JUDGMENT 1. THIS criminal appeal is directed against the judgment and order dated 21st May, 1985 passed in Sessions Trial No. 7 of 1985 corresponding to Sessions Case No. 208 of 1984 by learned Additional Sessions Judge, Asansol convicting accused Baro Naru and Haradhan Pal under Sections 306/34 of Indian Penal Code and sentencing them there under to suffer R.I. for a period of five years and to pay a fine of Rs.1,000/- in default to suffer R.I. for a further period of six months. 2. AT the very outset it is to be recorded that charge-sheet in connection with this case was submitted against the four accused persons. The case was filed against two accused persons as they could not be arrested. Two accused persons faced trial and convicted. One accused, namely, Baro Naru died during pendency of appeal. Only the appellant Haradhan Pal @ Chhoto Naru is in custody and at his instance this appeal stands at present. Factual background in a nutshell is that on 27.4.1981 at about 8/8.15 a.m. Ajoy Kr. Pandey was proceeding towards the house of accused Bijoy, since absconding at Nayabasti. At that point of time he was attacked by accused persons, namely, Haradhan/appellant, Baro Naru, Bijoy and Gupteshwar (Bijoy and Gupteshswar since absconding.) They hurled bombs aiming at Ajoy and as a result Ajoy sustained bomb injury at his left leg as well as on the chest. His youngest brother Bharat Pandey rushed to the place of occurrence hearing explosion of bombs but the accused persons chased him away by hurling bomb aiming at him too. The victim Ajoy was subsequently taken to IISCO Hospital at Kulti where it was found that he had a shattered compound fracture in left leg and burn injury on the chest. The left leg of Ajoy was disarticulated from the knee joint. He was treated first at Kulti Hospital and thereafter at Burnpur Hospital at IISCO for a total period of fourteen months. Ajoy got an artificial limb subsequently. Accused persons, namely, Baro Naru and Haradhan Pal @ Chhoto Naru faced trial on the alternative charges under Sections 307/34 and 326/34 of IPC. After full trial, learned Additional Sessions Judge, Asansol convicted them under Sections 326/34 of IPC and passed the impugned sentence. 3. MR. Ajoy got an artificial limb subsequently. Accused persons, namely, Baro Naru and Haradhan Pal @ Chhoto Naru faced trial on the alternative charges under Sections 307/34 and 326/34 of IPC. After full trial, learned Additional Sessions Judge, Asansol convicted them under Sections 326/34 of IPC and passed the impugned sentence. 3. MR. Manjit Singh, learned Counsel appearing for the appellant has contended that the evidence has not been properly appreciated by the learned Additional Sessions Judge, Asansol. The first information report (Ext. 1) on which the learned Court below relied upon cannot be treated as first information report under Section 154 of the Code of Criminal Procedure, 1973 in view of the fact that before recording the oral statement of Bharat Pandey as first information report on 27.4.1981 at 10.20 a.m. at 9 a.m. on that day on receipt of a telephonic information general diary under Entry No. 796 dated 27.4.1981 was registered by O.C. of Kulti P.S. and in pursuance of such general diary Sub-Inspector of Police Shri S.P.Mukherjee had been to the spot with force. He seized articles i.e. bombs, blood stained grass and stone, iron rod, cycle chain etc. and thereafter prepared the sketch map of the place of occurrence. It is, therefore, his contention that the investigation of the case was started long before receipt of oral complaint as made by Bharat Pandey but the learned Court below has failed to appreciate the said matter and has arrived at an erroneous decision holding the Ext. 1 as first information report. There was no eye witness. Bharat Pandey, elder brother of victim Ajoy Pandey was a chance witness and even then the learned Court has relied upon the evidence of Bharat to arrive at a finding against the appellant. It is his further contention that Bharat Pandey did not accompany the victim to hospital though it has been claimed by the prosecution that he was present at the spot and witness the incident resulting in injury on the person of his brother Ajoy Pandey. If he was present at that material point of time, he should have been to the hospital along with the victim when the victim was removed to the hospital from the spot. MR. Singh, learned Counsel appearing on behalf of the appellant has contended further that it was a free fight. If he was present at that material point of time, he should have been to the hospital along with the victim when the victim was removed to the hospital from the spot. MR. Singh, learned Counsel appearing on behalf of the appellant has contended further that it was a free fight. I.O. has claimed that he examined the victim after five months but the victim has stated that he was not examined by I.O. One boy aged about 8/9 years was a vital witness but he was not examined by the prosecution. The impugned judgment and order of conviction is bad in law and against the fact and materials-on-record and as such the same may be set aside and quashed. 4. IT Is submitted by Mr. Singh that appellant is in custody for a period of three years two months and fifteen days as on 21.9.2010. The Court may consider the period of custody of the accused/appellant, in case the order of conviction is affirmed. Mr. Swapan Kumar Mullick, learned Counsel appearing on behalf of the State has contended that the impugned judgment is based on sound reasoning and the same may not be interfered with. He, at the same time, submitted that State has no objection if the Court considers the period of custody of the appellant/accused and pass necessary order. 5. I have gone through the impugned judgment, evidence on record both oral and documentary and have taken stock of the contentions of the learned Counsel appearing for the accused/appellant as well as learned Counsel appearing for the State. The learned Court below has discussed the offence punishable under Sections 307/34 of IPC before entering deep into the matter. At the beginning, it has been mentioned that there was alternative charge which is why the Court has examined as to attraction of offence punishable under Section 307 of IPC. 6. The learned Court below has discussed the offence punishable under Sections 307/34 of IPC before entering deep into the matter. At the beginning, it has been mentioned that there was alternative charge which is why the Court has examined as to attraction of offence punishable under Section 307 of IPC. 6. THE under noted ingredients are to be proved to substantiate an allegation punishable under Section 307 of IPC:- (a) That the death of human being was attempted, (b) That such death was attempted to be caused by or in consequence of the act of the accused, death or that it has done with the intention of causing, (c) That such act was done with the intention of causing death or that it has done with the intention of causing such bodily injury as (1) the accused knew to be likely to cause death or (2) was sufficient in the ordinary course of nature to cause death etc. To discuss the above point the Court has gone into the evidence of Ajoy (P.W.1), the victim of the incident. The evidence of Ajoy displays that bombs were hurled aiming at him by appellant/accused and his associates i.e. other accused persons. It was good in number. There is no evidence to the effect that supply of bombs were exhausted. There is evidence too that there were other means by which the death of the victim could have been caused by the assailant and others. His evidence discloses that the assailant had enough time and opportunity to complete their job, if the intention of the assailant was to cause his death. The evidence of doctor (P.W.7) S.K.Mukherjee who examined the victim Ajoy at Kulti Hospital has been discussed. The victim has stated in his evidence that a bomb burst on his left leg and that he was injured on his chest due to explosion of bombs by his side. Therefore, the Court has arrived at a finding that the assailant had ample opportunity to cause the death of the victim if they had the intention to kill him. The assailant did not cause any serious injury on the vital organ of his body which was in the ordinary course of nature caused his death. The only conclusion can, therefore be that the assailant did not attempt to cause the death of the victim Ajoy. The assailant did not cause any serious injury on the vital organ of his body which was in the ordinary course of nature caused his death. The only conclusion can, therefore be that the assailant did not attempt to cause the death of the victim Ajoy. Taking that background in judicious mind, the Court has arrived at a conclusion that ingredients to attract Section 307 of IPC were lacking. The Court, therefore, rightly took up the charge under Sections 326/34 of IPC for discussion. 7. THE evidence of victim Ajoy Pandey (P.W.11), Dr. S.K.Mukherjee (P.W.7), Bharat Pandey (P.W.3) and Bhagwan Das (P.W.8) [hostile witness] was discussed at length by the learned Additional Sessions Judge. Ajoy Kr. Pandey sustained grievous injury at his left leg. He has stated that he suffered such injuries as a result of explosion of bombs by his side. He has also stated that he was injured on his chest due to explosion of bombs by his side. He has also stated that Haradhan suddenly threw a bomb towards him he became afraid hearing the sound of explosion and wanted to flee away. Haradhan again threw a bomb which hit his left leg. He fell down on the ground, from the other side other accused persons threw bombs. His youngest brother Bharat came there, the assailant chased him away with bombs. Thereafter, the assailant came again and threw about six bombs which exploded by his side. He sustained injured on the chest. Thereafter, the assailant went away. 8. PROSECUTION witness S.K.Mukherjee (P.W.7) has stated in his evidence that he examined Ajoy Pandey at Kulti Hospital and found two injuries on his person, namely, (1) shattered compound fracture, left leg below the knee and (2) burnt over chest. The evidence of doctor has corroborated the evidence of victim. Regarding the injuries no question was put to doctor during his cross-examination as to the nature of two injuries found in the person of the victim. The victim has stated in his evidence that his left leg had to be amputated from the knee joint He has further stated that after his release from the hospital on 29.6.1982 he went to Pune and had an artificial limb fixed at his left knee. He has also stated that he is now working with the aid of his artificial limb. There was no cross-examination of this witness on this point. He has also stated that he is now working with the aid of his artificial limb. There was no cross-examination of this witness on this point. Therefore, the evidence of the victim and doctor regarding the injury and its resultant effect i.e. amputation of the left leg of the victim from the knee joint remained practically unchallenged. If that be so the evidence on record is very much substantive to prove grievous hurt which was caused to victim Ajoy Pandey. The victim has stated that he suffered injuries on account of explosion of bombs. It is not the defence case that he suffered the injuries otherwise. Dr. S. K. Mukherjee has stated in his evidence that the injuries noticed by him on the victim might very likely have been caused by throwing of bombs. Prosecution witness No. 8, Bhagwan Das (hostile witness) has spoken of throwing of bombs and he has stated further that latter he came to know that Ajoy had been injured. In course of cross-examination by the prosecution he has stated that victim was injured on Ms leg. Therefore, the evidence of hostile witness has clearly proved that the victim sustained bomb injury on his left leg which comes within the ambit of Section 326 of IPC. Bharat Pandey (P.W.3) is the brother of victim Ajoy Pandey who has stated about the incident in details in his evidence. The presence of Bharat at the place of occurrence which has been questioned from the side of the defence has been squarely dealt with in the body of the judgment by the learned Court below and his evidence has supported the evidence of the victim. Bharat has stated in his evidence that hearing the sound of explosion of one bomb, he rushed to the P.O. He has not stated further that while he was rushed towards the P.O., no further explosion of bomb took place. He was not questioned either in the Examination-in-Chief or in cross-examination as to whether or not any more bomb was exploded while he was rushing towards the P.O. Bharat actually arrived at the P.O. in the midst of incident and was chased away by the assailant. He has stated in his evidence that he arrived at the P.O. after hearing of an explosion of bomb. Reaching the P.O. he found his brother Ajoy was lying with bleeding injury on his leg. He has stated in his evidence that he arrived at the P.O. after hearing of an explosion of bomb. Reaching the P.O. he found his brother Ajoy was lying with bleeding injury on his leg. He has also stated that he went forward to lift his brother and that he was advised by him to go away as he would also be assaulted. He has also stated that on reaching the P.O. he found some persons standing at some distance being armed with arms, chakku, chain etc. He has also given the names of those persons as Vijoy, Haradhan, Gupteshwar and Naru. He has identified accused Haradhan and Baro, Naru in Court. In the FIR (Ext.1), P.W.3 had stated specifically the names of the persons who threw bomb there. He had stated the names of four assailants including the names of present accused/appellant stating that he threw bomb towards him. The evidence goes to indicate that four assailants were acting in a group and threw bombs. The evidence of P.W.3 and P.W. 11 clearly indicate that Haradhan and Baro Naru along with absconding accused persons Bijoy and Gupteshwar in a group attacked the victim Ajoy Pandey and during such attack bombs were hurled aiming at him causing shattered compound fracture on his left leg and burn injury on his chest. The assailant in a group chased Bharat Pandey when he came to the help of his brother Ajoy hearing the sound of explosion of bomb. The four assailants were, therefore, acting in a group in furtherance of their common intention, namely, to attack and injure Ajoy Pandey and to chase Bharat Pandey. The victim Ajoy was in the hospital as an indoor patient for about fourteen months. 9. THE contention of the learned Counsel of the appellant i.e. regarding FIR and evidence of Bharat Pandey who has been termed as chance witness from the side of the defence, has its answer in the body of the judgment. Those points were also taken before the Court of Additional Sessions Judge during trial of the accused/appellant, I do not find any illegality and impropriety in the impugned judgment so that it may be interfered with. THE order of conviction under Sections 326/34 passed by the learned Additional Sessions Judge do hereby affirmed. 10. Those points were also taken before the Court of Additional Sessions Judge during trial of the accused/appellant, I do not find any illegality and impropriety in the impugned judgment so that it may be interfered with. THE order of conviction under Sections 326/34 passed by the learned Additional Sessions Judge do hereby affirmed. 10. ON scrutiny of the record, it appears that accused Baro Naru and appellant Haradhan Pal @ Chhoto Naru faced trial before the Court of learned Additional Sessions Judge, Asansol. They were convicted and they sentenced to suffer R.I. for a period of five years and to pay a fine of Rs. 1,000/- in default to suffer R.I. for a further period of six months. During pendency of appeal Baro Naru died. Now the appellant remains and he is in custody. Record shows that appellant was arrested on 18/12/1984 on the basis of a warrant of arrest. Charge framed against him on 17/1/1985. He faced trial and convicted on 21/5/1985 under Sections 326/34of IPC. He preferred appeal and the appeal was admitted on 24/7/1985. He was granted bail on the same day so he was in custody from 18/12/1985 to 24/7/1985 i.e. for about seven months and seven days. ON 19/9/2006 when this appeal came up for hearing the bail of appellant was cancelled. Warrant of arrest was issued against him. He was arrested on 6/7/2007 and is in custody since then i.e. for about 3 years two months and fifteen days as on 21/9/2010. His total period of custody is 3 years 9 months and 22 days as on 21/9/2010. He, at present, is in custody for more than four years. Taking the fact and circumstances of the case discussed above, I do find reason to express that the purpose of justice will be served if the sentence of R.I, for 5 years and fine of Rs. 1,000.00 in default R.I. for 6 months is modified to R.I. for four years. The sentence is accordingly modified. The period of detention already undergone by the appellant be set off under Section 428 of Cr.P.C. 10. The appeal, thus, stand dismissed with the above modification regarding quantum of sentence. Send down the lower Court record forthwith. Urgent xerox certified copies of this order, if applied for, be given to the parties as expeditiously as possible.