JUDGMENT : Heard, learned counsel for the appellant, Mr. Ankit Kumar, assisted by Mrs. J. Mazumdar, Advocates and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor assisted by learned counsel for the informant, Mr. Pawan Kumar Pathak, Advocate. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 18.03.2004, passed by learned 5th Additional Judicial Commissioner, Fast Track Court, Ranchi, in Sessions Trial No. 399 of 2001/T. R. No.61 of 2003, whereby, the sole appellant has been convicted for the offence committed and punishable under Section 307 of the Indian Penal Code and awarded Rigours Imprisonment for five years. By the same impugned judgment the learned trial Court has acquitted the appellant of the charge under Section 379 of the Indian Penal Code. 3. The prosecution case, is based upon, written report submitted by the informant, Ram Kishun Mehta (P.W.3) recorded by Officer-In-charge, Police Out Post, Nagri (Ratu), Ranchi, on 04.02.2001, wherein the informant has stated, that on 03.02.2001 at around 6.30 P.M., he was going to village-Upardaha in search of labourers to work in his wheat field. As soon as informant reached near “Teen shimani Chowk”, Dr. Gautam Sharma, son of late Hari Bansh Mishra, resident of village- Tikra Toli, Ranchi, was standing there along with 3-4 unknown persons, who were not residents of nearby village. The informant has further stated that, as soon as he reached near the said chowk, Dr. Gautam Sharma (accused/appellant) started abusive languages and assaulted him on his nose with fist, due to which informant fell down and blood started oozing from his nose. As the informant fell down, appellant, Gautam Sharma started hitting the informant on his chest and ribs by legs and later on, after sitting on informant's chest, appellant started pressing the neck of informant, but he was saved due to intervention of some people, otherwise informant would have been killed by appellant, Dr. Gautam Sharma. The informant has further stated that, in course of incidence Rs. 600/- which was in the pocket of the informant has either been lost from the pocket or the same was removed by the appellant. The informant has further stated that he is feeling severe pain in chest, nose and neck and has further stated that persons, who were standing with Dr. Gautam Sharma has done nothing to him. 600/- which was in the pocket of the informant has either been lost from the pocket or the same was removed by the appellant. The informant has further stated that he is feeling severe pain in chest, nose and neck and has further stated that persons, who were standing with Dr. Gautam Sharma has done nothing to him. The informant has further stated that Dr. Gautam Sharma was giving threatening with dire consequences, if he will complain to the police. The informant has stated that when he reached to his house, his sons were not present in the house and because of late night he could not inform the police and in the next morning he came to the police station. 4. On the basis of the written report of the informant, the Police has registered First Information Report bearing Nagri (Ratu), P.S. Case No. 15 of 2001, dated 04.02.2001, under Sections 323, 341 and 379 of the Indian Penal Code against named accused, Dr. Gautam Sharma. Subsequently, vide order dated 14.02.2001 Section 307 of the Indian Penal Code has been added. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 22 of 2001, dated 08.03.2001, under Sections 341/323/307 of the Indian Penal Code against the accused, Dr. Gautam Sharma. 6. The cognizance of the offence has been taken vide order dated 11.05.2001 and the case has been committed to the Court of Sessions vide order dated 14.08.2001. 7. The learned trial Court has framed charge against the appellant, on 13.12.2002, under Sections 307 and 379 of the Indian Penal Code, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, in order to prove its case, has examined altogether Nine witnesses and also exhibited a number of documentary evidence up to exhibits four as well as Material Exhibit-1. Nim Chand Mahto has been examined as P.W.1 but has been declared hostile by the prosecution, Chalo Mahto has been examined as P.W.2, Ram Kishun Mehta (informant and victim of the case) has been examined as P.W.3, Pankaj Kumar Mahto has been examined as P.W.4, Maria Uraon has been examined as P.W.5, Ramesh Chandra Tiwary (constable no. Nim Chand Mahto has been examined as P.W.1 but has been declared hostile by the prosecution, Chalo Mahto has been examined as P.W.2, Ram Kishun Mehta (informant and victim of the case) has been examined as P.W.3, Pankaj Kumar Mahto has been examined as P.W.4, Maria Uraon has been examined as P.W.5, Ramesh Chandra Tiwary (constable no. 1376), who has brought the Material Exhibit-1, has been examined as P.W.6, Bandey Uraon (seizure witness), who has proved his signature on the seizure list, which has been marked the same as exhibit-2/1, has been examined as P.W.7, Dr. Ambika Dutt Sharma (Medical Officer), who has proved the injury report of the informant, which has been marked as exhibit-3, has been examined as P.W.8 and Mithilesh Sharan (Investigating Officer of the case), who has proved endorsement on the fardbeyan, which has been marked as exhibit-1/1, has been examined as P.W.9. Fardbeyan of the informant has been proved and marked as exhibit-1, carbon copy of seizure list has been proved and marked as exhibit-2, signature of P.W.7 on seizure list has been proved and marked as exhibit-2/1, injury report has been proved and marked as exhibit-3, endorsement on the fardbeyan of Officer-In-Charge has been proved and marked as exhibit-1/1, forwarding has been proved and marked as exhibit-1/2, signature of Officer-In-Charge on formal First Information Report has been proved and marked as exhibit-1/3 and carbon copy of medical requisition of the police has been proved and marked as exhibit-4. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 05.02.2004. The accused/appellant has categorically stated that false case has been instituted against him and the victim has sustained injury because of fall under influence of liquor in intoxicated condition and he will give evidence in his support. Narayan Gope has been examined as D.W.1, but no 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 acquitted the appellant of the charge under Section 379 of the Indian Penal Code but convicted the appellant of the charge under Section 307 of the Indian Penal Code and awarded Rigorous Imprisonment for five years. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has acquitted the appellant of the charge under Section 379 of the Indian Penal Code but convicted the appellant of the charge under Section 307 of the Indian Penal Code and awarded Rigorous Imprisonment for five years. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant before this Hon’ble Court on 24.03.2004 and the appeal was admitted on 09.04.2004 and Dr. Gautam Sharma has been enlarged on bail by suspending the sentence vide order dated 09.04.2004, which has been listed “For Final Hearing” before this Court. 11. Heard, learned counsel for the appellant, Mr. Ankit Kumar, assisted by Mrs. J. Mazumdar, Advocates. 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 further submitted, that no case under section 307 of the Indian Penal Code is made out against the appellant as the injuries were found to be simple in nature, which are mainly bruises and the injury found on the neck of the informant is not because of throttling as alleged by the informant as opined by the Medical Officer, P.W.8, Dr. Ambika Dutt Sharma during his cross-examination. Learned counsel for the appellant has further submitted, that appellant is a witness in a case instituted against brother-in-law of the informant, which was a C.B.I. case with respect to murder of Shashi Nath Jha. Learned counsel for the appellant has thus submitted, that under the aforesaid circumstances, appellant cannot be convicted under Section 307 of the Indian Penal Code as basic ingredients for constituting such offence is lacking in the present case. 12. Heard, learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor assisted by learned counsel for the informant, Mr. Pawan Kumar Pathak, Advocate. Learned counsel for the State has vehemently argued this case and 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. Sanjay Kumar Pandey, Additional Public Prosecutor assisted by learned counsel for the informant, Mr. Pawan Kumar Pathak, Advocate. Learned counsel for the State has vehemently argued this case and 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 assisted by counsel for the informant, have further submitted, that though the injury are simple in nature, but there are six injuries on the person of the informant(victim) i.e. on the face and neck. The injuries shows that appellant had intention to kill the informant but his life has been saved by intervention of same people standing at the chowk and as such, the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court, which warrants no interference by this Hon’ble Court at this stage. 13. Heard, learned counsel for the appellant, Mr. Ankit Kumar, assisted by Mrs. J. Mazumdar, Advocates and learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor, assisted by learned counsel for the informant, Mr. Pawan Kumar Pathak, Advocate and perused the records, i.e First Information Report, framing of the charge, evidence of nine prosecution witnesses, four exhibits of the prosecution side, one Material Exhibit on behalf of the prosecution and the statement of the appellant recorded under Section 313 Cr. P. C., one defence witness, Narayan Gope as well as impugned judgment of conviction and order of sentence. This court has scrutinized the evidence of the prosecution witnesses. P.W.1, Nim Chand Mahto has been declared hostile by the prosecution as he has claimed that he has not seen the occurrence. Chalo Mahto (P.W.2), an eye witness to the occurrence, has supported the prosecution case, but this witness has stated that, before he could reached the place of occurrence, incidence has already taken place. Ram Kishun Mehta, informant of the case has been examined as P.W.3, who has supported the prosecution case, which is based on his written report and he has proved the written report in the handwriting of Pashupati Nath Mehta bearing his signature, which has been marked as exhibit-1. This witness has also proved the seizure list in the writing of Mithlesh Sharan, A.S.I. of police, which has been marked as exhibit-2. This witness has also proved the seizure list in the writing of Mithlesh Sharan, A.S.I. of police, which has been marked as exhibit-2. This witness has further stated that, because of assault made by the appellant blood was oozing from his nose, which fell on his cloth. This witness has denied the suggestion that because of the evidence adduced by accused, Dr. Gautam Sharma against his relative in a Court at Delhi with respect to C.B.I. matter, he has falsely implicated Dr. Gautam Sharma. This witness has been cross-examined by the defence, but nothing has been elucidated to disbelieve his evidence. Pankaj Kumar Mahto, a student of class-VIII has been examined as P.W.4. This witness has seen the quarrel between Dr. Gautam Sharma (appellant) and Ram Kishun Mehta(informant). The evidence of this witness only suggest about the assault took place on the alleged date of occurrence. Maria Uraon has been examined as P.W.5. This witness has supported the prosecution case to the extent that Dr. Gautam Sharma has pressed the neck of Ram Kishun Mehta. This witness was present at the place of occurrence along with Chalo Mahto, Pankaj Kumar Mahto and Nim Chand Mahto. Chalo Mahto has been examined as P.W.2 and has stated that, Dr. Gautam Sharma was standing at distance of 10-15 steps from his shop and Dr. Gautam Sharma was abusing Ram Kishun Mehta. Pankaj Kumar Mahto(P.W.4) has stated that a quarrel has been taken place between informant and the accused/appellant and as such, in absence of any material to show the mens rea of the accused/appellant for killing the informant, the conviction of appellant under Section 307 of the Indian Penal Code cannot sustain in the eyes of law. But since an assault has been taken place and injury has been caused upon the informant, Ram Kishun Mehta, which has been proved and brought on record as exhibit-3. The Medical Officer, Dr. Ambika Dutt Sharma, who has been examined as P.W.8, has categorically submitted that, in case of throttling, there may abrasion on both sides of the neck, there was injury on the left side of the neck, there was no nail mark over the neck of the injured, there is a possibility of nail mark, in case of throttling. Ambika Dutt Sharma, who has been examined as P.W.8, has categorically submitted that, in case of throttling, there may abrasion on both sides of the neck, there was injury on the left side of the neck, there was no nail mark over the neck of the injured, there is a possibility of nail mark, in case of throttling. Under the circumstance, this Court is of the view that, conviction of the appellant under section 307 of the Indian Penal Code cannot sustain in the eyes of law as, all the injuries, which are six in numbers are simple in nature, are as follows:- (i) Bruise with swelling over scalp 1”x1”. (ii) Bruise with swelling on right side of face below right eye 1”x1”. (iii) Bruise with swelling over left side of face below left eye 1”x 1/2”. (iv) Bruise with swelling over front of chest 2”x 1”. (v) Bruise with swelling over left side of neck 1”x1”. (vi) Bruise with swelling over bridge of nose 1”x1/2”. As such, this Court hereby modifies the conviction of the appellant from Section 307 of the Indian Penal Code to Section 323 of the Indian Penal Code and the sentence awarded by the learned trial Court is accordingly modified from Rigorous Imprisonment of five years for the offence committed and punishable under Section 307 of the Indian Penal Code to period already undergone by the appellant during the trial for conviction under Section 323 of the Indian Penal Code, considering the period of rigors of trial since 2001. Accordingly, the impugned judgment of conviction and order of sentence, both dated 18.03.2004, passed by learned 5th Additional Judicial Commissioner, Fast Track Court, Ranchi, in Sessions Trial No. 399 of 2001/T. R. No.61 of 2003, arising out of Ratu P.S. Case No. 15 of 2001 corresponding to G. R. no.322 of 2001 is party allowed. 14. In the result, the present Criminal appeal, preferred by the appellant is party allowed with modification in conviction and sentence. 15. The appellant, who is on bail, is discharged from the liability of his bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.