The court's decision was influenced by the interpretation of the injuries and the applicability of the relevant sections of the Indian Penal Code.

Gopal Prasad, J.

1. Heard learned counsel for the appellants and learned counsel for the State.

2. Two appeals i.e. Cr. Appeal no. 360 of 1998 and Cr. Appeal No. 375 of 1998 have heard together and being disposed by the common judgment as the two appeals arising out of same judgment and order dated 17. 09. 1998, passed by Shri Sarju Prasad, Ist Additional Sessions Judge, Saharsa, in Sessions Case no. 228 of 1989, by which he has been convicted the appellants in Cr. Appeal No. 360 of 1998 for offence under Section 326/149 I.P.C. and sentenced to undergo rigorous imprisonment for three years and further convicted for offence under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment for six months and Cr. Appeal No. 375 of 1998, appellant nos. 2 and 6 have been convicted for offence under Section 326 I.P.C. and sentenced to undergo rigorous imprisonment for three years and further convicted for offence under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year and appellant nos. 3, 4 and 5 have been convicted for offence under Section 326/149 I.P.C. and sentenced to undergo rigorous imprisonment for three years and further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year and appellant no. 1 and 3 further convicted for offence under Section 324 I.P.C. and sentenced to undergo rigorous imprisonment for one and further convicted for offence under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Further convicted for offence under Section 348 and 341 I.P.C. but not sentence.

3. The prosecution case as alleged that all the accused persons came with lathi and danda while the informant was going to the north of the village to west of the pond and assaulted the informant on the command of Annadeo Thakur as he obstructed their claim for Rasta. It is stated that prosecution party were claimed Rasta for which a Panchayat was convened, but their claim for Rasta was objected by the informant in view of the fact that by giving of Rasta of 6 hand, there is possibility of breaking houses of some of the persons and so occurrence has taken place.

4. On the Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted and charge was framed for offence under Sections 307/324, 148 and 147 I.P.C. During trial seven witnesses were examined. Out of them, P.W. 5 is doctor and P.W. 6 and 7 are formal witnesses. P.W. 4 has proved the x-ray which has been marked as Ext. 8 to 8/B is a person of medical shop has come to court to depose that x-ray of Parsuram Jha was conducted by doctor B. N. Jha. P.W. 1, 2 and 3 are material witnesses in this case.

5. However, the trial court taking into consideration the evidence of witnesses as well as evidence of the doctor found that injuries on the person of the informant are simple. However, two injuries which were found to be fractured was not on vital part of the body i.e. ring finer and hand and hence held that injuries were as such to have been inflicted with intention to kill and hence convicted the appellants for offence under Section 326 and other allied Sections of I.P.C., but acquitted the appellants for offence under Section 307 I.P.C.

6. Learned counsel for the appellants however contended that order of conviction recorded under Section 326 I.P.C. is not maintainable on the ground that no charge was framed under Section 326 I.P.C. but charge was framed under Section 307 I.P.C. hence the conviction cannot be maintained under Section 326 I.P.C. as Section 326 I.P.C. is not minor offence in relation to offence under Section 307 I.P.C. as neither punishment is less nor the ingredient of offence as simple and reliance has been placed upon decision reported in 1972 (II) Criminal Law Journal (Ramchandra Bahiru Shingati Vrs. State) page 941. It has further been contended that x-ray has not been proved in the case and the evidence of the doctor as P.W. 5 is not based on x- ray rep