Criminal Appeal (SJ) No.236 of 1994 **** Against the judgment, dated 30.06.1994, passed by Shri Laxman Oraon, Additional Sessions Judge, I, Nawadah, in S. Tr. No. 53 of 1989/442 of 1984 **** 1. Bhagru Yadav, son of Nar Singh Yadav 2. Fakira Yadava, son of Raman Yadav 3. Basawan Yadav, son of Bhagru Yadav 4. Amri Yadav, son of Fakira Yadav 5. Anandi Yadav, son of Munna Yadav All residents of village Rajobigha, P.S. Pakribarawan, district Nawadah .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Gauri Shanker Pd. Adv. For the Respondent .. Mr. Ajay Mishra, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. Appellant no. 1, Bhagru Yadav, has been convicted for offence under Section 325 of the Penal Code and sentenced to undergo rigorous imprisonment for three years, appellant no. 5, Anandi Yadav, has been convicted for offence under Section 379 of the Penal Code and sentenced to undergo rigorous imprisonment for one year, appellants no. 2 to 5, namely, Fakira Yadava, Basawan Yadav, Amrit Yadav and Anandi Yadav, have, further, been convicted under Section 323 of the Penal Code 2 and sentenced to undergo rigorous imprisonment for one year and all the appellants have, further, been convicted under Section 427 of the Penal Code and sentenced to undergo rigorous imprisonment for three months. 3. The prosecution case, as alleged that the informant was going along with his nephew, Maheshwar Singh, for purchase of cloth. When they were passing through the Kala Ahar, they saw appellants’ cattles grazing their rahar crops. They protested. The accused persons assaulted the informant and his nephew and accused, Anandi Yadav, snatched rupees nine hundred and damaged the crop. 4. On the fardbeyan, first information report lodged and after investigation charge sheet submitted. 5. During the trial ten witnesses examined by the prosecution and after considering the evidence the trial Court convicted and sentenced the appellants, as mentioned above. 6. The learned counsel for the appellants, however, contended that the conviction under Section 325 of the Penal Code is not sustainable as injury alleged to be grievous has not been proved to be grievous. The further allegation of snatching rupees nine hundred is only a super addition and the occurrence is of the year 1983 and the benefit of Sections 3 and 4 of the Probation of Offenders Act may be extended to the appellants. 7. However, taking into consideration the material on record and in view of the submissions the witnesses though supported prosecution case and their evidence found reliable about assault, but, that P.W. 5 the doctor, who examined Chandrika Singh and found three injuries only. The injury no. (i) is bleeding through mouth and it has been said to be a grievous injury. Injury no. (ii) is bruise 3” x 2” on left side of chest. Injury no. (iii) 3 is, again, bruise 2” x 2” over left leg and injuries (ii) and (iii) have been shown to be simple. The injury report has been proved and marked as Exhibit 3. In cross examination, it is admitted that no x-ray of the injured was taken or suggested and the cause of bleeding stated to have been ascertained only through the x-ray, there is no mention about the duration for which the injured admitted in hospital. 8. However, taking into consideration the injuries and the injury report, it is apparent that it does not fit in any of the eight categories mentions in Sections 320 of the Penal Code to bring it under the definition of grievous hurt, hence, the order of conviction recorded under Section 325 of the Penal Code is not sustainable and, hence, it can only be substituted by offence under Section 323 of the Penal Code. 9. However, having regard to the fact that other conviction under Sections 323, 427 of the Penal Code are concerned, the occurrence is of the year 1983 and about 28 years is going to elapse from the date of occurrence and the appellants have harassed during the period from the institution of the case and, hence, the appellants are liable for benefit under Section 360 of the Criminal Procedure Code and 3 and 4 of the Probation of Offenders Act and, hence, they are ordered to be released on due admonition. 10. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 13th day of October, 2011, N.A.F.R., S.A.