JUDGMENT P.N. Goel, J. 1. RAM Surat, appellant, aged about 60 years has been convicted and sentenced under section'307 IPC to undergo RI for 7 years for having assaulted RAM Lakhan, PW 1 of his village Kewari Police Station Kaptanganj, district Basti with a spear (Bhala) on 17-9-1972 at about 8 A. M. 2. THE report of the occurrence was lodged verbally by Sarju, PW 2, at the police station at 2.45 P. M. Ram Lakhan Misra, S. I., PW 5, entered upon investigation. Dr. U. R. Gupta, examined Ram Lahkan, injured on the date of occurrence at 5.15 P. M. Following injuries were found on his person :- 3. ON 18-9-1972 Dr. S. C. Chaturvedi X' rayed injuries 1 and 2 of Ram Lakhan in the district hospital. He found fracture of the jaw bone and dislocation of the jaw. 4. THE appellant did not admit to have assaulted Ram Lakhan. He asserted that Ram Lakhan had got his possession recorded on his field, that Ram Lakhan wanted to take that field in consolidation, that he did not agree, that therefore. Ram Lakhan was hostile to him and [had falsely implicated him in this case. On fact the prosecution examined Ram Lakhan, Sarju and Jome, PWs 1, 2 and 4. No witness was examined in defence. Ram Lakhan stated that on the date and time of occurrence he was gping from his house to scrap grass, that when he reached in a grove to the west of his village abadi, Ram Surat came up with a Barchha and gave a blow at his jaw, on account of which he fell down, that he raised alarm, that the appellant gave another Barchha blow at his jaw, that he also caused injury with the buttend of the barchha at. his eye saying "Aur Meri Janani Se Bolo". 5. SARJU and Jome corroborated the testimony of Ram Lakhan in respect of assault on him by the appellant with a spear. 6. ON a consideration of the entire material on record, the First Additional Sessions Judge, Basti, convicted the appellant as said above. He did not place reliance on the testimony of Sarju. Learned counsel for the parties have been heard and record has been gone through with their assistance. 7. 6. ON a consideration of the entire material on record, the First Additional Sessions Judge, Basti, convicted the appellant as said above. He did not place reliance on the testimony of Sarju. Learned counsel for the parties have been heard and record has been gone through with their assistance. 7. THE appellant's counsel urged that there was no reason for Ram Surat, appellant to have assaulted Ram Lakhan as alleged and that he had been falsely implicated on account of enmity. 8. A perusal of the statement of Sarju and Jome, PWs 2 and 4 indicates that these two witnesses had not seen the assault in question. Sarju was working at his house. Wife of Jome told him that Ram Surat was assaulting Ram Lakhan with a ballam. Thereupon he went towards grove Khalihan in which Ram Lakhan was assaulted. Hence it is obvious that he could not have seen the actual assault. He further stated that Jomai and Somai had also reached there and that he along with Jomai and Somai ran after the appellant. Statement of Jomai shows that he alone ran after the appellant in these circumstances, it is apparent that Sarju had not seen the Assault and that he reached the place of occurrence after the assailant had bolted away. As stated above the learned trial judge did not place reliance on his testimony. With regard to Jome, his testimony is assailed on 3 grounds- (i) He stated in the court of the trial Judge that he was coming from the eastern side i.e. from the side of his field and therefore, reached in the grove of occurrence. In his statement under section 161 CrPC he stated that he was going from his village towards east. (ii) He did not go with the injured, Ram Lakhan to the police station. In cross-examination he stated that he ran after Ram Surat, appellant upto 20 bighas and then he went away to his house., He did not return to the injured in the grove. (iii) He could not even see on which part of the body Ram Lakhan was injured with the ballam. These facts clearly go to show that he had not seen the occurrence. 9. IN view of the above there remains the solitary evidence of Ram Lakhan, injured. His cross-examination does not indicate that the occurrence took place in the dark. (iii) He could not even see on which part of the body Ram Lakhan was injured with the ballam. These facts clearly go to show that he had not seen the occurrence. 9. IN view of the above there remains the solitary evidence of Ram Lakhan, injured. His cross-examination does not indicate that the occurrence took place in the dark. His statement that he was assaulted at about 8 A. M. has not been challenged in any way. It means that the occurrence took place in broad day light. He must have seen his assailant. His testimony that he received 2 spear blows and a blow with the buttend of the spear/barchhi is supported by the medical evidence in the case. The appellant has given a reason as to why Ram Lakhan had falsely implicated him. The reason is that Ram Lakhan got his name entered on his field, that Ram Lakhan wanted to take the said field in consolidation, that he did not agree and that therefore, Ram Lakhan was hostile to him. Ram Lakhan clearly stated that he did not get his possession recorded on the field of Ram Surat in consolidation. The appellant could easily file the revenue record to indicate that Ram Lakhan had got his name recorded on his field. But the appellant has not filed any such paper. In this way the defence taken by the appellant is not substantiated. In other words there was no enmity between the appellant and Ram Lakhan in respect of field. Hence there was no reason for Ram Lakhan to falsely implicate the appellant. 10. EVIDENCE in the case was recorded in March, 1976 i.e. 3-1/2 years after the occurrence. Ram Lakhan was interrogated by the Investigating Officer. His statement was also recorded by the committing Magistrate. There are certain discrepancies in the statement of Ram Lakhan recorded by the Investigating Officer and the Committing Magistrate and the statement given by him before the trial Judge. These discrepancies are quite minor and they do not go to show that Ram Lakhan had not seen the assailant and that he had falsely implicated the appellant. The position that follows is that the case of the prosecution against the appellant stand proved by the sworn testimony of Ram Lakhan. 11. These discrepancies are quite minor and they do not go to show that Ram Lakhan had not seen the assailant and that he had falsely implicated the appellant. The position that follows is that the case of the prosecution against the appellant stand proved by the sworn testimony of Ram Lakhan. 11. THE appellant's counsel contended that the appellant was not guilty of the offence punishable under section 307 IPC and that the sentence of 7 years RI was severe. The learned trial Judge has only said that the spear injuries were on a vital part of the body and therefore, the appellant was guilty of the offence punishable under section 307 IPC. This reason in the instant case is erroneous. Two Doctors were examined in the case. None of them stated that the injury was in any way dangerous to life. The injury was on the mandible of Ram Lakhan. Hence the provision of section 307 IPC are not made out. 12. DR. U. R. Gupta advised that injuries 1 and 2 which were bone deep be X'rayed. DR. S. C. Chaturvedi X'rayed these injuries on the next day of occurrence and found fracture on right mandible and its dislocation (vide report Ex. Ka. 2 and X'ray plate, Ex. 1). DR. S.C. Chaturvedi had stated that the fracture was not under injuries 1 and 2. He had further stated that the fracture of the mandible and dislocation could be a result of fall. In the instant case there is positive evidence of Ram Lakhan thai he was given a spear/barchhi blow on his jaw when he was standing, that then he fell down, that then another barchhi blow was given at his jaw. This statement clearly excludes the possibility of fracture and dislocation on account of fall. The statement of Ram Lakhan clearly indicates that the fracture and dislocation of mandible was a result of 2 spear/barchhi blows given at his right jaw. Hence the present case clearly falls within section 326 IPO. Taking into consideration the facts that the occurrence took place about 8 years ago, that 2 injuries were given at the mandible, that there is nothing to show that Ram Lakhan was disfigured or any deformity came in his jaw as well as the old age of the appellant, it will be just, if he is made to suffer one year's imprisonment. 13. 13. NO other point was urged am behalf of the parties. Appeal is partly dismissed and partly allowed in this way that the conviction and sentence of the appellant under section 307 IPC to undergo RI for 7 years recorded by the 1st Additional Sessions Judge are set aside and the appellant is convicted and sentenced under section 326 IPC to under go RI for one year. The appellant is on bail. He shall be taken into custody to serve out the sentence Awarded to him by this court. - Appeal partly allowed.