IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.16 of 1997 Against the judgment and order dated 21.12.1996 passed by Sri Krishnakant Sahay, 3rd Additional District & Sessions Judge, Nawadah in Sessions Trial No. 12/91/78/88. 1. Brahmadeo Ram, Son of Sri Ganauri Ram. 2. Arjun Ram, Son of Yamuna Ram. 3. Ramjatan Ram, Son of Yamuna Ram. 4. Bishundeo Ram, Son of Ganauri Ram All are residents of village – Derhgaon Tola, Benipur, Police Station – Kashichak, District – Nawadah. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s -------------- For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. --------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No one appears on behalf of the appellants. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned counsel for the amicus curiae and learned counsel for the State. 3. The appellant no. 1 Brahmadeo Ram has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and further convicted under Section 324 of the Indian Penal Code and has been sentenced to 2 undergo rigorous imprisonment for one year. Appellant nos. 2, 3 and 4, namely, Arjun Ram, Ramjatan Ram and Bishundeo Ram have been convicted under Section 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two months. 4. The prosecution case is that Shyamdeo Ram brother of Brahamadeo Ram was picking out earth worm from paddy field situated beside the house of the informant as a result paddy plants were being trampled. The informant protested not to destroy the plant, on which, Brahamadeo Ram came with Garasa, Bishundeo Ram, Ramjatan Ram and Arjun Ram came with Lathi and assaulted Mangri Devi and Malho Devi by Lathi and Garasa. 5. On the fardbeyan of the informant the investigation proceeded and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of session and subsequently, the charge was framed under Section 307/34 of the Indian Penal Code. Ten witnesses were examined and after considering the evidence the order of conviction and sentenced as stated above. 6. Learned counsel for the appellants, however, contended that the evidence of the doctor P.W. 10 even taken on the face value and offence under Section 307 of the Indian Penal Code, only one injury on Mangri Devi has been found to be a fracture on scapula over left shoulder which shows grievous in nature as well as injury on the 3 scapula of the informant and scalp region are simple and injury on Bhattu Yadav caused by hard and blunt substance is also simple in nature and injury on Malho Devi is found to be simple in nature not on the vital part of the body and hence offence under Section 307 of the Indian Penal Code is not made out. 7. Learned counsel for the State, however, submits that the injuries though are simple in nature, supported the prosecution case. 8. However, on perusal of the record and the evidence that the witnesses have supported the prosecution case about the assault but so far the medical evidence of the doctor P.W. 10 is concerned, taking into consideration the injuries though grievous in nature on the scapula, merely because injury is grievous, it will not come under the definition of attempt to murder if it is not with intention to kill. 9. However, taking into consideration the evidence of the doctor as well as injury report Ext. 5 to Ext. 5/C none of the injuries on the person of the injured witness either singly or even cumulative effect of all the injuries even if taken together are not as such to infer to have been caused with intention to kill and hence the offence under Section 307 of the Indian Penal Code is not made out. 10. However, the conviction recorded under Section 324 of the Indian penal Code is sustained and hence the order of conviction recorded under Section 307 of the Indian Penal Code is hereby 4 substituted for Section 324 of the Indian Penal Code. However, having regard to the fact that the occurrence is of the year 1987 and the appellants were facing the prosecution since 1987 and the appellant no. 1 has remained in jail during investigation as well as remained in jail after conviction 21.12.1996 to 07.02.1997 then the bail was granted and hence interest of justice shall be served by sentencing the appellant no. 1 for the period undergone. However, appellant nos. 2, 3 and 4 are convicted under Section 323 of the Indian Penal Code and hence the benefit of Section 360 of the Cr.P.C is required to be given and ordered to be released on due admonition, hence, the appeal is allowed in part. 11. Shri A. K. Tripathi, shall be supplied a copy of this judgment and he shall be entitled for a fee of hearing payale by the Patna High Court, Legal Aid Services Committee. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 11th July, 2011. N.A.F.R./Kundan.