Criminal Appeal (SJ) No. 283 of 1997 Against the judgment of conviction and order of sentence dated 24.09.1997 and 25.09.1997 respectively passed by Sri Vishwambhar Upadhya, 3rd Additional Sessions Judge, Bhabua in Sessions Trial No. 535 / 203 of 1992 / 1997. 1. Ram Lal Bind. 2. Ramjee Bind. 3. Ram Awadh Bind, All sons of Bechan Bind. 4. Shri Bind, Son of Ramjee Bind. All resident of village – Dharmpura, P.S. – Sonhan, Distt. – Kaimoor (Bhabua). 5. Dhaja Bind alias Dwaja Bind, son of Sheo Deni Bind, resident of village – Patarion, P.S. – Bhagwanpur, District – Kaimoor (Bhabua). .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Achhaibar Singh, Advocate. For the Respondent : Mr. Sujit Kumar Singh, 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 appellants and learned counsel for the State. 2. The Appellant no. 1 Ramlal Bind and appellant no. 2 Ramjee Bind have been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. They have further been convicted for the offence under Section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and also they have been convicted 2 for the offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. The appellants, namely, Shri Bind, Ram Awadh Bind and Dhaja Bind @ Dwaja Bind have been convicted for the offence under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years. They have further been convicted for the offence under Section 323 and 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each. All the five convicts named above, have further been convicted for the offence under Section 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case as alleged in the fardbeyan by the informant is that Ramlal Bind came and commanded the informant not to transfer her land to her son-in-law on which the informant replied that she will transfer the land to her daughter and son-in-law on which Ramlal Bind started to abuse her and when she forbade the accused Ramlal Bind and Ramjee Bind, both armed with Garasha, Shri Bind, Ram Awadh Bind and Dwaja Bind armed with Lathi came and entered into the house of the informant and assaulted. It is further alleged that the accused Ram Awadh Bind, Shree Bind and Dwaja Bind started to assault the informant by means of Lathi. When the informant’s 3 husband, Dasarath Bind and daughter Fulmati Devi came to rescue her, the accused Ramlal Bind, Ramjee Bind attacked by Garasha on the head of Fulmati Devi, the daughter of the informant. The accused Ram Awadh Bind, Shree Bind and Dwaja Bind assaulted by means of Lathi on the informant, her husband and daughter causing injuries to the informant Murari Devi, her husband and daughter. 4. On the fardbeyan of the informant, FIR was lodged and after investigation, charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. During the trial eight witnesses were examined on behalf of the prosecution who are P.W. 1 Fulmati Devi, P.W. 2 Murahi Devi, P.W. 3 Kunti Devi, P.W. 4 Rama Shankar Bind, P.W. 5 Paltu Bind, P.W. 6 Baleshwar Bind, P.W. 7 Dr. S. P. Gupta and P.W. 8 Shri K. D. Sharma. The defence is also adduced one witness D.W. 1 Lalita Prasad. After considering the oral and documentary evidence, the order of conviction and sentence was recorded as stated above. 5. Learned counsel for the appellants, however, contended that there was land dispute and there are various contradictions in the evidence of the witnesses and the injuries shown to be grievous but neither any X-ray report brought on the record nor suggested and hence the doctors’ evidence does not confirm to Section 320 of the Indian Penal Code to hold it a grievous and the injuries are not as such to have 4 been inflicted with intention to kill and there is no specific averment in the evidence that who gave Garasha blow and who gave Lathi blow. However, the witnesses have supported the prosecution case about the assault but the evidence of assault is general and omnibus though the land dispute has been established. The doctor in his evidence has stated that he found four injuries on the person of Fulmati Devi which are (i) incised would 2.1/2” x 1/2” x deep to bone cut partially over left parietal region (ii) incised would 1.1/2” x 1/2” x deep to bone cut partially over the parietal region (iii) swelling with tenderness over left thigh measuring 1.1/2” x 1/2" x 1/4" and (iv) swelling with tenderness over epigasteriam. The doctor has opined that injury no. 1 and 2 were caused by sharp cutting weapon which may be by Garasha and both the injuries are grievous in nature and dangerous to life and injury no. 3 and 4 were caused by hard and blunt substance which may be caused by Lathi and both the injuries were simple in nature. The injury report has been marked as Ext. 1. The injuries have also been found on the person of Murahi Devi and found two injuries on her which are (i) Bruise with swelling 2” x 1/2" x 1/4" over left side of back and (ii) Bruise with swelling 1.1/2” x 1/2" x 1/4" over left thigh. Both the injuries were found to be simple in nature. The injury report has been proved and marked as Ext. 1/1. The third injured is Dasarath Bind and he received the following injuries (i) Bruise 4” x 2” x 1” over right lumber region in 5 back and (ii) Bruise 2” x 1” x 1/2" over scapular region and both the injuries were simple in nature and caused by hard and blunt substance, which may be by Lathi. 6. Hence, taking into consideration these injuries the injuries on the persons of Fulmati Devi and Dasarath Vind are simple and superficial. However, with regard to the injury on the person of Fulmati Devi the doctor in his cross-examination and in para 13 has stated that both the injuries 1 and 2 on the person of Fulmati Devi are on the same portion of the body and the portion has not been located or the distance from each other has not been shown in the injury report. The area of left parietal region is 3” wide and 6 to 8” long. He has further stated that he has not mentioned the area of left parietal region in his injury report. He has further stated that the measurement of injuries is based on guess work and the same was not actually measured by him. He has further stated that the general condition of Fulmati Devi (injured) was average and the X-ray is required for ascertaining grievous injuries but he did not advise X-ray in this case. Hence, it is apparent that neither the X- ray was done nor the x-ray was brought in evidence and hence the finding about the injury being grievous is only on speculation and there is no confirmation with regard to the injury whether found to be grievous in nature. 7. Hence, it is difficult to give a finding without X-rayed or without 6 any confirmation that the injury was grievous. The injury reports based on speculation which cannot be relied upon for holding that the injuries are grievous. There is no mention that there was any fracture or dislocation or injury on bone and without the X-ray no confirmation under Section 320 of the Indian Penal Code and hence the finding recorded by the learned lower court on the basis of the evidence of the doctor without an X-ray report that the injury was grievous is not sustainable. It is difficult to find the mark by which the injury was inflicted them finding that the injury was grievous and dangerous to life is not sustainable in view of the fact that no X-ray report is made available. Hence, I find and hold that the order of conviction recorded under Section 326 and 307 of the Indian Penal Code on the basis of the injuries and in light of the evidence that there was an intention to kill. Had there been intention there was no intervening circumstance to permeate the appellants to kill the victim and hence I find and hold that the offence under Section 307 and 326 of the Indian Penal Code is not made out. 8. However, having regard to the evidence and the facts and circumstances of the case the conviction under Section 326 and 307 of the Indian Penal Code is set aside and is substituted by the offence under Section 324 of the Indian Penal Code and allied Sections of the Indian Penal Code. However, having regard to the facts that the 7 occurrence is of the year 1992 and hence about 20 years have already been elapsed and the appellants faced the rigors of the investigation in trial as well as in the appeal during the period and they have also remained in jail after conviction and hence the ends of justice shall be met by sentencing the appellants for the period undergone by them after conviction and during the investigation and hence the appeal is allowed in part with the modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 01st August, 2011. N.A.F.R./Kundan.