Criminal Appeal (SJ) No. 72 OF 1996 Against the judgment and order dated 11.04.1996 passed by Sri Dhirendra Nath Chakravarty, Sessions Judge, Munger in Sessions Case. No. 590/89. ************ Tarni Rajak, S/o Banarsi Rajak of village-Faridpur, P.S.-Jamalpur, District-Munger. ……(Appellant) Versus 1. THE STATE OF BIHAR. 2. Rajendra Rajak, S/o Muneshwar Rajak, (Ganer Kiran Som Jamalpur), Village-Faridpur, P.S.- Jamalpur, District-Munger. -------(Respodent) ************* For the Appellant : Mrs. Renuka Sharma-II, Adv. For the State : Dr. Indiwar Kumari, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 307 IPC and sentenced to RI for five years by the Sessions Judge, Munger in Sessions Case No. 590/89 by a judgment dated 11.04.1996. 2. The prosecution case is that on 21.06.1989 while the informant was returning after drawing water from the well of Kartik Sah the accused persons accosted him and the appellant is said to have assaulted with a bhala on his chest and abdomen whereas the accused Pramod Rajak assaulted to him with lathi and Kako Rajak assaulted him with tengari (axe) and Suresh Rajak assaulted him with lathi. The reason for the occurrence was previous land dispute. 2 Three accused persons were put on trial but after close of the same accused Pramod Rajak and Suresh Rajak were acquitted of the charges meaning thereby that part of the prosecution case was disbelieved by the Court below. 3. During trial the prosecution in all examined seven witnesses out of whom P.W. 3 is the Informant whereas P.W. 1 is the father of the informant. P.W. 4 and P.W. 5 did not support the prosecution case and therefore they were declared hostile whereas P.W. 7 is a formal witness who has proved the First Information Report and the case diary. P.W. 6 is the Doctor who examined the injured and P.W. 2 is the mother of the informant. 4. On going through the evidence on record, I find that even though the prosecution case was that the injured had been assaulted with axe and lathi but no injury was found on the person of the deceased by the P.W. 6, the Doctor. However, it appears that the three witnesses have withstood the cross-examination of the accused persons and have succeeded in proving the case that indeed the injured had been assaulted by the appellant. 5. However, on close examination of the manner of occurrence it is difficult to conclude that the appellant had intended to cause the death of the injured 3 and, therefore, I acquit the appellant of the charge under Section 307 IPC. However, he is convicted under Section 325 IPC but the sentence is modified to the period that he has already undergone during trial. 6. In the result, the appeal is dismissed with modifications as aforesaid in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 28th June, 2011. NAFR/Vikash/-