Criminal Appeal (SJ) No.41 of 1997 Against the judgment and order of conviction and sentence dated 30. 01. 1997, passed by Shri Braj Nandan Sahay, 7th Additional Sessions Judge, Chapra, in Sessions Trial No. 199 of 1988. 1. Ram Bilas Rai, son of Lakshaman Rai. 2. Bhukhal Rai, son of Shri Ram Bilas Rai. 3. Chhattu Rai, son of Shri Banshi Rai. 4. Dashrath Rai, son of Shri Banshi Rai. 5. Bharat Rai, son of Shri Subhag Rai. 6. Lakshman Rai, son of Shri Mohan Rai. 7. Mohan Rai, son of Shri Lakshman Rai. 8. Shartrughan Rai, son of Shri Mohan Rai. All residents of Village- Itahiya, Police Station-Chhapra Mufassil, District- Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Upendra Prasad, Advocate. Mrs. Veena Kumari Jaiswal, Advocate. Mr. Chandra Kala Jaiswal, Advocate. Mr. Saroj Shandilya, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, Advocate. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 307 read with Section 149 I.P.C. and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged that the informant Shila Nath Rai was teaching the children of 2 his family at his Dalan. The accused Shatrughna Rai came and started abusing Lalan Rai by saying as to why he uttered the word ‘pitaur’ (local abusive word) and when the informant wanted to know and inquired and protested then Shatrughna went to his house came along with other accused persons with Farsa, bhala and lathi and assaulted the prosecution party by which eight persons have been injured and it is alleged that Shatrughna Rai, Mohan Rai and Suman Rai came assaulted the informant. Shatraghuna gave Farsa blow on his head, Mohan Rai have lathi blow on his back. Lakhan Rai, Bharat Rai, Dashrath Rai and other appellants came and assaulted the brother of the informant. The motive of the occurrence as alleged to be some quarrel between the children. 4. On the Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance was taken and during trial thirteen witnesses were examined. The trial court after taking into consideration the evidence of witnesses found that witnesses have supported the prosecution case and P.W. 2, 3, 4, 5, 6, 7, 8 and 9 who are injured have stated to have received 3 injury in their evidence by the appellants and further taking into consideration the evidence of witness of D.W.1 and taking into consideration the submission there is contradiction in the evidence of the witness and discrepancy pointed out is not as such nature of the case to go to the route to the prosecution case convicted the appellants as stated above. 5. Learned counsel for the appellants however, challenged the order of conviction and sentence on the ground that there are discrepancies in the evidence regarding place of occurrence as some of the witnesses have stated that occurrence place in Dalan and some of witnesses have that at Dawarja and some of the stated as door. It has further been pointed out that all the witnesses have not stated the name of all the accused persons and they have not stated that who was assaulted and what part of the body. Hence allegations are omnibus and prosecution has not been able to prove the charges. It has further been contended that both parties are Pattidar and their house situated by side by side and witnesses adduced evidence are only interested witnesses and no person of the neighbour or village who is said to 4 be independent witness has not been examined. Moreover, occurrence took place regarding petty matter regarding why one the accused has addressed the word ‘pitaur (local abusive word) and hence it cannot be inferred that there was intention to kill. Though, it is stated that eight persons have been injured but injuries are simple and superficial, though some of the injured received grievous injury but what basis of which injury found to have been grievous has not been proved by cogent and reliable evidence to infer that injuries are grievous. Further, there is no evidence that injuries were vital part of the body or dangerous to life, hence it cannot be treated as injury inflicted with intention to kill and hence offence under Section 307 I.P.C. is not made out. 6. However, having regard to the discrepancy pointed out, It has been stated that there is contradiction regarding place of occurrence. As some one said occurrence took place at varanda. Some one said occurrence took place at darwaja and some one said occurrence took place of road in front of darwaja or adjoining darwaja. However, these indicate different 5 impression with regard to the same place in different words by different persons. This is most natural. It bound to occurrence. When different persons describes an event then the variation may occur. Some one may say varanda as dalan, some one may say at darwaja and some one may say on road adjoining the darwaja. There are eight accused persons alleged to be armed with lathi and eight persons were injured by them. It is natural that all will not remain static. Hence there is no merit in submission that evidence is contradicting. 7. However, further criticism is that there is discrepancy and contradiction in statement of witnesses. However, different persons having different perception and different capacity to observe and even mere fact that their statement are different from one to another in the perception is no ground to reject their evidence, some persons may have different opinion or perception and all human being cannot be said to be same photogenic perception that all will say the same thing. However if all person says same word then it is believed that they are tutored and hence difference in statement of witnesses cannot be same as contradiction. 6 8. However, having regard to the fact that occurrence took place for petty matter and eight persons have been injured. Further injury of only two persons suggests grievous injury which are on the person of Shila Nath Rai and Thakur Rai shown. However, x-ray report has not been proved and has been marked as Ext. but it has not been proved those x-ray reports are the x-ray of the injured in this case nor proved before whom said x- ray was done. 9. From perusal of the records, it appears that after close of evidence on 24. 01. 1994, x-ray plate was filed which was formally proved and it has not been proved who take x-ray before whom it was taken and there is nothing in evidence in this regard. Hence, it has not been proved before whom x-ray was made and whether x-ray report of the person who were injured. Hence report about grievous nature of injury has not been opined on the basis of x-ray and hence does not inspire confidence. Hence it can well be inferred finding regarding conviction under Section 307 I.P.C. does not stands and conviction can at best under Section 324 I.P.C. 7 10. However, having regard to the fact that occurrence is of the year 1987, though, both parties are co-villager and living side by side and they are descendent of common ancestor and have suffers a lot and the some of the appellants are 70 years old. 11. Hence end of justice shall meet by sentencing the appellants for the period already undergone and conviction recorded under Section 307 I.P.C. is set aside and substituted by Section 324 I.P.C. Hence with this modification of sentence the appeal is allowed in part. Patna High Court The 12th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)