Criminal Appeal (SJ) No. 34 of 1999 ~~~~~~ Against the judgment of conviction dated 30.01.1999 and order of sentence dated 01.02.1999 passed by Sri Rajendra Prasad Choudhary, learned District & Sessions Judge, Madhepura in Session Case No. 118 of 1994. ~~~~~~ 1. Krityanand Yadav, S/O. Bindeshwari Yadav. 2. Bindeshwari Yadav, S/O. Late Mundar Yadav. 3. Dayanand Yadav, S/O. Bindeshwari Yadav. All resident of village – Lawalegam, P. S. – Chausa, District – Madhepura. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Radhey Shyam Prasad, Advocate. For the Respondent : Mr. Suresh Prasad Singh, A.P.P. ~~~~~~ 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. 2. The appellant Dayanand Yadav has been convicted for the offence under Sections 307 and 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years for the offence under Section 307 of the Indian Penal Code with a fine of Rs.2,000/- and in default of payment of fine will further undergo imprisonment for one year and has further been sentenced to undergo rigorous imprisonment for three years for the offence under Section 326 of the Indian Penal Code. It has further been held that after realization of fine amount a sum of Rs.1,000/- will be paid to the informant of this case. The appellants Krityanand Yadav and Bindeshwari Yadav have been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged by the informant Rajeshwari Yadav is that 2 on 02.07.1993 at about 8:00 A.M. he was at his house. About a year prior to the occurrence, he had given a sum of Rs.950/- to his brother, Bindeshwari Yadav by way of loan. When the informant demanded the said amount, Bindeshwari Yadav refused to pay which laid verbal altercation. The further case is that Bindeshwari Yadav insisted to kill on which Dayanand Yadav brought a Garasa and gave a Garasa blow on his head by which the informant got injury and fell down. It is alleged that Bindeshwari Yadav and Krityanand Yadav assaulted him by Lathi on his hand and back. When Bina Devi the wife of the informant came to rescue then she was also assaulted by Dayanand Yadav by Garasa by which she fell down. On hulla, Taladhar Yadav (P. W. 1), Bishundeo Singh (P. W. 2), Chandeshwari Singh (P. W. 3) came who have seen the occurrence. 4. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. However, after commitment the charge was framed against Dayanand Yadav for the offence under Sections 307 and 326 of the Indian Penal Code and for the offence under Section 307/34 of the Indian Penal Code against Krityanand Yadav and Bindeshwari Yadav. 5. During the trial six witnesses were examined on behalf of the prosecution. (P. W. 1) Taladhar Yadav, (P. W. 2) Bishundeo Singh, (P. W. 3) Chandeshwari Singh. P. W. 1 was turned hostile and P. Ws. 2 and 3 were tendered. P. W. 4 is the informant and P. W. 5 is the wife of the informant. However, they came to support the prosecution case in the fardbeyan about the loan given by the informant and for demand there was verbal altercation followed with assault causing injury on his head and hand and also injury on Bina Devi. P. W. 5 also supported the prosecution case. P. W. 6 is the doctor who examined the injured P. Ws. 4 and 5. The doctor found injury on the person of Bina Devi one sharp cutting weapon wound over 3 anterior part on the head measuring about 2-1/2”x1/4”x1/4” and the injury found grievous in nature caused by Garasa. P. W. 6 also examined Rajeshwari Prasad Yadav and found seven injuries. Injury nos. (i) one sharp cutting weapon wound over the head extending from anterior to the back of the head measuring about 2”x1/4"x1/4" (ii) one sharp cutting weapon wound over left side of the anterior part of head measuring about 2”x1/4”x1/4" (iii) one swelling over lower cervical vertebra (iv) right hand partially paralyzed (v) left hand partially paralyzed (vi) right leg partially paralyzed and (vii) left leg partially paralyzed and has opined that the injury nos. I and II are grievous in nature caused by sharp cutting weapon and injury no. III caused by hard and blunt substance and has stated that injury nos. IV to VII partially paralysis developed due to head and vertebral injuries. 6. The trial court taking into consideration the evidence of the witnesses convicted the appellants and sentenced as mentioned above in view of the evidence of P. Ws. 4 and 5 and the evidence of the doctor that the injuries found to be grievous. 7. Learned counsel for the appellants, however, contended that the witnesses who came to support the prosecution case are P. Ws. 4 and 5 who are the informant and his wife. None of the independent witness has come forward to support the prosecution case. It has further been contended that the injury report is ante dated, forged and fabricated and he has filed a petition for examination of the victim at the time of investigation itself before the court below for check-up of the informant by a Medical Board. 8. It has further been contended that the occurrence is dated 02.07.1993 whereas the First Information Report lodged on 04.07.1993. On the basis of the fardbeyan recorded by the I.O. on 04.07.1993, the doctor has given the injury report on 02.07.1993 and has mentioned in the injury report the date of discharge as 4 16.07.1993 and on that basis contended that the injury report is anti dated and is not believable. It has further been contended that the injuries pointed out are not as such to have been caused with intention to kill as none of the injury can be said to be dangerous to life nor they confirmed to the definition of the injury as per Section 320 of the Indian Penal Code to bring it under the definition of grievous injury as the injury about partial paralysis is vague without any supporting documentary evidence. 9. Learned counsel for the State, however, contended that the witnesses have supported the prosecution case and the injury found by the doctor. 10. On the basis of respective submissions the question for consideration is that whether the offence under Sections 307 and 326 of the Indian Penal Code is made out. However, it is true that out of six witnesses examined only P. Ws. 4 and 5 have come to support the prosecution case. However, it is pertinent to mention that P. W. 4 is the informant and the appellant Bindeshwari Yadav and the informant Rajeshwari Yadav are the full-brothers. P. Ws. 1, 2 and 3 who have been named as witnesses in the fardbeyan have not supported the prosecution case. P. Ws. 4 and 5 have supported the prosecution case about assault by Lathi and Garasa. However, I perused the evidence and there is nothing to discard or disbelieve their evidence. The doctor P. W. 6 has found corresponding injury by sharp cutting weapons as well as hard and blunt substance. However, no independent witness has come to support the prosecution case. However, the evidence of P. Ws. 4 and 5 cannot be discarded on this ground alone and if their evidence found to be trustworthy and worthy of confidence that can be relied upon and conviction can be recorded. However, the occurrence took place with regard to the petty matter regarding non- payment of the loan amount advanced by the informant to the appellant. The amount also is a meager and both the parties are the brother. However, the injury 5 inflicted on the person of Bina Devi is only one sharp cutting injury though it has been stated to be grievous but there is no report of the doctor that how injury of size 1-1/2”x1/4”x1/4” comes under the definition of the grievous injury under Section 320 of the Indian Penal Code. 11 However, with regard to the injury on the person of Rajeshwari Yadav is concerned, the injury nos. I and VII have been stated to be grievous in nature. However, the injury nos. I and II there is no mention about the cutting or dislocation of the bone and hence the injury nos. 1 and 2 cannot be said to be grievous. However, the injury nos. III is one swelling over lower cervical vertebra but there is no mention about the size of the swelling and hence the injury nos. I, II and III cannot be said to be come under the definition of Section 320 of the Indian Penal Code because these injuries neither indicates any dislocation of any of the joint or to bring it under Section 320 of the Indian Penal Code. However, with regard to the injury nos. IV to VII which have been mentioned about partially paralyzed. However, there is no mention about the extent of paralysis or whether the said deprivation or paralysis is not supported by any scientific investigation. It has been opined by the doctor that it may be due to injury on head and cervical vertebra but that opinion has not been confirmed. However, there is long distance between may be proved and must be proved and this distance is required to be traveled by cogent, reliable and unimpeachable evidence. However, nothing has been brought on record to connect deprivation of partially paralysis was the real cause of assault. Hence, report of the doctor is not supported by the scientific examination. 12. However, P. W. 4 the inured has come to depose in the case and in his entire evidence neither he has deposed about any partially paralysis nor he has shown anything to suggest that he was really suffering from any paralysis or 6 partially paralysis with regard to the occurrence and hence there is no confirmatory evidence regarding these injuries and hence it is not safe to hold that the injury inflicted was grievous in nature. 13. However, taking into consideration the entire injuries on the person of Bina Devi and Rajeshwari Yadav are concerned, even taking into consideration the injuries either signally or even the cumulative effect, all the injuries taken together, it cannot be said that the injury was inflicted with intention to kill to attract Section 307 of the Indian Penal Code and hence, the offence under Section 307 of the Indian Penal Code is not made out nor the injury confirmed to Section 320 of the Indian Penal Code to bring it under the definition of grievous hurt to convert under Section 326 of the Indian Penal Code or Section 325 of the Indian Penal Code and hence the conviction under Sections 307 and 326 is hereby set aside and is substituted by the offence under Section 324 of the Indian Penal Code. 14. However, taking into consideration the fact that the occurrence took place for the petty matter regarding return of the loan and both the parties are the full brothers and are descendent of common ancestors and hence Krityanand Yadav and Dayanand Yadav have remained in jail for about more than eight months and hence so far Bindeshwari Yadav is concerned there is no specific evidence regarding assault and hence, the ends of justice shall meet by sentencing the appellants for the period already undergone by them. Hence, the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Dated, the 13th December, 2011. N.A.F.R./Kundan.