Criminal Appeal (SJ) No. 310 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Ram Chandra Rai, S/o Rampat Rai. 2. Subelal Rai, S/o Rampat Rai. 3. Ram Bali Rai, S/o Sukhlal Rai. 4. Chandar Rai, S/o Fudan Rai. 5. Devendra Rai, S/o Jaddu Rai. 6. Ram Ekbal Rai, S/o Ram Kishun Rai. All R/o Village-Agrail, P.S.-Baligaon, District-Vaishali. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants: Mr. Suraj Narain Pd. Sinha, Adv. : Mr. Mukesh Kumar, Adv. For the State : Mr. Coubey Jawahar, 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 307/149 IPC and sentenced to RI for ten years and in addition the appellant No. 2 has been convicted under Section 325 IPC and sentenced to three years RI by the 1st Additional Sessions Judge, Vaishali at Hajipur by a judgment dated 08.09.1994 in S.Tr. No. 42 of 1988/55 of 1990. The case of the prosecution is that on 30.08.1986 a minor altercation took place between the parties in the morning on account of which in the night the accused persons variously assaulted the prosecution party on account of which they were injured. 2 The prosecution examined seven witnesses out of whom P.W. 1 and P.W. 2 has merely stated that he saw the accused persons running away whereas P.W. 3 and P.W. 4 are brother and nephew of the informant respectively who claimed to be the eye-witnesses. P.W. 5 is the informant and injured whereas P.W. 6 is the Medical Officer who examined P.W. 5. P.W. 7 is formal in nature who proved the FIR and case diary. Evidently the Investigating Officer was not examined by the prosecution. P.W. 6 the Doctor found a single simple injury superficial in nature on the head of the informant and fracture of the ulna bone and one bruise and one abrasion on wrist joint and thigh. The sole consideration before this Court is as to whether offence under Section 307/149 IPC is made out against the accused persons in the facts of the case. Admittedly, no repetition of blow on the vital part was meted out by the accused persons, therefore, it is difficult to conclude that the intention of the accused persons was to cause death of the injured. The background in which the occurrence had taken place is also important since the parties are close door neighbours. On account of the aforesaid discussion and discrepancies in the evidence of the witnesses even on the point of manner of occurrence, I am inclined to 3 convert the conviction of all the appellants from Section 307/149 to one under Section 323 IPC and sentence them to a period already undergone. The conviction of the appellant No. 2 is maintained under Section 325 IPC but his sentence is also converted to a period undergone by him. In the result, the appeal is dismissed with aforesaid modifications. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 7th April, 2011. NAFR/Vikash/-