Shyam Kishore Sharma, J.
1. The instant appeal on behalf of Bagar Mahato and his son Ram Bharosa Mahato is against the judgment dated 7-8-1993 passed by the Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 194 of 1989 whereby he held the appellant No. 1 guilty for committing offence under Section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, he was ordered to undergo simple imprisonment for one year.
2. P.Ws. 4 and 7 are ordered to be paid compensation at the rate of 1,500/- each. Appellant No. 2 was convicted under Section 379, I.P.C. and after being given benefit of Section 360, Cr. P.C. he was released on admonition.
3. Fardbeyan of Mahanth Mahto (P.W. 7) is the basis of the prosecution case. His Fardbeyan was recorded on 8-1-1988 at 6 p.m. at M. J. K. Hospital, Bettiah in which he alleged that on 8-1-1988 at 1.00 p.m. Bagar Mahto armed with Garasa and his son Ram Bharosa Mahto armed with Bhala came from north side and attacked the informant. Informant was struck by the Garasa and Bhala, as a result thereof, he received injury upon his right chest. Bagar Mahato further attacked the informant by Garasa aiming at his neck but that blow fell upon the cycle and other blow of Bagar Mahato caused injury on the finger of his left hand. Besides the informant, Tara Ray was also injured. Both were brought to hospital for treatment. On the basis of Fardbeyan of P.W. 7, Charitra P.S. Case No. 2/88 dated 8-1-1988 was registered under Sections 327, 324, 379/34 of the I.P.C. Fardbeyan is Ext. 2 whereas formal FIR is Ext. 3. After investigation, the appellant found that the case is true under Sections 307, 324, 379/34 of the I.P.C. against the appellants and submitted charge sheet, cognizance was taken. As the offences were sessions triable, the case was committed to the Court of Sessions. Charges were explained to the appellant but the appellant denied the offences and preferred to be tried.
4. The defence of the appellant was of false implication and also that the present case has been lodged only with a view to save the skin of the other side. The petition of complaint (Ex. A) was filed by Ram Pd. Mahato against Suneshwar Mahto (P.W. 5) and 8 others including P.Ws. 1, 2, 3, 4 and 7 of the present case. That case is also with regard to the occurrence dated 8-1-1988 at 1.00 p.m. and the complaint case was registered under Sections 147, 148, 323, 452, 380 of the I.P.C. There is allegation in the complaint petition that members of the prosecution party forming an unlawful assembly came upon Plot No. 248, appertaining to Khata No. 344 which plot has been purchased by appellant No. 1. His brother Ram Prasad Mahto examined as D. W. 1. Three sale deeds, Exts. B, B/1 and B/2 dated 18-8-1982 were accepted on behalf of defence. P.W. 5 was examined in course of enquiry. He stated that the land was purchased in 1987. The accused persons assaulted the persons with lathi caused hurt to appellant No. 1 and his brothers' wife Kalawati Devi and Chatho Devi. Those persons also committed house trespass and committed theft of cash, cloths, ornaments etc. The counter case was still pending. D.W. 2 Ram Naresh Singh has stated about the sale deed, Ext. B series and the complaint petition is Ext. A. Therefore, the defence of the appellant was laid down in the counter case which was felt by way of complaint.
5. The prosecution has examined 9 witnesses. They are; P.W. 1 Radha Devi, P.W. 2 Banku Mahto, P.W. 3 Rameshwar Mahto, P.W. 4 Tara Rai, P.W. 5 Sameshwar Mahto, P.W. 6 Sheo Nandan Mahto, P.W. 7 Mahanth Mahto, P.W. 8 Dr. V. N. Sinha and P.W. 9 0. M.-cum-Inspector of Police. P.W. 5 has been declared hostile, P.Ws. 4 and 7 are injured witnesses who were treated by P.W. 8.
6. The evidence of the informant P.W. 7 is that at about 1.30 p.m. he and Tara Rai were going by two bicycles. In the way, both met with Bagar Mahto and Ram Bharosa Mahto. Bagar Mahto gave Garasa blow on the right chest of the informant. The informant has shown the mark of injury to the Court which has been noted by the Presiding Officer. The second Garasa blow was given on the neck. The informant tried to save himself but the blow struck on the seat of the bicycle. The seat was cut on account of that assault. Tara Rai was assaulted by Bagar Mahato by Garasa. After the injury, the informant was brought to hospital. Both the appellants clubbed with the bicycle. According to the informant he remained hospitalized for about one month and five days. In the cross-examination, he has stated that the case has been lodged against him also that case has been lodged only with a view to falsely implicate the informant.
7. P.W. 4, another injured has stated that when he was returned from the house of Phuwa (Aunty) and reached near the house of Suneshwar Mahto (P.W. 5) then the appellant Bagar Mahto assaulted by use of Farsa and caused injury to the shoulder of that P.W. 4 and another blow was given by Bangar Mahto where he tried to save himself. He got cut injury on his finger. Mahant was also assaulted by Bangar Mahto.
8. P.W. 8 was posted on 8-1-1988 as Civil Assistant Surgeon in M. J. K. Hospital Bettiah and at about 5.15 p.m. he examined Mahanth Mahto and found following injuries:
(i) Incised wound 4' x 1/2' x bone deep on the right side chest 1 1/2' away from the right nipple oblique in position.
(ii) Incised wound on the right side submedicular region 1/2' x 1/4' skin deep covered with blood clot. Both the injuries were found simple in nature caused by sharp cutting weapons. The injury report of informant is Ext. 1.
From the same date P.W. 8 has examined Tara Rai and found following injuries:
(i) Incised wound on the back portion of right and middle finger, wound covered with blood clot.
(ii) Incised wound 1 1/2' x 1/4' x muscle deep on the front and lower portion of the left thigh covered with blood clot;
(iii) Incised wound 2' x 1/2' x bone deep on the left arm front and upper portion;
(iv) Incised wound 3 1/2' with skin flap about 2 1/2' from the left scapular bone covered by blood clot.
9. Injury report of Tara Rai is Ext. A/1. According to the information of the doctor the injury of Tara Rai caused by sharp cutting weapons.
10. In cross-examination the doctor has stated that injuries were simple but combined together they may be dangerous to life.
11. P.W. 1 has supported the statements of P.W. 7 and P.W. 4 and stated that the two persons were injured by Bagar Mahto. Those witnesses have not stated anything about the theft of the bicycle rather he has supported only with regard to manner of assault. According to him a dispute was pending between the parties with regard to some land.
12. P.W. 2 has stated that the dispute was pending between the prosecution and the defence with regard to land and on account of that, Bangar Mahto assaulted P.Ws. 4 and 7 and they have received injury.
13. P.W. 3 has been examined as eyewitness and he has supported the fact of assault. He has not stated anything about theft of bicycle.
14. Witnesses are consistent so far the allegation of assault by Bangar Mahto is concerned, though there are some minor contradictions which are bound to occur when witnesses are being examined by the skilled persons but the contradictions are not of that nature which give discredit of evidence of the witness on the manner of assault. In my view, the prosecution has been able to prove that on the date and time of occurrence, Bangar Mahto has assaulted and caused injury to P.W. 4 and P.W. 7. Injuries were simple in nature. The motive of land dispute cannot be discredited. The counter case was filed after three days and after much delay deliberately, it has also been filed with a view to put pressure on the prosecution side. So FIR of counter case in no manner contradicts the evidence of the witness. There was no occurrence with regard to the theft and so, I am of the view that a case under Section 379 has not been proved beyond all reasonable doubts against appellant No. 2. Accordingly appellant No. 2 is acquitted of the said charge. So far appellant No. 1 is concerned he cannot be held guilty under Section 326 of the Indian Penal Code because he has not caused any grievous injury. Only it has come in evidence that P.W. 7 remained in hospital for more than a month due to the injury received by him. The doctor has not been examined on this aspect and no detail has been produced. So, it cannot be said that the injuries were in any way grievous in nature. So I am of the view that the prosecution has not been able to prove charge under Section 326 of the Indian Penal Code against the appellant No. 1. The prosecution has been able to prove that on 8-8-1985 at about 1.00 p.m. the appellant No. 1 has caused injury to P.W. 4 and P.W. 7 so the conviction of appellant No. 1 is converted into under Section 324 of the Indian Penal Code.
15. On the point of sentence of appellant No. 1 it has been submitted that he has remained in custody for more than three months in course of trial as also in course of appeal. So he seeks that the sentence of the appellant No. 1 may be modified to the period undergone by him as he is the first offender and no previous conviction has been proved against him.
16. I am in agreement with the submission of learned Counsel for the appellant No. 1 that his sentence should be modified. Accordingly, the sentence of appellant No. 1 is modified to the period already undergone by him which will be sufficient for the ends of justice. In the result, the appeal filed on behalf the appellant No. 1 is dismissed with the modification both in conviction and sentence and appeal on behalf of appellant No. 2 is allowed. Appellant No. 2 is also discharged from liability of his bail bond.