IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.330 of 2010 PRABHU BHAGAT Versus THE STATE OF BIHAR & ORS ----------- 3 26.04.2010 The Respondent Nos. 2 & 3 were convicted under Section 323 IPC by the Additional Sessions judge-I, Nawadah in Sessions Trial No. 126 of 2005 and in stead of sentencing to imprisonment, they were ordered to be released under Section 4 of the Probation of Offenders Act on execution of bond of Rs.5,000/- (five thousand) with one surety of the like amount for a period of 1 year to maintain peace and be of good behaviour. The appellant has filed this appeal with a prayer for enhancing the punishment and also for conviction of the Respondent Nos. 2 & 3 under Section 307 IPC. Initially the Respondent Nos. 2 & 3 were tried for the offences under Sections 341, 307 and 379 IPC and one another named accused Dinesh Kumar, who was a juvenile, hence, his case was separated and the Respondent Nos. 2 & 3 were tried by the trial court. They were acquitted of the charges under Section 341 and 379 IPC and they have been convicted for the offence under Section 323 IPC only. The prosecution case was that the informant got information that his son Vasant was being assaulted by the respondent Nos. 2 & 3 and Dinesh Kumar. On this information, he came to the P.O. and found that the Respondent Nos. 2 & 3 were assaulting Vasant with fists and slaps. He also stated that Dinesh Kumar had assaulted Vasant Kumar 2 with cricket bat on head. On consideration of the evidence, the learned trial court found that in the evidence, there was nothing to show that the assault was caused with intention to kill. It was also considered that the assault as given on head by means of cricket bat was alleged to have been caused by Dinesh Kumar who was a juvenile and whose case was separated. It was considered that so far the Respondent Nos. 2 & 3 are concerned, there was allegation of causing assault by means of fists and slaps. Learned trial court also considered the evidence of the Doctor (P.W9) who had given primary treatment to injured Vasant and who had found bruise on the right side of head and right temporal area of the size 4” x 3”. The injured was referred to P.M.C.H. but any further report of x-ray examination was not on the record. Learned counsel for the appellant submitted that P.W.9 considered the nature of injury as grievous but he had not examined any X-ray report and he based his finding on the basis that at the time of examination, the injured had vomited blood. Learned A.P.P. pointed out that P.W.9 had advised X-ray, but any X-ray report was not brought on the record. It was also submitted that the allegation of causing assault by means of cricket bat was not on Respondent Nos. 2 & 3, rather on another accused Dinesh Kumar who was a juvenile and whose case was separated to be tried by the juvenile court. It was submitted that on these grounds, the learned trial court found the case proved under Section 323 IPC. Thus hearing as above, I do not find it a fit case to make any 3 interference with the judgment of the court below, in so far as the prayer for enhancing conviction and sentence, as made under the impugned judgment is concerned. Accordingly, this appeal is dismissed at the stage of admission itself. Jay/ ( C. M. Prasad, J )