Criminal Appeal (SJ) No.251 of 1995 **** Against the judgment of conviction passed by Sri Surendra Kumar Sinha, Additional Sessions Judge, II, Bhabua, in S. Tr. No. 357 of 1988/198 of 1992 **** 1. Jai Govind Singh, son of Rameshwar Singh, village Nathopur, P.O. Nasej via Kudra, P.S. Kudra, district Bhabua 2. Rameshwar Singh, son of Rambali Singh, village Nathopur, P.O. Nasej via Kudra, P.S. Kudra, district Bhabua .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Kanhaiya Pd. Singh, Sr. Adv. with M/S Pranav Kr., Uday Pratap Singh & Dr. Indivar Kumari, Advs. For the Respondent .. Mr. Sujeet Kumar Singh, APP **** P R E S E N T THE HON’RABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. Appellant no 1, Jai Govind Singh, and rest of the appellants have been convicted under Section 325 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and also to pay a five of rupees one thousand each. Appellants no. 2 to 4 are dead, hence, the appeal against them is abated. 3. The prosecution case as alleged that while the informant was sleeping on a cot on 27.08.1987, his two sons, P.Ws. 1 and 2, awakened 2 him and asked to flee away as Jai Govind Singh, along with his family members, is coming to kill him on which the informant lit his torch and saw Jai Govind Singh armed with gun, Rameshwar Singh armed with lathi, Jainath Singh armed with bhala, Ram Awadh Singh armed with lathi, Pradeep Singh armed with hasua and Munna armed with lathi reached. In the meantime, Jai Govind Singh fired at his son which did not hit and, thereafter, Rameshwar Singh abated and Jai Govind Singh fired which caused injury in the right arm and he fell down and there is allegation that other accused persons assaulted him by lathi and bhala and he anyhow managed to flee away and accused persons fled away. 4. On the fardbeyan the first information report lodged and charge sheet submitted under Section 307 and allied sections of the Penal Code and the case was committed to the Court of sessions. After commitment charge was framed under Section 307 and other allied sections of the Penal Code and during the trial eight witnesses were examined. 5. On considering the oral and documentary evidence the order of conviction was recorded. 6. The learned counsel for the appellants, however, contends that though the charge was framed under Section 307 of the Penal Code as there was allegation of firing and assault by lathi and bhala. The learned counsel for the appellants, however, contended that the appellants were acquitted for offence under Section 307 of the Penal Code. However, the conviction for offence under Section 325 of the Penal Code recorded in view of injury no. (IV) found on the elbow by fire arm was stated to be an injury having fracture on ulna and, since, the injury found by fire arm on ulna, which is not a vital part of the body, hence, the appellants were 3 acquitted under Section 307 of the Penal Code to conviction under Section 325 of the Penal Code. However, it has been contended that the finding recorded under Section 325 of the Penal Code is not sustainable in view of the fact that the doctor who opined the injury as the fracture in ulna, but, the x-ray report has not been proved to establish the fracture of the ulna and the doctor in his evidence has stated that the x-ray on the basis of which he opined injury no. (IV) as a fracture on the basis of x-ray report, but, the said x-ray was not done in his presence and it was brought by one person, who disclosed those were the x-ray of the victim, Ramashray Singh. However, doctor has not disclosed even the name of the person who produced and nor the evidence of that person has been recorded in the trial Court. Hence, it has been contended that the evidence of the doctor on the basis of x-ray report which has not been proved to have been the x-ray report of the victim nor the person before whom the x-ray done or who brought the x-ray has been examined and, hence, the opinion of the doctor on the basis of the x- ray plate which has not been brought in evidence by cogent and reliable evidence and the x-ray report having not brought on record as the doctor stated that he do not know what happened to the third x-ray though he has called for three report and has further stated that none of the x-ray report bears the name of the injured. 7. The learned counsel for the State, however, submits that it is true that it is not desirable to speculate to prove the evidence neither all the injuries nor it has been mentioned to be whom these x-ray were done. 8. From perusal of the evidence, it is apparent that though the witnesses have deposed about the occurrence. Injury no. (IV) is proved as the fire arm injury on the elbow. However, the doctor opined on a x-ray 4 report or x-ray plate, but, x-ray report not on record and person who brought the x-ray has not been brought in evidence caste the serious doubt about the evidence of doctor that the injury was fracture, hence, the order of conviction recorded under Section 325 of the Penal Code is not sustainable and, hence, the conviction of appellant no. 1 can only be sustained under Section 324 of the Penal Code. However, with regard to the other appellants they have not been specifically stated that who assaulted by what weapons and the allegation regarding the assault by the other appellants are omni bus and general in nature and, hence, the conviction sustain under Section 323 of the Penal Code. 9. However, having regard to the facts and circumstances, since, appellant no. 1 has remained in jail during the investigation for a period from 01.09.1987 to 20.09.1988 and, further, from 21.11.1995 to 14.12.1995 after conviction. Since, the occurrence is of the year 1987 and about 25 years elapsed, hence, the ends of justice shall be met by sentencing appellant no. 1 for the period already undergone. 10. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 07th day of July, 2011, N.A.F.R., S.A.