Criminal Appeal (SJ) No. 60 OF 1995 ******** Against the judgment and order of conviction dated 10/16-5-95 passed in Sessions Trial No. 189 of 1993 by the learned 4th Additional Sessions Judge, Rohtas at Sasaram. ****** 1. RAJ BALI CHOUDHARY S/O LATE BHEKHA CHOUDHARY 2. NIWAS CHOUDHARY @ RAM NIWAS CHOUDHARY 3. RAJ BANSH CHOUDHARY 4. RAJESHWAR CHOUDHARY BOTH S/O LATE BHEKHA CHOUDHARY ALL R/O VILLAGE- CHARPURWA, POST OFFICE- RAJPUR, P.S.- SANJHAULI, DISTRICT- ROHTAS ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. Krishna Pd. Singh Sr. Adv. For the State : Mr. Jharkhandi Upadhay APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted under Section 307/34 I.P.C. and sentenced to rigorous imprisonment for 10 years and fine of Rs. 1000/- each and in default of which further rigorous imprisonment for 1 year in Sessions Trial No. 189 of 1993 by the learned 4th Additional Sessions Judge, Rohtas at Sasaram by the judgment dated 10/16-5-95. 2. The case of the prosecution is that on 1.5.1992 at 7.30 a.m. the accused persons variously armed came to the dalan of the informant and there after variously assaulted Jairam Singh P.W. 1 Wakil Chand Singh and Mahendra Singh. Subsequently Mahendra Singh died, on account of which charge sheet was submitted under Section 302/34 I.P.C. and the accused persons were also charged under the same offence but were acquitted of the charges under Section 302 I.P.C. and convicted as mentioned above. 3. The prosecution in all examined 14 witnesses out of whom P.W. 14 is formal, P.W. 9 is the doctor who examined the injured, P.W. 1 to 5 and 8 and 12, P.W. 10 is the doctor who held the post mortem of the deceased, P.W. 13 is the Investigating Officer and P.W. 8 and 11 have been tendered. P.W. 1, 2, 5 and 12 are the injured eye-witnesses, P.W. 3, 4 and 6 are independent eye-witnesses, P.W. 4 is also formal and so is P.W. 7. 4. Apart from these witnesses the prosecution also brought on record a number of documents. According to the informant accused Babudhan Choudhary had given a lathi blow on the head of Jairam Singh on account of which he fell down, where after 4 accused persons again assaulted him with a lathi and when Mahadev Singh came to save Jairam Singh he was assaulted by Birendra Choudhary with lathi and Potan Singh was assaulted by accused Babudhan Choudhary , Birendra Choudhary is also said to have assaulted the informant with lathi. The deceased Jairam Singh is said to have been fired at by Niwas Choudhary on the orders of Rajbansh Choudhary, Rajbali Choudhary and Mahendra Singh are also said to have fired at by Niwas Choudhary and Wakil Chand Singh was also fired at by Niwas Choudhary. 5. On examination of the doctors who examined the injured, I find that the doctor had found one injury on the thigh of P.W.1 whereas number of injuries was found on the person of P.W.2. However, from the evidence of P.W.2 it appears that he had named the 8 accused persons the first time during trial. 6. The Investigating Officer who a large extent falsified the case of the prosecution since he found that the place of occurrence have been substantially changed by the prosecution at various stages. In the manner described by the prosecution witnesses of the occurrence it would be difficult for this court would be conclude that the offence under Section 307 is made out against the appellants. 7. In view of such, the conviction of the appellants is converted to one under Section 326 I.P.C. and sentence is modified to a period already undergone. Further each of the appellants shall be required to pay a sum of Rs. 1000/- each to Wakil Chand Singh and Mahendra Singh/ family members within 8 weeks from the date of receipt of notice from the Trial Court, in default of which, appellants would serve further rigorous imprisonment for three months. 8. In this result, the appeal is dismissed with modification in the sentence. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 25th April, 2011 NAFR/ Fahad.