Criminal Appeal (SJ) No. 288 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Dadan Yadav, S/o Sidhi Yadav. 2. Banarsi Yadav, S/o Sidhi Yadav. 3. Bansh Narayan Yadav, S/o Late Chandar Yadav. 4. Shant Prasad Yadav @ Shant Yadav, S/o Ramsurat Yadav. 5. Jagropan Yadav, S/o Gogan Yadav. 6. Shanker Yadav, S/o Bishwanath Yadav. 7. Jhannar Yadav, S/o Munshi Yadav. All R/o Village-Murharia, Police Station- Mohania, District-Kaimur (Bhabua) ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Syed Mamdar Hussain, Adv. : Miss Minu Kumari, Adv. : Mr. Syed Ashger Nazmi, Adv. For the Vigilance : Mrs. Indu Bala Pandey, Adv. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant No. 1 has been convicted under Sections 307 and 325 IPC and sentenced to RI for seven years and one year respectively as also under Sections 323 and 147 IPC and sentenced to RI for six months and under Section 426 IPC but no separate sentence has been passed in that regard. The rest of the appellants have been convicted under Sections 147 and 323 IPC and sentenced to six months RI under each count by the 2nd Additional Sessions Judge, Bhabua in S.Tr. No. 179/57/1984/96 by a judgment dated 16/17.10.1996. 2 2. The case of the prosecution according to the informant P.W. 3, Bidya Singh is that on 20.03.1984 at 1 P.M. while he was watching his crops he noticed that the crops were being grazed by the animals of the accused persons and when he protested he, his servant and his son assaulted were with lathi. 3. During trial the prosecution in all examined six witnesses out of whom P.W. 1 is the servant of the informant. P.W. 2 is the son of the informant. P.W. 3 is the informant himself. P.W. 4 is another son of the informant. P.W. 5 is the Doctor. P.W. 6 is a formal witness. The Investigating Officer has not been examined by the prosecution. 4. On behalf of the defence three witnesses were examined to prove the fact that there was counter-version with regard to the same occurrence. During trial P.W. 1, P.W. 2, P.W. 3 admitted the factum of the counter-complaint and that they were accused in the counter-case. P.W. 5 who examined P.W. 3 the informant found six injuries on his person two of which were grievous in nature whereas the rest were simple. Both the injuries which were grievous were on non-vital part. With regard to injuries of P.W. 4 he opined that all the injuries were simple as also he found simple injuries on the persons of P.W. 1 and P.W. 2. 5. It has been submitted that even accepting the prosecution case in its entirety it would be 3 difficult to arrive at a conclusion that the case was one under Section 307 IPC as against the appellant No. 1. 6. On going through the evidence of the prosecution I am inclined to accept the arguments advanced on behalf of the defence. In the result, the conviction of appellant No. 1 u/s 307 IPC is set aside while sustaining his conviction u/s 325 IPC but sentence is modified to a period already undergone. 7. Further, in view of the fact that the prosecution witnesses have also been able to successfully prove the case beyond all reasonable doubt as to the manner of occurrence corroborated by independent witness, I am not inclined to interfere with the conviction of the rest of the appellants recorded under Sections 325, 323, 147 and 426 IPC and, therefore, their conviction is not interfered with. However, the period already undergone by them during trial would be sufficient to meet the ends of justice. 8. In the result, the appeal is dismissed with the modification as aforesaid. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 17th May, 2011. NAFR/Vikash/-