Criminal Appeal (SJ) No.171 of 1997 ****** Against the judgment and order dated 23.06.1997 passed by Sri Abdul Samad, 3rd Additional Sessions Judge, Munger in Sessions Case No. 570 of 1990. ****** 1. Jagdish Mahton @ Jagdish Mahto. 2. Bishundeo Mahton @ Bishundeo Mahto, Both Sons of Simrik Mahton. 3. Simrik Mahton @ Simrik Mahto, Son of Late Haricharan Mahton. All of village - Bhalui, P.S. – Chanan, Distt. – Munger. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Nirmal Kumar Sinha No. 3, Advocate. Mr. Arun Kumar, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T 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 Jagdish Mahton @ Jagdish Mahto has been convicted for the offence under Section 304 part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and appellant nos. 2 and 3, namely, Bishundeo Mahton @ Bishundeo Mahto and Simrik Mahton @ Simrik Mahto have been convicted for 2 the offence under Section 304 part II / 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged in the fardbeyan is that with regard to the irrigation of the land Simrik Mahton, Jagdish Mahton, Bishundeo Mahton and Kedar Mahton were seen uprooting his potato crop for making a houze for passage of water of their boring, was objected by the informant which caused abusing and verbal altercation on which Simrik Mahton, Bishundeo Mahton and Kedar Mahton commanded to kill then it is alleged that Jagdish Mahton gave a blow with the blunt portion of the spade on the Kanpatti of deceased Ram Khelawan Mahton and then on Halla the son of the informant and others came and saw the accused persons fleeing away. On the fardbeyan First Information Report lodged and after investigation, charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. Charge was framed under Section 302/34 of the Indian Penal Code against the appellants. During the trial eight witnesses were examined. The defence of the accused is complete denial and assertion that Ram Khelawan Mahton died by fall from tree. The trial court took into consideration the evidence that on verbal altercation in a fit of moment Jagdish Mahton gave a spade blow on Kanpatti by which Ram Khelawan Mahton fell down and succumbed to injury. After considering the oral and documentary evidence conviction 3 recorded. 4. P.W. 1, 2 and 4 are the informant and has supported the prosecution case. 5. However, the attention of P.W. 1 has been drawn and his evidence has been found to be contradictory recorded by the I.O. and his statement contrary to his earlier statement before the police. P.W. 2 is the son of the informant. However, he also claims to be the eye- witness but in the FIR it has been mentioned that his son came after the occurrence and saw the accused persons fleeing away. He has come to say about the occurrence and assault. However, the evidence of the informant is corroborated by the evidence of the doctor and hence taking into consideration the entire fact and circumstance that the occurrence took place with regard to the irrigation of water and in a fit of moment during the verbal altercation between the parties in heat of moment and the injury alleged to be found having been corroborated by the doctor P.W. 7 and hence I do not find any reason to interfere with the order of conviction. 6. The learned counsel for the appellants, however, contended that the occurrence is of the year 1990 and the occurrence took place regarding the irrigation of the land and the allegation is also of assault by the back portion of the spade and only one blow is alleged to have been given and hence having regard to the facts and circumstances 4 since the role attributed by the appellant no. 1 on the head whereas no role attributed by the other appellants in fardbeyan though evidence of assault on the leg which is not vital part of the body. However, the appellant no. 1 who was aged about 70 years during the trial alleged to have given Lathi blow, hence the ends of justice shall meet by sentencing the appellant for the period already undergone by him with a fine of Rs.2,000/- and so far appellant nos. 2 and 3 are concerned their sentences are modified to pay a fine of Rs.2,000/- each and hence with this modification in the sentence the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 22nd July, 2011. N.A.F.R./Kundan.