Criminal Appeal (SJ) No.177 of 1997 Against the judgment and order of sentence dated 04. 07. 1997, passed by Sri Shyam Kumar Mishra, Additional Sessions Judge, IV, Nawadah, in Sessions Trial No. 55 of 1993/13 of 1997. 1. Kaila Chauhan, son of Seba Saran Chauhan. 2. Raghunandan Chauhan, son of Seba Saran Chauhan. 3. Gulaichi Chauhan. 4. Dharmseni Chauhan, son of Sita Ram Chauhan. 5. Arjun Chauhan, son of Sita Ram Chauhan. 6. Prabhu Chauhan, son of Dharanser Chauhan. 7. Pyare Chauhan, son of Seba Saran Chauhan. All resident of Village- Manghra, P.S. Nawadah, District- Nawadah. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. = For the Appellants : 1. Mr. Alok Kumar Sinha-1, Advocate. 2. Mr. Bhola Kumar, advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 307/149 of Indian Penal Code and have been sentenced to undgergo rigorous imprisonment for five years. Appellant No. 5 Arjun Chauhan has further been convicted for offence under Section 379 I.PC. and sentenced to undergo imprisonment for one year. Further 2 it has been ordered that all the sentences shall run concurrently. 3. The prosecution case as alleged by the informant Chameli Devi (P.W.4) that on 27. 05. 1992 at about 6 A.M. while she was working in her house all the appellants variously armed with entered into her house and abused her. Accused Arjun Chauhan enquired about her husband and when she protested then Arjun gave khanti blow on her head as a result of which she fell down. Thereafter, Kaila Chauhan assaulted her with handle of hand pump by which she got injury on her right hand and then other appellants have also been assaulted by lathi. 4. On basis of Fardbeyan, F.I.R. lodged. After investigation, charge sheet submitted. Cognizance taken and the case was committed to the Court of Sessions and charge was framed for offence under Section 307 and other allied Sections. 5. Six witnesses have been examined by the prosecution and one documentary evidence has also been adduced. Ext. 1 and 1/A is injury report, Ext. 2, Fardbeyan, Ext.3 endorsement of the officer-in-Charge over the same, Ext. 4, Formal F.I.R. and Ext. 5 is certified 3 copy of judgment. After considering both oral and documentary evidence, order of conviction and sentence has been passed. 6. Learned counsel for the appellants, however, contends that, though conviction has been recorded under Section 307 I.P.C., but report of the Doctor does not suggest that injury on the person of the injured was dangerous to life. It has further been contended that, though, Injury No. 2 to 6 has been shown to be grievous for the reason of its fracture, but X-Ray has not been adduced in evidence to infer that injury was grievous in nature and hence contends that conviction under Section 325 or 326 or 307 is not sustainable. It has further been contended that appellants Nos. 1, 5 and 7 who have been attributed of alleged assault have remained in jail for more than a year and allegation against other appellants are omnibus and no specific role has been attributed against them and hence conviction and sentence is not maintainable. 7. The prosecution case as alleged that accused persons came and there is specific allegation about assault by Arjun Chauhan and Kaila Chauhan. However, it is 4 alleged that after assault the injured fell down and other accused persons have also assaulted by lathi. However, witnesses have supported the prosecution case. 8. P.W. 1 who is Doctor though, found eight injuries, but has stated that Injury No. 1 is on the head and Injury No. 7 is simple, but reserved the opinion regarding Injury Nos. 2 to 6. However, he has stated that supplementary injury report has been prepared after receipt of X-ray report on 02. 06. 1992 and has opined that Injury Nos. 2, 3, 4, 5, 6 and 7 and 8 shown ribe of right sight fractured and injuries are grievous in nature. However, in his cross-examination, he has stated X-ray plate not appeared before him and X-ray plate is not given in the supplementary report as he was not found X-ray plate as there was no X-ray Plant in Nawadah Sadar Hospital at that time and he can not say the name of X-ray Technician or Radiologist and he did not know where the injured got the X-ray done and he can not say whether X-ray had been done by Government or private technician. He has further stated that nature of fracture has not been given. 9. Hence in view of evidence of the Doctor that X-ray report has not been proved on record nor brought in 5 evidence nor was present at the time of X-ray of the victim. Hence opinion and injury report with regard to Injury Nos. 2 to 6 as grievous is not acceptable and nor worthy confidence. 10. Hence, having regard to the evidence and Injury Nos. 2 to 6 can not be held to be grievous without any X-ray report. Further regarding fracture, X-ray report which was produced before the Doctor on which supplementary injury report was given does not inspire confidence in absence of X-Ray plate brought and prove in evidence. 11. Hence, having regard to the facts and circumstances, since Injury Nos. 1 to 7 are simple and Injury Nos. 2 to 6 are held to be grievous has not been established and there is no evidence that injuries were shown to danger in life and hence conviction and sentence recorded under Section 307/149 I.P.C. is not sustainable. Further conviction under Section 325 I.P.C. has also not established in view of the fact that injuries pointed out could not be established to be grievous and hence, conviction under Section 307/379 I.P.C. has not sustainable and hence conviction at best be sustainable 6 under Section 324/149 I.P.C. 12. However, having regard to the facts and circumstance, that occurrence is of year 1992 and the appellants who have been attributed role of assault as appellant nos. 1, 5 and 7 has remained in jail during trial and after conviction for more than a year. However, other appellants have also remained in jail after conviction till bail granted by Hon’ble High Court. 13. Hence, in the interest of justice shall serve by sentencing the appellants for the period have already undergone and hence, appeal is allowed in part. Patna High Court, The 22nd July, 2011. NAFR/m.p. ( Gopal Prasad, J.)