Judgment 1. JUDGMENT :- This is the criminal appeal against the judgment and order dated 16th January, 1987 in Sessions Case No. 20 of 1983/40 of 1985 passed by Sri Ram Nandan Prasad. Sessions Judge, Deoghar, where the learned Sessions Judge, held the accused-appellant Jagdish Mahra guilty for the commission of the offence punishable under S. 307, I.P.C. and awarded the sentence of five years rigorous imprisonment, and held Ashok Mahra and Pradeep Mahra guilty for the offence punishable under S. 307 read with S. 34. I.P.C. and awarded the sentence of one year rigorous imprisonment. 2 Learned Trial Judge acquitted the accused-appellants of the charge under S. 379, I.P.C. 3. Briefly the prosecution case is that on 14th June, 1982 at about 8 a.m. Jagdish Das was returning to his house after seeing his agricultural filed, and while Jagdish Das reached near the house of these accused-appellants, all these accused-appellants suddenly came out of their house and surrounded Jagdish Das, and the accused-appellants Pradeep and Ashok caught hold of Jagdish Das and the accused-appellant Jagdish Mahra inflicted several assaults with his Farsa on Jagdish Das, and Jagdish Das fell down in serious injured condition; and that the accused-appellants took away the bicycle of Jagdish Das after having inflicted the assaults on him. 4. Further the prosecution case is while Jagdish Das was surrounded and caught by the accused-appellants. Jagdish Das started crying for help, and Devendra Das (son of Jagdish Das P.W. 6). Paltu Mahra P.W. 1. Chhotu P.W. 4 Nanhku P.W. 2 and Fokhan P.W. 5 arrived there, and they also saw the occurrence. Devendra Das P.W. 3, informant in the case, with the help of his co-villagers took his injured father Jagdish Das to the Police Station, and Devendra Das lodged a report Exh. 4 at 9.30 a.m. The injured Jagdish Das was sent to hospital. The injured was brought to the nearby Madhopura State Dispensary and from the dispensary the injured was sent to the District Hospital, Deoghar, where his injuries were examined and the medical treatment was given. 5. According to the prosecution the motive is alleged that the informant Devendra Das and his father were carrying business in partnership with the brother of the accused Jagdish Mahra and that had caused much annoyance to these accused-appellants and on this account they assaulted the father of the informant. 6. 5. According to the prosecution the motive is alleged that the informant Devendra Das and his father were carrying business in partnership with the brother of the accused Jagdish Mahra and that had caused much annoyance to these accused-appellants and on this account they assaulted the father of the informant. 6. The investigating Officer searched the house of the accused persons and recovered the bicycle, Farsa and a small Tangi. 7. Dr. Kameshwar Prasad P.W. 7 examined the injured at 3.45 p.m. on 14th June, 1982 at Deoghar Hospital and admitted fort medical treatment. The injuries were noted on the bed-head ticket as well. The Doctor P.W. 7 found the following injuries on the person of jagdish Das : (i) Incised wound on the right temporoparietal scalp 31/2" x 1/2" cutting the bone exposing the meninges. (ii) Incised wound on the left fore-head 1"x 1/2" bone deep. (iii) Incised wound on the left fore-arm 21/2" x 1/2" x 1/2". (iv) Incised wound on the nose 1/2" x 1/8" x 1/8" th. (v) Lacerated wound on the back of fore-arm 1" x 1/2" x compound fracture. X-ray showed fracture of both right radius and ulna. (vi) Swelling with echymosis over right lower eye-lid. The injury memo is Exh. 1. 8. The injuries 1 to 4 were caused by sharp cutting weapon and injuries 5 and 6 were by some hard blunt substance. The injuries Nos. 1 and 5 was grievous in nature. 9. The accused-appellants brought on record the injury report prepared by the doctor of Madhopura Dispensary Exh. A. In this report prepared by the doctor of Madhopura Hospital the small incised wound on the nose and the swelling on the eyes escaped attention. The material injuries were taken note of by the doctor of Madhopura Hospital. Further the Investigation Officer too had noticed and noted three incised wounds on left fore-head right temporo parietal scalp and left fore-arm and the wound on the back of the fore-arm had the fracture. 10. Thus, it is obvious that Jagdish Das received two grievous injuries namely, incised wound on the right temporo parietal scalp cutting the bone and the compound fracture on the back of the fore-arm with the breaking of both radius and ulna. 11. 10. Thus, it is obvious that Jagdish Das received two grievous injuries namely, incised wound on the right temporo parietal scalp cutting the bone and the compound fracture on the back of the fore-arm with the breaking of both radius and ulna. 11. The depositions of the injured Jagdish Das P.W. 6, Paltu Mahra P.W. 1 and Devendra P.W. 3 established beyond doubt that these accused-appellants surrounded Jagdish Das and the accused-appellants Ashok and Pradeep caught hold Jagdish Das and the accused-appellant Jagdish Mahra assaulted Jagdish Das several times with his Farsa. The prosecution witness Chhotu Das P.W. 4 stated that he saw the accused-appellants there at the place of occurrence, where Jagdish Das was lying injured. 12. Learned Advocate for the appellants urged that the prosecution has failed to establish the place of occurrence and the manner of occurrence; that the medical report of Madhopura Hospital had been withheld by the prosecution; that the first information report of the case had not been legally proved; that the prosecution case is not established beyond doubt and that the prosecution evidence does not go to establish the charge under S. 307, I.P.C. 13. The deposition of the prosecution witnesses Paltu Mahra P.W. 1. Devendra P.W. 3, Chhotu Das P.W. 4 and injured Jagdish Das P.W. 6 established fully that the accused-appellants caught hold and assaulted Jagdish Das on the pathway in front of the door of the house of the accused. Devendra P.W. 3 and the investigation Officer Ram Sagar Sharma P.W. 10 stated in the Court on oath that soon after this occurrence it rained in that village and the blood was washed, thus the blood was not found at the place of occurrence. 14. Learned Advocate for the appellants has drawn attention to the statement of the injured Jagdish Das recorded by the Judicial Magistrate in the Hospital at 7.35 p.m. on 14th June, 1982 and has drawn attention to the recital that sons of Jagdish Mahra caught hold and took him inside the house where Jagdish Mahra assaulted (him). Jagdish Das P.W. 6 stated that he was not in enough senses when his statement was recorded by the Magistrate and that his statement before the Magistrate that he was assaulted inside the house is an incorrect statement. The Hospital Doctor noted on the injury memo Exh. Jagdish Das P.W. 6 stated that he was not in enough senses when his statement was recorded by the Magistrate and that his statement before the Magistrate that he was assaulted inside the house is an incorrect statement. The Hospital Doctor noted on the injury memo Exh. 1 that the injured Jagdish Das was in drowsy state when the Magistrate recorded this statement of Jagdish Das at 7.35 p.m., the Magistrate did not obtain any certificate from the Doctor if Jagdish Das was in good health enough to give the statement. The short statement recorded by the Magistrate had the note twice that he had nothing to say further. This also indicated that the health of Jagdish Das was not good enough to make his statement. The deposition of prosecution witnesses established fully that the occurrence took place in the open outside the house of the accused-appellants. Earlier the first information report has the recital that the accused-appellants came out of their house and they caught hold and assaulted the father Jagdish Das. This first information report has no mention that Jagdish Das was taken inside the house by the accused-appellants and assaulted inside the house. 15. The prosecution evidence on record established the place of occurrence and the manner of occurrence fully. 16. The earlier medical report of the doctor of Madhopura State Dispensary has already been brought on record, and there is no variation relating substantial (to) injuries so as to doubt the prosecution case. 17. The first information report has been proved formally by Harihar Prasad P.W. 9 and also by the Investigation Officer P.W. 10. Of course Devendra Das informant himself has not stated specifically that he signed the report. There is no suggestion from the side of the accused-appellants that some stranger other than Devendra Das son of the injured Jagdish Das lodged the report. Accordingly this first information report was the document enough to start the investigation in the case. 18. The examination of the prosecution evidence including the statement of the injured Jagdish Das P.W. 6 show that there was no intention on the part of the accused-appellants for attempting to commit murder of Jagdish Das. 19. Accordingly this first information report was the document enough to start the investigation in the case. 18. The examination of the prosecution evidence including the statement of the injured Jagdish Das P.W. 6 show that there was no intention on the part of the accused-appellants for attempting to commit murder of Jagdish Das. 19. Thus the accused-appellant Jagdish Mahra is held guilty for the commission of the offence punishable under S. 325, I.P.C. The other accused-appellants Pradeep Mahra and Ashok Mahra are held guilty for the commission of the offence punishable under S. 325 read with S. 34, I.P.C. The conviction of the accused-appellants under S. 307 and S. 307 read with S. 34. I.P.C. stand set aside. 20. Advocate for the appellants pointed out that the accused-appellants are on bail for the last ten years, and they had been in jail custody for at least five and half months during the trial stage, and that the ends of justice will be met by imposition of fine. 21. These accused-appellants are awarded the sentence for the period already undergone in jail and further the accused-appellant Jagdish Mahra is awarded the sentence of fine of rupees two thousand and the other accused-appellants Ashok Mahra and Pradeep Mahra are awarded the sentence of rupees one thousand fine each. 22. The accused-appellants shall be depositing this fine amount in the trial court within three months from the date of this judgment, and failing which the accused-appellant Jagdish Mahra shall undergo the sentence of two years rigorous imprisonment in default of fine and the accused-appellants Ashok Mahra and Pradeep Mahra shall undergo the sentence of rigorous imprisonment of one year in default of payment of fine. In default of payment of fine the trial court shall be lodging the accused-appellants in jail custody to undergo the sentence. 23. Accordingly the appeal is allowed in part. The accused-appellants are convicted under S. 325. I.P.C. and stand acquitted of the charge under S. 307, I.P.C. The term of the sentence stands modified accordingly. Appeal partly allowed.