Criminal Appeal (SJ) No.313 of 1997 Against the judgment dated 30. 09. 1997 and order of sentence dated 03. 10. 1997, passed by Shri Manohar Prasad, 2nd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 68 of 1996. 1. Baleshwar Singh, son of Singasan Singh. 2. Dharamnath Singh, son of Sheoji Singh. 3. Sheoji Singh, son of Nabab Singh. All residents of Village- Shankarpur, P.S. Baikunthpur, District- Gopalganj. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Janardan Prasad Singh, Advocate. Mr. Vinay Kirti Singh, advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 304 (1) of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years. The appellant nos. 2 and 3 has been convicted under Section 323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. 3. Prosecution case that the accused persons 2 asked the informant to put his hand on his buffalo in connection with black magic, when informant refuse to put his hand causing verbal altercation and exchange of abuses followed with assault by lathi and farsa. The accused Baleshwar Singh gave farsa blow on his head and Sheoji Singh and Dharamnath Singh assaulted by means of lathi cause injury no. 1 incised wound on the head upper portion 7” X 1/1/2” depth upto brain substance. The victim died after eight days of the treatment and Doctor opined that patient would have been saved if treated in higher institution. Considering the fact the order of conviction recorded under Section 304 Part I I.P.C. against appellant no. 1 and Section 323 I.P.C. against appellant nos. 2 and 3 and order or sentence as stated above. 4. However, having regard to the facts and circumstance, the occurrence is on 30. 10. 1995 with regard to the petty matter for keeping the hand on the buffaloes and death was caused after eight days and the Doctor in his evidence has stated that the patient would have been saved if treated in higher institution. 5. Hence, having regard to the facts and 3 circumstances, the occurrence is with regard to petty mater and victim died after eight days of the occurrence and Doctor opined that patient would have been saved if treated in higher institution. Hence, conviction under Section 304 part II I.P.C. will applicable to the fact and circumstance of the case. 6. Having regard to the fact that occurrence took place in the year 1995 and have suffer the rigor of investigation and appeal and the appellants remained in jail since then from 1995 to 1997 and appellant nos.2 and 3 have remained in jail three months after conviction and hence end of justice shall meet the sentence the appellants for period already undergone and the appeal is allowed in part. Patna High Court, The 1st August, 2011. NAFR/m.p. ( Gopal Prasad, J.)