Criminal Appeal (SJ) No.9 OF 1997 [Appeal against the judgment and order dated 20.12.1996 passed by the 1st Additional Sessions Judge, Jamui in Sessions Case No.236 of 1992] 1. Nanhka Mian son of Aziz Mian 2. Mumtaz Mian son of Aziz Mian 3. Pachua Mian son of Aziz Mian 4. Aziz Mian son of Late Budhah Mian, all resident of village Tahwa, P.S. Jhajha in the district of Jamui …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Humayu Ahmad Khan, Advocate For the Respondent : Mrs. Indu Bala Pandey, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant nos.1 and 3 have been convicted u/s.304 Part II I.P.C. whereas appellant nos.2 and 4 have been convicted u/s.304 Part II/149 I.P.C. and sentenced to R.I. for five years and all the appellants have been convicted u/s.147 I.P.C. and sentenced to R.I. for one year. Further the appellant nos.2 and 4 have been convicted u/s.323 and sentenced to R.I. for six months by a judgment dated 20.12.1996 passed by the 1st Additional Sessions Judge, Jamui in Sessions Case No.236 of 1992. 2. The case of the prosecution according to P.W.1 Md. Aslam is that on 13.5.1990 while appellant Nanhka Mian was ploughing his land he had kept his Sandal on the ridge which went missing, so said Nanhka Mian started abusing the 2 informant and his brother, at which an altercation arose between the parties and thereafter the rest of the accused persons came there armed with lathi and assaulted his brother, namely, Taslim Mian and himself, on account of which later Taslim Mian died. 3. During trial, the prosecution has examined twelve witnesses. Out of whom, P.W.2, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9 have been declared hostile whereas P.W.12 is a formal witness. P.W.10 is the doctor, who conducted the postmortem on the dead body of the deceased Taslim Mian, whereas P.W.11 is the doctor, who examined the injuries of P.W.1 and P.W.3, who are the sole eye witnesses to the occurrence, they being the brothers of the deceased. None of the independent witnesses supported the case of the prosecution. 4. On going through the evidence of these two witnesses, I find that they are completely trustworthy and there is no reason to disbelieve their evidence that in fact the appellant had assaulted the deceased and the two injured. However, on going through the evidence of P.W.10, I find that the five injuries sustained by the deceased were more or less minor in nature and in the opinion of the doctor the deceased had died on account of shock and weakness. 5. Under the circumstances, it is difficult to sustain the conviction of the appellant u/s.304 Part II. The Appellants are therefore acquitted of the said charge but convicted u/s.325 3 I.P.C. The sentence is also modified to the period already undergone by the appellants during trial. However their conviction u/s.323 I.P.C. is maintained and the sentence is once again modified to the period already undergone by them during trial. 6. In the result, the appeal is dismissed with the aforesaid modifications. Patna High Court Dated, 1st July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )