JUDGMENT : Heard, learned counsel for the appellant, Mr. Abhishek Kumar Geasen, assisted by Mr. Anil Kumar Sinha, Advocates and learned counsel for the State, Mr. Gouri Shankar Prasad, learned Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction dated 22.07.2004 and order of sentence dated 24.07.2004, passed by learned Additional Judicial Commissioner, Fast Track Court-VIIIth, Ranchi, in Sessions Trial No. 466 of 2003/Trial No.138 of 2003, whereby the sole appellant has been convicted for offence committed and punishable under Sections 307/149, 324/149 and 147 of the Indian Penal Code and awarded rigorous imprisonment for seven years with a fine of Rs. 2000/-, in case of default in payment of fine, to undergo further rigorous imprisonment for three months for the offence committed and punishable under Section 307/149 of the Indian Penal Code, rigorous imprisonment for two years for the offence committed and punishable under Section 324/149 of the Indian Penal Code and awarded rigorous imprisonment for one year for the offence committed and punishable under Section 147 of the Indian Penal Code and all the sentences are directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of Pradeep Kumar (P.W.-1), recorded by Sub-inspector of Police, Ganesh Prasad of Chutia police station at Gurunanak Hospital, Bed No.101 on 17.02.2003 at 9:30 A.M., wherein the informant has stated, that on 16.02.2003 at around 6:30 P.M. the informant was present at his S.T.D., Booth. In the meantime, a green maruti car came in front of S.T.D. booth of the informant and 8 to 10 persons got down from the maruti car and out of them 2-3 persons namely, Manoj Pandey, Rajesh Kumar and Shekhar, all resident of powerhouse Chutia, entered into the S.T.D. booth of the informant and demanded a sum of Rs.10,000/-, which was refused by the informant, because of which, all of them started, assaulting the informant with intention to kill. The informant has further alleged, that he has sustained some injuries and in order to save his life, he came out of his booth and started fleeing towards Railway Colony. While the informant was fleeing away, he heard some gunshot fired and he also slipped and fell down thereafter the followers of Manoj Pandey, who were standing there, assaulted him badly with sword and knife, causing severe injury, due to which the informant became unconscious. While the informant was fleeing away, he heard some gunshot fired and he also slipped and fell down thereafter the followers of Manoj Pandey, who were standing there, assaulted him badly with sword and knife, causing severe injury, due to which the informant became unconscious. On hearing brawl, several persons came there and Sukhdeo Prasad and Narayan Prasad tried to pacify the parties and took the informant to Sewa Sadan for treatment. The informant could not say about the detail of weapon, in possessions of accused persons. The informant has further alleged that the earning of S.T.D. booth approximately 2500/-, a golden chain and a wrist watch, have been taken away by the accused persons. The informant has claimed, that the occurrence took place because, in the same evening at 05:00 P.M., one person namely, Bablu was standing in front of his medical shop and he was also assaulted by the accused persons and when the informant went there for his rescue, accused persons have also assaulted the informant and threatened him with dire consequences. 4. On the basis of fardbeyan, the police has registered Chutia P.S. Case No.21 of 2003, dated 17.02.2003, under Sections 147/148/149/323/324/307/379/386 of the Indian Penal Code and 27 of the Arms Act. 5. After investigation, police submitted charge sheet vide charge sheet no.45 of 2003, dated 31.05.2003, under Sections 147/148/149/323/324/307/379/386 of the Indian Penal Code and 27 of the Arms Act against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 31.05.2003 and the case has been committed to the court of sessions vide order dated 21.08.2003. 7. The charge has been framed against the accused/appellant, Manoj Pandey under Sections 323/149, 324/149, 307/149, 379/149, 387/149, 147 and 148 of the Indian Penal Code, on 03.09.2003, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, to prove its case, has examined altogether five witnesses and exhibited a number of documentary evidence up to exhibit-4. Pradip Kumar, informant and victim of the case, has been examined as P.W.-1, Ganesh Prasad, investigating officer of the case, has been examined as P.W.-2, Suraj Kumar @ Prasad, hearsay witness, has been examined as P.W.-3, Narayan Prasad, one eye witness to the occurrence, has been examined as P.W.-4 and Dr. Vinay Kumar, Medical Officer, has been examined as P.W.-5. Pradip Kumar, informant and victim of the case, has been examined as P.W.-1, Ganesh Prasad, investigating officer of the case, has been examined as P.W.-2, Suraj Kumar @ Prasad, hearsay witness, has been examined as P.W.-3, Narayan Prasad, one eye witness to the occurrence, has been examined as P.W.-4 and Dr. Vinay Kumar, Medical Officer, has been examined as P.W.-5. The signature of the informant on the fardbeyan, has been proved and marked as exhibit-1, handwriting and signature on the fardbeyan, has been proved and marked as exhibit-1/1, seizure list, has been proved and marked as exhibit-2, the signatures of Officer-In-Charge on the formal First Information Report, have been proved and marked as exhibits-3 and 3/1 and Injury report of informant, Pradeep Kumar, has been proved and marked as exhibit-4. One piece of sword produced (weapon of offence), has been proved and marked as Material exhibit-I. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under section 313 Cr.P.C., on 28.05.2004, to which the appellant has denied the evidence levelled against him and stated that he is innocent and has been falsely implicated in this case. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court passed the impugned judgment of conviction and order of sentence against the appellant under Sections 307/149, 324/149 and 147 of the Indian Penal Code. Being aggrieved at 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 same. 11. Heard, learned counsel for the appellant, Mr. Abhishek Kumar Geasen, assisted by Mr. Anil Kumar Sinha, 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. 11. Heard, learned counsel for the appellant, Mr. Abhishek Kumar Geasen, assisted by Mr. Anil Kumar Sinha, 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 307/149 of the Indian Penal Code is made out against the appellant as there is no repetition of blow and in the First Information Report the informant has not alleged against the appellant, Manoj Kumar Pandey, as one of the persons, who has assaulted him by means of sword, on his head, but during deposition in court as P.W.-1, this witness has categorically stated that he was assaulted by appellant, Manoj Kumar Pandey on his head by means of sword. Learned counsel for the appellant has thus submitted, that in absence of any material to constitute an offence under Section 307 of the Indian Penal Code the appellant cannot be convicted under Section 307/149 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that the appellant has also been acquitted by the learned trial court from the charge under Sections 323/149, 379/149, 387/149 and 148 of the Indian Penal Code and the said acquittal of the appellant has not been assailed by the State or by the informant before this Hon’ble Court. Learned counsel for the appellant has drawn attention of this Court towards evidence of P.W.-2 investigating officer, who has admitted in paragraph 10 of his cross-examination that witness Pradip Kumar Raut, P.W.-1, has never disclosed before him that it was Manoj Kumar Pandey, who has assaulted him by means of sword on his head. Learned counsel for the appellant has further submitted, that P.W.-3, Suraj Kumar @ Prasad, hearsay witness, has admitted in paragraph 4 of his examination-in-chief that he does not know the persons, who have assaulted the informant and has also not identified the appellant present in dock, during trial. Learned counsel for the appellant has further drawn attention of this Court towards the evidence of P.W.-4, Narayan Prasad. This witness has categorically stated that in paragraph 3 of his evidence that he can not identify the accused, who has assaulted the informant and also not identified the accused present in the dock. Learned counsel for the appellant has further drawn attention of this Court towards the evidence of P.W.-4, Narayan Prasad. This witness has categorically stated that in paragraph 3 of his evidence that he can not identify the accused, who has assaulted the informant and also not identified the accused present in the dock. Learned counsel for the appellant has thus submitted, that basic ingredient to constitute an offence under Section 307/149 of the Indian Penal Code is not attracted in this case, as such the appellant, Manoj Kumar Pandey may be acquitted of the charge and conviction by extending the benefit of doubt. Learned counsel for the appellant has further submitted, that none of the seizure witnesses have been examined in this case and the seizure list has been proved and marked as exhibit-2, without formally proved by competent witness. 12. Heard, Mr. Gouri Shankar Prasad, 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 is based on materials available on record and learned trial court has rightly passed the impugned judgment of conviction against the appellant under Sections 307/149 and 324/149 and 147 of the Indian Penal Code. Learned counsel for the State has further submitted, that Dr. Vinay Kumar, P.W.-5, has found five injuries on the person of the victim, Pradeep Kumar, though all injuries found to be simple in nature, injury report has been proved and marked as exhibit-4. Learned State counsel has thus submitted, that the appellant has been rightly convicted by the learned trial court and impugned judgment of conviction and order of sentence does not warrant any interference by this Hon’ble Court at this stage. 13. Heard, learned counsel for the appellant, Mr. Abhishek Kumar Geasen, assisted by Mr. Anil Kumar Sinha, Advocates and learned counsel for the State, Mr. Gouri Shankar Prasad, learned Additional Public Prosecutor and perused the record i.e. First Informant Report, framing of charge, evidence of five prosecution witnesses, four prosecution exhibits, one material exhibit and the statement of the appellant recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This court has scrutinized the evidence. From perusal of the evidence brought on record, it appears that there is no repetition of blow. This court has scrutinized the evidence. From perusal of the evidence brought on record, it appears that there is no repetition of blow. The informant has not disclosed the name of appellant Manoj Kumar Pandey, as the person who has assaulted the informant on his head on the back side and the injuries were found to be simple in nature, coupled with the fact that P.W.-3 is a hearsay witness and P.W.-4 is an eye witness to the occurrence but both have not identified the appellant, Manoj Kumar Pandey, as assailant. This Court has also perused the evidence brought on record, specifically the statement of P.W.-2 Ganesh Prasad, investigating officer, in paragraph 10 of his cross-examination, who has stated that informant in his re-statement has not disclosed that Manoj Kumar Pandey has assaulted him by means of sword on the head but from perusal of the evidence brought on record, it appears that though informant has not alleged specifically against Manoj Kumar Pandey, as the assailant, as he has not disclosed the same in the fardbeyan, as such the conviction of the appellant under Section 307/149 of the Indian Penal Code cannot sustain in the eye of law and is hereby set aside. So far the conviction of the appellant under Section 324/149 of the Indian Penal Code is concerned this Court has perused the definition under Section 324 of the Indian Penal Code, which is reproduced here:- “324. Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. From perusal of Section 324 of the Indian Penal Code, it appears that the weapon of offence has been used by the appellant causing injury, though simple in nature, as such conviction of appellant under Sections 324/149 of the Indian Penal Code and under Section 147 of the Indian Penal Code is hereby upheld and affirmed but with modification in sentence as period already undergone by the appellant as the appellant has already served out the sentence of one year and nine month out of two years, as awarded by the learned trial court. 14. In the result, the instant appeal is partly allowed with modification. 15. The appellant, who is on bail, his bail bonds is hereby cancelled but no further order is required. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.