Criminal Appeal (SJ) No.40 of 1997 **** Against the judgment, dated 13.12.1996, passed by Sri P.N. Yadav, Sessions Judge, Nawadah, in S. Tr. No. 36 of 1996 **** Pampa Tiwari @ Ranjeet Tiwari, son of Bhagwan Tiwari, resident of village Bareu, P.s. Akabarpur, district Nawadah .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Arun Kumar Tripathi, Adv. as Amicus Curiae For the Respondent .. Mrs. Rina Sinha, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 307 and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged by the informant, PattanTiwari, that Pampa Tiwari demanded Rs.50/- from Dinesh Tiwari, son of the informant for taking wine as rangdari tax and when Dinesh refused then Pampa Tiwari took out his dagger from his waist, threatened him and fled away. On the fardbeyan, first information 2 report lodged and after investigation charge sheet has been submitted cognizance taken and case was committed to the Court of sessions. After commitment the charge was framed and the trial proceeded. 4. During the trial ten witnesses were examined and convicted the appellant after appreciating the evidence of P.Ws. 1, 2, 3, 5, 6 and 7. It is held that the appellant has inflicted dagger blow on the person of the victim, Dinesh Tiwary. The appellant runs a betel shop. The doctor found the corresponding injury and proved his report. The doctor, P.W. 10, who admitted the victim in Patna Medical College Hospital, proved the bed head ticket and SOD entry no. 5980, which are marked as Exhibits 5 and 6 and deposed that the victim required urgent surgical operation and was operated in the mid night on the same day and given a finding that the injury 1” x ½” in the left lobe of liver and liver was repaired with zero intestinal cadgur and peritoneal wash with betadin solution and the abdomen was closed with vicryl to zero and the injury report has been proved as Exhibit 2/1 and opined that the injury was grievous in nature and dangerous to life. The trial Court has also considered criticism on the injury report that the injury was issued on 29.09.2006 wherein the victim was operated on 15.09.2006 and it was not mentioned in the bed head ticket and in the SOD Book that injury was grievous in nature. However, criticism over ruled and on the basis of the evidence of the doctor that he prepared injury report on the basis of bed head ticket and SOD Book which was maintained in ordinary purpose of initial bed head ticket no injury can be disbelieved. 3 5. Hence, considering the oral and documentary evidence the trial Court convicted the appellant for offence under Section 307 of the Penal Code, however, acquitted the appellant on the charge under Sections 379 and 384 of the Penal Code and sentenced as mentioned above. 6. The learned counsel appearing as Amicus Curiae, however, submitted that there is allegation and evidence of giving only one dagger blow and had there been intention to kill there may have been the repetition of blow, however, there is no repetition and there was no intervening circumstance to spare the victim had there been intention to kill. 7. However, taking into consideration of the witnesses who supported the prosecution case that the appellant gave a dagger blow in the abdomen and the doctor has also found injury. P.W. 9 has found the corresponding injury though has referred his opinion to the Patna Medical College Hospital and P.W. 10 performed abdominal surgical operation and opined about the injury, which was inflicted on 26.09.1995 and the operation performed on 15.12.1995. However, the explanation is that such injury was minor and the bed head ticket and SOD book have also been marked as Exhibits 5 and 6 and the x-ray report has also been exhibited as Exhibits 1 and 1/1 and, hence, in the facts and circumstances though the injury has been proved, but, having regard to the fact that there is no repetition and when there is no intervening circumstance to spare, it can well be inferred that appellant had no intention to kill. Having regard to the fact that the injury was 4 grievous, hence, the order of conviction under Section 307 of the Penal Code is not sustainable, however, the offence under Section 326 of the Penal Code is made out in view of the one dagger injury has been inflicted and there is no repetition. Since, the occurrence is of the year 1995 and the appellant has remained in jail since 1995 to 21.02.1997, hence, the ends of justice shall meet by sentencing the appellant for the period already undergone. 8. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 09th day of August 2011, N.A.F.R., S.A.