Criminal Appeal (SJ) No.276 of 1996 Against the judgment of conviction dated 16. 10. 1996 and order of sentence dated 17. 10. 1996, passed by Shri Rajendra Prasad Chaudhary, District & Sessions Judge, Madhepura, in Sessions Case No. 159 of 1987. 1. Lalo Rishideo, son of Late Budhu Rishideo. 2. Ramrup Rishideo, son of Late Chandar Rishideo. 3. Saini Rishideo alias Saini Mushar, son of Dhanna Rishideo. 4. Dhano Muni @ Dhanna Muni, son of Chedi Muni alias Nankeshwar Muni @ Sarjug Muni. 5. Bino Muni, son of Chhedi Muni alias Nankeshwar Muni @ Sarjug Muni. 6. Navkant Rishideo alias Navkant Mushar, son of Late Chandar Rishideo alias Jageshwar Rishideo. 7. Suresh Rishideo alias Suresh Mushar, son of Narayan Rishideo. All residents of Village Shekhpur Chakan, Police Station- Udakisunganj, District- Madhepura. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. On repeated calls no one appears on behalf of the appellants. 2. Mr. Arun Kumar Tripathi, Advocate, appears and prayed that he may be permitted to appear in this as Amicus Curiae. 3. Prayer is allowed. 4. Heard learned Amicus Curiae and learned counsel for the State. 2 5. The appellants have been convicted under Sections 307/149 of the I.P.C. and sentenced to under rigorous imprisonment for seven years and further convicted under Section 147 of the I.P.C. and sentenced to undergo rigorous imprisonment for year. Further they are convicted under Section 447 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years. Accused Ramroop Rishideo is further convicted under Section 326 of the I.P.C. and sentenced to undergo rigorous imprisonment for five years. Accused Navkant Mushar and Bino Muni further convicted under Section 323 of the I.P.C. and sentenced to undergo rigorous imprisonment for one year. 6. The prosecution case as alleged by the informant that there was some exchange of hot words between his son and the accused persons with regard to grazing of cattle. It is alleged that accused Ramroop Rishideo holding arrow, Lalo Rishideo having pistol, Dhano Muni having arrow and Saini Mushar, Navkant Mushar and Bino Muni armed with lathi came to the Basa of the informant. It is alleged that accused Ramroop Rishideo made a short of his arrow causing injury to 3 stomach of Kusheshwar Yadav. There is allegation of assault by Kusheshwar Yadav, Saini Rishideo and thereafter, assault by lathi. 7. F.I.R. was lodged. After investigation charge sheet submitted. Cognizance taken and the case was committed to the Court of Sessions. Subsequently, charge framed. During trial 12 witnesses were examined. After considering both oral and documentary evidence, order of conviction and sentence as stated above has been recorded. 8. In the prosecution case there is allegation of assault. Out of 12 witnesses, P.W. 1 to 3 and 5 have been tendered. P.W. 4 has been declared hostile. P.W. 8 and 9 are witnesses of seizure list. P.W. 12 is a formal witness. P.W. 10 is the Doctor. P.W. 6, 7 and 11 are witnesses of the alleged occurrence. 9. However, evidence of the Doctor (P.W. 10) shows the following injuries on the person of Kusheshwar Yadav. (1) One arrow embedded in right illia fossa penetrating domen laterally from amblicse region to pelvic bone right sight. It penetrated the skin, fossa, transverse fossa 4 and transverse muscle and lateral portion of column. Arrow was removed after making an incises. (2) Lacerated wound on right middle finger. (3) One red tendered swelling on right scapular region. Injury No. 1 is shown to be grievous in nature and rest Injuries shown to be simple. 10. However, in the cross examination witnesses stated that size of arrow has not been mentioned. Hence from the evidence of Doctor itself shows the injury caused by arrow, but size of the arrow has not been mentioned nor depth of injury has not been mentioned in injury report which is Exhibit-3. 11. Hence, having regard to the fact that depth of the injury has not been mentioned and there is no mentioned how the Doctor indicated the injury is grievous nor there is report that injury is dangerous to life. Other two injuries are simple and superficial. 12. Hence taking into consideration the evidence of witnesses occurrence took place for petty matter of grazing of cattle and except injury no. 1, other injuries are shown to be simple and superficial as 5 lacerated tendered swelling. However, injury no. 1 is shown to be grievous does not confirm to the definition of the grievous injury as mentioned under Section 320 of the Indian Penal Code nor the depth of injury mentioned. 13. Hence taking into consideration the entire evidence, none of the injuries either singly or cumulative effect of all the injuries having been taken together does not show that injuries were inflicted with intention to kill. Hence, order of conviction recorded by the lower court under Section 307 of Penal Code on the basis of these two injuries is not sustainable and order of conviction recorded under Section 307 is hereby set aside. 14. However, having regard to the allegation of assault and alleged injury does not confirm to the grievous injury. Hence, conviction under Section 326 of Penal Code also not sustainable. 15. However, having regard to the conviction for offence under Sections 324/323 can only stated to be made out against the accused persons. 16. Having regard to the facts that appellants have remained in jail after conviction for about a month. Further the occurrence is of the year 1984 and 6 appellants suffer a lot in trial and appeal. 17. Hence to end of justice shall meet under by sentencing the appellants for the period have already undergone for offence under Sections 324/323 and under Section 147 of I.P.C. However, only sentence under Section 307 I.P.S. is set aside and the appeal is allowed in part. Patna High Court, The 20th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)