Criminal Appeal (SJ) No.179 of 1996 ---- Against the judgment and order of conviction dated 28th June, 1996, passed by the 2nd Additional Sessions Judge, Khagaria, in Sessions Case No. 21 of 1992. ---- =========================================================== 1. Ram Badan Paswan son of Shiv Yogi Paswan & 2. Ram Bilash Paswan son of Ram Saran Paswan, both resident of village- Durgapur, Police Station & District- Khagaria .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Suresh Gandhi, Advocate For the Respondent/s: Mr. Arun Kumar Singh No.5, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The appellant no.1 has been convicted under section 323 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, whereas, appellant no.2 has been convicted under section 304(1) Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 2. The case of the prosecution is that on 17.05.1991 at about 4.00 PM when the informant was removing his maize plants the accused persons variously armed with lathi came there and assaulted the informant. On the cries of the informant, when Nathuni Paswan, father of the informant came to his rescue, he was also assaulted by appellant no.2 with a lathi on the head on account of which he fell down and later died. 3. During the trial, the appellants were charged under section 302 Indian Penal Code but acquitted of the said charge and convicted as mentioned above. Patna High Court CR. APP (SJ) No.179 of 1996 dt.06-07-2011 2 4. During the course of trial, the prosecution examined seven witnesses, out of whom PW 1 and 2 are the F.I.R. witnesses, who have been declared hostile, whereas, PW 3 and 4 are the two sons of the deceased and the only two eye witnesses. PW 5 is the doctor, who held autopsy of the deceased. PW 6 is formal in nature and PW 7 is the Investigating Officer of the case. 5. On a fair assessment and appreciation of the evidence of the two eye witnesses, namely, PW 3 and 4, I find that both have stated that a dispute arose over removal of maize plants which led to an altercation between the parties in course of which the informant was assaulted. When his father intervened, he was also given a lathi blow on the head on account of which he became injured and later died. The evidence of the Doctor (PW 5) also corroborates the fact that there was only one injury on the person of the deceased which was the cause of death. 6. It has been submitted that even considering the manner of occurrence and the participation of the appellants it cannot be conclusively argued that the assault by the appellant no.2 was with knowledge that it would cause death of the deceased. 7. I am inclined to accept this argument and, therefore, the appellant no.2 is acquitted of the charge under section 304(1) Indian Penal Code and instead convicted under section 325 Indian Penal Code and sentenced to the period already undergone. Sentence of the appellant no.1, who is convicted under section 323 Indian Penal Code, is also modified to the period already undergone by him during trial. 8. In the result, the appeal is dismissed with modification in the sentence. 9. Further, the Appellant no.2, if alive, is directed to pay a sum of rupees two thousand to the informant/ his family members within four months from Patna High Court CR. APP (SJ) No.179 of 1996 dt.06-07-2011 3 the date of receipt of notice from the court below. In case, he fails to do so, he shall have to undergo simple imprisonment for six months. (Anjana Prakash,J.) Patna High Court Patna Dated the 6th July, 2011 NAFR/ JA/-