Criminal Appeal (SJ) No. 155 of 1996 Against the judgment of conviction dated 17.07.1996 passed by Sri Rukmini Kant Choudhary, Ist Additional Sessions Judge, Banka in Sessions Trial No. 607 of 1994. 1. Tetar Mandal, Son of Jumman Mandal, resident of village – Assimakaita, Police Station – Dhoraiya, District – Banka. 2. Upendra Mandal, Son of Late Baiju Mandal, resident of village – Assimakaiya, Police Station – Dhoraiya, District – Banka. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s -------------- For the Appellant/s : Mr. Sunil Prasad, Advocate. For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The appellants have been convicted under Section 304 part II/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years. 2. The prosecution case as alleged in the fardbeyan by the informant is that the father of the informant had dug a ditch beside a hand pump and had stored water. Accused Sanjoy Kumar Mandal, Tetar Mandal and Upendra Mandal after cutting a ditch were using the water to irrigate their land which was protested by the father of the informant on which it is alleged that three accused persons assaulted him by lathi on his head 2 near the ear and it is further alleged that when his father made a halla then the informant came and saw the three accused persons including the appellants assaulting him. 3. On the fardbeyan, the First Information Report was lodged and after investigation charge-sheet was submitted cognizance taken, case was committed to the court of sessions and the charge was framed under Section 302/34 of the Indian Penal Code. 4. However, during the trial seven witnesses were examined and after considering the oral and documentary evidence the appellants have been sentenced to undergo rigorous imprisonment for three years under Section 304 part II/34 of the Indian Penal Code. 5. Learned counsel for the appellants, however, contended that though there is vague and omnibus allegation of assault by all the three accused persons and there is no specific allegation that who assaulted on what part of the body. However, during the trial it has come that Sanjoy Kumar Mandal who is not appellant here assaulted the deceased by lathi at the ear and head and these two appellants have been attributed to have assaulted the informant on hand and back which is not vital part of the body. It has further been contended that the occurrence took place in fit of moment for irrigating the land from the water in the ditch which is a trifle matter and the weapon used is also a lathi and there was no intention to kill and both the appellants and the deceased were 3 neighbours. There is no enmity and nothing except that the occurrence took place in the fit of moment on verbal altercation. It has further been contended that the post-mortem report indicates the three injuries and the fatal injury alleged to be injury no. 2 which is on the head near ear and in the evidence of the witnesses it has come that the said injury no. 2 is attributed to Sanjoy Kumar Mandal and not these appellants. 6. Learned counsel for the State, however, fairly conceded that as per the evidence of the witnesses the role attributed to these appellants who have assaulted on the hand or leg and on the back and the injury no. 2 which has been shown to be fatal was attributed to Sanjoy Kumar Mandal and hence supported the order of conviction. 7. Hence, the question for consideration whether the prosecution prove the charges and the appellants are entitled to benefit. 8. However, the prosecution case as alleged is that the dispute arose while the appellants were trying to take water from the ditch for irrigating their land which was protested by the deceased on which there is allegation that the three appellants assaulted the deceased by the lathi. However, the allegation about the assault is omnibus and there is no specific allegation who assaulted on what part of the body. However, during the trial seven witnesses were examined out of which four are claims to have seen the occurrence who were P.Ws. 2, 3, 4 and 5 and have stated that it was Sanjoy Kumar Mandal who assaulted on the head 4 and the role attributed to these appellants to have assaulted the deceased with the lathi on the left knee as well as on the right knee and back on leg is simple and not on vital part. However, only one injury was found to be fatal is injury no. 2 attributed to Sanjoy Kumar Mandal and not these appellants. 9. Hence, having regard to the facts and circumstances that the occurrence took place in a fit of moment while irrigating the land from the water in the ditch and the weapons used is a lathi and the role attributed to these appellants of having assaulted the deceased on hand and leg which are not vital part of the body and the corresponding injuries are simple in nature, hence, a lenient view is required to be taken. 10. Having regard to the facts and circumstances though I find and hold that the order of conviction recorded by the learned lower court is sustainable in the eye of law but with regard to the sentence of the appellants who have been sentenced for rigorous imprisonment for three years having regard to the facts and circumstances that since the weapons used is also a lathi and the part of the body on which the assault was made is not vital as the allegation is of assault on hand and leg and since the occurrence is of the year 1994, and 16 years have elapsed, hence, the ends of justice shall be met by sentencing the appellants for the period 5 already undergone during the trial and hence, with this modification in the sentence the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 24th June, 2011. N.A.F.R./Kundan.