JUDGMENT 1. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 10.10.2001 passed by learned Addl. Sessions Judge II, Madhubani in Sessions trial no. 78 of 1995/299 of 2000 by which and whereunder he convicted the appellant no.1 for the offence punishable under section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and fine of Rs 500/- was also imposed upon him for the above stated section and in default of payment of fine he was further sentenced to undergo rigorous imprisonment for one month. The learned Additional Judge also convicted the appellant nos. 2 and 3 for the offence punishable under section 323 of the IPC and sentenced them to undergo rigorous imprisonment for six months under the aforesaid section. 2. All the above stated appellants and co-accused Savitri Devi and Shiv Shankar Das were acquitted of the charge framed under sections 307/149 of the IPC and furthermore, co-accused Savitri Devi was acquitted of the charge framed under section 435 of the IPC whereas Shiv Shankar Das was acquitted of the charges framed under section 379 of the IPC and 27 of the Arms Act by the impugned judgment. 3. In brief, the prosecution case, is that P.W. 7, Matar Sadai on 6.5.1994 at about 4.45 p.m. gave his fardbeyan to ASI of Bisfi police station to this effect that on the same day at about 7 a.m. appellant no.1 Hazari Das along with some labourers was fencing the land situated at southern–eastern corner of a pond. He further stated that villagers used the aforesaid land as Rasta and when he asked appellant no.1 as to why he was fencing the aforesaid Rasta, appellant no.1 became furious and started abusing him and ordered others to kill him. Appellant no.1 went to his home and returned along with rest appellants and other accused having armed with lathi and farsa and all the aforesaid persons started assaulting him and in that course, appellant no.1 gave farsa blow on his neck with intent to kill him as a result of which he sustained injury on left side of his neck and blood started oozing out. He fell down on the earth and in the meantime, accused Shiv Shankar Das tried to shoot him with his pistol but he missed his fire. He fell down on the earth and in the meantime, accused Shiv Shankar Das tried to shoot him with his pistol but he missed his fire. The aforesaid accused took out some cash from his pocket. In the meantime, Savitri Devi went running to her home and brought kerosene oil and match box and set the bundles of wheat and Narkat on fire. Appellant no.1 also cut papaya tree. The aforesaid occurrence was witnessed by Prayag Rai, Rajendra Das, Mantu Mahto, Ajay Kumar and Banarsi Das. After the aforesaid occurrence, he was brought to hospital where his treatment was done. 4. On the basis of the aforesaid fardbeyan, Bisfi P.S. case no.58/1994 was registered and accordingly, formal FIR was drawn up for the offences under sections 147, 148, 323, 324, 307, 379, 427, 447, 435 of the Indian Penal Code, 27 of the Arms Act and 3/5 of the SC/ST (Prevention of Atrocities) Act and after completion of investigation, charge sheet was submitted for the offences under sections 147, 148, 149, 323, 326, 307, 379, 427, 447, 435 of the Indian Penal Code, 27 of the Arms Act and 3(ii) of the SC/ST (Prevention of Atrocities) Act but cognizance of the offences under sections 147, 148, 149, 323, 326, 307, 379, 427, 447, 435 of the Indian Penal Code and 27 of the Arms Act was taken and the case was committed to the court of sessions, in usual way. 5. Appellants along with co-accused Savitri Devi and Shiv Shankar Das were put on trial and accordingly, appellants along with co-accused Savitri Devi and Shiv Shankar Das were jointly charged for the offences punishable under sections 307/149 of the IPC whereas co-accused Savitri Devi was separately charged for the offence under section 435 of the IPC and co-accused Shiv Shankar Das was separately charged for the offences punishable under section 379 of the IPC and 27 of the Arms Act. 6. In course of trial, prosecution examined, altogether, eight witnesses and the prosecution also got exhibited formal FIR as exhibit 1, injury report of P.W.7 as exhibit 2 and fardbeyan as exhibit 3. The statements of the appellants and the co-accused were recorded under section 313 of the Cr.P.C in which they denied the charges. 7. 6. In course of trial, prosecution examined, altogether, eight witnesses and the prosecution also got exhibited formal FIR as exhibit 1, injury report of P.W.7 as exhibit 2 and fardbeyan as exhibit 3. The statements of the appellants and the co-accused were recorded under section 313 of the Cr.P.C in which they denied the charges. 7. The defence also examined two witnesses who were formal in nature and proved some documents which have been marked as exhibit A, exhibit B, exhibit C and exhibit D respectively. 8. The learned trial court, having relied upon the testimonies of prosecution witnesses, convicted and sentenced the appellants in the manner as stated above. 9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that the prosecution could not succeed to prove place of occurrence as well as manner of occurrence. He further stated that there are several contradictions in the depositions of prosecution witnesses in respect of manner of occurrence but in spite of that learned court below passed the judgment of conviction. He also submitted that prosecution failed to bring original injury report of P.W.7 as P.W.8 has himself admitted at para 6 of his cross-examination that at the time of examination of P.W.7, he mentioned injury on a piece of paper first and after that on the basis of the aforesaid piece of paper, he prepared injury report which has been marked as exhibit 2. He further submitted that P.W.8 has opined that injury found on the person of P.W.7 was grievous in nature but he has admitted at para 7 of his cross-examination that he gave the aforesaid opinion regarding injury no.1 of P.W.7 because there was profuse bleeding from the aforesaid injury. Learned counsel for the appellants submitted that the aforesaid opinion of P.W.8 is not in accordance with law and therefore, injury no.1 found on the person of P.W.7 was not grievous and therefore, conviction of the appellant no.1 under section 326 of the IPC was not proper. Learned counsel for the appellants submitted that the aforesaid opinion of P.W.8 is not in accordance with law and therefore, injury no.1 found on the person of P.W.7 was not grievous and therefore, conviction of the appellant no.1 under section 326 of the IPC was not proper. He further submitted that according to P.W.7 alleged occurrence took place on 6.5.1994 and the fardbeyan of P.W.7 was recorded on the same day at 4.45 p.m. and furthermore, exhibit 1 reveals that formal FIR and fardbeyan of P.W.7 were dispatched to the concerned court on 7.5.1994 but it is surprising enough that the aforesaid formal FIR and fardbeyan were put up before the concerned court on 10.5.1994. He contended that the aforesaid delay has not been explained by the prosecution and therefore, the aforesaid delay creates doubt about genuiness of prosecution story. He further submitted that Investigating officer was not examined by the prosecution and therefore, defence could not get an opportunity to ask question from Investigating officer about the above stated delay. On the basis of the aforesaid submissions, learned counsel for the appellants submitted that the impugned judgment of conviction and sentence can not sustain in the eye of law. 10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that almost all material witnesses including P.W.7 who is injured of this case, supported the prosecution story and they proved place of occurrence, genesis of occurrence as well as manner of occurrence. He further submitted that injury report of P.W.7 as well as evidence of P.W.8 corroborate the statements of the rest prosecution witnesses and therefore, there is no scope for this court to interfere with the impugned judgment of conviction and sentence order. 11. P.W.1, P.W. 2, P.W. 4, P.W. 5 and P.W 7 claimed themselves to be eye- witnesses of alleged occurrence. Although the aforesaid witnesses appeared to be chance witnesses but all the above stated witnesses supported the prosecution story stating that while the appellant no. 1 was fencing the land situated southern-eastern side of pond, P.W.7 forbade him and after that appellant no. 1 and others assaulted P.W.7 with farsa and lathi. 12. No doubt, Investigating officer of this case has not been examined but P.W.1 stated that appellant no. 1 was fencing the land situated southern-eastern side of pond, P.W.7 forbade him and after that appellant no. 1 and others assaulted P.W.7 with farsa and lathi. 12. No doubt, Investigating officer of this case has not been examined but P.W.1 stated that appellant no. 1 was fencing the land towards eastern- southern corner of pond and the aforesaid land was used by the villagers as Rasta. This witness further stated that land of Hazari Das is situated towards north side of aforesaid Rasta. This witness, specifically, stated at para 2 of his cross-examination that house of Kailash was adjacent to the disputed land and on the said land, there was a Rasta. 13. P.W. 2 stated that appellant no. 1 was fencing land towards eastern side of Pokhar though this witness expressed his ignorance to disclose khata and khesra number of the aforesaid land. 14. Similarly, P.W.4 stated that north bank of Pokar was being fenced by the appellants at the time of alleged occurrence. 15. P.W. 5 stated that appellant no. 1 was fencing on the bank of Pokhar. 16. P.W.6 has stated that scuffle took place on account of fencing on the bank of Pokhar. 17. P.W.7, informant of this case, stated that alleged occurrence took place on account of fencing of Pokhar by the appellants. 18. No doubt, Investigating officer has not been examined in this case but admittedly, almost all witnesses except P.W.4 stated that alleged occurrence took place on account of fencing of land situated towards southern–eastern side of Pokhar and the aforesaid land was being used by the villagers as Rasta. Therefore, I am of the opinion that prosecution not only succeeded to prove the place of occurrence but also genesis of occurrence. 19. So far as manner of occurrence is concerned, almost all material prosecution witnesses stated that appellant no. 1 gave farsa blow to P.W.7 whereas rest appellants assaulted him with lathi. 20. No doubt, some minor contradictions have occurred in the evidences of material prosecution witnesses but the aforesaid minor contradictions were quite natural because alleged occurrence took place in the year 1994 and depositions of prosecution witnesses were recorded after three to four years. Moreover, contradictions occurred in the evidences of prosecution witnesses do not go to the root of the prosecution case. 21. P.W.8, Dr. Moreover, contradictions occurred in the evidences of prosecution witnesses do not go to the root of the prosecution case. 21. P.W.8, Dr. Bhagwan Das stated in his deposition that he was posted at Primary Health Centre, Bisfi on 6.5.1994 and he examined P.W. 7 at 12 noon on the same day. This witness further stated that he found following injuries on his person. i) Sharp cut injury 4 ½” x ¼” x ½” on the left side of the neck; ii) Bruise 2” x 2” over right thigh; iii) Bruise 2” x 2” over left upper arm. This witness stated that sharp cutting injury found on the neck of P.W. 7 was grievous in nature caused by sharp cut weapon whereas rest two injuries were simple in nature caused by hard and blunt substance. On being cross-examined this witness stated that since sharp cutting injury was bleeding profusely, he opined it to be grievous. This witness further admitted that he did not mention in his report that the aforesaid sharp cutting injury was dangerous to life. Furthermore, this witness admitted at para 6 of his cross-examination that at the time of examination of P.W.7 he mentioned the injuries found on the person of P.W.7 on a piece of paper and after that he prepared his injury report on the basis of the aforesaid piece of paper. Admittedly, the aforesaid piece of paper was not produced by the prosecution before the trial court in course of trial and therefore, in my view, learned counsel for the appellants rightly submitted that original injury report was not produced by the prosecution before the trial court. 22. P.W. 8 has mentioned in his deposition as well as in exhibit 2 that the injury found the neck of P.W 7 was grievous in nature and furthermore, in his deposition P.W.8 stated that sharp cutting injury was dangerous to life of P.W.7 though the aforesaid fact has not been mentioned by P.W.8 in exhibit 2, injury report of P.W.7. The grievous hurt has been defined in section 320 of the IPC, 1860 which says that following kinds of hurt only are designated as grievous:- Grievous hurt - The following kinds of hurt only are designated as “grievous”:- First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint Fifthly - Destruction or permanent impairing of the powers of any member or joint Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 23. From perusal of the aforesaid section, it would appear that grievous hurt has been categorized in eight categories and from category nos. 1 to 7 do not apply in the present case. So far as category no.8 is concerned, it says that any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits, then the aforesaid injury would come under the definition of grievous hurt. 24. In the present case P.W.8 stated in his deposition that sharp cut injury found on the neck of P.W.7 was dangerous to his life and that was the reason the aforesaid injury was grievous in nature but admittedly, P.W.8 did not mention the aforesaid fact in exhibit 2 and apart from this, he came to the aforesaid conclusion on the basis that the said injury was profusely bleeding. According to the prosecution case, alleged occurrence took place at 7 a.m. and P.W.7 was examined by P.W.8 at 12 noon. So, it is hard to believe that after such a long gap of time, the aforesaid injury was still profusely bleeding. Moreover, only because the injury was found profusely bleeding, it can not be said that said injury was dangerous to the life of P.W.7. No doubt, in the present case, injury was found on the neck of P.W.7 but P.W.8 has, nowhere, mentioned in exhibit 2 that any vain was found cut on the neck of P.W.7 and therefore, opinion of P.W.8 becomes doubtful. 25. No doubt, opinion of doctor carries some importance but it is the court who decides the nature of injury on the basis of definition given in the statute. 25. No doubt, opinion of doctor carries some importance but it is the court who decides the nature of injury on the basis of definition given in the statute. Therefore, even if exhibit 2 is taken into consideration, then also, in my view, sharp cut injury found on the neck of P.W.7 was not dangerous to his life and therefore, the aforesaid injury does not come under the definition of grievous hurt. Apart from this, P.W.8 could not say as to whether P.W.7 was hospitalized or not though he has stated that he had prepared prescription for P.W.7 but admittedly, prosecution did not bring any prescription or register of the hospital and, therefore, it is apparent that there was nothing before the trial court to come on the conclusion that P.W.7 suffered in bodily pain during the space of 20 days or unable to follow his ordinary pursuits and on this score, I am of the opinion that sharp cutting injury found on the neck of P.W.7 does not come under the purview of section 320 of the IPC. 26. On the basis of the aforesaid discussions, it is clear that the prosecution could not succeed to prove this fact beyond all shadow of reasonable doubts that the injury found on the neck of P.W.7 was grievous in nature and therefore, conviction of appellant no. 1 under section 326 of the IPC is not in accordance with law. 27. No doubt, fardbeyan of P.W.7 was recorded on 6.5.1994 and formal FIR and fardbeyan were dispatched to the concerned court on 7.5.1994 which were put up before the learned Chief Judicial Magistrate on 10.5.1994 but mere delay in sending formal FIR and fardbeyan to the court concerned is not fatal to the prosecution case unless it is proved by the defence that the aforesaid delay has caused serious prejudice to the defence. 28. In the instant case, there is nothing on the record to show this fact that the aforesaid delay has caused any prejudice to the appellants and therefore, even if the formal FIR and fardbeyan were put up before learned Chief Judicial Magistrate after four days of registration of the case, then also, the same is not fatal to the prosecution case. 29. On the basis of the aforesaid discussions, I am of the opinion that appellant no. 29. On the basis of the aforesaid discussions, I am of the opinion that appellant no. 1 could not have been convicted for the offence punishable under section 326 of the IPC and accordingly, conviction of appellant no. 1 is altered under section 324 of the IPC. 30. So far as conviction of rest appellants is concerned, I find nothing to disturb the findings of the learned trial court and in my view, appellant nos. 2 and 3 were rightly convicted for the offence punishable under section 323 of the IPC. 31. So far as order of sentence is concerned, admittedly, alleged occurrence took place on account of land dispute and both the parties were claiming their right on the disputed land. Furthermore, I find that appellant no. 1 was aged about 53 years at the time of pronouncement of judgment of conviction and he was convicted in the year 2001 for the occurrence which had taken place in the year 1994. I also find that appellant no. 1 was taken into custody on 10.10.2001 and he remained in custody till 5.11.2001. There is nothing on the record to show previous conviction and criminal antecedent of appellant no. 1 and therefore, in my view, to meet the ends of justice, it will be sufficient to sentence appellant no. 1 to the period already undergone by him. So far as rest appellants are concerned, they have been convicted only for the offence punishable under section 323 of the IPC and therefore, in my view, they should be released after due admonition under section 3 of the Probation of Offenders Act. 32. On the basis of the aforesaid discussions, this criminal appeal is dismissed with the modification in the impugned judgment of conviction and sentence order in the manner as stated above.