IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 157 of 1997 (Appeal against the Judgment and Order dated 08.051997 passed by 2nd Additional Sessions Judge-Muzaffarpur, in Sessions Trial No. 1 of 1995) ================================================= MD. IZHAR @ CHATTU, SON OF MD. RAMJAN, RESIDENT OF MOHALLA CHAK ABDUL WAHID MAJHAULIA ROAD, P.S. KAZI MOHAMMADPUR, DISTT. MUZAFFARPUR. .... .... APPELLANT Versus THE STATE OF BIHAR .... .... RESPONDENT ================================================= Appearance : For the Appellant : Mr. Shakti Suman Kumar, Adv. For the State : Mrs. Nirmala Kumari , A.P.P. ================================================= P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellant has been convicted under Section 304 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years by the 2nd Additional Sesions Judge, Muzaffarpur, in Sessions Trial No. 1 of 1995 by a Judgment dated 8.5.1997. 2. The case of the prosecution according to Md. Sakid (P.W.- 8) is that on 9.1.1994 when Md. Izhar was quarrelling with his mother in an inebriated condition and beating her, the son of the Informant Md. Sahadat Hussain tried to pacify him. Md. Izhar being further angered, assaulted him with Chhura on account of which he sustained serious injury on his head and later died. 3. During trial, the prosecution examined eleven witnesses out of whom PW-11 and 12 have been declared hostile whereas PW-10 and PW-11 are formal witnesses. PW-8 is the Informant and PW-9 is the Patna High Court CR. APP (SJ) No.157 of 1997 dt.07-07-2011 2 Doctor. PW-3, PW-5, PW-6 and PW-7 have given an eye witness account of the occurrence. 4. During trial, the eye witnesses, PW-3, Pw-5, PW-7 and PW- 8 had given unshaken evidence that while the Appellant was quarrelling with his mother in an inebriated condition, the deceased went to pacify him but instead of getting pacified, he assaulted the deceased with Chhura on his head on account of which he died. The Doctor (PW-9) has found single injury on the person of the deceased and in the facts of the case, the Court held that the Appellant did not have any intention to commit the murder of his brother and, therefore, convicted under Section 304 of the Indian Penal Code. However, in my view, in the manner in which the occurrence had taken place, it is difficult to conclude positively that the Appellant being an inebriated condition had the knowledge that his assault would cause death of his brother. 5. In view of such, the conviction of the Appellant is converted one under Section 325 of the Indian Penal Code and the sentence is modified to the period already undergone by him during trial. 6. In the result, the Appeal is dismissed with the aforesaid modifications. (Anjana Prakash, J.) Patna High Court, Patna, Dated, 7th July, 2011. NAFR/S.ALI