Criminal Appeal (SJ) No.105 of 1998 Against the judgment and order of conviction dated 17. 03. 1998 and order of sentence dated 18. 03. 1998, passed by Shri Braj Nandan Pandey, 7th Additional Sessions Judge, Chapra, in Sessions Trial No. 122 of 1990. 1. Sheo Pujan Singh. 2. Ram Pujan Singh. Both sons of Late Ram Jatan Singh. 3. Bijay Bahadur Singh, son of Shri Sheo Das Singh. 4. Rabindra Singh, 5. Devendra Singh. Both sons of Ram Pujan Singh. 6. Rajendra Singh. 7. Nagendra Singh. Both sons of Sheo Pujan Singh. 8. Satendra Singh, son of Shri Sita Ram Singh. All resident of Village- Bara Telpa (Nai Basti) Police Station- Chapra Town, District- Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Arun, Advocate. Mr. Dhananjay Kr. Upadhyay, 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 appellants and learned counsel for the State. 2. The appellant no. 1 convicted and sentenced to undergo rigorous imprisonment for three years taking into consideration his age and order giver. Appellant nos. 2 and 3 have been sentenced to undergo rigorous 2 imprisonment for five years. Appellants Rajendra Singh and Ravindra Singh have been sentenced to undergo rigorous imprisonment for seven years and remaining appellants have been sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged that when the informant, Binda Singh proceeded to house after taking meal in ‘Shardh’ of mother of Balaram Singh reached at Chapra Sonepur near the house of the Jairam Singh. The accused are alleged to have assaulted in Farsa, Bhala and Lathi and on hulla witnesses came. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted. Cognizance was taken under Section 307 and 379 of Indian Penal Code and the case was committed to the Court of Sessions. After commitment, charge was framed under Section 307 and 379 of Indian Penal Code. 5. During trial, eight witnesses were examined. P.W. 1 Dr. B. K. Singh, Doctor, P.W. 2 Binda Singh(informant), P.W. 3 Ram Khelawan Singh, formal witness, P.W. 4, Nageshwar Singh, P.W. 5, Sheo Kumar, not supported the prosecution case, P.W. 6 Raj Kumar 3 Singh, is tender, P.W. 7 Dinesh Singh has been declared hostile and P.W. 8 is the I.O. 6. The defence has also adduced one witness, namely Binod Kumar Singh, D.W. 1. 7. On considering both oral and documentary evidence, order of conviction and sentenced recorded. 8. Learned counsel for the appellants, however, contends that except the informant, none has supported the prosecution case. The injury report suggests that there was no intention to kill. 9. However, out of eight witness of the prosecution, P.W. 2 has supported the prosecution case. However, allegations are omnibus and have not stated who was assaulted. 10. However, the Doctor P.W. 12 has proved injury report, suggest 11 injuries out of them injury nos. 2, 6 and 9 are said to have been caused by sharp cutting injury by Bhala and injury nos. 3, 5 and 8 are said to have been grievous. Injury no. 3 was lacerated wound with abrasion 1/4"x 1/4"x muscle deep on lower part of left fore arm. Injury No. 5 was abrasion 2”x 1/2" with defused swelling on tip of left shoulder and injury no. 8 4 was lacerated wound 1/2”x 1/2"x skin deep on lower part of left leg. However, Doctor in his evidence stated that in X-ray report showed fracture of left ulna, lower part, fracture of left fibula and fracture of left clavicle and injury no. 5 was abrasion with defused swelling on tip of left shoulder and injury no. 8 is on the left leg. However, in cross-examination, he has stated that he can not say whether the injured was X-ray in private clinic or hospital and at present X-ray plate not placed before him. Hence apparent that X-ray has not been proved and is not on record. Hence it is difficult to infer that injury nos. 3, 5 and 8 are grievous as X-ray plate has not been proved to suggest that injury nos. 3, 5 and 8 are grievous However, 11 injuries were found, but none of injuries either singly or cumulative effect of all the injuries having been taken together show that injuries were inflicted with intention to kill. Doctor has also not opined that all injuries were dangerous to life merely because some of the injuries were grievous , it can not be held that injuries were dangerous to life or inflicted with intention to kill. Hence, offence under Section 307 I.P.C. is not made out, can only be substituted by Section 5 324 I.P.C. 11. However, the occurrence is year 1988, appellants suffer the rigor of prosecution and appeal and the appellants were remained in jail after conviction till grant of bail by Hon’ble High Court and also remained in jail during investigation. 12. Hence to end of justice shall meet under by sentencing the appellants for the period already undergone, hence the appeal is allowed in part with modification in sentence. Patna High Court, The 2nd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)