Criminal Appeal (SJ) No. 301 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Md. Sultan, S/o Makir Mian, Resident of Village-Mohammadpur Mubarak Tola Bharati Innda, P.S.-Maniari, District-Muzaffarpur. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Md. S. Ashfaque Ahmad, Adv. : Mr. Karmvir, Adv. For the State : Mr. Raj Ballabh Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 304 IPC and sentenced to RI for ten years by the 2nd Additional District Judge, Muzaffarpur in S.Tr. No. 39 of 1995/P.S. Case No. 89/94 by a judgment dated 16.10.1996. 2. The case of the prosecution is that Parmeshwar Paswan P.W. 14 heard on 03.06.1994 at about 12 noon i.e. his brother Jageshwar Paswan had been stabbed by the appellant on the stomach in the toddy shop of Md. Sultan and he went there and found his brother was injured having been stabbed on the stomach. 3. During trial the prosecution in all examined sixteen witnesses out of whom P.W. 1, P.W. 2 and P.W. 3 are eye witnesses whereas P.W. 4, P.W. 10 and P.W. 13 are formal in nature. P.W. 7, P.W. 8 and P.W. 11 are tendered and P.W. 14 is the informant whereas P.W. 16 is the Doctor who has examined the deceased. P.W. 7 is the Doctor who conducted the post-mortem. P.W. 9 is the Investigating Officer. 2 4. On an analysis of the eye-witnesses, I find that P. W. 1 has conceded in paragraph 7 that he has not seen the occurrence and P.W. 2 also stated that he had not seen actual assault. P.W. 3 has also denied the fact that he was found in the toddy shop of the appellant. None of these three witnesses were named in the First Information Report as eye-witness to the occurrence and later on during trial they have deposed on behalf of the prosecution giving contradictory statements with regard to the manner of occurrence. 5. On going through the evidence of P.W. 16, I find that evidently the deceased died after seven days on account of gangrene and there is no material that the alleged injury caused by the appellant had resulted in the death of the deceased. The Doctor has moreover conceded that gangrene could be on account of surgical mistake or accident which evidently does not corroborate the prosecution case. 6. However, the fact that the appellant had assaulted the deceased can not be ruled out in view of the evidence of two doctors. Hence the conviction of the appellant is converted to one under Section 326 IPC and he is sentenced to a period already undergone. 7. In the result, the appeal is dismissed with the aforesaid modification in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 12th May, 2011. NAFR/Vikash/-