Criminal Appeal (SJ) No. 51 of 1998 ****** Against the judgment of conviction and order of sentence dated 20.12.1997 and 23.12.1997 respectively passed by Sri Ramesh Tiwary, learned 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 266 of 1988. ****** 1. Jag Dayal Singh. 2. Basisth Singh. All sons of Lauhar Singh. 3. Ramayan Singh, Son of Saudagar Singh. All residents of village – Chaugai, P.S. – Karakat, District – Rohtas. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : M/s. Ajay Kumar Thakur, Advocate. Dr. Anjani Prasad Singh, Advocate. For the Respondent : Mr. Sujit Kumar Singh, 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 learned counsel for the State. 2. The appellants have been convicted for the offence under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and appellant no. 3, namely, Ramayan Singh has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged by the informant Jubrail Mian is 2 that on 29.08.1987 when he reached at Kabristan then saw Ram Prasad Singh, Jag Dayal Singh, Sheo Dayal Singh, Basisth Singh were eroding the soil near by the Kabristan, when he protested then the accused came and claimed that the land belonged to them on which there was verbal altercation and abuses and it is alleged that Jag Dayal Singh abated on which Ramayan Singh fired from pistol by which the informant got injury. 4. On the fardbyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and after framing of the charge seven persons was examined as witness and the trial court convicted the appellants taking into consideration the medical evidence by a board of doctors proved by P.W. 5 on the injury report having three injuries (i) an scar 1/8” x 1/8” on left chest wall 2” medially to left nipple (ii) two scars each of 1/8” x 1/8” one inch a part on the lateral and upper hart of left pectoral region and (iii) two scars each of 1/8” x 1/8” on the upper half of left forearm one inch apart from each other in ventral surface and from X-ray one small ratio opaque substance resembling pellet was also seen on the left forearm and the doctor opined that no definite opinion regarding age of injury can be given at this stage and further opined that the injury described above may be due to firearm but simple in nature and considering the 3 evidence of the doctor and the injury report proved by them as Ext. 2 the appellants have been convicted and sentenced them as above mentioned. 5. Learned counsel for the appellants, however, contended that the injury found by the board of doctors is not as such to infer that there was intention to kill as the injury though on vital part of the body is simple and superficial and further the doctor has not suggested the time of occurrence and hence the medical evidence does not corroborate the time of occurrence and has not given the definite opinion that the arms used is a firearm. 6. Learned counsel for the appellants, however, contended that the witnesses supported the prosecution case and the injury has been found by the doctor. 7. However, taking into consideration the respective submissions of the parties, evidence of prosecution witness though there is allegation of assault by pistol and witness supported the prosecution case, however, the injury report though suggested on the vital part of the body but the nature of injury opined by the doctor is simple which are as follows:- (i) An scar 1/8” x 1/8” on left chest wall 2” medially to left nipple, (ii) Two scars of each of 1/8” x 1/8” one inch apart on the lateral and upper part of left pectoral region, (iii) Two scars each of 1/8” x 1/8” on the upper half of left forearm one inch apart from each other i.e. 4 ventral surface. X-ray shows one small radio opaque substance resulting pellet on left forearm. 8. However, taking into consideration of the injury either singly or even cumulative effect of all the injury even taken together does not suggest that the injury was inflicted with intention to kill. The doctor has also not given the time of injury and opined that it may be due to firearm. However, the X-ray report has also not been proved and the doctor in cross-examination as stated that no X-ray plat is available at the time. 9. Hence taking into consideration the entire facts and circumstances and particularly injuries found are simple and none of injuries neither singly of even cumulative effect of the injuries taken together is not such to infer that the injury was inflicted with intention to kill and hence the offence under Section 307 of the Indian Penal Code is not made out. Hence, the order of conviction and sentence under Section 307/149 of the Indian Penal Code is not maintainable. However, having regard to the fact that the witness supported the prosecution case and injury found are simple and superficial and hence offence under Section 324 is maintained and then order of conviction under Section 307 of the Indian Penal Code is set aside and conviction maintained under Section 324 of the Indian Penal Code. 10. However, the offence is of the year 1987 and the appellants have 5 suffered rigors of the prosecution since than and has remained in jail after conviction till granted bail and hence the interest of justice shall be served by sentencing the appellants for the period already undergone and hence the appeal is allowed in part with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 9th August, 2011. N.A.F.R./Kundan.