Criminal Appeal (SJ) No.204 of 1996 Against the judgment and order of conviction and sentence dated 29. 08. 1996, passed by Shri Ibrar Hassan, Additional Sessions Judge II, Gaya, in Sessions Trial No. 268 of 1991/ 132 of 1993. 1. Ram Ratan Mahto, son of Late Sitaram Singh 2. Vijay Mahto 3. Ajay Mahto. Sons of Shri Ram Ratan Mahto. All resident of Village & P.O. Pai Bigha, P.S. Belaganj, District- Gaya. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Rana Pratap Singh, Senior Advocate. Mr. Dinu Kumar, Advocate. Mr. S. K. Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. Ajay Mahto, appellant no. 3 has been convicted for offence under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Ram Ratan Mahto and Vijay Mahto, appellant nos. 2 and 3 have been convicted for offence under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Appellant nos. 2 and 3 have further been convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for nine 2 months. 3. This is a case of case and counter case and both parties claimed to have purchased the same P.O. land from common person. However, with regard to the sale deed, claimed to be executed on the defence side in 1983 and sale deed on prosecution side claimed to be executed in 1984. However, the prosecution case is that informant has given the land to his uncle Madho Mahto on Batai and his uncle has grown sugar cane crop and on the date of occurrence i.e. 23. 08.1990 at 9.30 A.M. co-villager Ram Ratan Mahto and Ajay Mahto came in the field and started uprooting sugar cane on which the informant and his uncle protested then accused Ram Ratan Mahto catch hold of informant and Ajay Mahto assaulted him with spade on his head and further Vijay Mahto assaulted Madho Mahto and Gangotri Devi, the aunt of the informant. 4. On the basis of the Fardbeyan, F.I.R. lodged. After investigation charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. Charge framed for offence under Section 307 and other allied Sections of Indian Penal Code. 5. The defence of the accused persons by way of counter case as well as suggestion is that case has been 3 filed by the prosecution party to save themselves from counter case and the accused persons uprooting the sugar cane then Sita Ram Singh came to protest and the prosecution party entered into the house of the accused persons and started assaulted causing injury to the accused persons and asserted that sale deed executed on the defence side prior to the sale deed executed by the informant and they have also got injured and has proved the injury report by the same doctor who examined the prosecution party as well as defence side. Further two witnesses were examined on behalf of the defence side D.W. 1, Vijay Narain Singh and D.W. 2 Dr. Sabahuddin. After considering both oral and documentary evidence, order of conviction and sentenced recorded by the lower court as mentioned above. 6. Learned counsel for the appellants however raised two issues. It has been contended that sale deed executed on behalf of the appellants in 1983 whereas the prosecution party have also purchased the land from the same vendor and sale deed executed in 1984 and hence they may be held to be owner and by prosecution evidence sale deed executed on later date and not in possession of the land and hence the prosecution party aggressive. It 4 has further been contended that this is a case of case and counter case and both parties claim in possession of the land and the same doctor examined the injured of the prosecution side as also examined injured of defence side and found injuries. There is no explanation by prosecution about injury inflicted on defence side, hence it shall be deemed as prosecution has not come with clean hand and manner and hence, genesis of the occurrence is not true to be believed. 7. Learned counsel for the State however, contends that witnesses have supported the prosecution case and injury at the side of the prosecution, three persons have been injured and the injuries are grievous and stated to be dangerous to life. Whereas injury on the persons of the defence side are only simple and superficial. 8. However, taking into consideration the respective submissions, I proceed to consider the evidence in the light of the prosecution. However, five witnesses were examined on behalf of the prosecution side and they have come to support the prosecution case. P.W. 1, 2, 3 and 4 are material witnesses about the occurrence. P.W. 5 is the Doctor who has come to prove the injury on the 5 persons of the prosecution party and three witnesses have been shown to be injured. P.W. 5 is the Doctor, who has also examined of the defence side as D.W. 2 who prove the injury at the same time and also proved the documentary evidence like certified copy of the Fardbeyan of the counter case Ext. A and injury report as Ext. C as well as sale deed and other documents. P.W. 1 to 4 though, have supported the prosecution case. 9. However, with regard to the point raised by the appellants that they have purchased the land prior to sale deed of the prosecution party. However, criminal court has no jurisdiction to look into the title or sale deed that who has got title and hence submission of claim of right of the appellants on the basis of sale deed are not subject matter to be decided by the criminal court. However, the prosecution party has laid evidence that they have grown the sugar cane crop and this assertion find place in F.I.R. as well as evidence of witnesses and criminal court has jurisdiction to decide possession and to see who was in possession and who have grown the sugarcane crop, but at the same time no defence evidence 6 that they were in possession of sugar cane crop and hence documentary evidence of the defence that they have title or claim over the land not sustainable as criminal court has no jurisdiction to look into the title. But about the possession of the prosecution side over the land, there is assertion and evidence that they have grown the crop and hence there is no merit on the point raised. 10. However, the second point raised that this is case of case and counter case and both parties filed the case and counter case with respect to the same time and place of occurrence. It has further been asserted that same doctor who has proved the injury on the person of prosecution side and has also proved injury on the accused persons in hospital at same time which has been marked as Ext. C. However, injury found on the person of the defence as proved by the doctor D.W. 2 who also examined as P.W.5 to prove the injury of prosecution found following injury on appellant Ram Ratan Mahto. i) Lacerated wound on middle of the scalp 1” x 1/2". ii) Abrasion on the left elbow 1”x 1/4". iii) Abrasion on the middle front of the leg 1” x 1/4". iv) Bruise on the left upper side of the back 4” x 1/2". All the injuries were simple in nature and 7 were caused by hard and blunt substance. 11. However, injuries found on the prosecution party has proved by P.W. 5, three persons found injured and injuries found on the person of Gangotri Devi is ; i) Bruse 1/2" x 1/4” on first phalanx (proximate) of little finger of the right hand. X-ray plate No. R-A showed fracture of proximate phalanx of the right hand. ii) Bruise 1/2”x 1/4" of proximate phalanx of the ring finger of the right hand. X-ray plate No. R.A. showed fracture of proximal phalanx of the right finger of the right hand. iii) bruise on the posterial side of the neck 2”x 1”. iv) Bruise on the left posterial side of the Scalp 2” x 1/2” x 1/4”. v) Bruise on the left upper side of the Back 2”x 1”. Injury Nos. i and ii were grievous in Nature and they were caused by hard And blunt substance may be lathi. Injury no. iv was simple in nature. It Was caused by hard and blunt Substance may be lathi. Injury No. iv may be dangerous to life. Injury nos. iii and v were simple in nature and they were caused by hard and blunt substance may be lathi. 12. Further he has examined Sitaram Singh and found injury no. 1 is grievous and danger to life which is sharp cutting injury on the right perital bone of the scalp 8 2/1/2’ x 1/2" x 1/2" and other injuries found simple. 13. However, doctor in his cross-examination has stated injuries found on Gangotri Devi and Sitaram Singh was stated to be dangerous to life, but he had not given any prescription and he had not treated them after examining them. Since those injuries found on the scalp, therefore, he opined that those injuries were dangerous to life. He has stated that his final opinion about fracture of injury no. i and iv of Gangotri Devi and injury no. 1 of Sitaram singh was based on x-ray report, but the x-ray was not done by him in his hospital or under his supervision and those x-ray report of the injured were not present before him and his report was prepared on 23. 08. 1990 and x-ray report prepared on 07.09.1990. 14. Hence taking into consideration in view of evidence of the doctor, it is apparent that said report about injury and finding that injury was grievous and dangerous to life are on the basis of x-ray report which was not done before him or under his supervision and those x-ray report not proved. During trial report of the doctor about finding of the injury were grievous and dangerous to life not worthy of reliance in absence of x-ray plate which has not been proved and hence the order of conviction and 9 sentence under Section 307/34 is not maintainable and is hereby set aside. 15. However, taking into the consideration the fact that both parties proved the injury report of the same doctor except on the injuries shows on the defence side and the prosecution party have not explained the injury on the defence side, hence the genesis and manner of occurrence is doubtful. 16. Hence having regard to the fact and circumstance, it appears to be a case of free fight and injury on the person of defence side have not been explained. Hence, benefit of doubt be given to the appellants as the prosecution has not come with clean hand and the genesis and manner of occurrence has not been established. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 16th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)