JUDGMENT : Heard learned counsel for the appellants, learned counsel for the informant as well as learned counsel for the State. 2. All the aforesaid three criminal appeals are being disposed of by the common judgment. The Cr. Appeal (SJ) No. 36 of 2011 and Cr. Appeal No. 102 of 2011 have been preferred against the judgment dated 27.12.2010 and order of sentence dated 30.12.2010, thereby all six appellants have been convicted under Sections 147 and 307/149 of the Indian Penal Code accordingly, sentenced to undergo six months of rigorous imprisonment under Section 147 of the Indian Penal Code and to undergo rigorous imprisonment of ten years under Sections 307/149 of the Indian Penal Code as well as imposed fine of Rs. 5000/- to each one of them and on default in payment of fine, to further undergo rigorous imprisonment of three months. 3. Cr. Appeal (SJ) No. 236 of 2011 is preferred by the informant against the acquittal of four accused persons, namely, Kamta Singh, Janki Singh, Upendra Singh and Pintoo Singh @ Mintu Kumar, by the aforesaid judgment dated 27.12.2010, as the prosecution failed to prove charge against them. 4. The prosecution case giving rise to this case, in brief, is that informant Ram Sharan Singh (PW-2) was going to Tilaiya Railway Station to board train along with his villagers Ram Padarath Singh (not examined), Babu Lal Singh (not examined) and his younger brother Prem Kumar Singh (PW-1). While they reached to Sisam Orchard at the outskirts of the village, all the accused persons, namely, Kamta Singh armed with Garasa, Janaki Singh armed with Khanti, Upendra Singh and Pintu Kumar armed with rifles, Janardan Singh, Ashok Singh, Banke Bihari Singh, Siya Sharan Singh, Dinesh Singh, Ram Ratan Singh and Karu Singh armed with Lathi and Mintu Singh armed with rifle, all surrounded the informant, and Kamta Singh ordered to kill him and he gave a Garasa blow over the head of the informant causing cut injury. In the meanwhile Janki Singh gave a Khanti blow over his head but he protected himself with right hand, so injury was caused in his right hand and on the palm. As a result of assault, he fell down thereafter Upendra Singh and Mintu Singh assaulted on his chest with the butt of the rifle and further tried to strangulate him. Kamta Singh was repeatedly exhorting all others to kill the informant. As a result of assault, he fell down thereafter Upendra Singh and Mintu Singh assaulted on his chest with the butt of the rifle and further tried to strangulate him. Kamta Singh was repeatedly exhorting all others to kill the informant. Due to assault, he became seriously injured thereafter accused persons took away his golden ring, wrist watch and some cash. In the meanwhile villagers turned up then they all escaped away. 5. On basis of the fardbeyan of the informant Ram Sharan Singh, formal FIR of Narhat P.S.Case No. 29 of 1997 under Sections 147, 148, 149, 323, 324, 307 and 379 of the Indian Penal Code and 27 of the Arms Act was registered. The police proceeded with the investigation and on conclusion of investigation, submitted chargesheet against all the accused persons, except Janki Singh and Kamta Singh, but later on, at the time of taking cognizance, summons were issued against all accused persons to face trial and on its conclusion, judgment was passed. 6. At the very outset, learned counsel submits that during pendency of these appeals, appellant no. 4, namely, Janardan Singh died and in this regard there is report of the Superintendent of Police, Nawada, considering such fact, name of appellant no. 4 is deleted from Cr. Appeal No. 36 of 2011. 7. Learned counsel, appearing on behalf of appellants in Cr. Appeal (SJ) No. 36 of 2011 and Cr. Appeal No. 102 of 2011, assails the impugned judgment of conviction by submitting that no independent witness was produced by the prosecution in this case, moreover charge under Section 307 of the Indian Penal Code too has not been proved because evidence on record does not establish its ingredients even as per evidence, appellants said to be armed with firearms did not use firearm against the informant including lack of intention to make attempt on his life otherwise they might have used the firearms to cause his death. 8. Whereas learned counsel, appearing on behalf of the informant as well as State, submit that charge under Section 307 of the Indian Penal Code has been proved and further it is submitted on behalf of the informant that despite the allegation and evidence against Kamta Singh, Janki Singh, Upendra Singh and Pintoo Singh @ Mintu Kumar, trial court wrongly acquitted them from all charges. 9. 9. Whereas contention of learned counsel representing the acquitted persons is that no corresponding injury with respect to assault attributed to these accused persons were found on the person of the informant (PW-2), so rightly the trial court has acquitted these accused persons finding no evidence against them causing any injury. 10. Having considered rival submissions and on perusal of the record, Court finds that altogether four prosecution witnesses, namely, Prem Kumar (PW-1), informant Ram Sharan Singh(PW-2), Dr. Arvind Kumar (PW-3) and Md. Maqsood Alam (I.O.) (PW-4) have been 3examined by the prosecution, the most important witness from the perspective of prosecution is PW-2, Ram Sharan Singh (informant) one of injured in the occurrence. He has deposed that Kamta Singh gave Garasa blow over his head and Janki Singh attempted to assault over his head with Khanti, but he held Khanti by his hand due to which injury was caused in his fingers of the right hand. Banke Bihari Singh gave a lathi blow causing injury on his wrist thereafter Upendra Singh and Pintu Singh stood up on his chest and tried to strangulate him, further Upendra Singh hit on his chest by the butt of his rifle, however, injuries found on the person of the informant are as follows: (1) Lacerated wound size 2” x ½” x scalp deep over mustroid region of skull. (2) Abrasion of size 2” x 1/3” over left shoulder in anterior aspect. (3) Multiple bruises four (4) over back varying from size 1” x 1/2” up to size 3” x 1/2”. (4) Abrasion of size 1 1/2” x 1” over sacral region. (5) Lacerated wound of size 1 1/2” x 1/2” x bone deep over Rt. dorsum of hand. (6) 03 Bruises of size 1 1/2” x 1/2”, 1 1/2” x 1” and 2 1/2” x 1” over left forearm with swelling of size 3” x 2”. (7) Bruise of size 2” x 1” over Rt. at Rt. thigh. (8) Diffused swelling over right foot. (9) Multiple swellings with bruises of size 1”x1/2” up to 4”x 1” over left leg. (10) Diffused swelling of size 4” x 3” over Rt. Leg. (11) Abrasion of size 1” x 1/2” over Rt. fore _____ (12) 02 bruises 1 1/2” x 1” x 3” x 1/2” over left thigh. Age of injuries- within 12 hours. Nature of injuries- Opinion of nature of injury no. (10) Diffused swelling of size 4” x 3” over Rt. Leg. (11) Abrasion of size 1” x 1/2” over Rt. fore _____ (12) 02 bruises 1 1/2” x 1” x 3” x 1/2” over left thigh. Age of injuries- within 12 hours. Nature of injuries- Opinion of nature of injury no. 1,3,5,6,8,9 and 10 was reserved till X-ray. Rest simple. Weapons used hard and blunt substance. Injury no. 1 may be caused by blunt portion of garasa. Khanti can be used as hard blunt substance if it is not used from its sharp portion. Injury no. 5 can be said to be caused by Khanti. Rest injuries can be caused by lathi as well as butt portion of rifle. Supplementary injury report-X-ray was done at Magadh Xray clinic on 2.5.1997. Injuries no. 1,3 and 8 were simple and injuries No. 5,6,9 and 10 were grievous in nature. PW-3 also asserts in para-22 that Garasa blow was given at the back of the head of the informant, but no any sharp cut injury was found. 11. Evidence of PW-1 and PW-2, namely, Prem Kumar and Ram Sharan Singh, regarding manner of assault, is that Kamta Singh gave a Garasa blow over the head of PW-2, Janaki Singh assaulted him with Khanti and Upendra Singh and Pintu Singh assaulted on chest with butt of the rifle, however, there is lack of evidence in view of evidence of doctor (PW-3) as no such corresponding injuries were found on the said part of the body. So the trial court has rightly acquitted these four accused persons/respondents of Cr. Appeal (SJ) No. 236 of 2011. Learned counsel for the appellant/informant was not able to point out the error committed by the trial court while acquitting these four accused persons/respondents from all charges. So the court finding no merit in Cr. Appeal (SJ) No. 236 of 2011, it stands dismissed. 12. Now the relevant point to be determined as to whether in both these appeals against conviction whether charges under Sections 307 and 149 of the Indian Penal Code have been proved against these appellants of Cr. Appeal (SJ) No. 36 of 2011 and Cr. Appeal No. 102 of 2011, beyond all reasonable doubts. Only two witnesses have been examined on the point of occurrence. Appeal (SJ) No. 36 of 2011 and Cr. Appeal No. 102 of 2011, beyond all reasonable doubts. Only two witnesses have been examined on the point of occurrence. PW-1 is the brother of the informant and PW-2, the informant himself, who is said to have sustained 12 injuries in the form of abrasion, bruises and swelling and all are on non-vital part of the body like feet, back of the body, leg and arms and one lacerated wound on mustroid region of scalp and grievous injuries referred as injuries no. 5,6,9 and 10 are on hand, forearm, legs i.e., on non-vital parts of the body. 13. PW-2, Ram Sharan Singh, has deposed that all appellants, except Kamta Singh, Janki Singh, Upendra Singh and Pintu Singh, assaulted him with lathi. According to medical evidence, injuries found on the body of the PW-2 were also caused by hard and blunt substances. PW-1, brother of the informant, has also stated in his testimony that these appellants assaulted his brother with Lathi causing injuries and the motive of committing occurrence is application filed by PW-2 against Banke Singh, one of the appellants, informing the concerned authorities regarding obtaining job by submitting a forged document by Banke Singh. PW-1, in para-7 of his deposition, admits that the appellants though were armed with rifle but no firearm was used in assaulting informant (PW-2). In paras 23 and 24 of his deposition, PW-2 categorically admits that firearms were not used by the appellants and no injury was caused on his neck as a result of assault, so the case of making an attempt on life of PW-2 is not established on account of lack of evidence showing absence of intention on part of the appellants making an attempt of life on PW-2. In view of evidence on record that despite appellants being armed with firearms the same was not used by anyone of them even there was complete absence of intervening circumstances to stop the appellants in further assaulting the informant to cause his death. In view of evidence on record that despite appellants being armed with firearms the same was not used by anyone of them even there was complete absence of intervening circumstances to stop the appellants in further assaulting the informant to cause his death. So had the appellants nursed any intention of taking life of PW-2, they would have assaulted on vital part of the body repeatedly but the evidence shows that only one lacerated wound was found over the mustroid region of the scalp of the shape of 2” x 1/2” x scalp deep and that too is simple in nature, as per evidence of Dr. Arbind Kumar (PW-3). Except the said injury all rest injuries are on non-vital parts of the body like arms and legs. 14. In order to justify conviction under Section 307 I.P.C., there must be evidence showing presence of intention of the appellants coupled with overt act in execution thereof. Though it is also not necessary that only bodily injury capable of causing death should have been inflicted however intention can be gathered only from the circumstances and evidence available in each particular case indicating the weapon used in the offence, the manner of assault as well as the intervening circumstances, which would have frustrated the penultimate act of murder. In the case at hand, weapon used by the appellants are Lathi and they have assaulted on the non-vital part of the body except one injuury on head which is simple in nature. As earlier observed, except one injury found on the head that too simple in nature and rest are on non-vital parts of the body like shoulder, back of the body, hand and feet. Moreover, there is no evidence on record that any resistance was made by the prosecution side or anyone intervened to rescue PW-2, the injured of this case. According to prosecution case, some of the appellants were armed with firearms. PW-1 and PW-2, both have accepted that firearms were not used by the appellants indicative of lack of intention of the appellants to take away the life of PW-2. Out of all 12 injuries found on the person of PW-2, as per evidence of Dr. Arvind Kumar (PW-3), already earlier mentioned in this judgment, opinion regarding injury nos. PW-1 and PW-2, both have accepted that firearms were not used by the appellants indicative of lack of intention of the appellants to take away the life of PW-2. Out of all 12 injuries found on the person of PW-2, as per evidence of Dr. Arvind Kumar (PW-3), already earlier mentioned in this judgment, opinion regarding injury nos. 1, 3, 5, 6, 8, 9 and 10 were reserved and rests were found simple in nature caused by hard and blunt substances. However, as per final injury report, only injury nos. 5, 6, 9 and 10 were found grievous and those injuries were at the hand and leg, non-vital part of the body. The evidence of PW-3 also shows that X-ray plate of the PW-2, was not placed before the trial court and also not marked as exhibit. However, PW-3 accepts in para-10 of his deposition that X-ray plate or the opinion of the radiologist are not available in the court and in para-13 of his deposition, this fact also comes to light that despite availability of X-ray facility in Nawada Sadar Government Hospital, the injured (PW-2) got his X-ray done to a private radiologist ‘Magadh Xray’, which establishes the fact that despite availability of X-ray facilities in the Government hospital, X-ray was procured from Magadh X-ray, even the X-ray plate or radiologist report were not brought on record in order to prove the final opinion of injuries. In absence of such evidence the only conclusion is that, all injuries found on the person of PW-2 are simple in nature. 15. Having analysed critically the evidence on record, the Court comes to the conclusion that charge under Section 307 I.P.C. has not been proved against the appellants of Cr. Appeal (SJ) No. 36 of 2011 and Cr. Appeal No. 102 of 2011 beyond all reasonable doubt rather charges only under Sections 323 and 149 I.P.C. are proved against all the appellants. Since all the appellants have remained in custody altogether four months at the stage of trial and post conviction period, so they are sentenced to the period already undergone and to pay a fine of Rs. 1000/- each and the same shall be paid to the informant (PW-2). In case of default in making payment within two months, the appellants shall further undergo 15 days of simple imprisonment. 16. 1000/- each and the same shall be paid to the informant (PW-2). In case of default in making payment within two months, the appellants shall further undergo 15 days of simple imprisonment. 16. With the aforesaid modification in conviction and sentence, both appeals stand disposed of.