Criminal Appeal (SJ) No. 243 OF 1996 Against the judgment and order dated 06.09.1996 passed by Sri Nirmalendu Kumar Kanth Niraj, 2nd Additional District & Sessions Judge, Saran in S.Tr. No. 32/96/50/1988. ************ Umesh Singh, S/o Sri Ramji Singh, resident of Village-Newaji Tola, Katava, P.S.-Bhagwan Bazar, District-Chapra (Saran) . ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Kamal Kishore Singh, Adv. For the State : Mr. C. Jawahar, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 307 IPC and sentenced to RI for ten years and a fine of Rs. 2,000/- in default of which a further period of six months RI by the 2nd Additional District & Sessions Judge, Saran in S.Tr. No. 32/96/50/1988 by a judgment dated 06.09.1996. 2. The case of the prosecution according to P.W. 4, Wakil Singh the father of the informant is that on 19.06.1985 at about 9 A.M. he was informed by some persons that his son has been injured on the roof of Jain Temple and when he reached there he found his son being taken from the temple in an injured condition. Thereafter he was removed to the hospital and at the door of the hospital he disclosed to the informant that the appellant has assaulted him and thereafter he became unconscious. 3. During trial the prosecution examined nine witnesses out of whom P.W. 6 is a formal witness. P.W. 1, Wakil Singh is the informant whereas P.W. 2 and P.W. 4 are 2 witnesses named in the First Information Report. P.W. 3 is a seizure witness whereas P.W. 5 is the Doctor who examined the injured. P.W. 6 and P.W. 9 are formal witnesses and P.W. 7 is the injured himself and P.W. 8 is the Investigating Officer. 4. The defence examined one witness on its behalf to prove the fact that in fact the injured was unconscious all along and the appellant’s name had not been disclosed. 5. On appreciation of the evidence led on behalf of the prosecution, I find that P.W. 7 has very truthfully narrated that on the date of occurrence the appellant had taken him on the roof of Jain Temple whereafter he had proposed unnatural intercourse and when the injured did not agree he was stabbed with “Chhura”. The neighbours then removed him to the hospital where he remained for 20-22 days. He identified the appellant in the dock and gave topography of the place of occurrence. Since P.W. 7 had only alleged that the appellant had proposed unnatural intercourse but not committed the act he was acquitted of the charge under Section 377 IPC. 6. On going through the evidence of P.W. 1, P.W. 2 and P.W. 4, I find that they have materially corroborated the prosecution case and that the appellant’s name has been disclosed by P.W. 7 as the person who had stabbed him. P.W. 5, the Doctor also found corresponding injury on the person of P.W. 7. He found one incised on the abdominal cavity which had cut the intestine at two places. The injury was said to have been caused by a sharp pointed 3 weapon. However, from the facts of the case, in the manner the occurrence is said to have taken place, in my opinion, no offence under Section 307 IPC is made out and it would be a case under Section 325 IPC. 7. In the result, the appeal is dismissed with the conviction of the appellant converted to one under Section 325 IPC and sentence is modified to the period already undergone by him during trial. However, the appellant (if alive) is directed to deposit a fine of Rs. 3,500/- in favour of the injured/his family within a period of four months from the date of receipt of notice from the Trial Court and in case he fails to do so he shall be imprisoned for a further six months RI . 8. With the aforesaid modifications in conviction and sentence, the appeal is dismissed. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 29th June, 2011. NAFR/Vikash/-