CRIMINAL APPEAL No.32 OF 1992 (S.J.) **** Against the judgment and order, dated 10.03.1992, passed by Additional Sessions Judge, X, Arrah in Session’s Trial No. 95 of 1987 **** 1. Basant Sao 2. Fauzdari Sao 3. Alha Sao All are sons of late Tapsi Sao, residents of village Bhadwar, P.S. Chandi, district Bhojpur at Arrah .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. Mr. Amarnath Singh, Adv. For the respondent .. Mr. S.N. Prasad, A.P.P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Three appellants have been convicted for the offence under Section 326/34 of the Indian Penal Code by a judgment, dated 10.03.1992, passed by Additional Sessions Judge, X, Arrah, in Session’s Trial No. 95 of 1987. 2. The case of the prosecution is that on 20.06.1985 while the informant was sitting in front of his house, appellant no. 1, Basant Sao, 2 armed with farsa and appellants 2 and 3, Fauzdari Sao and Alha Sao, armed with lathis started fixing a “nad” which was objected to by the injured, Basant Sao, at which he was assaulted by the present appellants. After registration of the case charge sheet was submitted under Sections 307, 323 and 324/34 of the Indian Penal Code and charges were framed for the offence under Sections 307 and 326 of the Indian Penal Code for attempting to cause murder of Jiran Chaudhary by causing grievous hurt to him. 3. During trial the prosecution examined six witnesses out of whom P.W. 1 is formal witness in nature whereas P.Ws. 2, 3 and 4 came to the place of occurrence upon the hulla of the informant. P.W. 5 is the informant himself whereas P.W. 6 is the doctor, who examined the informant on the injuries of the informant as well as appellant no. 2. P.W. 7 is also a formal witness. 4. The defence examined one witness and filed three rent receipts by way of documentary proof to show that in fact the land where they were constructing “nad” belonged to the appellants and, therefore, it was in course of the private defence of property that this occurrence if at all had taken place. 5. On evaluating the prosecution case the trial Court acquitted the appellants for the charge under Section 307 of the Indian Penal Code and merely convicted the present appellants under Section 326 of the Indian Penal Code. To evaluate the prosecution and whether any offence under 3 Section 326 of the Indian Penal Code is made out or not it is important to look into the evidence of P.W. 5, Jiran Chaudhary, who has stated that on the date of occurrence appellant no. 1 came to the place of occurrence with farsa whereas appellants 2 and 3 armed with lathis and on protest at fixing the “nad” he was assaulted. The specific case of P.W. 5 is that appellant no. 1 assaulted him with farsa on the head causing cut injuries whereas the allegation against appellants 2 and 3 is merely of having armed and assaulted with lathis. The factum of injuries has been supported by P.W. 4, who saw the informant in an injured condition and the accused persons variously armed. P.W. 2, Mahajan Chaudhary, and P.W. 3, Upendra Chaudhary, are also eye witnesses to the occurrence and they supported the factum of the occurrence that it is the appellants who had caused injuries to P.W. 5. 6. P.W. 6, Dr. Chaturbhuj Prasad Singh, examined P.W. 5 and found one incised injury on the right side of the head with severe bleeding cutting the muscle and the under line bone the size of which was 6” x ½” x bone deep. The other two injuries were bruises on the back of the left arm. Evidently injury no. 1 was grievous in nature in nature whereas injuries 2 and 3 were simple. Under the circumstances it is beyond all reasonable doubt that the prosecution has been able to prove it’s case that it was appellant no. 1 who was assaulted the injured, P.W. 5, on the head with farsa causing grievous injury on him whereas appellants 2 and 3 have caused simple injury on his person. 7. Under the circumstances, I find no merit in the 4 appeal and the same is dismissed. However, the counsel for the appellants brings to the notice of the Court that the occurrence is of the year 1985, i.e., about 24 years ago and it will be against the interest of justice if they are sent behind the bars on account of dismissal of this appeal. I am in full agreement with the learned counsel for the appellants and, therefore, this appeal is dismissed with the modification in sentence that the same is reduced to a period which has already been undergone by them. 8. In the result, the appeal is dismissed with modification in the sentence as stated above. Appellants are discharged of the liability of bail bonds. (Anjana Prakash, J.) The Patna High Court, The 03rd day of November, 2009 N.A.F.R./S.A.