Criminal Appeal (SJ) No.8 of 1999 **** Against the judgment, dated 17.12.1998, passed by Sri Prabhu Nath Prasad, Additional Sessions Judge, III, Saran at Chapra, in S. Tr. No. 510 of 1996/113 of 1997 **** 1. Prem Nath Singh, son of Banshi Singh, resident of village Barwan Nath Ke Tola, P.S. Daudpur, distict Saran 2. Janardan Singh, son of late Sudarsan Singh 3. Dharmendra Singh, son of Kauleshwar Singh, both residents of village Barwan Nath Singh Ke Tola, P.S. Daudpur, district Saran .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mrs. Arpana Kumari, Adv. as Amicus Curiae For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. Appellant no. 1, Prem Nath Singh, has been convicted under Section 304 part II of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and has, further, been convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for one year. The appellants 2 and 3 have also been convicted under Section 324 of the Penal Code and 2 sentenced them to undergo rigorous imprisonment for three years. 3. The prosecution case, as alleged by the informant, Rakesh Kumar Singh (P.W. 5), that while he was sitting in verandah then Raj Kumar Singh has came there. The appellants, along with six persons armed with lathi came chasing him. The appellants started assaulting Raj Kumar Singh. In the meantime, the mother of the informant came to protest then she was also assaulted by Prem Nath Singh by brick batting causing injury on her nose. When Mukesh Kumar Singh, the younger brother of the informant came in verandah he was assaulted by Prem Nath Singh on his head. The blood started oozing out. The other accused persons also assaulted him. It is alleged that thereafter he was laid on chatai and he remained making cry and died after one hour. 4. On statement of Rakesh Kumar Singh, first information report lodged and after investigation the charge sheet has been submitted. After submission of the charge sheet, case committed and appellants were charged under Sections 302/34 and 307/34 of the Penal Code. 5. During the trial ten witnesses examined by the prosecution. However, out of ten witnesses, P.Ws. 1 and 5 are material witnesses, P.Ws. 7, 8 and 9, the Medical Officer. P.W. 7 has conducted the post mortem examination on the person of Mukesh Kumar Singh and P.Ws. 8 and 9 examined P.Ws. 1 and 2 and P.W. 10 is the investigating officer. 6. The trial Court, taking into consideration the evidence 3 of the witnesses, held that the appellants were the persons mainly acquitted in trial. The trial Court, further, took into consideration the injury on the persons of P.Ws. 1 and 2 which were the mostly simple except one of the injuries of P.W. 2 as grievous convicted the appellants 2 and 3 for offence under Section 324 of the Penal Code. Further, the trial Court, took into consideration the fact that the appellant no. 1 having given a lathi blow on the head of Mukesh Kumar Singh by which the victim died, but, convicted the appellant no. 1 under Section 304 part II of the Penal Code. 7. Taking into consideration the fact that Mukesh Kumar Singh has got only one injury of lathi on the head and there is no repetition of blow on the vital part of the body and had there been intention of the accused to kill then the assault may have been repeated on the vital part of the body and, hence, convicted the appellants for offence under Section 304 part II of the Penal Code. However, the trial Court, took into consideration the fact that the accused 4 to 10 were aged about fifty years, took the view that as per the motive of the occurrence the matter was with regard to rivalry between the youngsters as some occurrence has also been taken place between them prior to the occurrence. Hence, acquitted accused 4 to 10 on the ground that they are more than fifty years old and have falsely been dragged as there is motive to rope as much persons as possible. 8. The learned counsel for the appellants appearing as amicus curiae, however, contends that three persons (appellants) have 4 been convicted. Appellant no. 1 has been convicted under Section 304 part II of the Penal Code has remained in jail from 14.05.1996 to 13.01.1999 and appellants 2 and 3 have remained in jail for about two and half years during the investigation. 9. However, taking into consideration the evidence, the witnesses have supported the prosecution case about the assault by the appellants and the witnesses have specifically supported the prosecution case about the implication of the appellants in the assault. However, taking into consideration the fact that Darmendra Singh, appellant no. 3, has been attributed the role giving lathi blow on the head which proved to be fatal, hence, the order of conviction and sentence recorded against Prem Nath Singh is sustained, however, with regard to the conviction recorded under Section 324 of the Penal Code against appellants 1 and 2 are concerned, the end of justice shall meet by sentencing appellants 1 and 2 for the period already undergone by them. In view of the fact that the occurrence is of the year 1996 and the appellants suffered lot, hence, the appeal is dismissed with modification of sentence. ( Gopal Prasad, J. ) The Patna High Court, The 18th day of October, 2011, N.A.F.R., S.A.