Criminal Appeal (SJ) No. 270 of 1999 ~~~~~~ Against the judgment of conviction dated 10.09.1999 and order of sentence dated 15.09.1999 passed by Sri Bipin Dutta Pathak, learned Additional Sessions Judge - 2nd, Aurangabad in S. Tr. No. 206/1997/04/1997. ~~~~~~ 1. Jagarnath Singh, Son of Late Naurang Singh. 2. Jairam Singh, Son of Jagarnath Singh. Both resident of Village – Tetaria, P. S. – Madanpur, District – Aurangabad. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Krishna Prasad Singh, Sr. Advocate. Mrs. Meena Singh, Advocate. Mr. Bhaskar Shankar, Advocate. Mr. Sakat Kumar Singh, Advocate. For the State : Mr. Abhimanyu Sharma, A.P.P. For the Informant : Md. Gayasuddin Khan, Advocate. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State as well as the informant. 2. The appellants have been convicted for the offence under Sections 307/34 and 452 of the Indian Penal Code and the appellant no. 1, namely, Jagarnath Singh has been sentenced to undergo rigorous imprisonment for five years with a fine of Rs.10,000/- and in default to undergo simple imprisonment for one year for the offence under Section 307/34 of the Indian Penal Code and the appellant no. 2, namely, Jairam Singh has been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 307/34 of the Indian Penal Code. No separate sentence has been awarded for the offence under Section 452 of the Indian Penal Code. 3. The prosecution case as alleged by the informant Manoj Singh is that on 2 05.01.1997 when his father was returning after cutting sugarcane crop then there was verbal altercation between his uncle and his brother. On 06.01.1997 at about 6:30 A.M. while his father was sitting in his house along with his mother and other family members then at about 7:30 A.M. Jagarnath Singh aged about 55 years armed with Garasa, Pancham Singh armed with country made pistol and Jay Ram Singh, son of Jagarnath Singh armed with Garasa entered into the house and they abused. When the father of the informant protested then Pancham Singh fired from the country made pistol. Jagarnath Singh gave a Garasa blow which hit on the wrist of right hand and blood started oozing out and in the meantime it is alleged that Jai Ram Singh assaulted the informant with Garasa causing injury on his wrist and left shoulder. The family members and others rushed to the place of occurrence. The motive for the occurrence is the land dispute between the parties since last several years. 4. The trial court taking into consideration the evidence of the witnesses found that the real cause for the occurrence is a deed of gift obtained by the son of P. W. 1 and hence the entire cause of action due to the land involved in the deed of gift which has been impounded. The trial court further found that the witnesses supported the prosecution case about assault by Garasa by appellant no. 1 on father of the informant causing amputation on the hand and injury by appellant no. 2 on the informant a short injury 3” x 1/2” bone deep in lower part of the forearm to dorsum of the hand and abrasion 2-1/2” X 1/4” and both the injuries simple having been supported by the doctor and found the allegation and evidence regarding Pancham Singh is not substantiated by the I.O. Hence the trial court acquitted the accused Pancham Singh but convicted the appellants under Sections 307/34 and 452 of the Indian Penal Code and sentence as mentioned above. 5. Learned counsel for the appellants, however, contended that though the 3 prosecution has supported the prosecution case regarding the assault but it is admitted position that both the parties are descendant of common ancestors and living at the same place. The occurrence took place due to the land dispute. The injury on father of the appellant on hand is not on vital part of the body and the injury on informant is simple and hence no offence under Section 307 of the Indian Penal Code is made out. Appellant no. 1 was 60 years old at the time of occurrence and hence his age is 72 years at present and has remained in jail for about six months hence a lenient view may be taken. 6. Learned counsel for the State as well as the informant, however, contended that the impact of the injuries given by the persons causing amputation of the hand shows the impact of the injury by which the injury was inflicted and hence it can well be inferred that the injury inflicted with intention to kill and was grievous in nature. 7. Taking into consideration the evidence and fact and circumstance of the case in the light of the submissions by the parties, it is true that there is allegation of assault by Garasa and it is alleged that one Garasa blow was given to the father of the informant by the appellant no. 1. The appellant no. 2 gave two Garasa blow on the person of the informant Manoj Kumar. However, from the evidence it is apparent there is no repetition of blow by the appellant no. 1 on the father of the informamt. However, the injury found on the person of the informant is on the right hand which caused the amputation of wrist. However, the part of the body chosen for inflicting injury is hand which is not vital part of the body though the weapon used is Garasa but there is no repetition and hence on the said fact it cannot be a case that the injury was inflicted with intention to kill. 8. However, with regard to the role attributed to the appellant no. 2 though it is alleged that two Garasa blows were given to the informant. However, the two 4 injuries are only simple in nature and out of the two injuries alleged to have been inflicted one is sharp cutting injury on hand and other shows the abrasion which does not show injury by a sharp cutting weapon. 9. Having regard to the fact that both the injuries inflicted by the appellant no. 2 found on the person of the informant are simple in nature which is not on the vital part of the body and though the weapon used is Garasa but the appellants having chosen not on the vital part of the body and the impact also not as such to have caused the death as the injuries are simple. It cannot be said that the assault have been inflicted with intention to kill. 10. Having regard to the fact that the occurrence was due to the land dispute and both the parties are descendent of common ancestors and hence it cannot well be inferred under the facts and circumstances of the case that the injuries were inflicted with intention to kill and hence the conviction for the offence under Section 307/34 of the Indian Penal Code is not made out. 11. However, having regard to the fact that there is amputation of the hand of the father of the informant and it has been held that the amputation caused by Garasa by appellant no. 1 and hence the offence under Section 326 of the Indian Penal Code is made out. So far the appellant no. 2 is concerned having been attributed the role of assault to the informant by Garasa causing injury but both the injuries found to be simple in nature and hence it cannot be inferred that the injuries were inflicted with intention to kill as none of the injuries was on the vital part of the body and hence the appellant no. 2 convicted under Section 307/34 of the Indian Penal Code is not sustainable and is substituted by the offence under Section 324 of the Indian Penal Code. 12. Hence, having regard to the fact that the occurrence is of the year 1997 and appellant no. 1 was aged about 60 years at the time of judgment in the year 1999 5 and 12 years have already been elapsed appellant is more than 72 years and he has remained in jail about six months and hence the ends of justice shall meet by sentencing him for the period already undergone with a fine Rs.10,000/-. 13. However, so far the appellant no. 2 is concerned that his conviction under Section 307/ 34 of the Indian Penal Code is substituted under Section 324 of the Indian Penal Code and since he has remained in jail for about six months hence the ends of justice shall meet by sentencing the appellant no. 2 for the period already undergone. Hence the appeal is allowed in part with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 22nd December, 2011. N.A.F.R./Kundan.