Criminal Appeal (SJ) No.297 of 1997 ****** Against the judgment of conviction dated 23.09.1997 and order of sentence dated 23.09.1997 respectively passed by Sri Bihari Pandey, the learned Additional Sessions Judge - Ist, Saran in Sessions Trial No. 25 of 1988. ****** 1. Sanjay Singh. 2. Mantu Singh. 3. Tutu Singh, All are sons of Someshwar Singh, All residents of village – Naini, Police Station – Chapra Muffasil, District – Saran (Chapra). .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Pramod Kumar, Advocate. 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 appellants and learned counsel for the State. 2. The appellants have been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and six months to appellant no. 1 and others i.e. appellant nos. 2 and 3 have been sentenced to undergo rigorous imprisonment for one year and six months. 3. The prosecution case is that while the informant went to board a bus he found the appellants sitting under a Pipal tree began to abuse the 2 informant. When the informant protested the appellants Tutu Singh and Mantu Singh caught hold of him and Sanjay Singh gave a dagger blow. 4. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted. However, the occurrence took place on 1st July, 1987 and the fardbeyan was recorded on 04.07.1987 in the Chapra Hospital and during the trial, four witnesses were examined. P.W. 1 Krishna Sharma who has formally proved formal First Information Report and fardbeyan, P.W. 2 Achal Kumar Singh the informant and injured, P.W. 3 Subodh Kumar Singh and P.W. 4 Dinkar Dasil who is also a formal witness. However, neither the doctor nor the I.O. have been examined and the injury report has not been proved. 5. The trial court after considering the evidence convicted the appellants as stated above. 6. Learned counsel for the appellants, however, contended that the I.O. and the doctor have not been examined. The injury report which has formally been proved is not admissible in evidence. The prosecution has not able to prove the case for the offence under Section 307 of the Indian Penal Code. It has further been submitted that a compromise petition has been filed in the lower court and hence the offence is required to be compounded in view of the compromise petition. 3 7. However, from perusal of the records though the witnesses P. Ws. 1, 2 and 3 have come to support the prosecution case about assault by dagger. However, neither any motive attached nor intention has been proved. The size of the dagger blow has also not been proved. However, for convicting a person under Section 307 of the Indian Penal Code, it is required to establish by the prosecution that the informant has to prove the intention to cause death and the injury inflicted was with intention of causing such bodily injury as the offender knows to cause death or likely to cause death which is sufficient in ordinary nature. There is allegation of assault of only one dagger blow. There is no repetition. Hence, it is apparent that there was intention to kill. 8. The doctor has not been examined to prove the injury. The injury report is not a substantive piece of evidence. The mere formal proof of the injury report is not acceptable. The opinion of the doctor is required to prove under the 4th clause of Section 60 of the Evidence Act by the doctor who examined the victim. The doctor who has examined the injured is required to depose and hence the injury report is not acceptable in the evidence. 9. However, the injury report formally proved does not indicate that the injury ¾” x ¼” x ¼” was as such to have been inflicted with intention to kill. Particularly, in the facts and circumstances there is no 4 evidence of repetition and hence offence under Section 307 of the Indian Penal Code is not made out and order of conviction and sentence under Section 307 of the Indian Penal Code is hereby set aside. However, having regard to the fact that the evidence is about assault and hence utmost a case under Section 324 of the Indian Penal Code is made out. 10. However, having regard to the fact that there was compromise petition filed between the parties and hence it is hereby ordered to be accepted and the offence is compounded in terms of Section 320 of the Cr. P. C. this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 26th August, 2011. N.A.F.R./Kundan.