CRIMINAL APPEAL (SJ) No. 772 OF 2004 ------ Against the judgment and order of conviction dated 28.9.2004 and 30.9.2004 passed by Sri Sunil Kumar Shrivastava, Additional District and Sessions Judge, (Fast Track Court No. III), East Champaran, Motihari, in S.Tr. No.415 of 1989. ------ 1. Ramai Manjhi son of Jhingur Manjhi, 2. Mahabir Manjhi son of Dadu Manjhi, 3. Lotha Manjhi son of late Dadu Manjhi, 4. Panchu Manjhi son of late Dadu Manjhi & 5. Lal Babu Manjhi son of Ramai Manjhi. All resident of village- Akouna,P.S.-Pakari Dayal, District-East Champaran ….. Appellants Versus The State Of Bihar …....Respondents ------ For the appellants : Mr. Shakti Suman Kumar, Advocate. For the State : Mr. R. N. Jha, A. P. P. ------ P R E S E N T The Hon’ble Justice (Mrs.) Sheema Ali Khan ------ S. A. Khan, J. There are five appellants before this court seeking interference of this court for setting aside the conviction and sentence passed in Sessions Trial No. 415 of 1989 by the Additional District & Sessions Judge, FTC No.3, East Champaran, Motihari, vide judgment and order dated 28.9.2004 and 30.9.2004 respectively. 2. Appellant no. 1, Ramai Manjhi, has been convicted under section 307 of the Indian Penal code and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-. Similarly, appellant no.5, Lal Babu Manjhi, has also been convicted under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-. Other three appellants, namely, Mahabir Manjhi, Lotha Manjhi and Panchu Manjhi have been convicted under section 307/149 and 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/- each under section 307/149 of the Indian Penal Code and to further - 2 - undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/- each under section 325 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 3. The prosecution case has been instituted on the fard-e-bayan of the informant, Lakshaman Singh, given on 22.3.1989. It is alleged that the horse of Ramai Manjhi and pigs of Gulli Manjhi and Mahabir Manjhi were destroying the maize crop of the informant. There was altercation and hot exchange between the parties and in the meantime, Ramai Manjhi and others came to the place of the occurrence armed with farsa and lathi. It is said that Ramai Manjhi assaulted the informant Lakshaman Singh with farsa, whereas, Ashok Kumar Singh and Awadh Singh were assaulted by the other co-accused persons. 4. Altogether nine witnesses have been examined in this case. Out of which, P.W.6 (Rajendra Thakur), P.W.7 (Upendra Kumar) are formal witnesses, whereas, P.W.8 (Dr. Om Prakash Verma) is the doctor, who examined the injured persons. P.W.2 (Ashok Kumar Singh) and P.W.4 (Awadh Singh) are the injured persons, whereas, P.W.1 (Nand Kishore Singh) and P.W.3 (Ram Naresh Singh) are the witnesses on the point of occurrence. 5. I may state here that Lakshaman Singh, the informant died during the pendency of the case and, therefore, he has not been examined as a witness in this case. 6. I will first take up the case of appellant no.1 Ramai Manjhi, as the main allegation of assault is against Ramai Manjhi. From the report of the doctor, it appears that the Ramai Manjhi had inflicted grievous injuries on Lakshman Singh, the informant of this case. Injury nos. I to III are said to have been inflicted on the head of the informant. Learned counsel for the appellant has submitted that appellant Ramai Manjhi is in custody since 28.9.2004 i.e. from the date on which judgment was delivered by the court below. It is further submitted that he remained in custody few - 3 - days also before the trial of the case commenced. Submission is that the occurrence took place at the spur of the moment and there was no intention to commit murder of Lakshaman Singh and, as such, the offence under section 307 of the Indian Penal Code is not made out in this case. It appears from the evidence that the altercation took place because of the fact that the animals of Ramai Manjhi were destroying the crops belonging to the informant. As such, utmost the offence would come under the purview of section 325 of the Indian Penal Code. 7. Accordingly, I find that the appellant Ramai Manjhi is guilty for the offence under section 324 of the Indian Penal Code. Considering the fact that appellant Ramai Manjhi has remained in custody for four years seven months and the occurrence took place two decades ago in the year 1989, the sentence of the appellant Ramai Manjhi to undergo rigorous imprisonment for seven years is altered into the sentence already undergone in custody. 8. Learned counsel appearing for the other four appellants submits that as far as the others appellants are concerned, they even according to the prosecution case have inflicted injuries upon the injured with lathi which are all simple in nature. The doctor has found that the injuries have been caused by hard and blunt substance and the injuries are mainly bruises except for one injury on Awadh Singh, which is incised wound 1” x ½” x ½” on the left side of the front of scalp, which has also been described as simple in nature. It is, therefore, argued that these appellants would, in fact, be liable to be prosecuted for the offence under section 323 of the Indian Penal Code in view of the injury report as no case is made out to hold all the three appellants guilty under section 307/149 and 325 of the Indian Penal Code. Learned counsel for the appellants further submits that appellant nos. 2, 3 and 4 have undergone custody of five months during the pendency of the case in the trial court and at the appellate stage. As far as the offence under section 307/149 and 325 of the Indian Penal Code is concerned, it is apparent from the fact that the occurrence took - 4 - place at the spur of the moment, and there was no intention to cause the death of the informant or others. 9. In the facts and circumstances of this case, which have been discussed above, I find that the appellant no. 2 Mahabir Manjhi, 3. Lotha Manjhi and 4. Panchu Manjhi are liable to be convicted for the offence under section 323/149 of the Indian Penal Code instead of section 307/149 and section 325 of the Indian Penal Code. Accordingly, the sentence of the appellant no. 2 Mahabir Manjhi, 3. Lotha Manjhi and 4. Panchu Manjhi to undergo rigorous imprisonment for seven years is altered to the period already undergone in custody with fine of Rs.1,000/- to be paid by each of them to the injured persons, namely, Ashok Kumar Singh and Awadh Singh. In default of payment of fine, the appellants shall have to undergo rigorous imprisonment for one month. Aforesaid fine must be paid within a period of two months from the date of receipt of the notice from the court below. 10. As far as the case of appellant no.5 Lal Babu Manjhi is concerned, it is alleged that he assaulted Awadh Singh with a farsa on the head. The injury has been described as simple in nature. Therefore, conviction under section 307 of the Indian Penal code is set aside and the court finds him guilty of offence under section 324 of the Indian Penal Code and the sentence is reduced to the period undergone in custody with fine of Rs.5,000/- to be paid to Awadh Singh, within a period of five months on receipt of notice from the court below and in default of which the appellant Lal Babu Manjhi shall have to undergo rigorous imprisonment for five months. 11. In the result, this Cr. Appeal is dismissed with the modification in the sentence. (Sheema Ali Khan, J.) Patna High Court, Patna. Dated the 21st April, 2009. NAFR / JA/-