Criminal Appeal (SJ) No.291 of 1997 Against the judgment and order of conviction 27. 08. 1998 and order of sentence dated 28. 08. 1998, passed by Shri Anil Kumar Verma, Additional Sessions Judge II, Katihar, in Sessions Case No. 435 of 1988/71 of 1996. 1. Sipal Choudhary, son of Puran Choudhary. 2. Ram Bilash Choudhary, son of Basant Choudhary. Both resident of Village- Baburbanni (Ghuryahi), Police Station- Manihari, District- Katihar. .... .... Appellants. Versus The State Of Bihar .... .... Respondent/s For the Appellants : Mrs. Rina Sinha, Amicus Curiae. 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 appellants have been convicted for offence under Section 325 I.P.C. and sentenced to undergo rigorous imprisonment for four years. 3. The prosecution case is that son of the informant Niranjan Choudhary was playing with Ram Dular, son of Sipal Choudhary. While playing Ram Dular, son of Sipal got injury on his head by sickle of son of informant. Sipal catch hold of son of informant and demanded money then the informant said that he will get 2 treated Ram Dular by a doctor and pay the money. Thereafter, Devraj Choudhary, the informant, his wife Rajni Devi and Somari Devi, the mother of the informant took him to Dr. Shankar for his treatment. In the meantime wife of Sipal Choudhary and other accused persons came. Ram Bilash Choudhary, Chania Devi and Sulochana Devi start assaulting the wife of the informant, when the mother of the informant intervened then she was also assaulted by lathi which caused fracture in the hand of the mother of the informant and her four teeth were also broken. The accused persons out of fear had to remain at the door of Dr. Shankar as the accused persons apprehended them. The wife of the informant fled in the house of one Chehedi Sahni and mother of the informant due to assault got unconscious. On the next day she was taken to Manihari hospital from where she was referred to Katihar Hospital and at Katihar hospital the victim died after sixteen days of the treatment. After death, post mortem was conducted by the doctor. Thereafter charge sheet submitted. After submission of the charge sheet, cognizance was taken and case was committed to the Court of sessions. However, charges were framed by the 3 additional Sessions Judge for offence under Section 302 and 323 I.P.C. 4. During trial, nine witnesses were examined. However, out of nine witnesses, P.W. 1, 2 and 5 have turned hostile. P.W. 6 was tender. P.W. 7 is the informant, P.W. 4 is son of the informant and P.W. 3 is wife of the informant, P.W. 8 is the doctor who conducted autopsy on the deceased and P.W. 9 is the I.O. 5. The defence of the accused persons stated that they have falsely been implicated in this case and no occurrence as alleged has been occurred and the victim may have fallen in Rasta causing injury to her. 6. The trial court taking into consideration the evidence of P.W. 3, 4 and 7 who have supported the prosecution case regarding the assault. The trial court further taking into consideration the evidence of P.W.8 the doctor, who conducted autopsy on the person of the deceased, that doctor P.W. 8 that death was caused due to septicaemia an infection due to compound fracture of the fore arm, convicted the appellants for offence under Section 325 I.P.C. and sentence as stated above. 7. Learned Amicus Curiae has however assail the 4 order of conviction and submitted that almost all the witnesses have turned hostile except the family members who are interested witnesses and their evidence required to be rejected. 8. Learned counsel for the State however stated that charge was framed under Section 304 I.P.C. but the conviction has been maintained under Section 325 instead of Section 304 I.P.C. though the witnesses have supported the prosecution case. 9. However, in view of respective submissions, I perused the record and evidence of the witnesses and found that witnesses, 3, 4 and 7 have supported the prosecution case about assault of two appellants, though, occurrence took place with regard to quarrel between the son of the informant and son of appellant no. 1 and due to injury of son of appellant no. 1 by the son of the informant, the matter culminated into verbal altercation and followed by assault. There are evidence that appellants assaulted the victim by lathi and danda and the corresponding injury found by the doctor. However, injury found on the hands and ribs. Hence it is clear facts that fracture on hand caused by assault by lathi. 5 However, it is apparent that the fracture in hand caused assault of lathi. However, to bring the case for offence under Section 302 I.P.C. or Section 304 I.P.C. it has to be established that there were culpable homicide. However, culpable homicide defines under Section 299 I.P.C. It has been defined that whoever caused death with intention to causing death or caused death by doing act with intention to causing death or with intention to cause such bodily injury as is likely to cause death or with the knowledge he is likely by said act to cause death committing offence culpable. However, the act alleged is assault by lathi on hand causing fracture on hand, one cannot infer that there was intention to cause of death or the intention was as such to have likely to cause death nor it can infer that person had knowledge that it will likely to cause death and hence offence under Section 302 and 304 I.P.C. is rule out and the act alleged does not fall in culpable homicide and to bring the offence under Section 302 I.P.C. or Section 304 I.P.C. hence the fact that act alleged causing fracture in hand. Subsequently conviction under Section 325 I.P.C. is just and proper and I do not find any merit to interfere the order of conviction. 6 10. Learned Amicus Curiae however, contends that occurrence is of the year 1988 and twenty three years has already been elapsed and hence lenient view may be taken. 11. However, having regard to the fact that occurrence took place with regard to quarrel of two children and occurrence is of the year 1988 and parties have suffer a lot. Hence benefit under Section 4 of Probation of Offender Act is required to be given to the appellants. 12. Hence, appellants are order to be released on furnishing bond of Rs. 10,000/- (Ten thousand) with two sureties of the like amount each for keeping peace and good behaviour for a period of one year and to come and face sentence during the period as and when call upon. 13. Hence with this modification of sentence, this appeal is dismissed. Patna High Court. The 15th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)