Criminal Appeal (SJ) No.272 of 1997 Against the judgment dated 08.09.1997 and order of Sentence dated 09. 09. 1997 passed by Shri Sita Ram Pandey, VIIth Additional Sessions Judge, Nalanda at Biharsharif, in Sessions Trial No. 108 of 1989/11 of 1991. 1. Hari Choudhary, son of Late Ramdhani Choudhary. 2. Rajendra Choudhary, son of Hari Choudhary. 3. Bhuneshwar Choudhary @ Bhuneshwar, son of Ghuju Choudhary. All resident of Mali Sarh, P.S. Rajgir (Chhabilapur) District-Nalanda. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent. : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. On repeated call no one appears on behalf of the appellants. 2. Mr. Arun Kumar Tripathi, Advocate appears and prays that he may be permitted to appear in this case as Amicus Curiae. 3. Prayer is allowed. 4. The appellant nos. 1 and 2 have been convicted under Section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years. The appellant no. 3 has been convicted for offence under Section 307 of Indian Penal Code and sentenced to 2 undergo rigorous imprisonment for seven years and further sentenced to undergo rigorous imprisonment for three years for offence under Section 27 of the Arms Act. 5. The prosecution case as alleged that on the command of Bhuneshwar Choudhary, Hari Choudhary, Binda Choudhary and Rajendra Choudhary started to assault the informant and when the informant wanted to run back to save himself then Bhuneshwar Choudhary armed with pistol made fire causing injury on stomach, chest and hand. The motive of the occurrence is that 3-4 days prior to the occurrence when the informant had gone to his kurthi crop in the field then found that water was blocked in his kurthi crop and as such he cut the ridge to remove the water from the kurthi filed then accused Bhuneshwar Choudhary came there and abused the informant and also threatened him to dire consequences. 6. On the basis of Fardbeyan, F.I.R. was lodged. Charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. Charge was framed under Section 307 and 27 of the Arms Act. However, during trial, six witnesses were examined. However, Witness Nos. 3, 4 and 5 supported the 3 prosecution case. However, I.O. has not been examined in this case. After considering the oral and documentary evidence, order of conviction and sentence recorded as stated above. 7. However, P.W. 3 and 4 supported the prosecution case. P.W. 5 is the Doctor who had examined the injured and found the following injuries on the person of the informant. 1. Multiple small pellets over chest and abdomen caused by fire arms. 2. Multiple small pellets on left elbow joint and palmer Surface of hand caused by fire arms. 3. Multiple small pellets on neck caused by fire arms. 4. Abrasion 1”x1/2” on right arm caused by hard and blunt substance. All the above noted injuries are said to be simple in nature and the age of injury was within 24 hours from the time of examination. In cross-examination, the Doctor has stated that he had removed the pellets from the body 4 and handed over the same to the authority along with injury report. The Doctor has denied the suggestion of defence that no pellet was recovered. 8. However, Doctor in his evidence stated that he recovered the pillet and he handed over the pillet in sealed cover, but he has not mentioned that pillet is sent to the Police and rather entered into register and the injury report was kept in Incharge of the Medical Officer of the Hospital. He has further stated that there is no evidence apart from the injury report to show that pellet was recovered from the person of the injured. However, register of the Medical Officer who is Incharge of the Register has not been examined nor register proved or brought in evidence. 9. Hence, having regard to the fact that all the injuries are found to be simple in nature, though, pillet neither brought in evidence nor any register and nor any pillet recovered. However, injury on the person of the injured was found to be simple and no evidence or report that injuries were dangerous to life and it can well be inferred none of the injuries either singly or cumulative 5 effect of all the injuries having been taken together does not show that injuries were inflicted with intention to kill and hence offence under Section 307 I.P.C. is not maintainable. 10. However, having regard to the fact that assault and injury found to be simple hence, conviction sustained under Section 324 of I.P.C. and 27 of the Arms Act. Hence order of conviction under Section 307 I.P.C. is set aside and is substitutes by 324 I.P.C. 11. However, having regard to the fact that appellant no. 3 remained in jail after conviction on the date of judgment dated 09.09.1997 and order of released on bail on 05. 04. 1999 and appellant no. 1 and 2 have remained in bail from 09.09. 1997 to 03.10.1997 and the occurrence is of the year 1985 and the appellants suffer a lot since facing prosecution and appeal. 12. Hence to end of justice shall meet under by sentencing the appellants for the period already undergone recorded by the lower court is set aside and the appeal is allowed in part. Patna high Court, The 29th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)