Criminal Appeal (SJ) No.287 of 1997 **** Against the judgment and order, dated 4/6.10.1997, passed by Shri B.K. Pandey, Additional Sessions Judge, V, Bhagalpur, in S. Tr. No. 668 of 1988 **** 1. Sk. Khursheed @ Fudia, son of Sk. Usman Ghani 2. Sk. Tajammul 3. Sk. Nathuni 4. Sk. Sugia @ Sumia @ Sago, all sons of Sk. Shabodat 5. Sk. Haroon 6. Sk. Punjab Ali, both sons of Sk. Razzaque 7. Sk. Razzaque, son of Sk. Madi 8. Sk. Md. Islam, son of Sk. Shahabuddin .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Ashok Jang Bahadur, Md. Rashid Alam, Md. Anis Akhtar & Md. Arifudaula Siddiqui, Advs. For the Respondent .. Mr. Sujit Kumar Singh, 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. The appellant no. 1, Sk. Khursheed @ Fudia, has been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and has further been convicted under Section 148 of the Penal Code and sentenced to undergo rigorous imprisonment for three years and other appellants 2 have been convicted under Section 307/149 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and have further been convicted under Section 147 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. However, it has been ordered that all the sentences will run concurrently. 3. The prosecution case, as alleged that there was a qurrel between the informant and the accused Sk. Tajammul for feeding mango leaves to the she buffaloes and further with regard to oxen for which the case was instituted and the police had come to investigate the matter. In retaliation it is alleged that accused persons came to the house of the informant armed with lathi and bhala and accused, Sk. Khursheed @ Fudia, gave a bhala blow on the neck of the informant causing injury on the left ear. Appellant no. 3, Sk. Nathuni, alleged to have assaulted the informant with lathi on shoulder and other accused persons also joined them in assaulting the informant and the accused persons said over the chest and, hence, there is only specific allegation of assault by bhala and assault by lathi by Sk. Khursheed and Sk. Tajammul, appellants no. 1 and 2. With regard to the other appellants the allegation is vague and omni bus. 4. However, P.Ws. 1 to 6 claimed to be eye witnesses, P.W. 7 is the investigating officer and P.W. 8 is the doctor. However, the doctor found four injuries, (i) contusion with swelling with fracture of the right leg, (ii) contusion with echymosis 5” long with swelling over left shoulder with fracture head of left humerus, (iii) contusion with swelling over right heap and (iv) incised would 1” x ¼” x ¼” over 3 left pins, however, according to the doctor injuries 1 and 2 as grievous and injuries 3 and 4 as simple. However, P.W. 8 in his evidence in paragraph 8 has stated that for fracture x-ray is required and has, further, stated that he has examined the injured clinically and the injury report, as stated above, is only clinical and there was no x-ray plate before him at the time of writing the injury report. In his, further, evidence in paragraph 9 he has stated that whenever there would be necessity of x-ray then he is to mention, but, in the present case nothing was so mentioned in the report. 5. Hence, having regard to evidence that there is no fracture and at the time of writing the injury report giving injury report nor at the time of evidence the x-ray plate was present to show injuries 1 and 2 was fracture, hence, the doctor’s report about the fracture of injuries 1 and 2 and the injury being grievous does not inspire confidence. However, taking into consideration the four injuries, injuries 1 and 2 are on the non-vital part and injury no. 3 is also not on vital part and though injury no. 4 stated to be on pinns, but, the said injury is simple in nature. There is nothing in the evidence of the doctor injuries were dangerous to life and, hence, taking into consideration the entire evidence none of the injuries have either single or cumulative effect of all the injuries taken together does not indicate that the injuries were inflicted with intention to kill. However, nothing has been mentioned that there was any intervening circumstance to kill the victim, had there been any intention to kill. Hence, even if the evidence of the witnesses are accepted the injuries as indicated above 4 are not as such to have been caused with intention to kill and, hence, the offence under Section 307 of the Penal Code is not made out. 6. Hence, the order of conviction and sentence recorded under Section 307 of the Penal Code is not maintainable and is here set aside. However, having regard to the fact that there is no x-ray place to suggest the fracture or to corroborate, hence, the conviction under Section 325 of the Penal Code is also not made out. However, the specific role has been attributed only to appellants 1 and 2, hence, their conviction under Section 324 of the Penal Code maintained, but, with regard to other appellants the allegation are quite omni bus and vague and no specific role has been assigned and, hence, appellants 3 to 8 are entitled for benefit of doubt, hence, their conviction and sentence is set aside. Since, the occurrence is of the year 1987 and appellants 1 and 2 have remained in jail for a month after conviction, hence, interest of justice shall meet by sentencing appellants 1 and 2 for the period already undergone. 7. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 19th day of July 2011, N.A.F.R., S.A.