JUDGMENT : Heard, learned counsel for the appellant, Mr. A.K. Chaturvedi assisted by Mr. Amit Kumar Choubey and Mr. Hadish Ansari, Advocates and learned counsel for the State, Mr. P.K. Appu, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 17.02.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No.1, Jamshedpur, East Singhbhum, in Sessions Trial No. 247 of 1999, whereby, the appellant has been convicted for the offence committed and punishable under Section 326 of the Indian Penal Code though the charge has been framed against the appellant, Majin Lohar and co-accused, Jukru Majhi under Sections 307/34 and 341 of the Indian Penal Code but learned trial Court has convicted the appellant, Majin Lohar under Section 326 of the Indian Penal Code and awarded Rigorous Imprisonment for three years with fine of Rs.2000/- in case of default in payment of fine, to undergo further Rigorous Imprisonment for two months. The co-accused, Jukru Majhi has been declared as an absconder vide order dated 20.01.2004 as he jumped the bail after closure of prosecution evidence and soon before recording the statement of the accused persons under section 313 Cr.P.C. on 22.01.2004. 3. The prosecution case, is based upon, fardbeyan of informant, Tungoi Lohar (P.W.6) recorded by Sub-Inspector, Krishna Prasad, Govindpur Police Station on 21.10.1998 at 20.30 hrs. at Manpita village, wherein, the informant has alleged that, today i.e. 21.10.1998, he remained all along busy in dancing and singing on the occasion of 'Kali Puja' right from the evening. After finishing such merriment of dancing and singing, the informant along with his friends proceeded towards the house of a co-villager, Sudhir Mahato at 6.30 P.M. to have a dinner on his invitation. It has been stated that, when they reached near the house of one Maheshwar Singh (Master Jee), the accused persons, Majin Lohar and Jukru Majhi intercepted them on the way. The accused, Jukru Majhi was armed with Danda and the accused Majin Lohar was armed with sword. The accused persons asked the informant, why he is posing himself as a hero as such they were waiting for his arrival. Saying this, they started using abusive words. The accused, Jukru Majhi was armed with Danda and the accused Majin Lohar was armed with sword. The accused persons asked the informant, why he is posing himself as a hero as such they were waiting for his arrival. Saying this, they started using abusive words. When the informant forbade them form using such filthy words, then the accused, Jukru Majhi with an intention to kill the informant, inflicted a lathi blow on his head, which was stopped by his right hand, in-consequence to which, informant sustained injuries, on his right hand. In the meantime, the other accused, Majin Lohar, with an intention to kill the informant inflicted a sword blow on him, which he saved with his left hand and thus, he sustained sharp cut grievous bleeding injuries on the little finger of his left hand. When the informant raised brawl for help, his friends Ratan Lohar, Puklo Ho, Sudhir Mahato and his brother, Dobar Lohar came there and rescued him from the accused persons. The informant returned to his house and narrated the whole incident to his cousin brother Ram Charan Karmakar and other members of his family. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Telco (Govindpur) P.S. Case No. 246 of 1998, dated 21.10.1998, under Sections 341/323/307/34/326 of the Indian Penal Code against both named accused persons namely, Majin Lohar and Jukru Majhi. 5. After investigation, the police submitted charge sheet vide charge sheet no.194 of 1998 dated 30.11.1998, under Sections 341/323/307/326/34 of the Indian Penal Code against both named accused persons namely, Majin Lohar and Jukru Majhi. 6. The cognizance of the offence has been taken vide order dated 09.12.1998 and the case has been committed to the Court of Sessions vide order dated 04.06.1999. 7. The learned trial Court has framed charge against both accused persons namely, Majin Lohar and Jukru Majhi on 17.05.2000, under Sections 307/34 and 341 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 seven witnesses and exhibited documentary evidence. 8. The prosecution, in order to prove its case, has examined altogether seven witnesses and exhibited documentary evidence. Dobar Lohar, elder brother and eye witness to the occurrence has been examined as P.W.1, Ratan Lohar, an independent eye witness to the occurrence has been examined as P.W.2, Ram Charan Karmakar, uncle of the informant and a hearsay witness has been examined as P. W. 3, Puklu Ho, an eye witness to the occurrence has been examined as P.W.4, Sudhir Mahato, another eye witness to the occurrence has been examined as P.W.5, Tungoi Lohar (informant of the case) has been examined as P.W.6 and Dr. Anjani Kumar Gupta (Medical Officer) has been examined as P.W.7. Injury report of the victim has been marked as Exhibit-1 and proved by Dr. Anjani Kumar Gupta (P.W.7). The case of co-accused Jukru Majhi was separated on 20.01.2004 after closure of the prosecution evidence, soon before the recording of the statement of the accused person under Section 313 Cr. P.C. on 22.01.2004. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 22.01.2004, to which the appellant has stated that he is innocent and has been falsely implicated in this case. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court, convicted the appellant for the offence committed and punishable under Section 326 of the Indian Penal Code though charge has been framed under Sections 307/34 and 341 of the Indian Penal Code and awarded Rigorous Imprisonment for three years and fine of Rs.2000/- and in default in payment of fine, further Rigorous Imprisonment for two months. 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, assailing the same. 11. Heard, learned counsel for the appellant, Mr. A.K. Chaturvedi assisted by Mr. Amit Kumar Choubey and Mr. Hadish Ansari, 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. A.K. Chaturvedi assisted by Mr. Amit Kumar Choubey and Mr. Hadish Ansari, 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 submitted, that the injury as disclosed by the informant, P.W.6 has not found by the doctor, which will be apparent from perusal of injury report, which has been proved by the Medical Officer, Dr. Anjani Kumar Gupta (P.W.7) as Exhibit-1. Learned counsel for the appellant has further submitted, that the informant has categorically stated during cross-examination that he has sustained only one injury for which twelve stitches were given to him but from perusal of the injury report (exhibit-1) no such injury is being found in the injury report nor the Medical Officer, Dr. Anjani Kumar Gupta (P.W.7) has disclosed about stitched wound of the informant. Learned counsel for the appellant has buttressed his argument by submitting, that Investigating Officer of the case has not been examined in this case and as such, the same has caused serious prejudice to the appellant. Learned counsel for the appellant has further submitted, that as per First Information Report and the evidence of the prosecution witnesses specially informant, Tungoi Lohar, P.W.6, it has been alleged that, initial assault was made by Jukru Majhi by means of lathi on the head of the informant but informant saved himself by placing his right hand and has sustained injury and thereafter, the appellant, Majin Lohar assaulted the informant on his neck by means of sword but again informant saved himself by placing his left hand, sustaining bleeding injury on the dorsal side of left palm. Learned counsel for the appellant has thus submitted, that though the informant has alleged two injuries caused upon him, but the doctor has only found one injury caused by sharp heavy weapon but during his cross-examination, the Medical Officer, Dr. Anjani Kumar Gupta(P.W.7) has admitted that this injury may be caused by blunt heavy object. Learned counsel for the appellant has thus submitted, that though the informant has alleged two injuries caused upon him, but the doctor has only found one injury caused by sharp heavy weapon but during his cross-examination, the Medical Officer, Dr. Anjani Kumar Gupta(P.W.7) has admitted that this injury may be caused by blunt heavy object. Learned counsel for the appellant has thus submitted, that in view of discrepancy in the statement of the informant and corresponding injury not found by the doctor and in absence of examination of Investigating Officer, the appellant may be acquitted of the charge and conviction passed by the learned trial Court. Learned counsel for the appellant has further submitted, that P.W.1, Dobar Lohar elder brother of the informant and Ratan Lohar, who was returning from the house of Sudhir Mahato, has been examined as P.W.2 claiming themselves eye witnesses to the occurrence. P.W.3, Ram Charan Karmakar, uncle of the informant, is a hearsay witness, P.W.4, Puklu Ho whose name has been mentioned as eye witness to the occurrence in the fardbeyan has not supported the case of prosecution case, though the prosecution has not declared him hostile. Learned counsel for the appellant has further submitted, that Sudhir Mahato(P.W.5) in whose house, the informant and others were going for having prasad, has not supported the prosecution case and has been declared hostile by the prosecution and as such, the entire prosecution case is based upon, the statement of the informant, Tungoi Lohar, P.W.6, Dobar Lohar, elder brother of the informant P.W.1 and Ratan Lohar an independent witness P.W.2 and as such, in absence of examination of Investigating Officer the appellant has suffered prejudice and may be given benefit of doubt. 12. Heard, Mr. P.K. Appu, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that in this case the appellant Majin Lohar by means of sword and Jukru Majhi by means of lathi, have assaulted the informant, Tungoi Lohar, P.W.6 and corresponding injury has been found by the doctor on the dorsal side of left palm of informant, which is in-consonance with the allegation made by the informant. Learned counsel for the State has further submitted, that Ratan Lohar(P.W.2) an independent witness, who was returning from the house of Sudhir Mahato, has also supported the prosecution case by stating that occurrence has taken place near the house of the Master jee. As such, there is no discrepancy, which warrant any interference by this Hon'ble Court in the impugned judgment of conviction and order of sentence, which is based on materials available on record. 13. Heard, learned counsel for the appellant, Mr. A.K. Chaturvedi assisted by Mr. Amit Kumar Choubey and Mr. Hadish Ansari, Advocates and learned counsel for the State, Mr. P.K. Appu, Additional Public Prosecutor and perused the materials available on records, i.e. First Information Report, framing of the charge, evidence of seven prosecution witnesses, one prosecution exhibit and the statement of the appellant recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. It appears from the evidence brought on record that, informant has sustained sharp cut injury on his dorsal side of the left palm, caused by sharp heavy weapon and the injury report has been proved and marked as exhibit-1. The informant, Tungoi Lohar (P.W.6), Dobar Lohar (P.W.1), elder brother of the informant and Ratan Lohar (P.W.2), are eye witnesses to the occurrence along with several other persons, named in the First Information Report and these three witnesses have supported the prosecution case. The defence has cross-examined these witnesses at length but nothing has been elucidated to disbelieve the prosecution case. The defence has cross-examined these witnesses at length but nothing has been elucidated to disbelieve the prosecution case. The defence case is that informant has sustained injury of its own, but even no suggestion was given that because of the enmity prevailing between the parties the occurrence had taken place and the appellant has been falsely implicated by the informant and no prejudice has been caused to the appellant because of non-examination of the investigating officer as the appellant has not stated anything in his statement recorded under Section 313 Cr.P.C. Under the aforesaid circumstance, considering the nature of injury and evidence of the informant, Tungoi Lohar (P.W.6) and two eye witnesses, Dobar Lohar (P.W.1), who was the along with the informant and Ratan Lohar (P.W.2), who was returning from the house of Sudhir Mahato, this Court is of the view that, impugned judgment of conviction and order of sentence has been rightly passed by the learned trial Court, on the basis of the materials available on record, which warrant no interference by this Hon'ble Court at this stage. Learned counsel for the appellant has submitted, that the appellant has suffered rigors of trial since the year 1998, and as such, instead of sending him jail, it would be proper, if the sentence is modified, as period already undergone by appellant. As the appellant has already served out approximately six months in custody, as such, the rest of the sentence may be modified by imposing some fine to the appellant, as the appellant is now aged about 40 years. The State counsel has no objection, but state counsel has prayed that a fine of Rs.10,000/- may be awarded to the appellant. Under the aforesaid circumstances, sentence awarded by the learned trial Court is modified, as period already undergone by the appellant, subject to payment of fine of Rs.10,000/-. The appellant is directed to deposit a sum of Rs.10,000/- before the learned trial Court within a period of eight weeks from the date of receipt of a copy of this order, which shall be paid to the informant, Tungoi Lohar (P.W.6), after due verification. If the fine amount is not deposited by the appellant within eight weeks from the date of receipt of a copy of this judgment, the sentence awarded by the learned trial Court will remain as it is. If the fine amount is not deposited by the appellant within eight weeks from the date of receipt of a copy of this judgment, the sentence awarded by the learned trial Court will remain as it is. Accordingly, the impugned judgment of conviction dated 17.02.2004, passed by learned Additional District & Sessions Judge, Fast Track Court No.1, Jamshepur, East Singhbhum, in Sessions Trial No. 247 of 1999, arising out of Telco (Govindpur) P.S. Case No.246 of 1998, corresponding to G.R. No. 2010 of 1998 is hereby upheld and affirmed with modification in sentence. 14. In the result, the instant criminal appeal stands dismissed with modification in sentence, as stated above. 15. The appellant, who is on bail, his bail bond is hereby cancelled but no action shall be taken against him for eight weeks from the date of receipt of a copy of this judgment, so as to comply the order/judgment passed by this Hon'ble Court. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.