Criminal Appeal (SJ) No.111 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 21.04.1999 passed by Sri Abdul Samad, learned Additional Sessions Judge – 3rd, Munger in Session Case No. 236 of 1989. ~~~~~~ Ram Bilas Singh, Son of Late Barju Singh, Resident of village – Milki, Police Station – Haweli Khargpur, District – Munger. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ For the Appellant : M/s. Abdul Mannan Khan, Advocate. Nasrul Hoda Khan, Advocate. Anamul Haque, Advocate. For the Informant : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Sections 325/34, 323 and 447 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years, six months and three months respectively. 3. The prosecution case, as alleged, by the complainant is that the complainant purchased the land by registered sale deed and came in cultivating possession. When the complainant was ploughing the land then the accused persons came and one Barju Singh gave a Lathi blow to the complainant. It is further alleged that this appellant assaulted Sarandhar Singh and Girish Singh. 2 4. The case initiated on the basis of the complaint petition filed by the complainant Ram Chandra Prasad Singh. On the complaint the complainant examined witnesses on solemn affirmation and after taking cognizance the summons was issued, case was committed to the court of Sessions. During the trial seven witnesses were examined. 5. However, during the trial the co-accused Barju Singh died and hence the proceeding against him abated. However, the evidence is that both the accused went to the place of occurrence and Barju Singh gave a Lathi blow to the complainant and Ram Bilash Singh assaulted Sarandhar Singh and Girish Singh. 6. P. W. 7 the doctor has found the injury on the person of Sarandhar Singh simple but opined that injury on Girish Singh is grievous on the basis of X-ray report and X-ray plate of another doctor who has not been examined. The trial court taking into consideration the evidence of witnesses convicted the appellant as mentioned above. 7. Learned counsel for the appellant, however, contended that the trial court convicted the appellant for the offence under Section 325 of the Indian Penal Code on the basis of the report of the doctor who has not been examined and X-ray plate and X-ray report was not done before him and further contended that the dispute was with regard to the land and the occurrence is of the year 1985 and hence submitted that lenient view may be taken. It is pertinent to mention that the X-ray report and X-ray plate has not even formally been proved. However, the opinion of the doctor have to be proved under Sub-clause (4) of Section 60 of the 3 Evidence Act who has given the opinion and mere prove of the report is not admissible in evidence and hence the conviction on the basis of the X-ray report of a doctor who has not been examined and even his report having not been proved by legal evidence and hence the conviction of the appellant on the basis of the said report which has marked X for identification is not sustainable. Hence, the order of conviction recorded under Section 325 of the IPC false to ground. However, having regard to the fact that the prosecution has established the assault, hence the conviction under Section 325 of the IPC is substituted by conviction under Section 323 of the Indian Penal Code. However, having regard to the fact that the occurrence took place in the year 1985 and the matter concerned with a land dispute and hence the appellant has suffered due to protracted litigation since 1985 and hence the conviction recorded under Section 323 of the Indian Penal Code, the appellant is entitled for benefit of doubt under Section 360 of the Cr. P. C. and Sections 3 and 4 of the Probation of Offenders Act. The appellant is ordered to be released on due admonition and accordingly this appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 19th October, 2011 N.A.F.R./Kundan.