Criminal Appeal (SJ) No.303 of 1997 **** Against the judgment and order, dated 03.10.1997, passed by Shri Mahendra Narain Singh, Additional Sessions Judge, II, Motihari, in S. Tr. No. 304 of 1982/64 of 1987 **** 1. Lalita Mahto, son of Chrkut Mahto 2. Salik Mahto, son of Chirkut Mahto 3. Bhagirath Mahto, son of Chirkut Mahto, all of village Dilman Chapra, P.S. Kesariya, district East Champaran .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Uma Kant Shukla, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellants have been convicted under Section 307/34 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged in protest to plough land. The accused persons came armed with bhala, farsa and lathi and assaulted the prosecution party and the informant was treated at Keshariya Hospital, first information report lodged after investigation, charge sheet submitted and trial proceeded. During the trial eight witnesses examined. 2 4. The learned counsel for the appellants, however, contends that there is case and counter case and the occurrence took place for the land dispute and the investigating officer in his evidence has admitted that other side has also got injury. It has, further, been contended that though there are eight injuries. 5. The learned counsel for the State, however, contends that the prosecution has supported the prosecution case and is corroborated by evidence of doctor. 5. From the perusal of the records, it appears that P.Ws. 1, 2, and 3 have turned hostile, however, P.W. 5 is the informant has supported the prosecution case, P.Ws. 4 and 6 have also supported the prosecution case. P.W. 8 is the doctor and found eight injuries. The doctor in his evidence has deposed that injuries no. 4 to 7 are simple in nature. However, the doctor has not opined in his evidence about nature of injuries 1 to 3 though the injury report shows that injuries no. 1 to 3 are grievous as sharp cutting weapon, but, that does not confirm to Section 320 of the Penal Code. However, hence, there is no reason shown for holding the injury grievous in confirmation to Section 320 of the Penal Code. However, having regard to the fact that the occurrence took place with regard to the land dispute and though the investigating officer has also stated the injuries are simple of superficial. The doctor has also mentioned in his evidence that injuries are simple and more over the fact that there is nothing in evidence of doctor or in injury report that the injuries are dangerous to life, hence, under fact and circumstances it can well be inferred that the injuries inflicted on the 3 person of the prosecution are not with intention to kill, hence, order of conviction under Section 307 of the Penal Code is not sustainable. The conviction can well be restricted under Section 324/34 of the Penal Code. The appellants were in jail for about three months before the conviction and after conviction in jail from 13.10.1997 till the grant of bail by Hon’ble Court on 18.11.1997, hence, having regard to the fact that the occurrence is of the year 1981 and the appellants have faced the trial so the ends of justice shall meet by sentencing the appellants for the period already under gone. 6. Hence, the order of conviction and sentence, as stated above, is set aside and the appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 15th day of July 2011, N.A.F.R. S.A.