Criminal Appeal (SJ) No.303 of 1998 ****** Against the judgment of conviction and order of sentence dated 25th July, 1998 and 31st July, 1998 respectively passed by Sri Dilip Kumar Sinha, learned 1st Additional District & Sessions Judge, Jamui in Sessions Trial No. 187 of 1992. ****** 1. Dhathuri Yadava @ Dhaturi Yadav. 2. Thamman Yadava. 3. Dammar Yadava. All are sons of Titu Yadav, resident of village – Garhi (Mahapur) P.S. – Jhajha, District – Jamui. .... .... Appellants. Versus The State O Bihar .... .... Respondent. ****** For the Appellants : Shri Vishwanath Prasad Sinha, Sr. Advocate. Shri Durgesh Kumar Singh, Advocate. Shri Nand Kishore Singh, Advocate. Shri Prabhash Ranjan Thakur, Advocate. For the Respondent : Mrs. Rina Sinha, 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 appellants have been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years and a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged by the informant Sahdeo Yadav 2 is that the daughter-in-law of the elder brother of informant while was returning after disposing of the cow-dung, Dhaturi Yadav abused her and when the informant went to complain, it resulted in verbal altercation and thereafter Dhaturi Yadav, Thamman Yadav, Dammar Yadav, Madho Yadav, Khiru Yadav, Shibu Yadav and Anandi Yadav surrounded him Dhaneshwar Yadav and Dhaturi Yadav armed with Bhujali, Garkho Yadav, Anandi Yadav, Khiru Yadav and Shibu Yadav armed with Lathi and Damar Yadav armed with Bhujali and on the abatement of Dhaturi Yadav assaulted Dhaneshwar Yadav and Mohan Yadav the brother and nephew of the informant by Bhujali and they also assaulted the informant by Bhujali. 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 and after commitment the charge was framed under Section 307/149 of the Indian Penal Code against seven accused persons. However, the doctor has not been examined and the injury report has formally been proved. The defence has also adduced D.W. 1 Naresh Razak and brought on evidence a photo copy of the complaint petition which is marked X as identification. The accused persons were also injured and had filed a complaint case. However, neither the complaint case was proved nor injury report was proved. The I.O. P.W. 6 in his evidence in para 12 of 3 his deposition stated that he found the injury on the persons of Dhaturi Yadav and though he recorded her fardbeyan and has stated that this is the photo copy of the injury report prepared by him on the injury which has been marked X for identification. 5. The learned trial court taking into consideration the evidence of the witnesses P. Ws. 1, 2, 3 and 5 and the complaint case of defence and the respective submissions of the parties held that there was a free fight between the parties and I.O. not formally investigated the case and Dhathuri Yadav also sustained injury. 6. However, taking into consideration the fact that P.Ws. 1, 2 and 5 have supported the prosecution case and the evidence of P.W. 5 having admitted that while his brother P.W. 1 Dhaneshwar Yadav was returning he saw only three accused persons Dhaturi Yadav, Dammner Yadav and Thamman Yadav sitting under the Guava tree, the trial court further held that the other four accused against whom there is specific allegation of assault by Lathi but injury report Exts. 6, 3/1, 6/1 and 3 do not substantiate the prosecution case that the victim has sustained Lathi injury. Hence, held that the four accused persons were not the member of unlawful assembly and charge under Section 149 of the Indian Penal Code failed. However, convicted Dammar Yadava and Thamman Yadava having assaulted by Farsha and taking into consideration the injury proved by formal witness on vital part of the body and 4 considering the injury report having sharp cutting injury on vital part of the body like neck convicted the appellants for the offence under Section 307 read with Section 34 of the Indian Penal Code. Taking into consideration the fact and law that testimony of witness is reliable, the prosecution case cannot fail because injury has not been proved. 7. Learned counsel for the appellants, however, contended that seven persons were tried for offence under Section 307/149 of the Indian Penal Code and out of them four persons were acquitted whereas the appellants have been convicted which is not proper in view of the fact that there was a free fight. The injury report has been proved formally is hit by hearsay as defence did not get the opportunity to cross-examine the doctor who gave report caused prejudice to the accused persons. 8. Learned counsel for the State, however, contended that the injury though has been proved by formal witness may be looked into to certain extent hence, on the respective submission the question for consideration whether the injury formally proved with the examination of the doctor can be considered for holding the offence under Section 307 of the Indian Penal Code. 9. However, there is allegation of assault by Bhujali and the witnesses have deposed about the injury on their persons. Fourth case of Section 60 of the Evidence Act, “if it refers to an opinion or to the 5 grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds” necessitates the production of the witness whose opinion is required to be proved. It is well settled that the opinion of the person who examined the person is relevant. The injury report by itself does not prove anything as it is not substantive piece of evidence. It is the evidence of the doctor taken on oath with regard to the injuries which alone is the substantive evidence. This view is supported in 1987 BBCJ 775 (Ramdeo Yadav & Ors. Vs. The State of Bihar). Hence, the injury report formally proved is not acceptable and it is not safe to rely on the said injury report. 10. However, taking into consideration the injury report on the person of the prosecution party P. Ws. 1 and 2 have also not proved by the I.O. and the doctor who gives the injury report who has not been examined. Hence, having regard to the fact even accepting the evidence of the prosecution party that there was assault causing injury to the prosecution party but it is not safe to record conviction for offence under Section 307 of the Indian Penal Code and to hold that the injury was inflicted with intention to kill and hence the order of conviction recorded under Section 307/34 of the Indian Penal Code is not sustainable. 11. However, having regard to the fact that the prosecution has proved and the evidence of prosecution found to be reliable regarding 6 the injury inflicted by the appellants and hence the conviction under Section 307/34 of the Indian Penal Code is converted into the offence under Section 324/34 of the Indian Penal Code and hence taking into consideration the fact that the occurrence is of the year 1991 and the accused persons have remained in jail for more than six months and hence the ends of justice shall serve by sentencing the appellant for the period already undergone and hence the appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 12th August, 2011. N.A.F.R./Kundan.