Criminal Appeal (SJ) No.84 of 1996 *** Against the judgment and order of conviction dated 2nd April, 1996, passed by the 2nd Additional Sessions Judge, Purnia, in Sessions Trial No.511 of 1993/ Trial No. 30 of 1995. *** GOPAL PASWAN son of Ganga Paswan, resident of Ghorghat, Police Station- Sadar, District- Purnia …Appellant Versus 1. THE STATE OF BIHAR 2. Jagdish Paswan, S/o Dhani Paswan, resident of Ghorghat, Police Station- Sadar, District- Purnia …Respondents *** For the appellant : Mr. R. A. Hussaini, Advocate For the State : Dr. Inidwar Kumari, A.P.P. *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The appellant has been convicted under section 304 Part II Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years by the 2nd Additional Sessions Judge, Purnia, in Sessions Trial No.511 of 1993/ Tr. No. 30 of 1995 by judgment dated 2nd April, 1996. 2. The prosecution case is that on 03.04.1993 at about 8.00 AM, when the informant and his brother were returning from harvesting the wheat crop they saw their neighbours Ram Chandra Paswan and Narain Paswan laying foundation on the land of Jagdish Paswan. Upon which, Krishna Nath Paswan requested that a Amin be deputed for measuring the land but the same led to an altercation between the parties and then the appellant suddenly arrived there and gave iron rod blow on Bishwanath Paswan on account of which he was injured. After he was removed to the hospital he died four days later and, therefore, the case was converted to one under sections 302/149 Indian Penal Code and the - 2 - appellant was also charged under the said sections but was acquitted and convicted under section 304 Part II Indian Penal Code as mentioned above. 3. During trial, the prosecution examined eight witnesses out of whom P.W.1 was hostile, P.W.2 was hearsay, P.W. 3, 4, 6 and 8 are the alleged eye witnesses and brothers of deceased Bishwanath Paswan, P.W. 7 is doctor, who conducted the post mortem. 4. On analysis of the evidence, I find that the Investigating Officer has not been examined and the case rests mainly on the evidence of the brother/cousin of the deceased. The doctor found a single injury on the head of the deceased which was the cause of death. Admittedly, the deceased died on the 5th day of the occurrence. From the manner of occurrence stated by the prosecution, it is difficult to conclude positively that the appellant had knowledge that his assault would result in death of the deceased. 5. Therefore, I am not inclined to uphold the conviction under section 304 Part II Indian Penal Code. However, accepting the prosecution case that the appellant had assaulted the deceased with iron rod on his head, the conviction of the appellant is converted to one under section 325 Indian Penal Code and he is sentenced to period already undergone by him during trial. 6. In the result, the appeal is dismissed with modification in conviction and sentence as mentioned aforesaid. (Anjana Prakash,J.) Patna High Court, Patna. Dated the 12th May, 2011 NAFR / JA/-