Criminal Appeal (SJ) No.103 of 1998 **** Against the judgment, dated 4/5.03.1998, passed by Sri S.N. Chaudhary, Additional Sessions Judge, I, Nawadah, in S. Tr. No. 88 of 1987/30 of 1990 **** 1. Brijnandan Yadav 2. Raj Nandan Yadav, both sons of late Gajo Yadav 3. Awadh Yadav, son of Ram Nath Yadav 4. Arjun Yadav, son of Faudi Yadav All residents of village Pranpur, P.s. Muffasil, district Nawadah .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Durgesh Nandan, Hirday Prasad Singh, Ram Nath Sinha & Mrs. Kiran Sinha, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellant no. 4, Arjun Yadav, has been convicted under Section 307 of the Penal Code and others appellants have been convicted under Section 307/34 of the Penal Code and have been sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case is that the accused persons came along with lathi, bhala and garasa and said that they are not helping 2 them in fight with Mst. Bhatni Devi and ordered Arjun Yadav, who assaulted by garasa on the informant and on hulla when son of the informant came he was also assaulted by Arjun Yadav and it is alleged that other accused persons then assaulted by lathi. The informant lodged the first information report, after investigation charge sheet submitted. 4. During the trial seven witnesses were examined. P.W. 1 is Ram Briksh Prasad, P.W. 2 is Umesh Prasad, son of the informant, P.W. 3 is the informant, P.W. 4 is Sidheshwar Prasad, P.W. 5 is Savitri Devi, P.W. 6 is the investigating officer and P.W. 7 is the doctor. P.W. 1 is only person named in the written report on the basis of first information report drawn. However, the doctor in his evidence has stated that he found five injuries on the person of the informant, which are : (i) Lacerated wound 3” x ½” x bone deep over right forehead, (ii) Incised wound 3” x ½” x bone deep with parietal cutting of pone over left frontal parietal region, (iii) Lacerated wound 1” x 1” x 8” x bone deep over right index finger with fracture of underlying bone, (iv)Incised wound 2(1/2)” x ¼” x epidermis deep over right shoulder and (v) Swelling 1” diameter over right forehead. However, the doctor opined that injury no. (iii) is grievous and other are simple. 3 5. The trial Court taking into consideration the evidence convicted the four appellants, however, acquitted the other four, who were facing the trial. 6. However, the learned counsel for the appellants pointed out that there is certain contradiction that though the informant in his evidence has stated assault by garasa in the fardbeyan, but, in the evidence has stated that assault by saif. However, both are the sharp cutting weapon and injury not, as such, to have been caused with intention to kill. 7. However, taking into consideration the evidence, injury and the evidence of the doctor, P.W. 7, the injury found on the informant and his son there is no report that the injury are dangerous to life. However, injury no. (iii) is shown to be grievous on the person of Sidheshwar Yadav, but, injury no. (iii) is the fracture or right index finger, which is not vital part of the body and no inference be drawn that the injury was inflicted with intention to kill. However, taking into consideration the injuries on the two injured none of the injuries either signally or even the cumulative effect of all the injuries taken together is, as such, to have caused with intention to kill. The grievous injury and injury dangerous to life are two different connotations and the grievous injury can not be substituted for being a dangerous to life. More over, the two injuries which are grievous are no on the vital part of the body. However, the part of body, weapon and the impact by which the injuries inflicted are relevant consideration and, hence, having regard to the fact that since the two injuries are not on vital part 4 and, hence, it can well infer that the injuries are not inflicted with intention to kill. The x-ray report also has neither been suggested nor proved to establish that injury no. (iii) was grievous Section 320 of the Penal Code and, hence, the only evidence against Arjun Yadav is about the assault by garasa on head and, hence, only be made to be a case under Section 324 of the Penal Code. However, with regard to other appellants there is no specific assertion about assault and the evidence regarding the other appellants are general and omni bus. 8. Hence, having regard to the fact that the allegation against the other appellants (appellants 1, 2 and 3, namely, Brijnandan Yadav, Raj Nandan Yadav and Awadh Yadav) is general and vague, the order of conviction and sentence against them is set aside. However, the conviction of appellant no. 4, Arjun Yadav, against Section 307/34 of the Penal Code is set aside and is substituted by Section 324 of the Penal Code. However, the occurrence if of the order 1986 and the appellants have remained in jail more then four months during the investigation and trial and, hence, end of justice shall meet by sentencing the appellants for the period already undergone. 9. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 3rd day of August 2011, N.A.F.R., S.A.