Judgment Madhavendra Saran, J. 1. Appellant Manoj Kumar Chaudhary, being aggrieved by his conviction under Sec. 307 of the Indian Penal Code and sentence for rigorous imprisonment for ten years passed by Shri Surender Prasad Sharma, 5th Additional Sessions Judge, Bhojpur, Ara in Sessions Trial No. 130/2001 has preferred this appeal. 2. Shortly stated the prosecution case as disclosed in the Fardbeyan of informant Munna Chaudhary, resident of village Bishun Tola, P.S. Jagdishpur, District Bhojpur recorded by the Officer Incharge of Jagdishpur Police Station on 21.8.2000 at 10.30 p.m. at the said Police Station is that the informant and his father Babban Chaudhary had gone to irrigate the field. On the same day at about 9.45 pm they reached near the pyne of appellant Manoj Chaudhary. The informant flashed torch and finding the appellant there enquired as to what for he had come there. It is alleged that appellant Manoj Kumar Chaudhary came nearer to them and asked as to why they were not withdrawing the case whereupon the informants father replied that he would not withdraw the case and then Manoj Chaudhary assaulted by Katta on his head due to which the informants father fell down on the ground. Thereafter again Manoj assaulted on his neck due to which about half portion of his neck was cut and he started to flutter. The informant raised alarm loudly on which the neighbouring people engaged in irrigation named Sanjay Chaudhary, Ghanshyam Chaudhary and Jagdish Chaudhary arrived and snatched the Katta from the appellant, in course whereof he sustained injuries. Thereafter a lot of people of the village assembled and took appellant Manoj with Katta and informants father to local Police Station where fardbeyan of the informant was recorded. The informants father was sent to Jagdishpur Hospital for treatment. The alleged occurrence according to the informant took place due to previous enmity. On the basis of the fardbeyan of the informant the Police registered Jagdishpur P.S. Case No. 202/2000 dated 21.8.2000 and after completing investigation submitted charge sheet against the appellant Manoj Kumar Chaudhary and also against another accused Mahendra Chaudhary. Both the accused faced the trial and the learned Additional Sessions Judge by the impugned judgment acquitted Mahendra Chaudhary but the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years under Section 307 of the Indian Penal Code. 3. Both the accused faced the trial and the learned Additional Sessions Judge by the impugned judgment acquitted Mahendra Chaudhary but the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years under Section 307 of the Indian Penal Code. 3. It appears that two witnesses were examined on behalf of the defence. The defence of the appellant was total denial of the alleged occurrence and false implication. It further appears from the record that it was also the defence of the appellant that he was assaulted by the prosecution party and Baban Chaudhary sustained injury from Katta used by his side and the prosecution party falsely implicated the appellant in the case. 4. The prosecution in support of its case has altogether examined seven witnesses who are P.W.1 Ramasis Chaudhary, P.W.2 Ghanshyam Chaudhary, P.W.3 Baban Chaudhary, P.W.4 Munna Kumar Chaudhary, RW.5 Dr. Sakaldeo Ram, P.W.6 Sitaram and RW.7 Murat Ram. Out of them P.W.3 is father of the informant (P.W.4) and P.W.6 Sitaram is the Investigating Officer. 5. Dr. Sakaldeo Ram (P.W.5) on 21.8.2000 was posted as Medical Officer, Government Hospital, Jagdishpur. On the same day at 11.15 pm he examined Baban Chaudhary (RW.3) and found the following injuries on his person:- (i) Sharp cut injury on anterior aspect of neck 6" x 1/4" x Muscle deep; (ii) Sharp cut injury on Occipito-perietal of skull measuring 1" x 1/4" x Muscle deep; According to doctor, both the injuries were caused by sharp cutting weapon. Age of injurties within six hours. Opinion regarding the nature of the injuries was reserved till the report and X-Ray from P.M.C.H., Patna. 6. The injury report is Exhibit-2. On receipt of report of P.M.C.H. and X-Ray plate no. 475, opinion of Radiologist and City Scan no. 1425/2000 dated 22.8.2000, the doctor declared both the above injuries as grievous in nature and issued supplementary injury report (Exhibit-2/1). 7. Now what has to be seen is that whether the appellant is responsible for causing above injuries and the reason of causing such injuries to Baban Chaudhary. RW.4 is the informant of this case. 1425/2000 dated 22.8.2000, the doctor declared both the above injuries as grievous in nature and issued supplementary injury report (Exhibit-2/1). 7. Now what has to be seen is that whether the appellant is responsible for causing above injuries and the reason of causing such injuries to Baban Chaudhary. RW.4 is the informant of this case. He has said that when flow of water in channel suddenly stopped then he and his father (P.W.3) proceeded towards east on the pyne to know the reason thereof and after travelling 200-250 yards in the flash of torch he saw appellant Manoj Chaudhary standing armed with Katta along with Mahendra Chaudhary. Manoj Chaudhary asked informants father to compromise the case. Accused Mahendra Chaudhary ordered to assault him. The informant raised alarm loudly and then appellant Manoj Chaudhary gave Katta blow on the head of informants father due to which he fell down and thereafter he again gave another Katta blow on his neck as a result of which his half neck was cut. In the meantime, RWs. 1 and 2 and Jagdish Chaudhary arrived there and overpowered accused Manoj Chaudhary with Katta but Mahendra Chaudhary managed to escape. Thereafter they brought injured and appellant Manoj to the local Police Station where the statement of the informant was recorded. The signature of this witness on fardbeyan is Exhibit-1. According to this witness his father was sent for treatment to Jagdishpur Sadar Hospital but as his condition was serious he was sent to P.M.C.H. for better treatment. 8. P.W.3 is the injured of this case. He also gave similar statement that when flow of water in the channel suddenly stopped when he and his son Munna Chaudhary (P.W.4) proceeded towards east on the pyne to know the reason and when they reached at a distance of 300 yards in the flash of torch he found that the pyne had been blocked. He saw appellant Manoj and other accused Mahendra standing there. Manoj came nearer and asked to compromise the case relating to theft of pumping set nozal but he refused the same and then accused Mahendra ordered to assault him on which appellant Manoj gave Katta blow on head due to which he fell down. Manoj gave another Katta blow on his neck. Manoj came nearer and asked to compromise the case relating to theft of pumping set nozal but he refused the same and then accused Mahendra ordered to assault him on which appellant Manoj gave Katta blow on head due to which he fell down. Manoj gave another Katta blow on his neck. It appears that when the deposition of this witness was being recorded he showed the mark of injury on neck to the presiding Judge of the trial court. This witness further stated that thereafter he became senseless. 9. P.W.1 on the alleged date of occurrence between 9.30-9.45 pm was irrigating his own land. According to this witness at that time RWs 3 and 4 were also irrigating their land. On hearing alarm of P.W.4 he went there and found Manoj giving Katta blow on the head of P.W.3 and when he fell down then again the appellant gave another Katta blow on his neck. Thereafter this witness and others overpowered appellant Manoj Chaudhary with Katta but Mahendra Chaudhary fled away. P.W.3 was taken to Police Station with appellant Manoj Chaudhary and Katta. P.W.3 was sent to Jagdishpur Hospital and from there he was referred to P.M.C.H., Patna for treatment. 10. P.W.2 came to the place of occurrence on hearing the outcry of the informant. He found P.W.3 lying on the ground with injuries on his head and neck. 11. P.W.6 is the Investigating Officer of this case. He has said that on 21.8.2000 at about 10.30 pm he recorded the fardbeyan of P.W.4, Munna Kumar Chaudhary. He has proved the fardbeyan (Exhibit-3), formal F.I.R. (Exhibit-4). He found sign of irrigation of paddy on both sides of the pyne. P.W.7 has simply proved the formal F.I.R. of Jagdishpur PS. case no. 265/2000 which has been marked as Exhibit-5. 12. It was argued that there is no consistency in the F.I.R. and the evidence adduced in the case by the prosecution. I have examined the evidence of P.Ws 1 to 4 minutely and there is nothing very material inconsistency in their evidence. From the evidence of P.W.4 in paragraph-8 it is clear that when the informant and his father proceeded ahead on pyne to know the reason of stoppage of flow of water then P.Ws 1 and 2 and others who were irrigating in the neighbouring field came behind them on the pyne. From the evidence of P.W.4 in paragraph-8 it is clear that when the informant and his father proceeded ahead on pyne to know the reason of stoppage of flow of water then P.Ws 1 and 2 and others who were irrigating in the neighbouring field came behind them on the pyne. According to P.W.4 they were eight to ten feet behind them. As rightly accepted by the trial court this piece of evidence explained the position that P.Ws 1 and 2 could have seen the occurrence in the manner they stated in the court. There is also nothing to show that P.Ws 1 to 4 are interested witnesses. 13. It was further argued that the doctor (P.W.5) soon after examination of Baban Chaudhary (P.W.3) examined Manoj Kumar Chaudhary and found the following injuries on his person:- (i) Incized wound 3" x 4" x skin deep on left elbow joint; (ii) Incized wound on the left wrist joint 1" x 1" x muscle deep. Age of injuries within six hours. 14. Learned counsel submitted that non- explanation of injuries found on the person of the appellant is fatal to the prosecution case. From the record I find that the opinion of the doctor regarding nature of injuries was not produced before the court below by the defence. The defence has brought on record the complaint petition of Complaint Case No. 1244(C)/2000 (Exhibit-B) to show that an occurrence had taken place on 21.8.2000 at 9.15 am and therefore, the prosecution party was the aggressor and made assault on the appellant and his family members. It appears that this complaint petition was filed in the court of Chief Judicial Magistrate, Ara on 24.11.2000 i.e. about three months after the occurrence of the present case. The fardbeyan, Exhibit-5, of Jagdishpur PS. Case No. 265/2000 dated 16.11.2000 shows that an occurrence had taken place on 21.8.2000 at 9.45 pm at the pyne but it is not mentioned therein as to who assaulted Manoj Chaudhary. The police after investigation submitted final report, Exhibit-6 with the label FR. true but no clue. From the statement of complainants father on solemn affirmation (complaint Case No. 1244 (Q/2000) it appears that occurrence took place during night hours. Thus the position is that Manoj and his father both are giving different version of their occurrence. The police after investigation submitted final report, Exhibit-6 with the label FR. true but no clue. From the statement of complainants father on solemn affirmation (complaint Case No. 1244 (Q/2000) it appears that occurrence took place during night hours. Thus the position is that Manoj and his father both are giving different version of their occurrence. According to the father the occurrence took place at the door of the complainants house whereas according to the appellant the occurrence took place at pyne. In the above situation, no onus lies on the prosecution to explain the injuries found on the person of the appellant. 15. Learned counsel further argued that according to the fardbeyan the appellant was produced at the Police Station with Katta but the weapon of assault was not brought on record during trial by the prosecution. It appears from the fardbeyan (Exhibit-3) that the Katta was produced at the Police Station. In evidence P.W.4 has said that P.Ws.1 and 2 and Jagdish Chaudhary arrived and overpowered the appellant with Katta. P.W.2 has admitted that the appellant was handed over to Police with Katta. It appears that during evidence no question was put to the Investigating Officer as to what happened to the Katta which was produced by the informant and witness before him. It is true that the Katta was not produced by the prosecution during trial of the appellant. It is well settled that from the mere non-production of weapon of assault alone, the case against the appellant concerned cannot be held to be not substantiated where there is otherwise positive, convincing and credible ocular evidence to prove the presence of the said accused and his participation in the crime. Now the question is as to whether or not a conviction can be based as has been done by the learned trial court on the basis of evidence adduced in the case. I have examined the evidence of RWs 1 to 4 and I find the same to be quite credible and convincing one. The story disclosed by them strikes to be genuine and it will be unreasonable to reject their evidence merely on the ground of some minor omissions and contradictions. 16. It depends upon the facts and circumstances of the case whether the accused had the intention to cause death or know in the circumstances that his act was going to cause death. 16. It depends upon the facts and circumstances of the case whether the accused had the intention to cause death or know in the circumstances that his act was going to cause death. The nature of the weapon used, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of blow or blows are the important factors that may be taken into consideration for coming to a conclusion whether the accused can be convicted of an offence under Sec. 307 of the Indian Penal Code. The circumstances appearing in the present case show that there was strained relationship between the informants family and the appellant. The appellant caused two grievous injuries on the neck portion of the informants father by Katta which is sharp cutting weapon. 17. In the facts and circumstances of the case, this Court finds that the appellant has been rightly convicted under Sec. 307 of the Indian Penal Code. 18. Now coming to the question of sentence I find that the appellant is facing this prosecution since the year 2000. He is in custody since 8.2.2001. He has thus remained in Jail for more than five years. I am therefore, of the opinion that ends of justice will be met if the sentence awarded to the appellant is reduced to seven years rigorous imprisonment. 19. With the above modification in the sentence, the appeal is dismissed.