Criminal Appeal (SJ) No.221 of 1997 [Appeal against the judgment and order dated 31.7.1997 and 4.8.1997 passed by the Sessions Judge, Bhojur at Arrah in Sessions Trial No.124 of 1997] 1. Sheo Shankar Sah son of Jagnarain Sah 2. Jagnarain Sah son of Late Haran Sah …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Dhirendra Singh, Advocate For the Respondent : Mr. Arun Kumar Singh-5, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s.304 Part II I.P.C. and whereas appellant no.1 has been sentenced to R.I. for three years, appellant no.2 has been sentenced to R.I. for two years by a judgment dated 31.7.1997 and 4.8.1997 passed by the Sessions Judge, Bhojur at Arrah in Sessions Trial No.124 of 1997. 2. The case of the prosecution according to the informant Tej Pratap Singh (P.W.10) is that on 11.6.1986 when the wife of accused Sheo Shankar Sah was easing herself near the house of Ravi Nandan Singh, the cousin of the informant, which was under construction, the informant and his uncle Jogendra Singh scolded her for doing so. The wife of accused Sheo Shankar Sah went away from there abusing them and a day later appellants along with one Deo Shankar Sah came there and assaulted Jogendra Singh. The said Jogendra Singh came home and told his family members about the assault, at which the informant, his deceased 2 father and Ravi Nandan Singh proceeded towards the house of accused Sheo Shankar Sah to accost them, at which the accused persons started assaulting the informant and his father with bricks, lathi and bhala. The victim Vishwanath Singh was brought home with the help of the witnesses, but he died, at which the present case was instituted. The appellants were charged u/s.302 I.P.C., but convicted as mentioned above. Even though eight persons were put on trial, only the present two appellants were convicted. The defence denied the occurrence as well as the manner of occurrence and it was suggested to the prosecution that the deceased had been murdered in some other occurrence and his dead body was found in a Machan, where after the accused persons were implicated on account of previous enmity. 3. During trial the prosecution has examined eleven witnesses. Out of whom, P.W.1 Nageshwar Mahto, P.W.2 Ram Kewal Mahto and P.W.11 Murat Ram are formal witnesses. P.W.3 Yogendra Singh, P.W.4 Ravinandan Singh, P.W.6 Kameshwar Singh, the cousin of the deceased, P.W.7 Shyam Bihari Singh and P.W.8 Suresh Prasad Singh, full brothers of the deceased and P.W.9 Deolato Devi, the wife of the deceased, have been examined as eye witnesses, whereas P.W.5 Kesho has been declared hostile. Evidently the prosecution has not examined either the Investigating Officer or the doctor to lend assurances to the interested ocular evidence. 4. On going through the evidence of the prosecution eye witnesses, I find that they have stated that on 11.6.1986 at about 9 3 P.M. when the wife of appellant no.1 Sheo Shankar Sah had gone to ease herself, she was rebutted for doing so and thereafter this occurrence took place in which the father of the informant lost his life. The genesis of the occurrence was a minor matter which escalated into the present occurrence. However even conceding the witnesses have lean assurance to each other on material particulars, but I find that in the absence of objective evidence as to the cause of the death of the father of the informant it would be unsafe to convict the appellants u/s.304 Part II I.P.C. and, therefore, they are acquitted of the charge u/s.304 Part II I.P.C. 5. However, accepting the prosecution case that the appellants had assaulted the father of the informant variously, they are convicted u/s.323 I.P.C. and sentenced to the period already undergone by them during trial. 6. In the result, the appeal is dismissed with the aforesaid modification in conviction and sentence. Patna High Court Dated, 15th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )