Criminal Appeal (SJ) No.242 of 1999 **** Against the judgment, dated 28.08.1999, passed by Shri Vishwambhar Upadhya, Additional District and Sessions Judge, II, Darbhanga, in S. Tr. No. 254 of 1991 **** Shiv Shankar Thakur, son of Tilkeshwar Thakur, resident of village Vais Lagma, P.S. Ghanshyampur, district Darbhanga .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. S.C. Jha, 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 appellant and the State. 2. The appellant has been convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. The appellant has, further, been convicted under Sections 324 and 448 of the Penal Code, but, no separate sentence has been given for the said offence. 3. The prosecution case, as alleged by the informant, Rama Shankar Thakur that on 11.07.1989 at about 02.00 p.m., Shiv Shankar Thakur was digging earth in his court yard, at that time he 2 was working in his field then his son, Parma Nand Thakur, came and disclosed then he came in the court yard and saw Shiv Shankar Thakur digging the earth and draining the water. The informant then protested on which Mithlesh Thakurain, wife of Shiv Shankar Thakur asked to kill on which Shiv Shankar Thakur bring a farsa and assaulted the informant by farsa on his head and, thereafter, it is alleged that Pawan Kumar Thakur, aged thirteen years, Nandan Kumari armed with lathi, assaulted him on his person and, thereafter, on alarm, Madan Mohan Thakur, Lallan Thakur Shyam Sunder Thakur came and intervened for further assault. 4. On the fardbeyan, the first information report lodged and after investigation the charge sheet submitted, cognizance taken and case was committed to the Court of sessions. 5. During the trial four witnesses were examined by the prosecution. P.W. 1 is the Lallan Thakur, P.W. 2 is Madan Mohan Thakur, P.W. 3 is Rama Shankar Thakur and P.W. 4 is Dr. Pramod Prasad. P.Ws. 1, 2 and 3 supported the prosecution case about the assault and P.W. 4, the doctor, who examined the victim, found injury on his person. 6. The defence of the accused persons is that no occurrence as alleged occurred. The informant and the appellant are full brother and the court yard is divided by a tat and on the date of the occurrence this tat was mended and the accused was constructing nali (drainage) for drain of the water adjoining to wall on which Shiv Shankar Thakur protested then there was some physical altercation 3 took place by which the informant fell on the tat and the false case has been instituted in collusion with the doctor. 7. The trial Court, taking into consideration the evidence of the witnesses held that P.Ws. 1, 2 and 3 have supported the prosecution case regarding the assault and the doctor has found four injuries on his person and, hence, the oral evidence is supported by the medical evidence. One of the injuries found on the head is by sharp cutting weapon hold that offence under Section 307 of the Penal Code made out and, further, take into consideration the evidence of P.W. 3 that he remained in hospital for twenty four days, convicted the appellant for offence under Section 307 of the Penal Code and sentenced, as mentioned above. 8. The learned counsel for the appellant, however, contends that both the parties are full brother having same court yard divided by tatti and the dispute is with regard to the construction of a nala and, hence, on the basis of these evidence it can not be inferred that there was intention to kill and, further, no evidence about the admission of the appellant for twenty four days in the hospital has brought on record and the evidence of the doctor is also not such to suggest that there was intension to kill. 9. The learned counsel for the State, however, supported the order of conviction and sentence. 10. However, taking into consideration the facts and circumstances of the case, from the first information report, itself, it is apparent that the informant and the appellant are full brother as both 4 are son of Tilkeshwar Thakur. The case of the prosecution is also that the occurrence took place for the construction of a nala. 11. The defence of the accused persons is also that there was some physical altercation with regard to the construction of nala by which the tatti broken. However, P.Ws. 1, 2 and 3 have supported the prosecution case about assault and P.W. 4, the doctor, has found four injuries on the person of the appellant, which are as follows : (i) One incised wound over the fore head on left side 1” long, ¼” wide and deep up to the bone (ii) One lacerated wound over left eyebrow ½” x ¼” deep up to bone. (iii) One painful spot over front of right thigh. (iv) One painful spot over right hand. 12. However, it has been opined that injury no. (i) has been caused by sharp cutting weapon is simple in nature and injuries (ii), (iii) and (iv) are also simple in nature and caused by hard and blunt substance and has proved the injury report, Exhibit 2. 13. However, taking into consideration the injury, none of the injuries are either singly or even cumulative effect of all the injuries even taken together, it can not be inferred that assault was made with intention to kill. However, P.W. 3, the informant, has sated in his evidence that he was remained in the hospital for twenty four days. No document from the hospital either bed head ticket or the register has been brought on record to establish that he remained in hospital for neither twenty four days nor doctor has deposed that 5 the appellant was remained in hospital for such a long period nor the injury suggests that appellant was required to live in hospital for twenty four days. The doctor in his cross examination in paragraph 5 has stated that all the injuries are superficial in nature and, hence, from the evidence of the doctor, itself, it is apparent that the injury was not such to have been inflicted with intention to kill. The best evidence is the record of the hospital to prove that the appellant remained in hospital, has not been brought on record to establish that the appellant was remained in hospital for twenty four days whereas the evidence of the doctor is quite contrary to his remaining in hospital for treatment for twenty four days. 14. Hence, I find and hold that the prosecution has not been able to prove the charge under Section 307 of the Penal Code and, hence, the order of conviction and sentence, recorded by the lower Court, for offence under 307 of the Penal Code, is hereby set aside and can only be substantiated for offence under Section 324 of the Penal Code. 12. However, so far the offence under Section 448 of the Penal Code is concerned, since both the appellants and the informant are full brother and having same house and court yard and, hence, the offence under Section 448 of the Penal Code also does not made out. However, having regard to the fact that the witnesses have supported the prosecution case about trial and the doctor has also proved the injury and, hence, the case utmost is for offence under Section 324 of the Penal Code, which has been established by the evidence. 6 However, having regard to the fact that the occurrence is of the year 1989 and the occurrence took place for a petty matter for drainage of water, hence, having regard to the fact that the appellant has remained in jail from 28.08.1999 to 20.09.1999, hence, the end of justice shall meet by sentencing the appellant for the offence under Section 324 of the Penal Code for the period already undergone by him, hence, the order of conviction under Sections 307 and 448 of the Penal Code and sentence recorded by the lower Court is hereby set aside and the conviction under Section 324 of the Penal Code is sustained with modification in sentence for the period already undergone by the appellant after conviction till release of the appellant shall meet the end of justice. 13. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 09th day of December 2011, N.A.F.R., S.A.