Criminal Appeal (SJ) No.141 of 1998 Against the judgment and order of conviction dated 28. 03. 1998 and order of sentence dated 03. 04. 1998 passed by Shri Ajay Kumar Srivastava, Ist Additional Sessios Judge, Rohtas, Sasaram, in Session Case No. 33/135 of 1991/1993. 1. Dularchand Ram, son of Mewa Ram. 2. Deomuni Ram. 3. Bhola Ram. Both sons of Bhubneshwar Ram, All residents of Village- Biur, Police Station-Chainpur, District- Kaimur, Bhabhua. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Baxi S.R.P. Sinha, Senior Advocate Mr. Rachil Nath, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 304 part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. Learned counsel for the appellants however, contends that occurrence took place with regard to taking toddy and there is allegation of assault against Dehal 2 Ram by lathi. There is injury found by the Doctor, though, in the Fardbeyan there is mentioned that these appellants were order giver, but there is no evidence that they were order giver and hence order of conviction and sentence recorded by the lower court is not sustainable. 4. However, taking into consideration the evidence of P.W. 3, Pancho Devi, the occurrence took place for taking toddy and deceased has given stick blow to Dehal Ram for which occurrence took place Dehal Ram gave lathi blow to deceased. Role attributed to Dehal is substantiated but no specific role attributed to other appellants. However, the appellants have remained in jail for about six months. The occurrence is of year 1990 and the appellants suffer the rigor of prosecution since 1990. 5. Hence, the end of justice shall meet under by sentencing the appellants for the period already undergone and hence with this modification, this appeal is dismissed. Patna High Court The 3rd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)