IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.260 of 1997 Against the judgment and order dated 4th September 1997 passed by Sri Ran Anurag Singh, IXth Additional Sessions Judge, Saran at Chapra in Session Trial No. 337 of 1985. Jagdish Rai, Son of Late Jadu Rai, Resident of Village Shyam Chak, Police Station – Bhagwan Bazar, District – Saran at Chapra. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ---------- For the Appellant : Mr. Arun, Advocate Mr. Sanjay Kumar @ S. K., 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 learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 307 of the Indian Penal Code and Sections 148, 323 and 447 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years for offence under Section 307 of the Indian Penal Code, one year for offence under Section 148 of the Indian Penal Code, three months for offence under Section 323 of the Indian Penal Code and three 2 months for offence under Section 447 of the Indian Penal Code. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case as alleged by the informant Arun Kumar Singh is that on 19.04.1985 at about 11:30 A.M., the informant saw that Jagdish Rai was fighting with his younger brother Barun Kumar Singh and then he rushed there and intervened in the matter. Jagdish Rai abused and came with Bhala along with Ram Ayodhaya armed with bamboo tona and Shiv Nath armed with lathi followed by 20-25 persons variously armed with Lathi, Bhala and Danda and they attacked on the mill of the informant. The informant has sustained injury in his right hand. It is further alleged that Jagdish Rai indiscriminately assaulted the informant with Bhala and when Barun Singh the brother of the informant came to his rescue he was also assaulted by Danda portion of Bhala by Jagdish Rai and further when the younger brother of the informant Tarun Singh came to his rescue then he was also assaulted by Jagdish Rai by the Danda portion of Bhala and they also indiscriminately brickbat of the house of the informant causing damage of the Khapraposh roof of the house and entire Angan became flooded with brickbats and took away wooden Kari worth Rs.2500/-. 4. On the fardbeyan of the informant, the FIR was lodged and charge-sheet was submitted and on the submission of the charge-sheet, 3 cognizance was taken and thereafter the case was committed to the Court of sessions. However, after commitment the charge was framed and during the trial nine witnesses were examined on behalf of the prosecution side. 5. P.W. 1 is Barun Kumar Singh, P.W. 2 is Raj Kishore Singh, P.W. 3 is Tarun Kumar Singh, P. W. 4 is Bharat Prasad Singh. P.W. 5 is Arun Kumar Singh the informant, P.W. 6 is Doctor N.K.P. Saha, P.W. 7 is Anil Tiwari, P.W. 8 is Dasaye Rai and P.W. 9 is Nagendra Tiwari. However, it has been contended that P.W. 6 is the doctor. P.Ws. 7, 8 and 9 are formal witnesses who proved the formal F.I.R. The I.O. of the case has not been examined. After considering the oral and documentary evidence the order of conviction and sentence recorded by the learned lower court as stated above. 6. However, five persons were tried together along with appellant though they were convicted under Section 325 of the Indian Penal Code and allied Sections of the Indian Penal Code but they were given the benefit of Section 360 of the Cr.P.C. 7. Learned counsel for the appellant, however, contended that taking into consideration the allegation and the evidence adduced, the medical evidence does not suggest even accepted on the face value that the assault was made with intention to kill and the injury on the persons of the injured either taken singly even the cumulative effect does not 4 make out a case for offence under Section 307 of the Indian Penal Code. It has further been contended that a counter case has been filed bearing Bhagwan Bazar P.S. Case No. 54 of 1985 with regard to the occurrence at same time and place and the fardbeyan was recorded in the hospital and the injury was found on the person of Shivnath Rai, Jagdish Rai and Ram Ayodhaya Rai who are the accused in this case and in the said case the charge-sheet was submitted and the fardbeyan, FIR, the injury report and the charge-sheet have been proved as Exts. A, B, C and D in this case and hence contended that even if the prosecution case is accepted then the injury on the persons of the accused person having not been explained by the prosecution, it can well be inferred that the prosecution has not come with the clean hand and the genesis of the occurrence is otherwise and prosecution has not explained the injury on the accused persons which is contemporaneous to the alleged occurrence. 8. Learned counsel for the State, however, contended that the prosecution witnesses in this case have led evidence and supported the prosecution case. 9. P.Ws. 3, 4 and 5 though have supported the prosecution case about the assault but the evidence of the doctor P.W. 6 though shows eight injuries on the person of the informant, P.W. 5. Five injuries on the person of Tarun Singh but all the injuries are simple and superficial 5 and none of the injuries either singly or even the cumulative effect of all the injury taken together does not make out a case under Section 307 of the Indian Penal Code that the injury was inflicted with intention to kill. The injury on Barun Singh shows two injuries and though one of the injuries found to have been grievous as fracture in the hand but the said injury cannot be said to be inflicted with intention to kill as the fracture is not on the vital part of the body. Hence, even if assuming the evidence of P.Ws. 1 to 5 supported the prosecution case, the conviction under Section 307 is not sustainable against the appellant. 10. Hence, taking into consideration the fact that there is case and counter case. Exts. A, B, C and D filed by the appellants are the fardbeyan, FIR of the counter case as well as the injury on the three accused persons received in same transaction and injury on accused Shiv Nath was grievous by sharp pointed weapon on the chest which is vital part of the body, has not been explained by the prosecution. It is true that the doctor has not been examined to prove the injury on the person of the accused persons but the accused persons or the defence is not required to prove the case beyond reasonable doubt. Defence has only to probabilize the defence and if the defence is probable then the benefit requires to be given to the accused persons. 11. Hence, having regard to the facts and circumstances of the case 6 the evidence of the prosecution witness as well as the evidence of the defence and the three accused persons found injured; one having grievous injury and though in the evidence the attention has been drawn and it is suggested about the injury for counter case and the injury has been proved for which there is no explanation by the prosecution. Hence, when the injury on the person of the accused person has not been explained by the prosecution and hence it can well be inferred that the prosecution has not been able to prove the charges leveled against the appellant beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court against the appellant is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 13th July, 2011. N.A.F.R./Kundan.