Criminal Appeal (SJ) No.809 of 2006 Against the judgment of conviction dated 25.09.2006 and order of sentence dated 28.09.2006 passed by Additional District & Sessions Judge, Fast Track Court No.II, Sitamarhi in Sessions Trial No.502 of 2005/143 of 2005. Birendra Kumar Bharati @ Birendra Kumar Singh ---Appellant Versus State of Bihar.... .... Respondent ----- For the Appellant : Sri Kanhaiya Prasad Singh, Sr.Advocate & Sri Bindeshwar Sah, Advocate. For the Respondent : Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant was tried separately from other accused named in the FIR of Sitamarhi P.S.Case No.405 of 2003 as the trial of other accused persons named in the same FIR had been separated. The trial was held by the learned Additional Sessions Judge- cum-Presiding Officer, Fast Track Court No.II, Sitamarhi in Sessions Trial No.502 of 2005/143 of 2005 and by judgment dated 25.09.2006, the appellant was found guilty of committing the 2 offence under Section 307 IPC. Accordingly, after being heard on sentence the appellant was directed to suffer rigorous imprisonment for five years. 2. The prosecution case, in brief, is that while Ramchandra Singh who was the injured of the case and was examined as P.W.6 during the trial, was sitting at his shop and was lighting a lamp, the accused persons including the present appellant came there and this appellant wielded two dagger blows to him. The first blow, as per the allegation, fell just below the right collar bone of P.W.6, while the second blow landed, as per the allegations, on the right side of the ribcage of Ramchandra Singh. 3. There is no dispute in it that Ramchandra Singh was injured and he was, firstly, attended on by P.W.7 Dr. Z.Akram who was posted in Sadar Hospital, Sitamarhi as Civil Assistant Surgeon. Dr. Akram found the patient very serious and referred him to Patna Medical College Hospital for management of the wounds and also for proper treatment. It is not disputed that P.W.6 was treated in the P.M.C.H. and that he was attended on there by 3 one Dr. Rajeev Kumar. However, one may find from the evidence of P.W.7 Dr.Z.Akram that in absence of Rajeev Kumar coming into the witness box as also in absence of the report which was required to be produced under law as primary evidence containing the opinion of the said Dr. Rajeev Kumar the witness P.W.7 was testifying to his opinion that the injury, at least that which was just below the right collar bone was grievous in nature. The similar opinion also appears expressed in respect of injury no.2. As such, the whole question during the hearing of this appeal revolves on the solitary point as to acceptance of the opinion of Dr. Rajeev Kumar by the court below, which was conveyed to it by Dr. Z.Akram(P.W.7) without Dr. Rajeev Ranjan either being examined or his-opinion- document being produced before the trial court, was it justified to commit the appellant. 4. I must fairly record that the question was not the less disturbing as regards the rule of evidence, because after having gone through the evidence of as many as ten prosecution witnesses out of whom P.W.10 4 was a police officer and P.W.9 was a witness of formal character, there was no dispute that the evidence which was produced by the remaining witnesses, like, P.Ws.4, 5 and 6 was establishing the prosecution charge against the appellant that he had dealt two dagger blows to P.W.6. Witnesses, like, P.Ws.1 and 3 were not accepted by the trial court as lending credence to the prosecution charges for the reason that P.W.3 was declared hostile and P.W.1 during his cross-examination in paragraph-18 as also from the plain reading of the fardbeyan could not be said to be an eye witness. 5. Secondary, evidence is permissible orally also, but that evidence could be accepted to act upon it only when there is evidence that the basic document which was containing the relevant facts were either lost or were placed at such a place as could not making it possible to produce the same. This could be found from the combined reading of Sections 63 and 65 of the Evidence Act. While I was being taken through the evidence of P.W.7 Dr. Z.Akram he was very candid in admitting that the document which was sent by 5 Dr. Rajeev Kumar, who had treated P.W.6 in P.M.C.H., was very much available in Sadar Hospital, Sitamarhi. Thus, it could not be said that the document containing the opinion of Dr. Rajeev Kumar which was conveyed to P.W.6 was lost or could not be made available to the trial Judge for any particular reason available in law. The oral evidence of P.W.7, as such, which might be admissible under Section 63 of the Evidence Act could not be made a relevant fact in absence of the basic prosecution document upon which the opinion of P.W.7 was based as regards the opinion regarding the two injuries which were allegedly caused by this appellant to P.W.6. This is the difficulty and this is the flaw in the judgment of the learned trial Judge upon which this Court is hesitant in up-holding the finding that the appellant could be held guilty of committing an offence under Section 307 IPC. 6. The other reason which I see is that when a court is passing an order of conviction against an accused under Section 307 IPC then the court must record that the act which was committed by the accused was 6 done with such intention or knowledge which are enlisted in Section 300 IPC. He must know from before he had dealt the blow that the act which he was likely to commit was so imminently dangerous that it could put in peril the life of the victim or it could put in danger his life or the resultant injury shall be of such a nature as could be making it unsafe for the victim to survive. Evidence of P.W.7 is silent as regards the nature of the injury. Whatever has been stated by him, I have already noted is the opinion of Dr. Rajeev Ranjan who had neither been examined nor his opinion had been legally produced in the court. As such, the learned trial Judge ought not have recorded that it was a case established under Section 307 IPC. In my best judgment, it could be a case of voluntarily inflicting injuries by weapons as dangerous as a dagger and that could be brining the offence within the ambit of Section 324 IPC. Accordingly, I convert the conviction of the appellant from Section 307 to Section 324 IPC and after having done that I direct that the period which he has already undergone be treated as the sentence inflicted upon. 7 7. In the result, the appeal is dismissed with the above modification as regards the conviction of the appellant as also the sentence inflicted upon him. Before being released he has remained in custody for more than three years. Whatever period the appellant has remained in incarceration shall be deemed to be the sentence inflicted upon him by this Court after modifying the order of conviction in terms as above. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 13th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)