Important Point
In certain situations, the wound produced by a blunt instrument may similarly seem to be an incised one.

JUDGMENT

S.B. SINHA, J. —

1.Leave granted.

2.Appellant is before us aggrieved by and dissatisfied with a judgment dated 21st January, 2004 passed by a Division Bench of the Patna High Court in Criminal Appeal No. 341 of 1991 arising out of the judgment of conviction and sentence dated 2nd September, 1991 passed by Additional District and Sessions Judge XIth, Gaya, in Sessions Trial No. 12 of 1991.

3.A land dispute arose between the accused and the prosecution witnesses in relation to a piece of land bearing plot No. 1/555 of village Gamahariya. While measurement of the said land was going on, both the parties, viz., Kameshwar Yadav and Chander Dusadh, claimed their right thereupon, on the basis of purchases made by them under their respective registered deeds of sale.

4.A quarrel ensued between both the parties. Kameshwar Yadav exhorted others to eliminate Chander Dusadh. It was followed by an assault on Kali Dusadh by a hard and blunt object by him. Jaldhari Yadav assaulted Kali Dusadh on his right arm. Parmeshwar Yadav assaulted him on his back. Appellant herein inflicted a farsa blow on the head of Chander Dusadh, the deceased. Kameshwar Yadav gave another blow on his hand by a hard and blunt object. As alarm was raised by Kali Dusadh, whereupon assailants fled from the field. They allegedly resorted to firing also.

5.Thereafter, injured Chander Dusadh was taken to the Police Station in an unconscious state.

6.A First Information Report in regard to the said incident was lodged at 10 pm on 11th August, 1981. Appellant amongst others was named therein. The prosecution during trial examined a number of witnesses in support of its case. PW 1, Bisu Bhuiya categorically stated about infliction of garassa blow by Hari Yadav and lathi blow by Kameshwar Yadav on the deceased. Role played by Kameshwar Yadav, Kishun Yadav, Hari Yadav, Parmeshwar Yadav, Bhuja Yadav, Rohan Yadav and Gopal Yadav in inflicting injuries on Kali Dusadh were also categorically stated by him in his deposition.

7.Similarly, Barat Dusadh (P.W 3) deposed about the role played by the Appellant in inflicting a farsa blow on the head of Chander Dusadh, having been exhorted to do so by his father. He not only stated in details in regard to the mode and manner in which the incident took place but also the cause thereof. Similar is the evidence of Aminullah Khan (PW 5) and Gazi Khijer Heyat (P.W 6).

8.P.W. 8 Dr. M.K. Sinha, who conducted the post mortem examination on the dead body of the deceased, in his report noticed three ante mortem injuries which are as under:

“(i)Recently healed liner wound of length 4” over top of head. On dissection underlined tissues were found infiltrated with blackish blood clot. There was fracture of both parietal bones. On removal of skull cap, there was presence of extradural and subdural haemotoma over superior surface of both cerebral hemisphere. Brain and meninges were found grossly congested.

(ii)Healed abrasion over front of lower on part of the right knee with presence of dry, black scale over the area, size 1-1/4 x =.

(iii)Swelling over antero lateral aspect of right arm upper part size 2-1/2” circumference.”

9.On analyzing the materials brought on records, the Learned Sessions Judge found the appellant guilty of commission of offence under Section 302 of the Indian Penal Code. The Learned Judge, however, while considering the facts and circumstances of each of the accused at the time of occurrence imposed a sentence of ten years rigorous imprisonment under Section 302 of the Indian Penal Code to accused Kameshwar Yadav and Hari Yadav and one years rigorous imprisonment to Jaldhari Yadav and Parmeshwar Yadav and Kameshwar Yadav under Section 323 of the Indian Penal Code.

10.Three Criminal Appeals were preferred by the accused persons. The High Court dismissed the said appeals, but keeping in view the fact that the Learned Sessions Judge committed a serious error in imposing the punishment of 10 years rigorous imprisonment for com