Criminal Appeal (SJ) No.196 OF 1995 (Appeal against the Judgment and Order dated 13.4.1995 passed by the 1st Additional Sessions Judge, West Champaran Bettiah, in Sessions Trial No. 123 of 1992/245 of 1995.) --------- 1. DEEP NARAYAN SAH SON OF BENGA SAH 2. SHEOPUJAN SAH SON OF SHANKER SAH 3. JAGDISH SAH SON OF LALKUNAR SAH 4. PARAS SAH SON OF JAGDISH SAH 5. JAI NARAYAN SAH SON OF SANKER SAH 6. INDRAJEET SAH SON OF SANKER SAH 7. SATYA NARAYAN SAH SON OF LT. MUKHLAL SAH 8. YOGENDRA SAH, SON OF LT. MUKH LAL SAH ALL RESIDENT OF VILLAGE MACCHARGAWAN, KAR KHANA TOLA, P.S. JOGAPATTI, DISTT. WEST CHAMPARAN. ---- APPELLANTS Versus THE STATE OF BIHAR ------RESPONDENT ----------- For the Appellants : Mr. Rama Kant Sharma, Sr. Advocate with Mr. Narendra Kumar Singh, Advocate For the State : Mr. Hirday Prasad Singh, A.P.P. ----------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Heard 2. The Appellant No. 1 has been convicted under Section 304 Part I/34 and 147 of the Indian Penal Code and sentenced to a period of seven years rigorous imprisonment whereas the Appellants No. 2, 3 and 4 have been convicted under Section 304 Part- I/34 of the Indian Penal Code and sentenced to rigorous imprisonment for five years. Further the Appellant Nos. 2 2 and 3 have been convicted under Section 325 of the Indian Penal Code and sentenced to rigorous imprisonment for five years. They have been convicted along with Appellant Nos. 5 and 6 under Section 147 of the Indian Penal Code and sentenced to rigorous imprisonment for one year. Appellant No. 7 and Appellant No. 8 have been convicted under Section 324 and 148 of the Indian Penal Code and sentenced to rigorous imprisonment for three years and two years respectively whereas Appellants No. 5 and 6 have been convicted under Section 323 and 147 of the Indian Penal Code and sentenced to rigorous imprisonment for one year under each count by a Judgment dated 14.9.1995 by the 1st Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 123 of 1992/245 of 1995. 3. The prosecution case is that the accused persons abused the wife of the Informant over a minor matter and thereafter proceeded to assault her and three injured. On way to the Hospital the wife of the Informant succumbed to her injuries. The Appellants were charged under Sections 302/149, 307 Indian Penal Code and other allied sections but they were acquitted of the charges under Section 302/146 and 307 Indian Penal Code and convicted as mentioned above. 4. During trial, the prosecution in all examined thirteen witnesses out of whom PW-3 is the Doctor who had held the post mortem examination and PW-11 is the Investigating Officer whereas PW-10 is the Doctor who has examined the two of the injured. PW-13 is a formal witness. PW-1, PW-2, PW-4, PW-5, PW- 3 6, PW-7, PW-8, PW-9 and PW-10 are witnesses on the factum of occurrence out of which PW-10 is the Informant himself. 5. It has been submitted that even conceding the entire prosecution case what is relevant is whether the offence under Section 304 is made out in the facts of the case. Admittedly the Doctor who conducted the post mortem examination had found that the lungs of the deceased were reduced on account of T.B. and presence of puss. He also has found only two injuries on the person of the deceased which in his opinion was not sufficient to cause death. Since the essential ingredients of 304 Part-I is that death must be a direct result of the acts committed by the accused, such an ingredient is belied in this case by the Doctor’s evidence who had stated that the injuries were not sufficient to cause her death and in fact, the lungs have been found infected. In such view no offence under Section 304 Indian Penal Code is made out and therefore Appellants No. 1, 2, 3 and 4 are acquitted of the charge under Sections 304/149 Indian Penal Code. However, this Court is of the view that they are liable for conviction under Section 323 of the Indian Penal Code. Since the eye witnesses are consistent on the point of assault by the Appellants No. 5, 6, 7 and 8 on the two injured, I am not inclined to interfere in their conviction. The assault on the Informant by Appellants No. 2 and 3 is also doubtful in view of the serious contradictions of eye witnesses and, therefore, they are acquitted of the charge under Section 325 Indian Penal Code. 4 6. In the result, the Appeal is thus dismissed with the modifications in conviction noted above and further modifications in sentence to a period already undergone by them during trial, for their respective convictions under Sections 323, 324, 147 and 148 Indian Penal Code. 7. In the result, the Appeal is dismissed with aforesaid observations. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 22nd April, 2011 NAFR/ S.Ali.