IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 261 of 1997 Against the judgment and order dated 29.08.1997 and 30.08.1997 passed by Sri Mahesh Prasad Tiwary, Ist Additional Sessions Judge, Samastipur in Session Trial No. 7/2 of 1993. 1. Goni Bhandari. 2. Nunu Bhandari @ Runa Bhandari. Both sons of Akshawat Bhandari, resident of village – Shaidpur, P.S. – Chakmeheshi, District – Samastipur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. --------------- For the Appellants : Mr. Abhay Kumar Shambhu, Advocate. For the Respondent : Mr. Parmeshwar Mehta, 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 appellants and the learned counsel for the State. 2. Both the appellants have been convicted under Section 307 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years. However, appellant no. 1 has further been convicted under Section 326 of the Indian Penal Code but no separate sentence for offence under Section 326 of the Indian Penal Code has been awarded. 2 3. The prosecution case as alleged in the fardbeyan of the informant, Umesh Bhandari is that on 29.04.1992 at about 12 noon Goni Bhandari and Nunu Bhandari @ Runa Bhandari broke their tiles of their own roof at 12:00 noon. In the evening accused Nunu Bhandari told his elder brother Goni Bhandari that Umesh Bhandari and Dukha Bhandari had broken the tiles on which Umesh Bhandari said that they themselves have broken the tiles of their house. This led to hurling abuses and Goni Bhandari asked his brother to bring Bhujali, Nunu Bhandari assaulted the informant on the skull and neck. Goni Bhandari assaulted by Bhujali on the person of Dukha Bhandari, the father of the informant. 4. On the fardbeyan of the informant, FIR was lodged and after investigation, charge-sheet submitted and cognizance taken and the case was committed to the Court of Session. During the trial twelve witnesses were examined on behalf of the prosecution and after considering the oral and documentary evidence the order of conviction recorded as stated above. 5. The learned counsel for the appellants contended that there is evidence that police recorded the statement of informant at place of occurrence hence the FIR lost its importance and hit by Section 161 of the Evidence Act as is recorded at hospital and place of occurrence has not been established. However, P.Ws. 4, 5, 6 and 7 are the eye- 3 witnesses and P.Ws. 2 and 3 are injured and the evidence is that Nunu Bhandari assaulted Umesh Bhandari and Goni Bhandari assaulted Dukha Bhandari. The doctor has found corresponding injury and the Investigating Officer also found blood. 6. P.W. 10 the doctor found following injury on Dukha Bhandari (i) one incised wound 10” x 1” periosteum cut deep over right side of skull extending up to right eye brow (ii) one incised wound about 1” x 1/4” x 1/4” over right upper lip. 7. According to the doctor injury no. 1 was grievous in nature but injury no. 2 was simple in nature. 8. Injuries found on Umesh Bhandari are 2”x ½” x 1” x 2” over left parietal area, 2-1/2” x 1/2" x 1/2" over right parietal area, 3” x ½” x ½” over left side of neck all injuries are simple in nature. However, the injuries on Dukha Bhandari are grievous on skull but the injuries on Umesh Bhandari though on vital part are all simple. None of injuries shown to have been dangerous to life hence taking into consideration the evidence injuries on Umesh established. Moreover, the occurrence took place after breaking their tiles and it is alleged that tiles were broken for false implication by lodging a case and occurrence as such in circumstance suggest that act done not with intention to kill. 9. However, the I.O. in his evidence has stated about the place of occurrence and has found the blood at the place of occurrence which is 4 a field and has given the specific boundary of the place of occurrence and the witnesses have also stated that the blood was oozing out as per the evidence of P.W. 5 as well as the other witnesses and the police also collected the blood stained earth and Garasa and has given the boundary in the east of the said land of Rajendra Sahni, in the west land of Ishwar Mahto, in the north land of Mahendra Bhandari and south in the field of Anirudh Sahni. 10. However, the witness has supported the prosecution case about the assault and the allegation has been corroborated by the evidence of the doctor and the injury found on Dukha Bhandari alleged to have been assaulted by Goni Bhandari which is one incised wound on the skull which is grievous in nature and other injury was also incised wound over right upper lip. However, two injuries were found to be on the vital part of the body on the skull by dangerous weapon and hence the order of conviction recorded against Goni Bhandari is sustainable. 11. Hence the order of conviction of Goni Bhandari for the offence under Section 307 of the Indian Penal Code is not sustainable and is hereby set aside. However, the prosecution has been able to prove that Nunu Bhandari @ Runa Bhandari having been inflicted injury by Garasa and Bhala and hence is convicted under Section 324 of the Indian Penal Code. 12. Learned counsel for the appellants, however, contended that the 5 occurrence is of the year 1992 and about 20 years have elapsed since the date of occurrence and since then the appellants are facing the trial and appeal. However, learned counsel for the appellants contended that appellant no. 1 has remained in jail for about five years and appellant no. 2 has remained in jail for more than five months during the investigation as well as after conviction and hence having regard to the facts and circumstances, the ends of justice shall meet by sentencing the appellants for the period they have already undergone before and after conviction and with this modification in the sentence, the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 14th July, 2011. N.A.F.R./Kundan.