Criminal Appeal (SJ) No.132 OF 1996 Against the judgment and order of conviction dated 10. 06. 1996, passed by Sri A. Toppo, Ist Additional District & Sessions Judge, Araria, in Sessions Trial No. 344 of 1992, arising out of Sikti P.S. Case No. 70 of 1990. Yogendra Prasad Sah, son of Musai Sah, Resident of Village- Bardaha, Police Station- Sikti (Bardaha), District- Araria. ………..Appellant. Versus The State of Bihar ……………….Respondent. For the Appellant :- Mr. Uday Bhanu Roy, Advocate. For the Respondent (State) :- Mr. Parmeshwar Mehta, 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 appellant and learned counsel for the State. 2. The appeal is directed against the judgment and order of conviction dated 10. 06. 1996, passed in Sessions Trial No. 344 of 1992 arising out of Sikti P.S. Case No. 70/90 by Sri A. Toppo, Additional District & Sessions Judge, Araria, by which he has convicted the appellant for offences under Sections 323 and 324 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year and three years respectively. 3. Learned counsel for the appellant has contended that there is delay in recording the statement of the informant as the occurrence is dated 26. 08. 1990 2 whereas Fardbeyan was recorded on 08. 09.1990. The explanation for delay in lodging F.I.R. that informant was unconscious is not acceptable in view of the fact he was taken to hospital on motorcycle and doctor opined that he was in sense. Further that injury having been superficial and hence Section 307 having been disbelieved then the appellant was required to be given the benefit of Section 360 Cr.P.C. as well as Section 3 and 4 of Probation of Offender Act. 4. The prosecution case as alleged that while the informant had gone to attend call of nature then he was apprehended by the appellant and assaulted by Kachiya causing injury on his neck. The accused again attempted to assault on the stomach of the informant but the informant attempted to save himself and in the said attempt, instead of causing injury to his stomach he got severe injury on his left elbow joint. 5. However, on the Fardbeyan of informant, F.I.R. was lodged. After notification charge sheet submitted, cognizance taken and charge was framed. The trial proceeded and witnesses were examined on behalf of prosecution and after considering oral as well as 3 documentary evidence, the order of conviction and sentences were passed. 6. Learned counsel for the appellant however, challenged the order of conviction on the ground of delay as well as on the ground prosecution story that the informant came out from the house to attend call of nature call at 11 P.M. is highly improbable. It has further been contended that a false case has been instituted as a complaint case has been filed by the appellant regarding the molestation of the sister of the appellant by the informant. 7. However, I perused the record. The witnesses have supported the prosecution case. However, under fact and circumstance, delay in lodging the F.I.R. is no ground to disbelieve the prosecution case and the prosecution case is improbable. Hence I do not find any merit to interfere with the order of conviction. 8. However, having regard to the fact that injury doctor has found (i) cut injury 1” X 1/2” centimeter towards left side of neck, (ii) lacerated wound on left elbow 1” X 1/3 centimeter X skin deep, (iii) lacerated wound on left palm between thumb and index finger, (iv) complain of pain on chest and all over the body. Hence, nature of injury suggest 4 that injury is simple and superficial and further evidence of doctor shows that injured was not senseless and hence there is no reason why the benefit of 3 and 4 of Probation of Offender Act and Section 360 of Cr.P.C. be not given to the appellant. Hence the learned lower court misdirected itself for not giving the benefit under Section 360 Cr.P.C. and Probation of Offenders Act. 9. Since, order of sentence recorded by the lower court without giving any benefit of Section 360 Cr.P.C. and Section 3 and 4 of Probation of Offender Act, hence, the order of sentence against the appellant by lower court is set aside. It is hereby ordered that the appellant is entitled for benefit under Section 360 Cr.P.C. and 3 and 4 of the Probation of Offender Act and the appellant is directed to be released on condition of entering into a bond of Rs. 2,000/- (Two thousand) with two sureties of the like amount each for a period of one year for keeping peace and good behaviour and if he violates the condition then he shall appear and receive the sentence. With this modification, this appeal is disposed of. Patna High Court, The 23rd June, 2011. NAFR/m.p. ( Gopal Prasad, J.)