Criminal Appeal (SJ) No.22 of 1999 Against the judgment and order of conviction dated 15.01.1999 and order of sentence dated 16. 01. 1999, passed by Shri R.P. Choudhary, Sessions Judge, Madhepura, in Sessions Case No. 55 of 1995. Nayim Sah @ Md. Naim Sah, son of Late Ismail Sah. Resident of Village- Hathiyoundha, Police Station-Bihariganj, District- Madhepura. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Dr. Sanjay Kumar Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 326 I.P.C. and sentenced to undergo rigorous imprisonment for four years. 3. The prosecution case as alleged in the First Information Report that the informant Illias while sleeing on a chowki at his darwaja got up at 3 A.M. on assault on his person then he awoke the wife of the informant Illias and disclosed that he has assaulted by the accused Naim Sah of village- Hatioundha along with another. The inmates of the house woke up and tied the injury on 2 head and finger of Md. Illias and he has taken to hospital and it is alleged that he was became unconscious. 4. On the Fardbeyan of Bibi Masina, the wife of the victim was recorded on the basis of which F.I.R. lodged. After investigation, charge sheet submitted against Naim Sah and Md. Ataul Sah. After framing of the charge, trial proceeded before the Court of Sessions. During trial eight witnesses were examined. P.W. 7 is the informant. P.W. 1 and 2 are sons of the informant. P.W. 3 and 4 are daughters of the informant and P.W. 5 is wife of the informant. After the occurrence Md. Illias disclosed the name of Naim Sah. 5. P.W. 7 has supported the prosecution case. However has developed the prosecution case for adding the name of one Atul Sah along with Naim Sah and one another who came to assault him. P.W. 1, 2, 3, 4 and 5 supported the prosecution case that after the occurrence Md. Illias disclosed the name of Naim Sah as a person who assaulted. P.W. 8 is the doctor who have found injuries on the person of Md. Illias. (i) Vertically placed incised wound size 3”x 1/4" into scalp deep over left parietal temporal region of head interior to left auricle, 3 (ii) vertically placed incised wound size 4”x4” into scalp deep over head posterior to injury no. (i) and left auricle, (iii) vertically placed incised wound size 3”x 1/4”x1/2” over occipital region of head posterior to injury no. (ii) and (iv) absence of terminal phalanxs of index finger of left hand bleeding plus. The age of injury found to be within six hours and it has opined that x-ray suggested of scalp and interior posterior and lateral to see any fracture. The x-ray of left hand antero posterior view was done and after x-ray it has opined that injury no. (i), (ii) and (iii) were found to be simple in nature and injury no. (iv) was found grievous in nature. 6. The trial court taking into consideration the evidence held that offence under Section 307 I.P.C. is not made out. However, convicted the appellant for offence under Section 326 I.P.C. in view of injury on the finger of his left hand which was found to be grievous in nature. However acquitted the co-accused Atul Sah. 7. However, learned counsel for the appellant however, contended that informant has developed the prosecution case adding the name of Atul Sah and also pointed out some contradiction. It has further been 4 contended that conviction recorded under Section 326 I.P.C., but the x-ray report and x-ray plate has not been proved on the basis of which it has been contended that offence under Section 326 I.P.C. is not made out. It has further been contended that only injury found absence of terminal phalanxs of index finger of left hand bleeding and appellant has been remained in jail for two months at the stage of investigation and two months after conviction till bail granted by Hon’ble Court. 8. However taking into consideration Md. Illias supported the prosecution case about assault by dragger causing injury on his head and index finger. However, three injuries have been found on the head are simple in nature and hence trial court rightly acquitted the appellant for offence under Section 307 I.P.C. Hence with regard to the three injuries, offence under Section 324 I.P.C. is made out. However, with regard to injury no. (iv) absence of terminal phalanxs of index finger of left hand bleeding and doctor has opined that this injury is grievous in nature in view of x-ray report, but neither x-ray report nor x-ray plate has been proved. Hence finding of injury no. iv was grievous is without any 5 evidence as x-ray report or x-ray plate has not been brought in evidence on the basis of which the doctor has opined that injury is grievous. Hence finding about injury no. iv was grievous is without any basis and hence conviction under Section 326 I.P.C. is not sustainable. However, having regard to the fact witnesses have supported the prosecution case about injury hence offence under Section 324 I.P.C. can only be made out. 9. However, having regard to the fact that appellant has remained in jail for four months. Hence end of justice shall meet by sentencing the appellant for the period already undergone. Hence order of conviction and sentence recorded under Section 326 I.P.C. is set aside and substituted by conviction under Section 324 I.P.C.with sentence for the period already undergone. Hence the appeal is allowed in part. Patna High Court. The 14th December, 2011. NAFR/m.p. ( Gopal Prasad, J.)