JUDGMENT : Heard learned Amicus Curiae Ms. Kirti Saboo on behalf of appellant and Mr. Azeemuddin, Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 26.07.2004, passed by learned VIth Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 204 of 2002/255 of 2002, whereby the sole appellant has been convicted under Section 308 of the Indian Penal Code and awarded sentence of rigorous imprisonment for five years with a fine of Rs.2000/- and in the case of default in payment of fine, to further undergo simple imprisonment for six months. By the same impugned judgment the learned trial court has acquitted co-accused-Bijay Rana. 3. The prosecution case is based upon the fardbeyan of Bhuneshwar Rana recorded by Harilal Yadav, Sub-Inspector, Keredari P.S. on 06.03.2001 at 11:00 hours at Keredari Hospital, where the informant has alleged that at around 9:00 A.M. when the accused persons namely, Shrawan Rana and Bijay Rana, were uprooting the crop of bean (Sem), which was grown by the informant in his field, the informant asked the accused persons, as to why they are damaging and removing the bean crop (Sem). The accused Bijay Rana and Shrawan Rana, started abusing the informant and surrounded him. It is further alleged that, Shrawan Rana by means of a wooden stick assaulted the informant on his head, causing bleeding injury. On brawl co-villagers, namely, Moti Rana, Arjun Rana and other persons came, who have witnessed the occurrence and rescued the informant from further assault. Thereafter, the villagers brought the injured informant to Keredari Hospital, on a vehicle, where his fardbeyan has been recorded on which he has put his left thumb impression after verifying the same. 4. On the basis of fardbeyan of the informant, Bhuneshwar Rana, the police registered Keredari P.S. Case No. 10 of 2001, dated 06.03.2001, under Sections 323, 341 and 504/34 of the Indian Penal Code. 5. After investigation, the police submitted charge sheet vide charge sheet no.24 of 2001, dated 30.04.2001, under Sections 323, 341 and 307/34 of the Indian Penal Code, against the accused persons. 6. The cognizance of the offence has been taken vide order dated 25.06.2001 and the case has been committed to the court of sessions vide order dated 22.06.2002. 7. 5. After investigation, the police submitted charge sheet vide charge sheet no.24 of 2001, dated 30.04.2001, under Sections 323, 341 and 307/34 of the Indian Penal Code, against the accused persons. 6. The cognizance of the offence has been taken vide order dated 25.06.2001 and the case has been committed to the court of sessions vide order dated 22.06.2002. 7. The charge has been framed against the accused persons under Sections 323, 341 and 307 of the Indian Penal Code, on 19.09.2002, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, to prove its case, has examined altogether five witnesses and also adduced a number of documentary evidence as exhibits. P.W.-1 is Moti Rana, a hearsay witness, P.W.-2 is Arun Kumar Rana, another hearsay witness, P.W.-3 is Bhuneshwar Rana, informant-cum-victim, P.W.-4 is Dr. Awdheshwari Prasad Narayan Deo and P.W.-5 is Harilal Yadav, investigating officer of this case. Injury report of informant has been proved and marked as exhibit-1, supplementary injury report has been proved and marked as exhibit-1/1, injury report issued by radiologist Dr. Bijay Shankar has been marked as-X for identification, fardbeyan has been proved and marked as exhibit-2 and formal first information report has been proved and marked as exhibit-3. 9. After closure of the prosecution evidence, the statement of the accused persons have been recorded under section 313 Cr.P.C., on 29.01.2004, wherein they have stated that false allegation has been levelled against them because of land dispute and they are innocent. 10. After hearing the learned counsel for the parties and on perusal of material available on record, the learned trial court has convicted the appellant, Shrawan Rana under Section 308 of the Indian Penal Code and awarded rigorous imprisonment for five years with a fine of Rs.2000/- in case of default in payment of fine, the appellant has to undergo further simple imprisonment for six months although, it appears from the record that said amount has already been deposited vide challan no.155116 at serial no.874974, book no.VIII before the Nazir Civil Court, Hazaribagh. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned Amicus Curiae, Ms. Kriti Saboo on behalf of appellant. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned Amicus Curiae, Ms. Kriti Saboo on behalf of appellant. Learned Amicus Curiae has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. There are material contradictions in the evidence of the prosecution witnesses. Learned Amicus Curiae has further submitted, that there is no material for conviction of the appellant under Section 308 of the Indian Penal Code. Learned Amicus Curiae has further submitted, that charge has not been framed by the learned trial court under Section 308 of the Indian Penal Code but charge was framed under Sections 323, 341 and 307 of the Indian Penal Code. Learned Amicus Curiae has further submitted, that from perusal of paragraph 4 of cross-examination of Moti Rana, who has been examined as P.W.-1, it appears that he is a hearsay witness, who reached the place of occurrence after brawl was raised by wife of Bhuneshwar Rana, victim of the case. Learned Amicus Curiae has further submitted, that P.W.-2 Arun Kumar Rana, has claimed himself to an eye witness to the occurrence but from perusal of evidence adduced by this witness during his cross-examination at paragraph nos. 9, 10 and 11, it appears that the witness was working in his paddy field, which is situated at a distance of 100 meters from the place of occurrence. This witness has categorically stated in paragraph 11 of his cross-examination that after finishing the work of sowing sugar cane, he came to his house at 12 noon. From perusal of the first information report, it appears that occurrence took place at 9:00 A.M. meaning thereby that, this witness is not an eye witness to the occurrence. Bhuneshwar Rana, victim and informant of the case, has been examined as P.W.-3, who has categorically stated that he was assaulted by Shrawan Rana by means of wooden stick, causing injury on the left side of his head. This witness has further stated that he has also given the left thumb impression on the fardbeyan. This witness has further stated that accused persons have also filed a criminal case against him to protect themselves. This witness has further stated that he has also given the left thumb impression on the fardbeyan. This witness has further stated that accused persons have also filed a criminal case against him to protect themselves. This witness has admitted during cross-examination at paragraph 6 that after the assault, he became unconscious for 1 and 1/2 hours and regain his consciousness at Keredari Primary Health Centre and thereafter he has given his statement and treated by the Medical Officer. Doctor Awdheshwari Prasad Narayan Deo, who has examined the victim Bhuneshwar Rana on 06.03.2001, has been examined as P.W.-4. The doctor has found a lacerated wound of size 3”x1/2” x scalp deep over the left side of head, caused by hard and blunt substance. This witness (P.W.-4) has kept his opinion reserved with regard to the nature of injury and referred the patient. This witness has proved the injury report written and signed by him as exhibit-1. The doctor has further admitted that on 15.03.2001, he received the injury report of victim Bhuneshwar Rana, issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribagh dated 14.03.2001, which has been marked ‘X’ for identification, where the nature of injury was mentioned as grievous. On the basis of the same, this witness (P.W.-4) has issued supplementary injury report, which has been proved and marked as exhibit-1/1. Learned Amicus Curiae has further submitted, that during cross-examination this witness, Dr. Awdheshwari Prasad Narayan Deo (P.W.-4) has admitted that he did not identify the signature and writing of the Dr. Bijay Shankar. Learned Amicus Curiae has further submitted, that Dr. Awdheshwari Prasad Narayan Deo, (P.W.-4), who has proved the injury report issued by Dr. Bijay Shankar, is not a competent witness to prove the same and as such the learned trial court has marked the said injury report, purported to be issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribag as ‘X’ for identification. Learned Amicus Curiae has further submitted, that x-ray report, which was the basis for issuing supplementary injury report, showing nature of injury to be grievous and the same, has been issued on the basis of x-ray but said x-ray plate has not been brought on record and as such in absence of the x-ray report coupled with the fact that P.W.-4, Dr. Awdheshwar Prasad Narayan Deo, has not identified the signature and writing of Dr. Bijay Shankar, thus Dr. Awdheshwar Prasad Narayan Deo, has not identified the signature and writing of Dr. Bijay Shankar, thus Dr. Awdheshwar Prasad Narayan Deo (P.W.-4), is not a competent witness and as such the learned trial court has committed an error in accepting the said injury report issued by Medical Officer, Sadar Hospital, Hazaribagh, which has been marked as-X for identification. P.W.-5, Harilal Yadav, investigating officer of this case, has recorded the fardbeyan of the informant, which was signed by witness Lal Deo Saw. Fardbeyan has been proved and marked as exhibit-2. The formal first information report written in the handwriting of this witness (P.W.-5) has been proved and marked as exhibit-3. This witness has categorically stated that inadvertently he could not add section 325 of the Indian Penal Code as per the injury report, which ought to have been mentioned in the chargesheet. This witness has submitted that before submission of the chargesheet, he has received the injury report and as such the accused persons have been chargesheeted under Sections 307, 323, 341 and 325/34 of the Indian Penal Code. This witness has further stated that informant, Bhuneshwar Rana has never stated before him that both the accused persons Shrawan Rana and Binay Rana have assaulted the injured by wooden stick with intention to kill. This witness has further admitted in paragraph 19 of his cross-examination that x-ray plate and discharge slip have not been received by him. Learned Amicus Curie has further submitted, that under the aforesaid background the conviction of appellant under Section 308 of the Indian Penal Code cannot sustain in the eyes of law, as the informant has never stated either in his fardbeyan or before the investigating officer under Section 161 Cr.P.C. that the appellant alongwith Bijay Rana (acquitted accused) had intention to kill, as Shrawan Rana has assaulted the informant on his head by wooden stick. Learned Amicus Curiae has drawn attention of this Court towards para 19 of cross-examination of the investigating officer, where investigating officer has categorically stated that he has not received the x-ray plate nor the discharge slip from the hospital. As such, the learned Amicus Curiae has submitted that in absence of the ingredient to constitute an offence as defined under Section 320 of the Indian Penal Code, which deals with grievous injury benefit of doubt may be extended to the appellant. As such, the learned Amicus Curiae has submitted that in absence of the ingredient to constitute an offence as defined under Section 320 of the Indian Penal Code, which deals with grievous injury benefit of doubt may be extended to the appellant. The injury report, which has been marked as-X for identification, has not been proved by a competent person, as such the appellant cannot be convicted under Section 308 of the Indian Penal Code. At best the appellant, may be convicted for the offence of voluntary causing hurt to the prosecution party, as defined under Section 319 of the Indian Penal Code for which punishment has been assigned under Section 323 of the Indian Penal Code. 12. Heard, Mr. Azeemuddin, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has rightly been passed by the learned trial court, based on material available on record. Learned counsel for the State has further submitted, that corresponding injury has been found on the left side of scalp of the informant, Bhuneshwar Rana, P.W.-3 and has rightly been proved by Dr. Awdheshwari Prasad Narayan Deo, P.W.-4 and marked as exhibit-2 and as such the learned trial court has rightly convicted the appellant under Section 308 of the Indian Penal Code. 13. After hearing the learned Amicus Curiae Ms. Kirti Saboo, Advocate and learned counsel for the State, Mr. Azeemuddin, Additional Public Prosecutor, this Court has perused the record i.e. first information report, framing of charge, evidence of five prosecution witnesses, three exhibits of prosecution and the statement of the appellant recorded under section 313 Cr.P.C. This court has scrutinized the evidence of prosecution witnesses P.W.-1 and P.W.-2 namely, Moti Rana and Arun Kumar Rana, hearsay witnesses, who came at the place of occurrence after the actual occurrence was committed. P.W.-3, Bhuneshwar Rana has not stated in his fardbeyan that accused persons have intention to kill him and the same has also not been stated before the investigating officer, Harilal Yadav, who has been examined as P.W.-5. The investigating officer in his cross-examination at paragraph 17 has admitted that Bhuneshwar Rana has never stated before him that accused persons have intention to kill him. Dr. The investigating officer in his cross-examination at paragraph 17 has admitted that Bhuneshwar Rana has never stated before him that accused persons have intention to kill him. Dr. Awdheshwari Prasad Narayan Deo, who has examined the victim and found a lacerated injury, caused by hard and blunt substance, has been examined as P.W.-4. The injury report issued by him has been proved and marked as exhibit-1 and the supplementary injury report issued by him has been proved and marked as exhibit 1/1, on the basis of injury report issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribagh, which has been marked as-X for identification. Learned Amicus Curiae has rightly pointed out that Dr. Awdheshwari Prasad Naryan Deo is not a competent witness to prove the injury report issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribag, showing the nature of the injury to be grievous found on the head of Bhuneshwar Rana, P.W.-3 as Dr. Awdheshwari Prasad Narayan Deo, P.W.-4 has admitted during cross-examination that he did not identify the writing and signature of Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribagh, who has issued the injury report, which has been marked as ‘X’ for identification, on the basis of which supplementary injury report, exhibit-1/1 has been issued, cannot be accepted legally, as he is not a competent witness to prove the same. Learned Amicus Curiae has rightly submitted, before this Court, that the injury report, which has been communicated from Sadar Hospital, Hazaribagh to Primary Health Centre, Keredari has not been proved by the prosecution as an authentic document referred/send by the Sadar Hospital, Hazaribagh, by proving the dispatch register. As such, no reliance can be placed upon injury report issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribagh, which is on the basis of x-ray report. Besides, the x-report or plate has never been handed over to the investigating officer, Harilal Yadav, P.W.-5, who has admitted the same in his cross-examination at paragraph 19. 14. As such, no reliance can be placed upon injury report issued by Dr. Bijay Shankar, Medical Officer, Sadar Hospital, Hazaribagh, which is on the basis of x-ray report. Besides, the x-report or plate has never been handed over to the investigating officer, Harilal Yadav, P.W.-5, who has admitted the same in his cross-examination at paragraph 19. 14. Under the aforesaid circumstances, this Court is of the opinion that in view of material available on record the appellant cannot be convicted under Section 308 of the Indian Penal Code, rather appellant can at best be convicted for causing voluntary hurt to the informant, which is punishable under Section 323 of the Indian Penal Code and as such the conviction of the appellant is hereby modified from Section 308 of the Indian Penal Code to Section 323 of the Indian Penal Code. So far the sentence is concerned, the appellant remained in custody for about three months and as such this court considering the nature of allegation and the rigors of trial since 2001, this court is awarding the sentence as period already undergo by the appellant for offence committed and punishable under Section 323 of the Indian Penal Code. 15. In the result, the instant criminal appeal is dismissed with modification in conviction from Section 308 of the Indian Penal Code to Section 323 of the Indian Penal Code and awarded sentence as period already undergone by the appellant. 16. In the result, the instant criminal appeal is hereby dismissed with modification in conviction and sentence. 17. The appellant, who is on bail, is discharged from liability of his bail bonds. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 19. Before parting with this judgment, this Court appreciates the assistance rendered by learned Amicus Curiae Ms. Kirti Saboo to this Court in disposal of the present criminal appeal. The Secretary, JHALSA is directed to pay remuneration as per the rule to learned Amicus Curiae, Ms. Kirti Saboo within a period of four weeks from production of certified copy of this order. Appeal dismissed accordingly.