Criminal Appeal (SJ) No. 43 OF 1994 In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure. ************ Ram Samujh Sahani, S/o Chethru Sahani, R/o Village-Kanuni, P.S.-Sheohar, District-Sitamarhi. (Appellants) Versus THE STATE OF BIHAR------(Respondent) ************ For the Appellant :Mr. Jawahar Dhari Singh, Adv. For the State : Mr. Choubey Jawahar, APP. ************ 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 IPC and sentenced to six years RI under Section 324 IPC and sentenced to one year RI by the judgment and order of conviction dated 25.01.1994 passed by the 2nd Additional Sessions Judge, Sitamarhi in S.Tr. No. 100 of 1993/18 of 1993 by converting the charge under Section 302 IPC and Section 307 IPC respectively. The prosecution case is that on 24.11.1992 a dispute arose between the parties over financial accounting in course of which the appellant assaulted Thagan Sahani with the spade on the head who later died in the hospital. The defence case was that in fact both the parties had clashed in course of discussion and in fact even the appellant had remained in the hospital as injured patient for about seven days. During trial fourteen witnesses were examined out of whom P.Ws. 1, 7 and 12 are eye-witnesses. The prosecution during trial stated that the parties had engaged in a scuffle in course of which this occurrence had taken place and, therefore, it is difficult to conclude that an offence under Section 304 IPC would be made out in the facts of the case. Further it also appears that only a single injury had been found on the person of the deceased and, in my view, it would suffice if the appellant’s conviction is converted to one under Section 326 IPC. Since the appellant was all along in jail custody since 01.12.1992 during trial, it would suffice if the sentence is modified to one that he has already undergone. However, a sum of Rs. 1,500/- shall be paid to the family of the deceased within eight weeks from the date of the notices to him and in case he fails to do so he shall be sentenced to three months RI. With these observations, the appeal is dismissed with modification to the extent as aforesaid. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 28th March, 2011. NAFR/Vikash/-