Criminal Appeal (SJ) No. 116 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Kesho Singh, S/o Triveni Singh, R/o Village- Karanpura, P.S.-Gaurichak, District-Patna. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No.126 of 1995 Triveni Singh, S/0 Late Laxmi Narain Singh, R/o Village-Karanpura, P.S.-Gaurichak, District-Patna. Versus THE STATE OF BIHAR ************* For the Appellants : Mr. Gopal Shankar, Adv. For the State : Mr. Nirmal Kumar Sinha, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 307/34 and 324 IPC and sentenced to RI for seven years and two years respectively by the Additional Sessions Judge-VII, Patna in S.Tr. No. 139 of 1993 by a judgment dated 06.07.1995. 2. The case of the prosecution is that on 23.11.1991 when the appellants were irrigating the fields the informant who was crossing by, was asked to stop and it is alleged that accused Kesho Singh gave a sword blow causing injury on the cheek and knee whereas Dinesh Singh gave a Farsa blow which hit on the left shoulder. The deceased accused Binay Singh gave a Farsa blow on the neck of the informant which hit on the left hand on account of which his left arm 2 was injured. The accused Tribeni Singh is also said to have given Gandasa blow on the head of the informant. 3. The prosecution in all examined six witnesses out of whom P.W. 1, P.W. 2 and P.W. 3 reached the place of occurrence after having been given information about the occurrence. P.W. 2 also stated likewise. P.W. 3 is an eye-witness to the occurrence whereas P.W. 4 is the informant himself. P.W. 6 is the Investigating Officer. P.W. 5 is the Doctor who examined the injured. 4. After close of trial, all the accused persons against whom there was specific overt act alleged by the informant were acquitted disbelieving eye version account. 5. On going through the evidence of P.W. 5, I find that he had found four injuries having been sustained by the informant out of which whereas injury Nos. 1 and 2 were simple in nature injury Nos. 3 and 4 were on non-vital parts and grievous in nature. He also found that all the injuries had been attended to even before his examination. Evidently the Prosecution has not brought the first Doctor who examined the injured before the Court. Moreover, in the facts of the case it is difficult to conclude that a case under Section 307/34 IPC is made out since admittedly there was no intervening circumstance and the assault had taken 3 place in the midst of an altercation which had arisen between the parties. 6. Under the circumstances, this Court is inclined to convert the conviction of the appellants from Section 307/34 to Section 323 IPC and they are sentenced to the period already undergone by them during trial. In the result, the appeal is dismissed with modification as aforesaid. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 22nd April, 2011. NAFR/Vikash/-