JUDGMENT :

Ratnaker Bhengra, J.

This criminal appeal arises out of judgment of conviction and order of sentence dated 20.07.2010 and 22.07.2010 respectively passed by the learned Sessions Judge, Godda in Sessions Case No. 115 of 2009 whereby and where under appellant was convicted under section 307 of IPC and sentenced to rigorous imprisonment for 4 years and fine of Rs. 2,000/- and in default of fine amount appellant was to further undergo simple imprisonment for one month. The period undergone by the appellant was ordered to be set-off.

2. The prosecution case, in brief, as per the fardbayan dated 20.02.2009 of the informant Parvej Yusuf (PW-6) is that on 19.02.2009, on occasion of ‘Chehallum’ game was organised in the field of Urdu Middle School, Kaswa and informant had gone there. At about 7 : 30 pm when informant was returning to his home, appellant Jahangir of his village, with an intention to murder the informant, assaulted the informant on his neck with a broken portion of mercury tube light. Informant in order to save himself bent down his head as a result tube hit the head of the informant causing an injury on his head. Blood oozed out and the informant became senseless and fell down.

3. On the basis of the fardbeyan of the informant Mehagama P.S. Case No. 18 of 2009 dated 20.02.2009 was registered under sections 341, 323 and 307 IPC. Charge sheet was submitted under sections 341, 323 and 307 of IPC and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the appellant under sections 307 and 341 of IPC and trial was held. At the conclusion of the trial appellant was convicted and sentenced as aforesaid. Hence, this appeal.

4. In support of its case the prosecution altogether examined seven witnesses out of whom PW-6 Parvej Yusuf is the informant of the case; PW-1 is Md. Ibrahim; PW-2 is Mr. Razzak; PW-3 Dr. Amitesh Ranjan Srivastav, who had examined the injured informant, PW-4 is Md. Sajjad Alam; PW-5 is Attaul Rahman Siddiqui and PW-7 is Chandradeo Ram, who is the Investigating Officer of the case.

5. PW-6 Parvej Yusuf is the informant of the case. Informant has stated in his evidence that on the day of occurrence at 7.30 pm, procession was going on in the premises of Urdu Middle School, Kaswa. After the procession, he was going for Pahlam and Jahangir was going ahead of him. Jahangir turned on and wanted to assault on his neck with a mercury tube light. Informant bent down his head then tube light hit him on the left side of his head as a result he sustained cut injury and blood oozed out from his head and he became senseless. Informant has proved his fardbeyan which was marked as Ext-2. In his cross-examination informant has stated that gas light was burning in the school.

6. PW-1 is Md. Ibrahim and PW-2 is Md. Razzak and both have stated in their evidence that on the day of occurrence at 7 : 30 pm in the night, they were at the field of Urdu middle School, Kaswa. PW-1 has stated that suddenly the accused Md. Jahangir tried to assault the informant Md. Parvej Yusuf with a broken mercury tube at his neck. Parvej bent down his head so, mercury tube hit the head of Parvej and blood oozed out from the head of Parvej and he fell down and became senseless. They took Parvej to the village doctor Jakir and he tied bandage and advised to take Parvej to Mehagama Hospital. In his cross-examination, PW-1 stated that the procession concluded at 7.30 pm at the pond and he was with the informant. PW- 2 has reiterated the same as PW-1 about the assault on the informant by the accused.

7. PW3 is Dr. Amitesh Ranjan Srivastav, who had examined the injured informant. Doctor has deposed that on 19.02.2009 he had examined the informant Parvej Yusuf and found the following injuries on his person:-

(i) Penetrating wound on left frontal region 2 "x 1/4" x 1/4".

(ii) Abrasion over left side of neck 1/4 x 1/4".

8. Doctor stated that he cannot say about the nature of injury no. 1 but inj