Criminal Appeal (SJ) No.366 of 1998 Against the judgment and order of conviction dated 22. 09. 1998 And order of sentence dated 23. 09. 1998, passed by Shri Girindra Kishore Verma, 4th Additional Sessions Judge, Saran at Chapra. 1. Shambhu Singh @ Shambhunath Singh. 2. Prabhu Singh @ Prabhunath Singh. Both sons of Late Jaleshwar Singh, resident of village- Bhawalpur, P.S. Marwrah, District- Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Suresh Prasad Singh, Amicus Curiae. For the informant : Mr. Kapildeo Singh, Advocate. Mr. Vijay Kumar, Advocate. Mr. Manohar Manuj, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. 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 I.P.C. read with Section 34 I.P.C. and sentenced to undergo imprisonment for seven years. 3. The prosecution case as alleged that appellants surrounded the informant and abused and assaulted by dagger and farsa causing injury to the informant and when the father of informant came to his rescue then he was also assaulted. The motive of the occurrence is that the informant files a petition against 2 Shambu Singh, Prabhu Singh and Jaleshwar Singh for cutting sheesham tree from the Government land. 4. On the Fardbeyan, F.I.R. was lodged and after investigation, charge sheet submitted. During trial six witnesses were examined. P.W. 1, Deonarayan Singh, P.W.2, Radha Singh, P.W. 3, Ramadhar Singh, P.W. 4, Krishna Murari Ram, P.W.5, Hari Madhav Singh and P.W. 6 is the doctor who examined the injured. The trial court after considering the evidence that witnesses supported the prosecution case about assault and further taking into consideration evidence of doctor that injury no. 1 is injury 1”x 1/2"x bone cut up to periostrium is grievous in nature convicted the appellants for offence under Section 307 I.P.C. taking the view that periostrium meant outer coating of bone. 5. Learned Amicus Curiae has however, challenged the order of conviction that offence under Section 307 I.P.C. is not sustainable as injury neither said to be grievous nor the doctor opined that is dangerous to life. 6. Learned counsel for the informant and the State however submitted that injury on the vital part of the body on head by a weapon like farsa and hence it can 3 well be inferred that injury was inflicted with intention to kill. 7. In the light of the submissions, I proceed to consider the point raised. 8. The prosecution case as alleged that while the informant was going he was surrounded by the appellants and were assaulted by farsa and lathi. It is stated that only one Farsa blow on the head and when his father came to rescue he was also assaulted. However, the witnesses have supported the prosecution case about assault, but question for consideration whether offence under Section 307 I.P.C. is made out. However, trend of the examination-in-chief and cross-examination and further taking into consideration the fact that occurrence alleged to have occurred for the reason that prosecution party has reported to the authority about cutting of sheesham tree from Government land by the appellants. However, the trend of cross-examination and motive itself indicate that there was no intention to kill. 9. So far injuries are concerned, doctor has found four injuries on the person of father of the informant is concerned all are simple and superficial and hence it cannot be inferred that there was intention to 4 kill. However, so far the injury on the person of the informant is concerned, doctor has found three injuries. Injury no. 2 and 3 have shown to be simple and injury no. 1 has been stated to be vertical 1”x1’2”x bone cut up to periostrium and stated to have been mentioned as grievous. However, periostrium is defined as outer coating of bone and hence injury has been found up to periostrium means before it reaches periostrium and hence there is hair line demarcation. However, there is neither any x-ray has been advised nor any x-ray has been done to clear and established the fact to bring it under Section 320 I.P.C. Moreover the doctor has not opined that injury is dangerous to life. However, taking into consideration whether the injury inflicted was with intention to kill, four factors are relevant i.e. weapon used, part of the body and intention or motive as well as impact by which injury was inflicted. However, it is true that part of the body used is head and instrument is heavy instrument like Farsa, offence referred to show that it only reach to periostrium level and not beyond indicates that the impact by which assault made, it does not show that there was intention to kill. Hence neither impact by which the injury was made can be said to be 5 fatal nor there opinion of the doctor that injury was danger to life and hence taking into consideration the cumulative effect of all the injuries it cannot be inferred that injury was inflicted with intention to kill. Hence order of conviction and sentence under Section 307 I.P.C. is not made out. 10. However, having regard to the fact that there is no x-ray and no formation about Section 320 I.P.C. to bring the evidence under the category of the said definition of grievous injury and neither x-ray has been suggested nor has been proved nor it is apparent that injury has penetrated bone as the injury only shown up to periostrium which is upper layer of bone and hence I find and held that offence under Section 326 and 307 I.P.C. is not made out and hence on the facts and circumstance offence is only made under Section 324 I.P.C. 11. However, having regard to the fact that the occurrence is of the year 1994, and the appellants suffered the prosecution and hence under the facts and circumstance, benefit under Section 4 of Probation of Offender Act is required to be extended to the appellants. Hence it is hereby ordered that appellants shall execute 6 bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount for keeping peace and good behaviour for a period of two years and shall come to face sentence as and when required by the court. 12. Hence with this modification of sentence, this appeal is allowed in part. Patna High Court. The 15th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)