2004 INSC 0165
                                    SUPREME COURT OF INDIA

                                                     Arjun

                                                      Vs.

                                           State of Uttar Pradesh

                                           Crl.A.No.816 of 1997

                             (K. G. Balakrishnan and B. N. Srikrishna JJ.)

                                                 05.02.2004

                                                JUDGMENT

K. G. Balakrishnan, J.

1. The appellants four in numbers were tried by the VIII Additional Sessions Judge,
Gorakhpur for the offences punishable under section 323 and 308 IPC for having caused
injury to Ramanain Prasad on 3.3.1981 at about 6.30 p.m. The Sessions Judge acquitted all
the accused and aggrieved by the same, the State sought permission to file appeal against the
acquittal. The High Court declined leave and the order passed by the High Court was
challenged by the State before this Court and by an order passed by this Court, the matter
was remitted to the High Court to be considered afresh on merits.

2. Whereafter the High Court by the impugned judgment found all the appellants guilty of
the offence charged against them and sentenced them to undergo imprisonment for a period
of two years for offence under section 308 and six months imprisonment for the offence
punishable under section 323 IPC. The conviction and sentence is challenged before us.

3. We heard the learned counsel for the appellants and counsel for the respondent. The
prosecution case is that injured Ramanain along with PW-3 was proceeding towards
Gorakhpur Railway Station on a bicycle. As the railway crossing was closed, they took a
short cut and on the way these appellants alleged to have caused injury to Ramanain. PW-3
took the injured Ramanain to hospital and on next day he gave the first information statement
to the police. The injured was examined by the Doctor and PW-5 Doctor deposed that he had
sustained various abrasions and contusions all over the body. On the side of the prosecution
six witnesses were examined, out of them 4 were eye witnesses. The High Court relied on the
evidence of these eye witnesses and found the appellants guilty. The High Court was of the
opinion that one of the assailants stated during the course of the incident that this time
injured was saved by the people and next time they would finish him and on that basis it was
assumed that offence under section 308 IPC was made out. Of course, the accused armed
were with lathis and dandas and the injured sustained series of injuries, mostly lacerated
wounds and contusions. The Doctor stated that the injuries 1 to 17 were simple in nature and

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as regards 18th injury he advised an X-ray, but unfortunately no X-ray was conducted and it
is not known whether there was any fracture of any of the bones of the injured. The evidence
adduced by the prosecution is not sufficient to prove that there was attempt on the part of
these accused persons to commit culpable homicide and we do not think any offence under
section 308 is made out.

4. As regards conviction under section 323 also the High Court went wrong in the sense that
the accused were armed with lathis and dandas. Therefore, the offence committed by the
accused would come under section 324 of the IPC. In the result, we acquit the accused of the
offence under section 308 IPC and instead of convicting under section 323 IPC we convict
them under section 324 IPC and we are told that the appellants have already undergone
imprisonment for a period of 10 months. We hold that the sentence already undergone is
sufficient to meet the ends of justice. The appellants are already on bail by this Court's order
dt. 5.9.1997, their bail bonds are cancelled.

5. The appeal is disposed of.

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