JUDGMENT : Heard learned counsel for the appellant Mr. A.K. Chaturvedi assisted by Mr. Amit Kr. Choubey as well as learned counsel for the State Mr. Ashok Kumar No.2., Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 24.12.2003 passed by the learned Sessions Judge, Gumla, in Sessions Trial No. 21 of 2002 whereby the sole appellant has been convicted for offence committed under section 307 and 325 of the I.P.C. The appellant has been sentenced to undergo rigorous imprisonment for three years u/s 307 of the Indian Penal Code and rigorous imprisonment for two years u/s 325 of the Indian Penal Code and both the sentences have been directed to run concurrently. Against the said impugned judgment, the present appeal has been preferred which has been admitted before this Hon’ble Court on 19.01.2004 and since then the matter is pending. 3. The prosecution case as made out in the First Information Report is based on the fardbeyan of Sukhdeo Mahto, brother of injured Karma Mahto recorded by S.I. N.N. Jaiswal, Ghagra P.S. on 25.10.2001 at 5.30 P.M. at Ghagra Primary Hospital ward, where the informant has stated that his brother Karma Mahato has cultivated a land in which cattle of one Prakash Sahu entered and started grazing. Upon which his brother, came and scolded Prakash Sahu and also assaulted him with fist and slap. In the meantime, Bablu Sahu, brother of Prakash Sahu came and assaulted Karma Mahto on his head by blunt portion of Kori (a sharp edge instrument used in cultivation) and after assaulting once fled away. On raising hulla by wife of Karma Mahto, this witness went there and saw injury on the head of his brother, who was unconscious. The informant along with co-villagers brought him to Ghagra Hospital where his brother in under treatment. The informant has further stated that his brother was unconscious and not able to speak. The informant alleged that Bablu Sahu assaulted his brother by blunt portion of Kori with intention to kill him. 4. On the basis of the fardbeyan police registered an F.I.R. and subsequently after investigation submitted chargesheet u/s 341, 327, 325 and 307 of the Indian penal Code. Cognizance of the offence was taken and case was committed to the court of sessions. 4. On the basis of the fardbeyan police registered an F.I.R. and subsequently after investigation submitted chargesheet u/s 341, 327, 325 and 307 of the Indian penal Code. Cognizance of the offence was taken and case was committed to the court of sessions. The learned Trial Court framed charge on 25.07.2002 against the sole appellant Bablu Sahu u/s 307 and 325 I.P.C. 5. That the prosecution has examined altogether eight witnesses. Dr. Bendick Minz as P.W. 1, Purnima Devi wife of the injured as P.W. 2, Sukhdeo Mahto informant as P.W. 3, Bodhan Mahto as P.W. 4, Kundan Kumar Pandey as P.W. 5, Karma Mahto (victim) as P.W. 6, Shiv Kumar Pandey as P.W. 7 and Rajendra Jha as P.W. 8, (a formal witness). Apart from the oral evidence the prosecution has brought injury report of Karma Mahto as Exbt. 1, report of X-ray as Exbt.1/1, X-ray plate as Exbt. 1/2, opinion report of witness as Exbt. 1/3, endorsement of Officer in-charge on fardbeyan as Exbt. 2, First Information Report as Exbt. 2/1 and Case Diary as Exbt. 3. Apart from this, defence has also examined one D.W. Kuldip Singh (a formal witness) who have proved the compromise petition filed by Karma Mahto, Sukhdeo Mahto and having left hand thumb impression of Bablu Sahu also and the same has been marked as Exbt. (ka), Dr. Bendick Minz who has been examined as P.W. 1 has found three injuries on injured Karma Mahto (P.W.6): “(i) Lacerated wound on upper part of left temporal scalp size 1”x1/3” x Bone deep. (ii) Abraison 1/2"x1/3” on left side of temporal scalp. (iii) Lacerated wound size 3/4"x1/3” bone deep on scalp of head above to occipital region.” These injuries were caused by hard and blunt substances which have been caused within 12 hours. 6. Doctor has kept the opinion reserved and it was later on found that there was a fracture in scalp bone on left side with hematoma which was grievous in nature. Doctor has proved this injury report in his pen and signature which has been marked as Exbt. 1 and according to the X-ray report issued by Doctor A.D.N. Prasad, the injury was grievous in nature as there was a fracture in scalp bone on the left side with hematoma and the signature and report of Dr. A.D.N. Prasad has been proved as Exbt. 1/1, X-ray plate has been exhibited as Exbt. 1 and according to the X-ray report issued by Doctor A.D.N. Prasad, the injury was grievous in nature as there was a fracture in scalp bone on the left side with hematoma and the signature and report of Dr. A.D.N. Prasad has been proved as Exbt. 1/1, X-ray plate has been exhibited as Exbt. 1/2 and the opinion report submitted to the officer-in-charge in his pen and signature as Exbt. 1/3. During cross-examination, this witness has stated that he cannot say which of the injury was inflicted on the victim for the first time and the injury found on the person of the victim caused by one weapon or by different weapons. 7. Purnima Devi, wife of the injured and eye witness to the occurrence has been examined as P.W. 4. This witness has stated that while her husband was removing the cattle from the paddy field, Bablu came and assaulted her husband by Kory due to which her husband fell down. The assault was made from the blunt portion of the Kory. Her husband sustained injury on the head due to which he fell on ground but never became unconscious and thereafter on hearing brawl people came and took him to his house and thereafter he was brought to Ghagra Primary Health Centre for treatment. This witness during cross-examination has categorically stated that they have no previous enmity with the appellant Bablu Sahu. 8. Sukhdeo Mahto, informant of the case has been examined as P.W. 3. This witness has stated that on Thursday at 5.00 p.m., the occurrence took place and on hulla raised by wife of Karma, he went near the place of occurrence where wife of Karma Mahto has disclosed, that Bablu has assaulted her husband. This witness has further stated that he saw injury on the head of the person from where blood was oozing. This witness has further stated that initially they brought the injured to the house and subsequently he was brought to Ghagra Hospital where his fardbeyan was recorded as his brother was admitted there. This witness has stated during cross-examination that when he reached at the place of occurrence, his brother has fallen on the ground and no conversation took place, injured was brought to the hospital. 9. This witness has stated during cross-examination that when he reached at the place of occurrence, his brother has fallen on the ground and no conversation took place, injured was brought to the hospital. 9. Bodhan Mahto has been examined as P.W. 4 during examination in chief, he has stated that he did not know who has assaulted Karma Mahto. 10. Kundan Kumar Pandey has been examined as P.W. 5 He has stated during examination in chief that he has no knowledge that who has assaulted Karma Mahto. 11. Karma Mahto has been examined as P.W. 6, he is injured and victim of the case and has been declared hostile by the prosecution. This witness during cross-examination has said that on his sweet will, he has compromised the case and do not want to proceed with the case. 12. Shiv Kumar Pandey has been examined as P.W. 7 and has been declared hostile by the prosecution. 13. Rajendra Jha has been examined as P.W. 8. He is an advocate clerk and proved the endorsement made by the officer in-charge and signature as Ext. 2. On the basis of which F.I.R. has been lodged and on the formal F.I.R. as Exbt. 2/1 and the case diary of Ghagra P.S. Case No. 87 of 2001 from diary no. 1 to 51 as Exbt. 3. Although the case diary ought not to have been exhibited. 14. After closure of the prosecution evidence, the appellant Bablu Sahu was examined u/s 313 on 15.12.2003. The defence has also examined one defence witness Kuldip Singh, an advocate clerk, being a formal witness to court. The signature of the informant, the appellant and the victim Karma Mahto over compromise petition has been marked Exbt. (ka). 15. Heard Learned counsel for the appellant, Mr. A.K. Chaturvedi assisted by his junior Mr. A.K. Choubey and learned A.P.P., Mr. Ashok Kumar No. 2. Perused the lower court’s record, F.I.R. and the evidence brought on record. Learned counsel for the appellant has submitted that no case u/s 307 I.P.C. is made out as there is no intention on the part of the appellant to commit such offence nor there is any repetition of blow. Apart from this the appellant has not used sharp edge of the Kory. Learned counsel for the appellant has submitted that no case u/s 307 I.P.C. is made out as there is no intention on the part of the appellant to commit such offence nor there is any repetition of blow. Apart from this the appellant has not used sharp edge of the Kory. The learned counsel for the appellant has further submitted that there was no intervening circumstances for the appellant to commit murder if he had the intention. In lack of intention to commit such murder, the charge has been wrongly framed u/s 307 of the Indian Penal Code. The learned counsel for the appellant has submitted that it was at the spur of the moment as per First Information Report that appellant has assaulted his brother and under such situation it is alleged that appellant has assaulted once to the victim although victim has not supported the prosecution case and prosecution has declared him hostile and the victim has also compromised the case with the appellant and as such conviction of the appellant without any cogent material u/s 307 is not sustainable in the eyes of law and in view of the compromise between the parties, the conviction u/s 325 IPC is not sustainable since the parties have already compromised and Section 325 IPC is compoundable in nature with the permission of the court. 16. Learned counsel for the State, Mr. Ashok Kr. No.2 has vehemently argued the case and has supported the impugned order. Learned A.P.P. has submitted that in the first information report there is an allegation that with intention to kill the appellant, Bablu Sahu has assaulted with blunt portion of Kory on the head of victim Karma Mahto. The counsel for the State has fairly submitted that there is a single blow as per the First Information Report and the evidence brought by the prosecution. The learned counsel for the State has further submitted that Doctor has found specific injury on the head but could not satisfy this court, that how three injury was found by the doctor on the head caused by hard and blunt substance. 17. After hearing both the sides and after perusal of the entire records, this court is of the opinion that victim Karma Mahto has not supported the prosecution case and the entire case is based upon the sole testimony of P.W. 2, Purnima Devi wife of Karma Mahto. 17. After hearing both the sides and after perusal of the entire records, this court is of the opinion that victim Karma Mahto has not supported the prosecution case and the entire case is based upon the sole testimony of P.W. 2, Purnima Devi wife of Karma Mahto. From perusal of record, the submissions made by the learned counsel for the appellant got some force. It appears that appellant has no intention to commit murder of Karma Mahto (P.W. 6) as appellant was having sharp edge instrument but as per the allegation appellant has used the blunt portion and that too only once. Subsequently the occurrence took place in spur of moment as cattle grazed the paddy for which appellant has assaulted brother of the victim and as such under such background there is no intention on the part of the appellant of committing murder. Furthermore, Karma Mahto who is the victim of the case has not supported the prosecution case and has been declared hostile by the prosecution. The conviction of the appellant under Section 307 IPC is non-sustainable in the eyes of law as stated above. So far the conviction under Section 325 is concerned, the same is compoundable with the permission of the court and as per P.W. 6 (Karma Mahto) he has admitted during cross-examination that on his sweet will, he has compromised the case and do not want to proceed with the case. Furthermore, as per the allegation, only single blow by blunt portion has been given by the appellant upon the victim but Doctor (P.W. 1) has found three injuries on the head which has never been explained properly by the prosecution. 18. Thus considering the above facts, benefit of doubt is granted to the appellant by setting aside the judgment of conviction and order of sentence dated 24.12.2003 passed by the learned Sessions Judge, Gumla, in Sessions Trial No. 21 of 2002 of Ghagra P.S. Case No. 87 of 2001 arising out of G.R. No. 702 of 2001 is hereby set-aside and the appellant Bablu Sahu is acquitted of charge u/s 307 and 325 I.P.C. and the appellant who is on bail is discharged from liability of his bail bond. 19. The appeal is accordingly allowed. 20. Let the record be sent to the lower court concerned.