Criminal Appeal (SJ) No.198 of 1998 ****** Against the judgment of conviction dated 17.04.1998 and order of sentence dated 21.04.1998 passed by Sri Bijay Kumar Pandit, learned 8th Additional District & Sessions Judge, Saran at Chapra in Sessions Trial No. 293 of 1986 and 704 of 1997. ****** 1. Triveni Pandey, Son of Late Jagdeo Pandey. 2. Bacha Pandey @ Sada Nand Pandey, Son of Triveni Pandey. Both residents of village – Dhanauti Sultanpur, Police Station – Derani, in the district of Saran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Rajendra Kishore Prasad, Advocate. Mr. Suresh Chandra Prasad, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard. 2. The appellant no. 2, namely, Bacha Pandey @ Sada Nand Pandey has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.250/- and in default of payment of fine to undergo further imprisonment for six months. 3. The prosecution case, as alleged, is that while the informant was irrigating his land and the water was passing through the land of the accused persons and the accused persons protested and in that 2 connection there is allegation that the appellant gave a Bhala blow causing injury on the chest of the informant and other accused persons assaulted by Lathi. 4. On the fardbeyan of the informant, First Information Report was lodged, after investigation charge-sheet was submitted and during the trial six witnesses were examined. P. Ws. 1, 2 and 3 are the witnesses, who supported the prosecution case. P. W. 4 is the informant. P. W. 5 is the doctor. The witnesses supported the prosecution case about the assault by Bhala by this appellant on the person of the informant. P. W. 5 is the doctor. P. W. 6 is the I.O. However, the doctor found four injuries on the person of the informant, Rameshwar Pandey (i) sharp cut injury 1-1/2" deep up to the muscle and subareolla tissues situated 1-1/2” above and slingh medial of the left nipple on the chest, (ii) sharp cut 1- 1/2” deep up to the muscle situated on the mid axillary line just nearly the straight and transverse direction of injury, (iii) Lacerated wound 1”x1/2” deep up to muscle layer below and lateral to the left lateral angle of left eye and (iv) lacerated wound 1” x 1/4" x 1/2” deep up to the muscle layer on the left side of neck in the anterior line. However, all the injuries were found to be simple in nature. 5. Considering the oral and documentary evidence the Sessions Judge convicted the appellant no. 2 for the offence under Section 307 of the Indian Penal Code and sentenced. However, the appellant no. 1 3 though convicted under Section 323 and 325 of the Indian Penal Code was ordered to be released on probation for a period of one year on execution of a bond of Rs.3,000/- with two sureties of the like amount each for keeping peace and good behaviour giving benefit under Section 360 of the Cr.P.C on the ground that appellant no. 1 is an old man. 6. Learned counsel for the appellant, however, contended that he had already executed a bond and that period already undergone hence the appeal is infructuous with regard to the conviction of appellant no. 1. For offence under Section 307 of the Indian Penal Code it is submitted that offence under Section 307 is not made out as the injuries are simple and cannot be inferred to have been inflicted with intention to kill and hence lenient view may be taken. 7. However, taking into consideration the evidence and the case of the prosecution the occurrence took place with regard to the irrigating the land and passing of the water through the land of the accused persons and hence from the evidence of the witnesses P. Ws. 1, 2 and 3 it does not inspire confidence that there was intention to kill. However, the allegation is that the appellant gave a Bhala blow which hit on the chest but the injury though on the vital part of the body and the weapon used is also a Bhala but the nature of injury having found simple indicates that the impact by which the injury was inflicted was not as such to infer that the injury was inflicted with intention to kill. Hence, taking into 4 consideration the nature of the injury, it is apparent that the appellant has no intention to kill and hence the offence under Section 307 of the Indian Penal Code is not made out and hence the order of conviction and sentence under Section 307 of the Indian Penal Code is not made out. However, having regard to the evidence of allegation of assault by Bhala and hence, the offence under Section 324 of the Indian Penal Code at best is made out. 8. However, having regard to the fact that the occurrence is of the year 1986 and the appellant has suffered a lot during trial since 1982 as well as during appeal and hence the appellant has remained in jail for about one and half months during investigation and trial and one and half months after conviction and hence the ends of justice shall meet by sentencing the appellant for the period already undergone by him and hence, the appeal is allowed in part with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 29th August, 2011. N.A.F.R./Kundan.