Criminal Appeal (SJ) No.316 of 1997 Against the judgment and order of sentence dated 28. 11.1997 passed by Shri Uday Shankar, Vth Additional District & Sessions Judge, Begusarai, in Sessions Case No. 148 of 1990. 1. Dilip Kunwar, son of Late Ramanuj Kunwar. 2. Kamal Kishore Kunwar, son of Sri Janardan Kunwar. 3. Dharnidhar Kunwar, son of Late Ram Raksha Kunwar. All residents of village Jhamatia, Police Station-Bachhwara, District-Begusarai. … … Appellants. Versus The State Of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 328 of 1997 Against the judgment and order of sentence dated 28. 11.1997 passed by Shri Uday Shankar, Vth Additional District & Sessions Judge, Begusarai, in Sessions Case No. 148 of 1990. Ram Naresh Kunwar, son of Late Jagdish Kunwar, resident of Village- Jhamatia, Police Station- Bachhwara, District-Begusarai. ... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellants. : Mr. Ajay Kunar Thakur, Advocate. Mr. Amit Kumar, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, Advocate. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. Both the appeals are being heard together and disposed by common order and judgment as both the appeals arise out of same Sessions Trial No. 148 of 1990 passed by Shri Uday Shankar, Vth Additional District & Sessions Judge, Begusarai, by judgment and order dated 28th November, 1997. 3. The appellants Ram Naresh Kunwar, Dilip Kunwar, Kamal Kishore Kunwar and Dharnidhar Kunwar have been convicted for offence under Section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years and appellant Ram Naresh Kunwar further sentenced to undergo rigorous imprisonment for seven years for the charges under Section 326 I.P.C. and further appellant Dilip Kunwar has been sentenced to undergo rigorous imprisonment for six for offence under Section 323 I.P.C. All the sentences shall run concurrently. 4. The prosecution case as alleged that while the informant Narendra Kunwar was removing bricks from the eastern side of his house for clearance, then one of the accused Dharnidhar Kunwar objected. On this verbal altercation, accused Dilip Kunwar, Kamal Kishore Kunwar started abusing the informant subsequently at 11.30 A.M. Ram Naresh Kunwar, Dilip Kunwar and Kamal Kishore Kunwar armed country made pistol came there and accused Ram Naresh Kunwar fired at the informant from his country made pistol with intention to kill, but the informant sat down so bullet passed over his head. It is further alleged that accused Dharnidhar Kunwar along with others also brick batted the informant. 5. On the basis of Fardbeyan, F.I.R. was lodged. Investigation proceeded. Charge sheet submitted and Cognizance taken and the case was committed to the Court of Sessions. Charges were framed and witnesses were examined. After considering both oral and documentary evidence and submissions of the parties order of conviction and sentence as stated above has been passed. 6. Learned counsel for the appellants however, contends that there is a case and counter case and injuries found on the person of the injured have been taken on the face value does not make out a case for offence under Sections 307 and 326 of Indian Penal Code. Further submitted that parties are Gotia, so lenient view may be taken under the facts and circumstances. 7. However, prosecution case is that Ram Naresh Kunwar fired causing injury and further there is allegation of brick batting causing injury on Ram Chandra Choudhary P.W. 1. However, though, witnesses have supported the prosecution case regarding firing and pelting stones and then found to be reliable and worthy of confidence. 8. So far injuries are concerned, P.W. 8, Dr. S. Purkait who found two injuries on the person of informant Narendra Kunwar, P.W. 5. 1. Two lacerated wound 1 and ½” x 1”2 x 1”4 and the other in 1”x 1”4 with abration at sight and charring the hands in the middle of the scalp in parital region along with severe bleeding. 2. One abration ½”x ¼” on the front of right Let below knee. 9. P.W. 8 also examined P.W. 1 Ramchandra Chaoudhary and has found the following injuries. 1. One lacerated wound ½” x ¼” on the back of scalp in occipital region. 10. The Doctor has opined that injury no.1 is grievous and other injuries are simple on the person of the injured. 11. In view of the fact since the Doctor has opined that injury no. 1 is grievous. Learned court below taking into consideration of injury hold that Ram Naresh Kunwar guilty for offence under Section 307 and 326 of the Indian Penal Code. 12. However, taking into consideration the injury no.1 on the person of the informant P.W. 5, nature of injury is shown to be lacerated injury though fire arm injury. 13. However, though, doctor opined that injury no.1 is grievous, but grievous injury has been defined under Section 320 of Indian Penal Code. However, injury mentioned injury no. 1 by the doctor does not confirm to the definition of the grievous injury as mentioned under Section 320 of Penal code and hence opinion of the Doctor suffer from inherent defect has not confirmed to definition of Section 320 of Indian Penal Code to bring out under the definition of Section 320 I.P.C. Hence, injury no. 1 can not be held to be grievous. Hence injury no. 1 on the person of Narendra Kunwar can not be held to be grievous. Moreover, taking into consideration the injury inflicted on the person of the informant as well as injury inflicted on the person of P.W. 1, 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. However, Doctor has not opined at all that injuries were dangerous to life. Hence, order of conviction recorded by the lower court under Sections 307 and 326 of Penal Code on the basis of these two injuries is not sustainable and order of conviction recorded under Sections 307 and 326 I.P.C. is hereby set aside. 14. However, taking into consideration the entire evidence, there is allegation of fire arm and assault and injury found on the person of P.W. 5 and P.W. 1. The conviction of the appellants against only sustained under Section 324/34 of Penal Code and hence conviction and sentence recorded under Section 307 and 326 of Penal Code is hereby set aside and substituted by 324/34 I.P.C. 15. Learned counsel for the appellants however, contends that occurrence is of the year 1987 and since then appellants are suffering a lot on mere litigation and prosecution and even after conviction in 1997, hence lenient view may be taken. 16. It has further been submitted appellant in Cr. Appeal No. 328 of 1997 has remained in jail from 05.10.1987 to 26. 10. 1987 and even after conviction, has remained in jail from 28. 11. 1997 to 05. 12. 1997. The other appellants in Cr. Appeal No. 316 of 1997 remained in jail from 28. 10. 1997 to 05. 12. 1997. 17. Hence to end of justice shall meet under by sentencing the appellants of both the appeals for the period already undergone and hence both the appeals are allowed in part. Patna High Court. The 14th July, 2011 NAFR/m.p. ( Gopal Prasad, J.)