Criminal Appeal (SJ) No. 191 of 1998 ****** Against the judgment of conviction and order of sentence dated 06.04.2011 and 07.04.2011 respectively passed by Sri Braj Nandan Sahay, learned Additional District & Sessions Judge – VIIth, Chapra in Sessions Trial No. 126 of 1990. ****** Sipahi Sah @ Sipahi Bhagat, Son of Ramanand Bhagat, resident of village – Amour, P. S. – Amnour, District – Chapra. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Basant Kumar Singh, Advocate. For the Respondent : Mr. Rina Sinha, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Sections 307 and 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and two years respectively. 3. The prosecution case as alleged by the informant is that while he was taking liquor at Bhatti, then the appellant came and asked to take drink with him and on protest Sipahi Sah took out his dagger and gave two dagger blows. 4. During trial eight witnesses were examined. P.W. 5 has supported the prosecution case and the doctor has proved the injury 2 report but the nature of injury not mentioned and referred the patient to Patna. However, the doctor of Kurzi Hospital was not examined and the other witnesses have been declared hostile and have not supported the prosecution case and the trial court convicted as stated above. 5. Learned counsel for the appellant, however, contended that the doctor P.W. 7 who proved the injury report does not mention that the injuries were grievous or dangerous to life and the occurrence took place for taking liquor at Bhatti and hence there is neither any intention nor any motive to kill has been established to attract Section 307 of the Indian Penal Code. 6. The doctor P.W. 7 has found stab injury which are as follows:- (i) Stab injury 1/2” x 1/4” x chest cavity on the left chest and (ii) Stab injury 1/2" x 1/4" x abdomen cavity on the left waist line and the patient was referred to Sadar Hospital, Chapra but the injury report does not mention that injury as grievous or serious to life, the depth of the injury has not been mentioned. However, a report of Holly Family Hospital, Kurzi has been proved by P.W. 8 a formal witness but the doctor who gave the opinion has not been examined. Hence, the report of doctor of Kurzi Hospital without the evidence of the doctor is not admissible in evidence in view of 4th case of Section 60 of the Evidence Act and hence the injury on person of injured is not established to have been dangerous to life to attract Section 307 of the Indian Penal Code. 3 7. Hence, having regard to the fact that the occurrence took place while he was taking liquor at Bhatti and neither any intention nor motive to murder established and the injury report Ext. 3 and evidence of P.W. 7 does not mention about gravity or dangerous to life nor mention depth of the injury to infer that the injury was inflicted with intention to kill and hence the order of conviction and sentence recorded under Section 307 of the Indian Penal Code is not sustainable and is set aside and it is substituted by offence under Section 324 of the Indian Penal Code. 8. However, having regard to the fact that occurrence is of the year 1989 and the appellant has suffered much rigors of the prosecution since then during trial and appeal and however, the appellant has remained in jail during the investigation for six months and further remained in jail after conviction for two months and hence the interest of justice shall meet by sentencing the appellant for the period already undergone and hence with this modification in sentence, the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 18th August, 2011. N.A.F.R./Kundan.