Criminal Appeal (SJ) No. 91 OF 1996 ******** Against the judgment and order of conviction dated 26.4.1996 passed in Sessions Case No. 417 of 1991 by the learned VIIth Additional Sessions Judge, Munger. ****** 1. PAWAN MAHATO 2. BAHADUR MAHATO 3. BUDHAN MAHTO @ BUDHO MAHATO 4. SUDHIR MAHTO @ SUDHO MAHTO ALL S/O LATE SUKHDEO MAHATO 5. DORHAN MAHTO S/O LATE DOMAN MAHTO ALL R/O VILLAGE- DEOGHARA, CHAIN TOLA, P.S.- MEDNI CHAK, DISTRICT- LAKHISARAI (OLD MUNGER) ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. Kumar Manglam Adv. For the State : Md. Aslam Ansari APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted under Section 325 I.P.C. and sentenced to simple imprisonment for 5 years and in addition to fine of Rs. 500/- in default of which simple imprisonment for a week which was to be paid to the widow of the deceased by the judgment dated 26.4.1996 passed by learned VIIth Additional Sessions Judge, Munger in Sessions Case No. 417 of 1991. 2. The case of the prosecution is that on 19.8.1990 when one Biresh Mahto was sleeping at his Basa the accused persons armed with lathi and gun assaulted him on account of which he died sixteen days later. The appellants were initially charged under Section 302/34 but they were acquitted of the charges and convicted as mentioned above. 3. The prosecution in all examined 10 witnesses and 1 court witness out of which P.W. 1, 2 and 3 have deposed as eye-witnesses whereas P.W. 4 and 6 are hear say witnesses, P.W. 7 is the police officer who recorded the statement of the deceased Biresh Mahto whereas P.W. 8 is the doctor who was examined the deceased, P.W. 9 is the Investigating Officer. 4. On going through the record, I find that admittedly the deceased died on account of Tetanus which he had developed during treatment and in fact on X-ray only one fracture had been detected on the ulna which had been plastered. Initially doctor who had examined the injured before his death has not been examined by the prosecution. 5. The court witness Subodh Kumar has formally proved the injury report prepared by Dr. K.P. Sinha marked as exhibit-7 and 7/1 which cannot taken into consideration since then are not substantial evidence. However going on the oral evidence of the witnesses it is difficult to disbelieve the prosecution case and, therefore, it is difficult to interfere with the conviction of the appellants. 6. In the result the appeal is dismissed but the sentence is modified to the period already undergone by them during trial. 7. In the result, the appeal is dismissed. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 13th May, 2011 NAFR/ Fahad.