Criminal Appeal (SJ) No.117 of 1994 With Criminal Appeal (SJ) No. 132 of 1994 **** Against the judgment, dated 28.04.1994, passed by Sri Laxman Oraon, Additional Sessions Judge, I, Nawadah, in S. Tr. No. 5 of 1992 **** 1. Chandra Bhushan Prasad Yadav, son of late Rameshwar Yadav 2. Lattan Yadav, son of late Bhattu Yadav 3. Fullu @ Kulu Yadav @ Surendra Yadav, son of Lakhan Yadav All residents of village Ratanpur, Tola – Tilakbigha, P.S. Akbarpur, district Nawadah .. Appellants (in Cr. Appeal (S.J.) No. 117/94) Lakhan Yadav @ Lakhan Prasad Yadav, son of Bhattu Yadav, resident of village Ratanpur, Tola – Tilakbigha, P.S. Akbarpur, district Nawadah .. Appellant (in Cr. Appeal (S.J.) No. 132/94) Versus The State Of Bihar .. Respondent (in both the appeals) **** For the Appellant .. M/S Durgesh Nandan, Hirday Prasad Singh, Ram Nath Saran, & Kiran Sinha, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. Both these appeals have been heard together and are being disposed by this common judgment. 2 3. The appellants have been convicted under Section 307/34 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 4. The prosecution case, as alleged in the fardbeyan is that while the informant, Filakdhari Mahton, was taking his bullocks through a road then the bullocks entered into the house of Lakhan Yadav and then it is alleged that Lakhan Yadav abused and, thereafter Lakhan Yadav armed with khanti, Kullu Yadav armed with lathi and Chandr Bhushan Prasad Yadav armed with lathi surrounded the informant and Lakhan Yadav gave a garasa blow on the head of the informant, Lattan Yadav assaulted with lathi on the left hand thumb and Chandra Bhushan Prasad Yadav and Kullu Yadav assaulted with lathi on the right thigh and right hand respectively and when Kapildeo Prasad, son of the informant, came to rescue then he was assaulted Chandra Bhushan Prasad Yadav on his right hand and on head by Kullu Yadav. 5. On the fardbeyan of the informant, the first information report lodged and after investigation, charge sheet submitted, cognizance taken and case committed to the Court of sessions. 6. However, it is pertinent to mention that earlier case was lodged under Sections 323, 324 and 341/34 of the Penal Code, charge sheet was submitted under Section 307, 326 and allied sections of the Penal Code and the case was committed to the Court of sessions and after commitment, charge framed and during the trial seven witnesses were examined. 7. P.W. 1 is Kunj Bihari Mahton, P.W. 2 is Guru Prasad 3 Mahton, P.W. 3 is Tilakdhari Mahton, the informant, P.W. 4 is Hari Mistri, P.W. 5 is Basudeo Prasad, a formal witness, P.W. 6 is Dr. Chandra Bhushan Prasad Singh and P.W. 7 is Awadhesh Singh, the investigating officer. However, out of seven witnesses P.Ws. 1, 2 and 3 are material. P.W. 3 is the injured and the son of the informant. 8. The trial Court considered the evidence of P.Ws. 1, 2 and 3 and supported the prosecution case and, further, taking into consideration the evidence of the doctor, P.W. 6, with regard to injury on the person of Kapildeo Prasad found having three injuries (i) swelling and tenderness on the dorsum of the palm of the right hand, (ii) swelling and tenderness on the lower 1/3” of right leg and (iii) swelling and tenderness on the right side of occipital region of head and found all the injuries simple caused by hard and blunt substance and proved the injury report as Exhibit 4 and, further the injury on Tilakdhari Mahton (i) incised wound on the left side of forehead 1”x1/2”x1/4”, (ii) incised wound on the left thumb 2”x1/2”x bone deep, (iii) swelling and tenderness on the middle of left thigh and (iv) abrasion on the left elbow joint, however, found injuries (i) and (ii) caused by sharp cutting weapon and (iii) and (iv) are by hard and blunt substance and injuries (i), (iii) and (iv) are simple and the opinion with regard to injury (ii) was reserved for x-ray. The injury report on the person of Tilakdhari proved as Exhibit 4/1. However, subsequently P.W. 6 stated that injury no. (i) may have been caused by sharp garasa blow and as injury no. (i) is on head is dangerous to life. However, the attention has been drawn in cross examination to this part and in cross examination he has stated that in his report he has mentioned that it is 4 dangerous to life. 9. However, taking into consideration the evidence the trial Court considered that the witnesses have supported the prosecution case. 10. The learned counsel for the State has submitted that the trial Court after considering injury no. (i) as dangerous to life and injury no. (ii) is grievous in nature held that the prosecution has proved it’s case for offence under Section 307/34 of the Penal Code and convicted the appellants. 11. The learned counsel for the appellants has challenged that the evidence suffers from contradictions and the doctor’s report and evidence to the part that it is dangerous suffers from contradiction and, hence, not accepted. 12. Taking into consideration the evidence in the light of submissions that P.Ws. 1 and 2 though supported the prosecution case in examination-in-chief about the assault, but, stated in cross examination that they came at 10.00 a.m. after the occurrence and saw Tilakdhari Mahton injured and, hence, not an eye witness to real assault. P.W. 3, however, supported the prosecution case and he is the injured having received the injury, but, he has also stated that he came after the receipt of injury on Tilakdhari Mahton and he was also assaulted by lathi on reaching the place of occurrence though there is evidence of occurrence and injury. 13. However, so far the occurrence is concerned, as per the first information report and the evidence of the victim the occurrence took place on a petty matter, i.e., oxen entered into the house and there 5 was no premeditation and it can not be inferred that there was invention to kill, so far the evidence of the doctor is concerned. The doctor in his report Exhibits 4 and 4/1 has not mentioned at all that any of the injuries or even the cumulative effect of the injuries are taken together are not, as such, to have been caused with intention to kill. P.W. 6, the doctor, in his deposition, also stated that the injury on the person of Kalipdeo was simple and even in his deposition, in first part, stated that injuries (i), (iii) and (iv) on the person of Tilakdhari Mahton were simple and reserved opinion for injury no. (ii) for x-ray. However, the x-ray report has not been proved nor the x-ray plate has been proved to show injury no. (ii) as grievous and though in paragraph 3 of the evidence of the doctor he has stated that injuries no. (i), (iii) and (iv) on the person of Tilakdhari Mahton were simple, but, in paragraph 5 he has stated that injury (i) on Tilakdhari Mahton is dangerous though in cross examination he has accepted that he has not mentioned in the enquiry report that injury no. (i) is dangerous. However, this part of the deposition that injury no. (i) is dangerous to life suffers from contradiction with injury report, Exhibit 4, as this witness in his report has mentioned that injury no. (i) was simple and in evidence in paragraph 3 he also stated and prove the injury as Exhibit 4/1, hence, the finding of the learned lower Court based on the evidence that the injuries were grievous or dangerous to life is on a non-est fact on the basis of contradictory evidence having two basis and is on the basis of a contradictory statement made by the doctor. However, it is pertinent to mention that the evidence of the doctor is only an opinion and that can be accepted and rejected in the light of the evidence adduced and, 6 hence, I find and hold that this finding that the opinion of the doctor that the injury was dangerous to life is not acceptable in view of the fact that it suffers from contradiction to earlier report which has been proved as Exhibit 4/1 and, hence, I find and hold that the prosecution has not been able to prove that the assault was made with intention to kill and, hence, the order of conviction and sentence under Section 307 of the Penal Code is set aside. 14. However, having regard to the fact that there is evidence of assault, hence, Section 307 of the Penal Code is being substituted under Sections 323 and 324 of the Penal Code. 15. Having regard to the fact that the occurrence is of the year 1988 and the appellants suffered a lot during the trial as well as the appeal of the criminal prosecution and, however, from the record it appears that appellants remained in jail after conviction till the date of release by the order of the High Court and, hence, the interest of justice shall meet by sentencing the appellants for the period already undergone. 16. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court The 25th day of August 2011, N.A.F.R., S.A.