JUDGMENT : Heard, learned counsel for the appellant, Mr. Manoj Kumar Sah, Advocate and learned counsel for the State, Mr. Suraj Mohan, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 11.03.2005, passed by learned 4th Additional Sessions Judge, (Fast Track Court No.1), Godda, in Sessions Case No. 130 of 1996/65 of 2002, whereby, the sole appellant has been convicted for the offence committed and punishable under Sections 324 and 307 of the Indian Penal Code and awarded Rigorous Imprisonment for three years for the offence committed and punishable under Section 324 of the Indian Penal Code and awarded Rigorous Imprisonment for five years with fine of Rs. 2000/-for the offence committed and punishable under Section 307 of the Indian Penal Code and in default of payment of fine, further directed to undergo simple imprisonment for one month. Both the sentences are directed to run concurrently. 3. The prosecution case, is based upon, fardbeyan of the informant, Pama Devi (P.W.2.) recorded by, Sub-Inspector of police, O. P. Singh, Officer-in-Charge, Basant Rai Police out post, Godda, on 17.05.1993 at about 2.30 hrs. wherein, the informant has stated, that the informant was sleeping with her children and husband, out side her house in the Dhava on the cot and her mother-in-law and father-in-law had gone to Bareni for feast. Mulhai Manjhi took away her husband, at about 10.30 P.M. in the night for Panchayati on the same day. The informant has further stated that after sometime a person came and caught her hair. She woke up suddenly and identified four accused persons in the light of the Dibiya as Sarju Manjhi, Jamadar Manjhi, Keshmani Manjhi and Siko Manjhi. One of the accused person has put off the Dibiya. The accused Sarju Manjhi assaulted on her neck by Chhura but the informant put her right hand on her neck sustaining bleeding injury on fingers of her right hand. All the accused persons namely, Jamadar Manjhi, Siko Manjhi, Keshmani Manjhi caught her and accused Sarju Manjhi assaulted on her abdomen by chhura, causing bleeding injury. On brawl raised by the informant, accused persons have fled away. Her husband and villagers Shanichar Manjhi, Mulhai Manjhi, Kadru Manjhi and other persons came there. She told them about the alleged occurrence. Her husband and other villagers took her to the Police Station. On brawl raised by the informant, accused persons have fled away. Her husband and villagers Shanichar Manjhi, Mulhai Manjhi, Kadru Manjhi and other persons came there. She told them about the alleged occurrence. Her husband and other villagers took her to the Police Station. The informant has further stated that she was having pregnancy of six months at the time of the occurrence. The informant has also stated that cause of alleged occurrence was prevailing enmity. The accused Sarju Manjhi had filed a rape case against her husband and father-in-law. The informant has further stated that her husband is using government land, in front of the house of Sarju Manjhi, for preparing manure, due to which the accused Sarju Manjhi was angry with her husband and had given threatening to kill her husband. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Pathergama (Basant Rai), P.S. Case No. 61 of 1993, dated 17.05.1993, under Sections 448/342/324 and 307/34 of the Indian Penal Code against four named accused persons. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 108 of 1993, dated 30.12.1993, under Sections 448/342/324/307/34 of the Indian Penal Code against the accused Sarju Manjhi showing him in custody and Jamadar Manjhi, Keshmani Manjhi and Siko Manjhi showing them as absconders. Subsequently, another charge sheet was submitted vide charge sheet no. 26 of 1994, dated 20.05.1994 against Jamadar Manjhi, Keshmani Manjhi and Siko Manjhi also under Sections 448, 324, 342 and 307/34 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 27.01.1994 and the case has been committed to the Court of Sessions vide order dated 12.06.1996. Jamadar Manjhi died during pendency of the trial and his case has been dropped vide order dated 26.02.2002. 7. The learned trial Court has framed charge against three accused persons namely, Sarju Manjhi, Keshmani Manjhi and Siko Manjhi, on 28.02.2002, under Sections 324/34, 307/34, 448/34 and 342/34 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether three prosecution witnesses and also exhibited documentary evidence. 8. The prosecution, in order to prove its case, has examined altogether three prosecution witnesses and also exhibited documentary evidence. Sokil Manjhi (husband of the informant) has been examined as P.W.1, Pama Devi (informant and victim of the case) has been examined as P.W.2 and Dr. Pratap Nath Jha (Medical officer), who has examined the victim, Pama Devi has been examined as P.W.3. The injury report of Pama Devi has been proved and marked as exhibit-1 and supplementary injury report issued by Dr. Ashok Kumar has been proved and marked as exhibit-1/1. 9. After closure of the prosecution evidence, the statement of accused persons have been recorded under Section 313 Cr.P.C., on 06.01.2005, wherein accused persons have denied the allegation levelled against them. No defence witness nor documentary evidence has been adduced on behalf of the defence. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. The trial Court has convicted all the accused persons for the offence committed and punishable under Sections 448/34 and 342/34 of the Indian Penal Code and Sarju Manjhi has further been convicted for the offence committed and punishable under Sections 324 and 307 of the Indian Penal Code. The accused Keshmani Manjhi, Siko Manjhi and Sarju Manjhi are released after due admonition under Section 3 of the Probation of Offenders Act for offence committed and punishable under Sections 448/34 and 342/34 of the Indian Penal Code. Accused Sarju Manjhi has been awarded Rigorous Imprisonment for five years with fine of Rs.2000/-for offence committed and punishable under Section 307 of the Indian Penal Code and in default in payment of fine, further simple imprisonment for one month and Rigorous Imprisonment for three years for the offence committed and punishable under Section 324 of the Indian Penal Code. All the sentences are directed to run concurrently. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellant before this Hon’ble Court on 06.04.2005 and this appeal has been admitted on 08.04.2005 and during pendency of appeal, sentence imposed by the learned trial Court has been suspended by enlarging the appellant on bail. 11. Heard, learned counsel for the appellant, Mr. Manoj Kumar Sah, Advocate. 11. Heard, learned counsel for the appellant, Mr. Manoj Kumar Sah, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted, that investigating officer has not been examined in this case. The First Information Report has not brought on record nor has been proved and marked as exhibit in the present case. Learned counsel for the appellant has further submitted, that Sokil Manjhi, husband of the informant, who has been examined as P.W.1, is a hearsay witness. Learned counsel for the appellant has drawn attention of this Court towards the fardbeyan of the informant, Pama Devi and her deposition in the Court as P.W.2. Learned counsel for the appellant has submitted, that in the First Information Report Pama Devi has categorically stated that, initially the appellant has tried to stab on her neck but she saved herself by putting her right hand causing bleeding injury on the little finger of the right hand and thereafter, all the accused persons have assaulted by means of Chhura(knife) on the abdomen and at that time she was carrying pregnancy of six months. On brawl, her husband and other villagers came, who brought her to the police station on a cot. But while deposing in the court as P.W.2, this witness has categorically stated that, she was assaulted by the accused/appellant, Sarju Manjhi by means of Chhura (knife) on her abdomen causing bleeding injury and at that time she was carrying pregnancy of six months. No other allegations was made during trial. Learned counsel for the appellant has further submitted, that from perusal of the evidence of the informant, Pama Devi (P.W.2), it appears that she has nowhere whispered about any assault by the appellant on her neck, which caused injury on little finger of the right hand rather, she has given a contradictory version in her deposition from her fardbeyan, as this witness has categorically stated that, other accused persons have done nothing and as such, the conviction of the appellant under Sections 307 and 324 of the Indian Penal Code is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted, that injury reports, proved by Dr. Learned counsel for the appellant has further submitted, that injury reports, proved by Dr. Pratap Nath Jha, which have been marked as exhibits-1 and 1/1, shows two injuries on the person of the victim but the injury report never whispered about the pregnancy carrying by the victim. Learned counsel for the appellant has further submitted, that neither the informant has claimed that, accused persons have intention to kill her nor the injury sustained by the informant has been opined by the doctor to be fatal in normal course and are sufficient to cause death nor the doctor has disclosed about the nature of injury as grievous in nature. Under aforesaid circumstance, learned counsel for the appellant has submitted, that conviction of the appellant under Section 307 of the Indian Penal Code, cannot sustain in the eyes of law. 12. Heard, learned counsel for the State, Mr. Suraj Mohan, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of materials available on record. Learned counsel for the State has vehemently argued this case and has submitted that, as per the First Information Report, the informant has identified four persons, one of whom died during trial and two of the accused persons, who have entered into the house have been convicted by the learned trial Court and they have been released after due admonition under Section 3 of the Probation of Offenders Act. Those convicts have not preferred any appeal before this Hon’ble Court and as such, from the conduct of the co-convicts and as per the fardbeyan, it appears that, informant has been assaulted by the appellant by means of chhura and two corresponding injuries have been found by the doctor P.W.3, Dr. Pratap Nath Jha, who has proved the injury reports, which have been marked as exhibits-1 and 1/1. Learned counsel for the State has thus submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of materials available on record and as such, no interference is required by this Hon’ble Court at this stage. 13. Heard, learned counsel for the appellant, Mr. Manoj Kumar Sah and learned counsel for the State, Mr. 13. Heard, learned counsel for the appellant, Mr. Manoj Kumar Sah and learned counsel for the State, Mr. Suraj Mohan, learned Additional Public Prosecutor and perused the records, i.e First Information Report, framing of the charge, evidence of three prosecution witnesses, injury reports, which have been proved and marked as exhibits-1 and 1/1 and statement of the appellant recorded under Section 313 Cr. P. C. as well as impugned judgment of conviction and order of sentence. From perusal of the evidence, it appears that the basic ingredient to constitute an offence under Section 307 of the Indian Penal Code is lacking in the present case, as the informant has never alleged that, the accused/appellant has intention to kill. The injuries found on the person of the informant and injury reports does not show any grievous injury nor the doctor, P.W.3, Dr. Pratap Kumar Jha(Medical Officer) has stated that, in the normal circumstances, the injuries are sufficient to cause death and as such, this court is of the opinion that conviction of the appellant under section 307 of the Indian Penal Code cannot sustain in the eyes of law and as such, the impugned judgment of conviction and order of sentence passed by learned trial Court under Section 307 of the Indian Penal Code is hereby set aside. So far conviction of appellant under Section 324 of the Indian Penal Code is concerned, this court is of the opinion that, the injury reports are consistent to the allegations made in the fardbeyan. Under the aforesaid circumstances, this Court is of the opinion that, conviction of the appellant under Section 324 of the Indian Penal Code has been rightly passed by the learned trial Court, which is being upheld and affirmed. This Court has taken judicial notice of the fact that, the other co-convicts have not preferred any appeal against their conviction under Sections 342/34 and 448/34 of the Indian Penal Code. So far sentence awarded by the learned trial Court is concerned, it has been submitted by the learned counsel for the appellant that, appellant has served and remained in custody for more than one year, (i.e. eleven months during trial and one and half months after conviction). So far sentence awarded by the learned trial Court is concerned, it has been submitted by the learned counsel for the appellant that, appellant has served and remained in custody for more than one year, (i.e. eleven months during trial and one and half months after conviction). Under the aforesaid circumstances and considering the period of rigors faced by the appellant since 1993 and nature of injury coupled with the fact that, other co-convicts have been released after due admonition under section 3 of the probation of offenders act, this Court is of the opinion that period already undergone by the appellant during the trial is sufficient and as such, the sentence awarded by the learned trial Court is being modified to the period already undergone by the appellant for the offence committed and punishable under Section 324 of the Indian Penal Code. Accordingly, the criminal appeal preferred against the impugned judgment of conviction and order of sentence both dated 11.03.2005, passed by the learned 4th Additional Sessions Judge, Fast Track Court-I, Godda, in Sessions Case No. 130 of 1996/65 of 2002, arising out of Pathergama (Basant Rai) P.S. Case No. 61 of 1993, corresponding to G. R. case no. 421 of 1993 is hereby partly allowed with modification in sentence, as aforesaid. 15. The appellant, who is on bail, his bail bond is cancelled but no further order is required as appellant has already served out the sentence. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal partly allowed.