Criminal Appeal (SJ) No.9 of 1999 **** Against the judgment, dated 15.12.1998, passed by Sri Braj Nandan Sahay, Additional District and Sessions Judge, VII, Chapra, in S. Tr. No. 105 of 1986 **** Dip Narain Thakur, son of Ram Prit Thakur, resident of village Chainpurawa, P.S. Isuapur, district Saran at Chapra .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. Basant Kr. Singh, Adv. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. The appellant has been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for four years. 3. The prosecution case, as alleged in the fardbeyan of the informant, Nageshwar Rai (P.W. 4), that he has grown masoori pulses and paddy crops and Dip Narain Thakur grazed the crop by she-buffalo and then the informant and his brother catch hold of she-buffalo and were taking it to the fatak house. In the meantime, Dip Narain Thakur, 2 armed with farsa, Dhaja Thakur, Dhina Thakur, Rajdeo Rai and Acchelal Thakur, armed with lathi, came and drive the she-buffalo on which the informant and his brother tried to surrender the she-buffalo. It is, further, alleged that Dip Narain Thakur, armed with farsa, brandished it on the neck of the informant causing injury to the hand and when the brother of the informant came to his rescue then he was also assaulted by Dip Narain Thakur, in the meantime, Dhaja Thakur and Acchelal Thakur assaulted Gautam Rai, brother of the informant, on waist, shoulders and legs and on hulla the villagers along with the mother of the informant came then it is alleged that the mother was also assaulted with bhala. 4. On the fardbeyan the first information report lodged and after investigation charge sheet submitted. 5. During the trial seven witnesses examined by the prosecution, which includes the informant, P.W. 4, and the doctor, P.W. 5, however, the brother and the mother of the informant have not been examined. The investigating officer has also not been examined. 6. Two witnesses have also been examined on behalf of the defence. 7. The trial Court considered the evidence of the witnesses and acquitted Dhaja Thakur, Dhina Thakur and Acchelal Thakur, but, convicted the appellant, Dip Narain Thakur, taking into consideration the evidence of the witnesses that Dip Narain Thakur gave a farsa blow on the chest of the informant and held that it is vital part of the body and convicted the appellant, as mentioned above. 3 8. The learned counsel for the appellant, however, contended that the occurrence is of the year 1987 and occurrence took place for petty matter, for grazing of the she-buffalo, however, the conviction has been recorded taking into consideration the evidence regarding the assault by the appellant by farsa on the chest of the informant though the informant, in his fardbeyan, has not stated about any assault on the chest. However, the doctor has found the injury on the chest, but, the said injury is simple in nature. The injury on the person of the informant not, as such, to have been inflicted to have cause the death and, hence, it can not be inferred that the assault was made with intention to kill the informant. Hence, the offence under Section 307 of the Penal Code does not make out. 9. The learned counsel for the State, however, supported the case. 10. However, taking into consideration the prosecution case that the occurrence took place for driving the she-buffalo and taking it to the fatak house and while taking of the she-buffalo to fatak house the appellant apprehended about stantching of the she-buffalo which led to the occurrence. However, the allegation of assault by farsa is there and three injuries have been found on the person of the informant, which are (i) incised wound cutting cutting the soft part, tenor and bone measuring 3” x 1(1/2)” x ½” over left wrist at the lateral side, (ii) incised wound measuring 2” x 1/10” x skin deep on chest right lateral side and (iii) swelling 2” x 1(1/2)” over right thumb. However, the nature of injury no. (i) though shown to have been 4 grievous, but, no reason has been assigned and the said injury was grievous, as it merely mentioned that it is incised would cutting the soft part over left wrist on the left lateral side. No x-ray has been suggested nor done and the injury on the chest is only skin deep, which is simple in nature. However, the other persons who were injured are Gautam Rai, five injuries have been found on his person, however, except injury no. (i) is simple in nature, injury no. (ii) is the incised wound on the right finger by sharp cutting weapon, however, there is no mention how this injury fit in Section 320 of the Penal Code and the injury on the person of the mother has also been found to be swelling, which are simple in nature. 11. Hence, taking into consideration the entire evidence none of the injuries single or even cumulative effect when all the injuries taken together the injuries are not such which is said to have been caused with intention to kill. However, so far the evidence of the witnesses are concerned, the occurrence took place with regarding to the snatching of she-buffalo which was grazing the file and, hence, the nature of the allegation, itself, does not indicate that the occurrence took place has a motive to kill. 12. Hence, taking into consideration the entire facts and circumstances even either by oral evidence or even by the injury report and on the injury the prosecution has not been able to establish that the assault was made with intention to kill and, hence, the order of conviction and sentence recorded under Section 307 of the Penal Code is herby set aside. However, having regard to the facts and 5 circumstances of assault by farsa, offence under Section 324 of the Penal Code at best is made out. 13. However, having regard to the facts and circumstances of the case that the occurrence is of the year 1987 and the appellant suffered lot, both physically and mentally due to the protracted litigation and, however, the appellant remained in jail for about a month at the time during investigation and, further, remained in jail after conviction on 16th December, 1998, till he was granted bail by this Hon’ble Court on 13.01.1999, hence, end of justice shall meet by sentencing the appellant for the period already undergone. 14. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 25th day of October, 2011, N.A.F.R., S.A.