ray and the x-ray was not made in his presence. P.W. 7 is a technician of Mahavir X-ray Clinic, however, he has stated that he had x-rayed Bhagawan Prasad, who had been sent by Dr. T.N. Singh and he has formally proved the x-ray report of Dr. Ram Eqbal Sinha, which has been marked as Exhibit 4. However, he stated that he can not say the x-ray plate of which person it is as it is not legible in the x-ray plate and has proved the x-ray plate, which has been marked as material Exhibits 1 and 1/1 by trial Court. 6. The trial Court, after considering the evidence convicted the appellants, as mentioned above. 7. The learned counsel for the appellants, however, contends that no motive has assigned and really the occurrence took place because the appellants get sale deed executed by the aunt of the accused persons and since there is no motive alleged by the prosecution, hence, it is difficult to infer the intention and, so far the 4 injuries, on the person of the informant, is concerned, were not as such to have been inflicted to kill and the prosecution has not proved beyond reasonable doubt that the injuries were grievous or there was fracture as neither the person before whom the x-ray was made has been examined, the doctor who advised for x-ray or gave report has been examined about the injury, as grievous, is based on a report of Dr. Ram Eqbal Sinha, who has formally been proved and the doctor has stated that the said x-ray was not done before him and none has come forward that this x-ray was the x-ray of the informant and, hence, it has not established that injury was grievous. However, the injuries of the person of informant are not as such to have been caused with intention to kill. The injuries which are said to be grievous are not on vital part and injuries on other part are simple and, hence, it can not be inferred that the injury was inflicted with intention to kill. 8. Taking into consideration the submissions of the learned counsel for the appellants, the prosecution case is that the accused persons surrounded the informant and assaulted, there is no motive assigned about the occurrence to gather that occurrence was done with intention to kill. Hence, the only evidence regarding the intention is to be drawn from the injuries inflicted. However, there is six injuries found on the person of the informant out of which injuries (i) and (ii) have been said to be grievance and the injury has been stated to be of within six hours. However, the time of injury has not been mentioned and the doctor in his evidence also could recall when the injury report was prepared though he has stated that he did not advice 5 for any x-ray and, further, in cross examination has stated that the x-ray are advised during the treatment. However, the injury is prepared at the time the patient is examined. In his examination-in-chief he has stated that the injury report is in the writing of one Dr. Ram Eqbal Sinha and in cross examination, however, he stated that the time of injury the x-ray place was placed. He has, further, stated that the x-ray was not done before him. P.W. 7 is a technician who claims to have did the x-ray, but, he says that he does not personally know the injury. He, further, deposed that from perusal of the x-ray it can not be said that whose x-ray it was. Hence, apparently P.W. 7 does not establish that the x-ray, which has been marked as material Exhibits 1 and 1/1 are the x-ray of the informant injured. The evidence of P.W. 6, the doctor, suffers from the infirmity that the time of injury has not been mentioned. He has not advised for x-ray, but, he gave a report on the basis of x-ray of one Dr. Ram Eqbal Sinha whereas P.W. 7 proved the x-ray injury report proved by P.W. 4 is doubtful and reliance can not be placed on the injury that injuries (i) and (ii) are grievous in view of the fact that that x-ray has not been established to be the x-ray of the injured. There is no evidence that the said x-ray plate, which has been marked as Exhibits 1 and 1/1 are the x-ray plate regarding the injury of the informant. The doctor in his injury report has not mentioned that injury no. (ii) was dangerous to life. Hence, I find and hold that the injury report does not establish that the injuries were grievous. It has not been established that injuries were dangerous to his life. Hence, I find and hold that the prosecution has not been able to prove the 6 charges under Section 307 of the Penal Code. The prosecution has failed to prove that the injuries were dangerous to life or were grievous. Hence, the conviction can only be maintained under Section 324 of the Penal Code. 9. However, having regard to the appellants 1 and 2 they have remained in jail for a period about more than two months during the conviction and the occurrence is of the year 1990 and, hence, the end of justice shall meet by sentencing the appellants for the period already undergone and, hence, the order of conviction and sentence recorded under Section 307 of the Penal Code is set aside and being substituted under Section 324 of the Penal Code. 10. Hence, the appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 20th day of September, 2011, N.A.F.R., S.A.