Criminal Appeal (SJ) No.85 of 1997 **** Against the judgment, dated 22.03.1997, passed by Shri Rajendra Prasad Chowdhary, Sessions Judge, Madhepura, in Sessions Case No. 83 of 1989 **** 1. Jhingur Yadav, son of late Baris Lal Yadav 2. Jhotahi Yadav @ Ramesh Yadav, son of late Deo Narain Yadav 3. Ghonghai Yadav @ Shiblal Yadav, son of Banilal Yadav All residents of village Jibachhpur, P;S. Gamharia, district Madhepura .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Anil Kr. Singh No. 6 & Bhola Prasad, Advs. For the Respondent .. Mr. Permashwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the learned counsel for the appellants and the State. 2. The appellants have been convicted under Sections 307/34 of the Penal Code and sentenced to undergo rigorous imprisonment for four years, under Section 504 of the Penal Code rigorous imprisonment for one year and under Section 34 of the Penal Code to undergo simple imprisonment for one year. However, it has been ordered that all the sentences will run concurrently. 2 3. The prosecution case lodged by the informant, Raghuni Yadav, is that he was going to his field along with bullock to plough his field and when he reached at Karharba Bandh then accused Debu Yadav @ Deo Narain Yadav, Jhingur Yadav and Ghonghai Yadav found setting pumping set in his field. Seeing the informant the accused persons questioned why he was taking his bullock through their field. The informant reply that he was going through village canal and then it is alleged that the accused persons encircled him and started abusing and then Buchai Yadav and Rajo Yadav came and protested then Jhingur Yadav ordered to kill on which Deo Narain Yadav delivered a spade blow on the right side of the head of the informant and on a result of which he sustained injury, fell down and taken to the Police Station on rickshaw where he gave his statement. On the fardbeyan, first information report lodged and after investigation charge sheet submitted, cognizance taken under Section 307 and allied sections of the Penal Code and subsequently the case was committed to the Court of sessions, the charge was framed and the trial proceeded. 4. During the trial eight witness examined. P.W. 7 is the informant, P.W. 8 is the doctor and P.Ws. 1 to 6 are eye witnesses to the occurrence. 5. On considering the oral and documentary evidence the order of conviction and sentence recorded, as stated above. 6. The learned counsel for the appellants, however, contends that there is allegation against one Bibhai Gope by Deo Narain Yadav, who is not the appellant, and the role assigned to 3 appellants 1 and 3 is an order giver and no role has been assigned to appellant no. 2 and, further, the occurrence took place in a fit of moment while they were crossing the field and no pre-concert of mind and the medical evidence does not indicate about any grievous injury. 7. The learned counsel for the State, however, concede that Deo Narain Yadav is not appellant and that during the investigation he has been assigned the role of giving spade blow. 8. However, on the respective submissions of the parties and considering the evidence on record that the witnesses have supported the prosecution case that there was exchange of abuses between the parties and Ghonghai and Jhingur commanded on which the informant received spade blow by one Deo Narayan Yadav on the right side of head. However, during the evidence there is only one spade blow by Deo Narayan Yadav, who is not the appellant, and the witness though have supported the prosecution case, but, P.W. 8, the doctor, has found three injuries on the person of the informant, Raghuni Yadav, one incised wound on the right side of the head 2” x ¼” x scalp deep, second incised wound 1” x ¼” x scalp deep and the third one incised wound 2/3” x ¼”. However, injury no. 1 shown to be grievous in nature and others are simple and the doctor stated that injury no. 1 caused shock. However, though it is stated that injury no. 1 is grievous, but, the doctor neither found fracture nor there is dislocation or any x-ray report, hence, opinion of the doctor is without any basis. However, there is contradiction in the ocular and medical evidence though the ocular evidence says that only one blow of spade, 4 but, the doctor found three incised injuries nor there is any x-ray report nor any evidence about the fracture and, hence, the nature of injury is grievous is not confirming to Section 320 nor the ocular evidence says about the other two injuries and having regard to the fact that ocular evidence states only one injury and there is no evidence about the repetition of blow and the role attributed orally is by Debu Yadav @ Deo Narain Yadav. However, Deo Narain Yadav died during the trial. Moreover, appellants no. 1 and 3 have been given the role of order giver, but, have been acquitted under Sections 307/109 of the Penal Code. The charges framed under Section 34 of the Penal Code, however, the occurrence took place from objection that the informant has crossed the field. 9. Hence, having regard to the fact that since there is allegation of giving only one spade blow on the right side of the scalp. P.Ws. 3, 4 and 5 have not come to support the case. P.W. 7, the informant has also stated about giving of only one spade blow. Hence, taking into consideration the facts and circumstances that injury no. 1 is grievous and not coming under the definition of Section 320 of the Penal Code and, further, there is no evidence regarding the repetition of blow and, hence, the conviction and sentence for offence under Section 307/34 of the Penal Code is not sustainable as injury not found dangerous to life and, hence, the conviction appellants 1 to 3 can at best under Section 324/34 of the Penal Code against appellants 1 and 3 and no role assigned to appellant no. 2 who is only stranger and, hence, appellants no. 1 and 3 ordered to be convicted under Section 324/34 of 5 the Penal Code. However, since there is no overt act against appellant no. 2, hence, appellant no. 2 is hereby acquitted. However, so far appellants 1 and 3 are concerned, since, the occurrence is of the year 1989, more than twenty years have elapsed and they remained in jail from 22.03.1997 to 11.04.1997, hence, the ends of justice shall be met by the period undergone by them after conviction. 10. Hence, the appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 08th day of July, 2011, N.A.F.R., S.A.