Criminal Appeal (SJ) No.326 of 2008 Against the judgment and order of conviction and sentence dated 03. 03. 2008, passed by Shri Raj Bansh Dwivedi, Additional Sessions Judge, Fast Track Court No. 6, Sahasra, in Sessions Trial No. 86 of 1995. Murlidhar Thakur, son of Late Astanand Thakur, resident of Village- Balia, P.S. Basnahi, District- Saharsa. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. :- Mr. Sameer Ranjan, 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 appellant learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for four months. 3. The prosecution case as alleged in the Fardbeyan by the informant Bateshwar Jha that on 28. 07. 1993 at about 2.30 P.M. he along with Chandra Shekhar Thakur, Suresh Thakur, Shyam Kishore Thakur, Prakash Jha and Arhulia Devi was going to Saharsa for treatment 2 of Chandra Shekhar Thakur and about 3 P.M. when they reach at Jhitkia Ghat then 6-7 persons were armed with bow, arrow, lathi and Farsa ran towards them. Accused Murlidhar Thakur shot at arrow which penetrated into the body of Suresh Thakur piercing through his hydrocele (scortum) and injured Arhulia Devi by shooting arros on her left writ. Accused Bhagwan Thakur brandished lathi on Suresh Thakur and Shyam Kishore Thakur due to which Suresh Thakur unconscious. Dharnidhar Thakur blowed a farsa on Shyam Kishore Thakur from which left hand finger was cut and Bhagwan Thakur beat Shyam Kishore Thakur variously by lathi due to which he also became unconscious. He also fell down Arhulia Devi by beating her with lathi. Accused Rajendra Jha and Tuntun Jha were also moving lathi. All the three accused persons assaulted by lathi and injured Chandra Shekhar Thakur and Jai Prakash Jha. When Shyam Kishore Thakur fell down after unconscious accused Murlidhar Thakur took away Rs. 4,000/- The motive of the alleged occurrence is land dispute of village- Balia with regard to the Rasta and on the morning on 28. 7. 1993 there was dispute about Rasta. 3 4. On the Fardbeyan, F.I.R. lodged. After investigation, charge sheet submitted. During trial 13 witnesses were examined on behalf of the prosecution and only two witnesses examined on behalf of the defence to prove Ext. A. B. C, D, E, F, F.I.R. and injury report etc. 5. The witnesses examined on behalf of the prosecution supported the prosecution case about assault of prosecution party. P.W. 1, 2, 3, 4, 5 and 6 are the injured witnesses who have supported the prosecution case regarding assault by the accused persons. P.W. 7, 8, 9, 10 and 11 have been declared hostile as they have not supported the prosecution case. 6. P.W. 12 is the doctor who examined the injured and has proved the injury report which has been marked as Ext. 1 to 1/4. P.W. 13 is the Police Officer who conducted the inquiry after investigation. 7. The defence of the accused persons that they also filed a case and has proved ext. A, B, C, D, E, F and G, Fardbeyan, F.I.R. and injury report. However, date and time of occurrence of the counter case is 28. 07. 1993 at about 12 Noon and has also proved injury report which has been marked as Ext. F and F/1 on the person of the 4 appellant and Dharnidhar Thakur. 8. The trial court taking into consideration the evidence of the prosecution witnesses as well as case of the defence in which five of the accused persons were facing trial and convicted Bhagwan Thakur, Tuntun Jha and Rajendra Jha for offence under Section 323 I.P.C. and discharged them on due admonition giving the benefit under Section 360 Cr.P.C. and 3 and 4 of Probation of Offenders Act, but convicted the appellant for offence under Section 307 I.P.C. in view of the allegation that this appellant was instrumental in assaulting Suresh by bow and arrow causing injury on the person of Suresh on hydrocele by arrow and acquitted Dharnidhar Thakur. However, convicted the appellant for offence under Section 307 I.P.C. The trial court also rejected the defence version as it is not a case of counter version of the same case as the time of occurrence of two cases are different, though, on the same date. Taking into consideration the document filed by the defence Ext. A, certified copy of the cognizance order, Ext. B is the certified copy of order passed in Criminal Revision, Ext, C, the judgment in complaint case, Ext. E, is certified 5 copy of case filed by the appellant bearing Basnahi P.S. Case No. 31 of 1993, Ext. F and F/1 are injury report, though as date and time of occurrence at 12 Noon on 28. 07. 1993 whereas the present case, time of occurrence is 2.30 P.M. 9. Learned counsel for the appellant, however, contends that date of occurrence of two cases are same, though, there is variation of the time of occurrence. However, his Fardbeyan was recorded at Saharsa Police Station and the case was filed on 29. 07. 1993 at 10 A.M. and F.I.R. was lodged on 31. 07. 1993 at 3.30 P.M. 10. However, injury report Ext. F, indicates by the doctor, though, appellant was examined on 29. 07. 1993 at 11. 50 A.M., but injury report has been given on 31. 07. 1993 on the requisition by the police dated 29. 07. 1993 marked as Ext. G/1. 11. However, defence version and defence case set up and injury suggested is sharp cutting frontal area and lacerated and tendered injury and injuries are simple and superficial and hence since the time of occurrence is different on the two case and the injury sustained on the person Murlidhar is simple and superficial and the counter 6 case is filed is no ground to disbelieve the prosecution story. 12. However taking into consideration the evidence of witnesses, P.W. 1 to 6 are the injured who have supported the prosecution case. However taking into consideration the evidence, there is allegation and evidence that appellant assaulted by bow and arrow which caused injury on the person of Arhulia Devi as well as on Suresh Thakur. However, injury found on the person of Arhulia Devi one penetrating wound 1”x1/4”x1/2 deep on back of left wrist and injury found on her person is simple injury. However, taking into consideration the evidence on the injured Arhulia Devi it cannot be inferred that injury whatever inflicted would have been by arrow to have caused with intention to kill. However, the role attributed by this appellant is assault by arrow on the person of Suresh Thakur. However, injury on the person of Suresh Thakur has been proved by the doctor P.W. 12, marked Ext. 1. However, this doctor, P.W. 12 in his evidence has stated that he examined Suresh Thakur on 28. 07. 1993 at 11.10 A.M. However, on his injury report he has mentioned regarding O.T. note of Surgeon on 29. 7 07. 1993 that one arrow extracted through an excision in left gleeteal region and sealed. Partial rupture of urethra. He has stated that on 28. 07. 1993 he was posted Sadar Hospital, Saharsa on the same day, he examined Suresh Thakur at 11. 10 A.M. and found following injury; (i) one arrow penetrating in right side of pubis- O.T. note of surgeon on 29th July, 1993 is hereby quoted (under G.A. one arrow extracted through an excision in left Gleeteal region and sealed. Partial rupture of urethra). (ii) Swelling left forearm. (iii) One lacerated wound on scalp. 13. However, it is surprising how the doctor, P.W.12 who examined the patient on 28, 07, 1993 refer a note of surgeon on 29th. In cross examination he has stated that he has recoded the injury no. 1 on the person of Suresh Thakur mentioned as grievous, but he has stated that he has reported and mentioned the injury as grievous on the basis of report of Surgeon. However, he has stated that he cannot say the name of Surgeon on which basis he gave report. He has further stated that said report of Surgeon is not before him. He has further stated he has quoted extract. However, to court question he stated that he examined the injured Suresh Thakur on 28. 07. 1993, but he has given the report on 29. 07. 1993 8 and the reason for the same that he was not aware of nature of extract of the injury. He has further stated that generally injury report is written in the register when the injured is examined. He has further stated that register is not before him. Hence from the evidence of this witness, it is apparent that injury report of this witness anti dated and further basis on which report has been given on the note of Surgeon, but note of Surgeon has not been brought in evidence neither the Surgeon who operated Suresh Thakur has also been examined and hence neither the report on the basis of Surgeon has been proved nor Surgeon has been examined. 14. Moreover, having regard to the facts that apparently injury report is anti dated and examination and report of the doctor with regard to the injury on the person of Suresh Thakur is not reliable and worth confidence to be relied upon. However, in view of the fact that injury not having been proved and hence conviction recorded on the basis of this evidence is not sustainable. 15. However, in view of the fact that there is no reliable documentary evidence or oral evidence regarding 9 injury on the person of Suresh on the hydrosele. Only evidence left is oral evidfence by the witness and hence it cannot be inferred that injury inflicted as such to have caused with intention to ill or it is grievous and hence basic ingredient for offence Section 307 I.P.C. is lacking, neither the edge and size of arrow has been mentioned nor arrow has been brought on record and hence role attributed by this appellant even established he used arrow in view of evidence, the injuries having been to have caused with intention to kill is not established. 16. Hence conviction recorded under Section 307 I.P.C. is not hereby established and is utmost case of conviction under Section 324 of Penal Code. 17. However. Having regard to the fact that appellant is in jail since 03. 03. 2008 and he has remained in jail for more than three years. Hence the appeal is allowed in part and judgment of conviction and order of sentence modified under Section 324 I.P.C. for the period remained in jail and hence order to be released forthwith if he is not required in any other case. Patna High Court. The 24th November, 2011. NAFR/m.p. ( Gopal Prasad, J.)