CR. APP (SJ) No.785 of 2008 Against the Judgment and order dated 31.7.2008 passed in Sessions Trial No.401 of 2005 / 164 of 2005 by the Additional District and Sessions Judge-cum- F.T.C.IV- Jehanabad. 1. RAM BABU YADAV & ORS ………………………… . 2. Krishna Yadav ---------- 3. Vijay Yadav ---------- Appellants. For the appellants: Mr.Tejendra Sinha, Advocate. 4For the State : Mr. S.N.Prasad, A.P.P. ----------- P R E S E N T The Hon’ble Mr. Justice Samarendra Pratap Singh S.P.Singh,J. Heard the learned counsel for the appellants and the State. 2. All the three appellants have been convicted under section 323/34 of the I.P.C. and have been sentenced to undergo R.I for four months and pay a fine of Rs.1000/- and in default of payment of fine further all appellants were awarded one month imprisonment. 3. The informant P.W.1, Ram Pryare Singh alleged that appellant no.3, Vijay Yadav, armed with Garansa alongwith the appellants no.1, Ram Babu Yadav and 2. Krishna Yadav armed with lathi came at the flour mill of the nephew of the informant, Mithilesh Yadav and assaulted him on his head with intention to kill him. The infrormant further alleged that the appellant Ram Babu Yadav and Krishna Yadav also assaulted him with fists and slaps. 4. The case was registered under sections 323,324 2 and 307/34 of the I.P.C. After investigation charge sheet was submitted under the aforesaid sections. After cognizance the case was committed to the court of Session for trial and the charges were framed under sections 307/34 and 323 I.P.C. 5. The prosecution examined five witnesses in course of the trial. P.W.1, Ram Pyare Singh is the informant himself. P.W.2 is Ram Bhagwan Yadav. P.W.3 is Surendra Yadav, P.W.4 is Ram Babu Yadav and P.W.5 is the victim herself,namely, Mithilesh Yadav. It would appear from the evidence of P.W.1 and P.W.5 that Vijay Yadav gave garansa blow on the head of the informant. 6. The learned counsel for the appellants submits that neither the doctor nor the I.O. has been examined. It further appears that there has been also a delay of two weeks in recording the statement of P.W.5. He has deposed in para 14 of his evidence that he remained in hospital for fourteen days and the police had come to him and has recorded his statement after two weeks. 7. Learned counsel for the State submits that the informant has supported the prosecution case. 8. After hearing the learned counsel for the parties this Court finds that the prosecution has failed to prove a case under section 323/34 of the I.P.C. against appellant no.1 and 2 and as such their conviction under the aforesaid section is set aside. So far as the appellant, Vijay Yadav is concerned the material evidence of prosecution witnesses on record would show that the informant’s 3 Bhagina, Mithilesh Yadav sustained injuiry on his head and the informant has alleged that the aforesaid injury was caused by the aforesaid appellant, Vijay Yadav. 9. Under the above circumstances I upheld the conviction of appellant no.3, Vijay Yadav, under section 323/34 of the I.P.C. 10. Now I take up next issue regarding quantum of sentence that is to be imposed on appellant Vijay Yadav. This is a case of the year 1997 and the offence against the appellant no.3 is his first offence. So in the circumstance instead of sentencing the appellant to undergo imprisonment, this Court considers that fine of Rs.300]/- would meet the ends of justice.As such the appellant must deposit fine in the learned court below which be paid to the injured, Mithilesh Yadav. 11. As such the appeal of appellant no.1, Ram Babu Yadav and appellant no.2, Krishna Yadav is allowed and the order and Judgment of trial court, passed by Addl. Sessions Judge cum F.T.C. IV, Jehanabad in S. T. No.401/05 / 164/05 is set aside so far they are concerned. The appeal of appellant no.3, Vijay Yadav is dismissed with aforesaid modification in sentence.. The Patna High Court,Patna. (Samarendra Pratap Singh) The 21st August,2008 Anil K.Sinha