IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 23 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 23.01.1999 passed by Shri Bihari Pandey, Ist Additional Sessions Judge, Saran in S. Trial Case No. 844 of 1994. ~~~~~~ 1. Nand Lal Mahto. 2. Jai Kishore Mahto. 3. Sanjay Mahto, All sons of Nepal Mahto. 4. Nepal Mahto, Son of Late Ram Krit Mahto. 5. Raj Kishore Mahto @ Raj Kishore. 6. Ramashray Mahto. 7. Ramashish Mahto. Appellants 5, 6 and 7 are the sons of Thakur Mahto 8. Rajdeo Mahto, Son of Gopal Mahto. 9. Gopal Mahto, Son of Late Ram Prit Mahto. 10. Thakur Mahto, Son of Banaras Mahto. All residents of village – Semeria, P. S. – Revilganj, District – Saran. .... .... Appellants Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Janardan Prasad, Advocate. For the Respondent : Mr. Suresh Prasad 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. 1 has been convicted for the offence under Sections 307 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and two years respectively. The other appellants have been convicted under Sections 323 and 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months for the offence under Section 323 of the Indian Penal Code and one month for the offence under Section 147 of the Indian Penal Code. However, the appellant no. 10 Thakur Mahto though has only been given the benefit of Probation of Offender’s Act. 2 3. The prosecution case as alleged by the informant is that the occurrence took place due to plucking guava from the guava tree of the informant by the accused Nand Lal Mahto and Jai Kishore Mahto. When the informant went to complain to the house of Nepal Mahto (accused) the accused, Nepal Mahto became angry and ordered his sons, brothers, nephew and uncle to kill the informant. Whereupon all the accused persons armed with farsa, iron rod and lathi attacked the informant. The accused Nand Lal Mahto assaulted the informant with Farsa causing farsa injury on his head and the accused Raj Kishore Mahto assaulted the informant with iron rod causing injury on his right hand, left leg, left hand, thigh and back and rest of the accused persons assaulted him with lathi. Accused Jai Kishore Mahto took away one currency note of Rs.100/- from the pocket of the informant and the accused Sanjay Mahto snatched away HMT watch from the hand of the informant. Originally case was registered under Sections 147, 148, 149, 323, 324, 379 and 448 of the Indian Penal Code. However, charge-sheet submitted under Sections 147, 323, 341, 448, 307 and 379 of the Indian Penal Code. However, the charge was framed for the offence under Sections 307/149, 323, 307, 148, 147, 448 and 379 of the Indian Penal Code. 4. During trial five witnesses were examined on behalf of the prosecution. However, two witnesses have been examined as court witnesses who are C. W. 1 Shankar Ravi Das, the I.O. and C. W. 2 Dr. K. K. Mishra. The witnesses though have supported the prosecution case about the occurrence. The doctor has found five injuries on the person of the informant Shambhu Nath Prasad which are (i) lacerated injury on scalp above left frontal bone 4” long 1/2" wide one deep, (ii) Bruise on left shoulder 3” x 1/2", (iii) Bruise above left scapula 2”x1/2”, (iv) Bruise at tip of left scapula 3” x 1/2", (v) Bruise on back above left buttock 3”x1/2” and, (iv) Abrasion on left leg on shin of tibia. All the injuries were simple in nature 3 caused by hard blunt substance within twelve hours. 5. The trial court, however, taking into consideration the evidence of the witnesses convicted the appellant no. 1 for the offence under Sections 307 and 148 of the Indian Penal Code and convicted the other appellants for the offence under Sections 323 and 147 of the Indian Penal Code and sentenced as mentioned above. 6. Learned counsel for the appellants, however, contended that there is a case and counter case. However, it has further been contended that the injury sustained by the informant are all simple and superficial and hence the offence under Section 307 is not made out. The occurrence is of the year 1993 and more than 18 years have already elapsed and further the appellant no. 2 to 10 though having been convicted under Sections 323 and 147 of the Indian Penal Code and there is no specific allegation of assault against them and hence a lenient view may be taken. It has further been contended that the trial court did not take into consideration the fact that why the benefit of the Probation of Offenders Act has not been granted to the appellants. 7. However, from perusal of the records, it appears that the occurrence took place due to plucking of guava and the informant went to the accused persons informing plucking of guava, then the occurrence took place. However, the genesis for the occurrence is for petty matter is not as such to derive an inference that the accused persons assaulted the informant with intention to kill. 8. So far the injuries are concerned as mentioned above all the injuries are simple and superficial and none of the injuries even taken together either signally or even taken together are as such to infer that it has inflicted with intention to kill. Hence, it cannot be inferred even if the prosecution case about the assault is accepted that neither there is motive or intention to kill nor the injuries have proved by the prosecution. It can be held that there was intention to kill and hence the 4 order of conviction and sentence for the offence under Section 307 of the Indian Penal Code is hereby set aside. However, having regard to the fact that the witnesses supported the prosecution case and the doctor found the injuries and hence appellant no. 1 is convicted under Section 324 of the Indian Penal Code. However, having regard to the fact that the occurrence is of the year 1993 and the appellant no. 1 has remained in jail for ten days after conviction and hence under the facts and circumstances, the interest of justice shall meet by sentencing the appellants for the period undergone. However, there is no specific allegation of assault except accused Raj Kishore Mahto @ Raj Kishore. 9. Hence, having regard to the fact that they have been convicted under Sections 323 and 147 of the Indian Penal Code and hence under the facts and circumstance they are entitled for the benefit of Section 3 of the Probation of Offenders Act and they are ordered to be released on due admonition and discharged from their liability of the bail bonds, if any. This appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 19th December, 2011. N.A.F.R./Kundan.