Judgment 1. There are three appellants in this case and appellant No. 1 is the father of appellant Nos. 2 and 3. All these appellants have been convicted under section 304/34, Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. Appellant No. 3, Kanhai Chaudhur, has also been convicted of the offence under section 323, Indian Penal Code, and sentenced to undergo rigorous imprisonment for six months. This latter sentence is to run concurrently. 2. The case of the prosecution briefly stated is as follows. Gunjeshwar Chaudhur is the informant in this case and he is P. W. 6. The deceased, Bikarma Chaudhur, was his full brother. The occurrence is said to have taken place in village Rajpur within Mirganj Police station in the district of Saran. Now, according to the prosecution, there are lands of both the parties situated near about the same place and the appellants are said to be the Pattidars of the family of the informant. There had been some dispute between the parties in respect of the jhura on the respective lands and it is said that on the 29th of May, 1965, that is to say, just a day previous to the occurrence, the informants elder brother, Bikarma Chaudhur, that is, the deceased, had gone to the field to see his 9 kathas of land and for having the same ploughed up and on reaching there he saw that 19 kathas land of the accused persons had been ploughed up and he also found that a substantial portion of the hedge from the southern side had been uprooted. Bikarma Chaudhur reported the matter to his brother, that is, the informant, in the afternoon. On that very day, in the evening, the informant and his brother, Bikarma Chaudhur, had gone to the residence of the accused persons to lodge protest as to why they had uprooted some portion of the hedge (Jhur) in their absence when this was as the common dividing line between their lands. On that very day, in the evening, the informant and his brother, Bikarma Chaudhur, had gone to the residence of the accused persons to lodge protest as to why they had uprooted some portion of the hedge (Jhur) in their absence when this was as the common dividing line between their lands. On account of the protest so made, it was agreed that the matter should be settled up and, accordingly, on the next day, that is on the day of occurrence, that is, 30-5-65, at about 10 to 11 A. M., the deceased Bikarma and his brother,the informant of this case, had left their house at 10 or 11 A. M. for their field and while going to their field they had taken two persons, namely, Raghunandan Chaudhur (P. W. 1)and Sukat Chamar (P. W. 3) in their company and another person, named Mahendra Bherihar whom they met on the way. These persons had gone there to act as Punch as for the settlement of the dispute and the controversy, which had arisen. On arrival on the land in question, the informant found that all the three accused persons, that is, present appellants, were present in their southern land near the dividing hedge, but they had not brought any Punch with them as was agreed between the parties. The informant and others went near the hedge and pointed out to those persons there about the highhandedness of the accused persons in wrongfully uprooting a portion of the hedge from the southern side of the ridge. The further case of the prosecution was that there was exchange of words and altercation between the accused persons on the one hand and the informant and his brother Bikarma Chaudhur, on the other, and, in the meantime, the accused Kanhai Chaudhur is said to have caught hold of the informant by hand and began beating him with fists and slaps and the other two accused, namely, Jamuna Chaudhur and Jagarnath Chaudhur fell upon Bikarma Chaudhur and are said to have caught hold of him by hand and started beating him with kicks, fists and slaps, whereupon the victim Bikarma Chaudhur is alleged to have fallen down on the ground in the khet (field) of Mukhi Koieri. But, even thereafter the two accused persons namely, Jamuna Chaudhur and Jagarnath Chaudhur are alleged to have gone on assaulting Bikarma Chaudhur with fists, kicks and slaps on his face, neck and abdomen. The further case of the prosecution was that after Bikarma Chaudhur, deceased, had fallen down on the ground, the accused, Kanhai left beating the informant and rushed upto the place where Bikarma Chaudhur was lying and dealt a heavy kick to him in his abdomen. The Informant rushed to the place where his brother Bikarma was lying on the ground and on reaching near him, he found him unconscious and he also found slight bleeding from his mouth and nostrils. 3. The accused persons are said to have run away from that place and then Bikarma Chaudhur, who was already unconscious was lifted from the place where he was lying on the ground and was placed on a bullock-cart and then was taken towards the Gopalganj Sadar Hospital. But, while he was being carried on the bullock cart, he died on the way. The bullock cart was taken to the Gopalganj Police station where a Fardbeyan was recorded by the Sub-Inspector of Police, Gopalganj on the statement of the informant (P. W. 6) and thereafter the informant was examined for his injuries by the police and (sic) both were referred to the Medical Officer, Gopalganj Sadar Hospital where the injuries on the person of the informant as also on the person of deceased Bikarma Chaudhur were examined, and on the next day, there was a post-mortem examination on the dead body of Bikarma Chaudhur. I have already stated above that the village where the occurrence took place is within the Mirganj Police station, but this Fardbeyan had been recorded at Gopalganj Police-station, so this was forwarded to the Mirganj Police-station, which was received on 30-5-1965 on the basis of which a formal First Information Report was drawn up. Thereafter, the Mirganj Police took up the investigation of this case. The Police Officer went to the place of occurrence and examined witnesses and then after completing investigation, he submitted charge-sheet under S. 304/34, Penal Code, against all the accused persons. The offence was triable by a Court of Sessions and, therefore, the procedure of enquiry before commitment was adopted by Shri R. P. Srivastavs, Munsif Magistrate, Gopalganj. The Police Officer went to the place of occurrence and examined witnesses and then after completing investigation, he submitted charge-sheet under S. 304/34, Penal Code, against all the accused persons. The offence was triable by a Court of Sessions and, therefore, the procedure of enquiry before commitment was adopted by Shri R. P. Srivastavs, Munsif Magistrate, Gopalganj. But, after the examination of the witnesses, the learned Magistrate was of the opinion that no charge under S. 304, Penal Code, was made out, and, accordingly, he ordered for framing of a charge under S. 323, Penal Code, against all the accused persons. A revision was preferred against this order of the learned Magistrate, which was numbered as Criminal Revision No. 160 of 1965 and the learned Sessions Judge, who heard this revision, set aside the order of the learned Magistrate and directed the commitment of the accused persons for trial in the Court of Sessions. The accused persons were then tried in the Court of the Assistant Sessions Judge, Chapra, in Sessions Trial No. 101 of 1969 and they have been convicted and sentences have been imposed on them, as already stated above. 4. The defence of all the accused persons was that they had not committed any offence and that they were not guilty of any of the charges. 5. Learned counsel, appearing for the appellants in this appeal, has submitted firstly that as far as Jamuna Chaudhur, appellant No. 1, is concerned, no case whatsoever has been made out against him inasmuch as there was no allegation of any overt act having been committed by Jamuna Chaudhur in the First Information Report and that the prosecution only developed this case and made allegations subsequently against Jamuna Chaudhur. It was also contended that on the materials on record, the learned Assistant Sessions Judge was not justified in holding that the charge under S. 304/34, Penal Code, had been made out, because the medical evidence and the other circumstances of the case do not show that there could have been any offence as contemplated under S. 304, Penal Code. It was also contended that on the materials on record, the learned Assistant Sessions Judge was not justified in holding that the charge under S. 304/34, Penal Code, had been made out, because the medical evidence and the other circumstances of the case do not show that there could have been any offence as contemplated under S. 304, Penal Code. It was also submitted that the Doctor made surmises in giving his opinion that the death was on account of shook caused by injury to the solar plexus (pit of the stomach) of Bikarma Chaudhur although no internal or external injury was found by the Doctor when he held post-mortem examination and the evidence of the Doctor clearly shows that the external injuries, which he found on different parts of the body other than the abdomen, were only in the nature of abrasion and could not be either directly or indirectly responsible for the death of Bikarma Chaudhur. It was also submitted that in respect of the other matters also, there have been subsequent developments in the prosecution version. 6. After having stated in brief the introductory facts, I will proceed now to examine the evidence and the circumstances of the case to see if the prosecution has been able to prove the charges beyond all reasonable doubts. The first question, which arises for consideration, is whether any offence under S. 304, Penal Code, had been made out, and, in this connection, it is necessary, first of all, to examine the medical evidence. The Doctor, who held post-mortem examination on the dead body of Bikarma Chaudhur is Doctor Chandra Shekhar Sharma and he is P. W. 11. The Doctor stated that he performed the post-mortem examination on the 31st May 1965, at 11 a.m. and he found following ante-mortem injuries on the dead body of the deceased, Bikarma Chaudhur :- (1) Abrasion 3/4"x 1/2" x just below left lower elbow. (2) Abrasion 3/4"x 1/2" ala of left nose. (3) Abrasion 11"x 3/4" just below the neck. (4) 2 Abrasions 2"x 1" each on the fore-arm near the right elbow joint. The nature of the above injuries are sufficiently indicative of the fact that none of these injuries, which are of such a superficial nature, could have been the cause of death. (3) Abrasion 11"x 3/4" just below the neck. (4) 2 Abrasions 2"x 1" each on the fore-arm near the right elbow joint. The nature of the above injuries are sufficiently indicative of the fact that none of these injuries, which are of such a superficial nature, could have been the cause of death. The Doctor was also very clear in his opinion in this respect, because he has stated that all the above four injuries were simple and could have been caused by hard and blunt substance as also by fists and slaps. He further stated in his cross-examination that none of the above four external injuries could either directly or indirectly be connected with the cause of the deceaseds death. The Doctor also stated that he could not find out any direct cause of the deceaseds death except shock. He also did not find any external injury on the skin of the abdomen as could be directly connected with the deceaseds death. 7. It may be mentioned here that the Doctor, in his examination in chief, has also stated that on dissection, he did not find any internal injury to the internal organs and then he stated that death might have been due to shook caused by injury to the solar plexus due to blow on the pit of the stomach. The Doctor also stated that the injury on the solar plexus (that is on the pit of the stomach) could be caused without causing any corresponding superficial injury on the skin. It has been submitted by learned counsel for the appellants that the Doctor made only a conjecture or a surmise about the cause of the death and there was nothing, as found by him, which could be indicative in any way that the death was caused by any injury on the pit of the stomach. Reliance has also been placed by learned counsel appearing for the State on this fact that a blow on the pit of the stomach may cause death and still there may not be any sign of internal injury and, in this connection, reference has also been made to Modis Medical Jurisprudence 1967 Edition p. 288. Reliance has also been placed by learned counsel appearing for the State on this fact that a blow on the pit of the stomach may cause death and still there may not be any sign of internal injury and, in this connection, reference has also been made to Modis Medical Jurisprudence 1967 Edition p. 288. It will be better, if I quote the relevant passage in this connection, which is as follows : "Contusions and abrasions of the abdominal parietes are, as a rule, simple unless accompanied by lessions of the visceral organs, when they prove fatal from shock, haemorrhage, or from peritonitis. In some cases peritonitis may occur without evident injury to any of the abdominal organs. Besides, it has already been mentioned that a blow on the epigastric region (pit of the stomach) may cause death by its inhibitory action on the heart through the reflex action on the solar plexus Post-mortem examination would reveal nothing, except the signs of shock to account for such a sudden death." 8. Now, according to the view as propounded by Modi; it can, therefore, be said that a blow on the pit of the stomach may cause death and still there may not be any sign of any internal injury. But, as already quoted above, the postmortem examination would reveal nothing except sign of shook on account of sudden death. In my opinion, it obviously means that the death will be immediate and instantaneous in such a case. The word sudden is sufficiently indicative of this fact. I may also refer, in this connection, to Modis Medical Jurisprudence at p. 249 under the heading Shock where also he has stated that death may occur from shock without visible injury in a case where there is a blow on the pit of the stomach in the upper part of the abdomen, but shock usually appears immediately after receiving the injury. There may be circumstances in which death may not be immediate but there is nothing to show that there was any such supervening factor. Now, taking the evidence adduced on behalf of the prosecution, the deceased is said to have become unconscious and then after he was placed on a bullack cart and then carried to Gopalganj Hospital he died on the way. This means that the death was certainly not immediate or instantaneous. Now, taking the evidence adduced on behalf of the prosecution, the deceased is said to have become unconscious and then after he was placed on a bullack cart and then carried to Gopalganj Hospital he died on the way. This means that the death was certainly not immediate or instantaneous. It can, therefore, be argued with force that it cannot be a case of sudden death due to shock. Now, besides this, there is some conflicting evidence on the point as to whether the deceased had become unconscious or not. P.W. 2 although not a witness of the occurrence, but he is an important witness inasmuch as he arrived immediately after the occurrence and he found Bikarma Chaudhur lying fallen on the ground, so he was in a competent position to state as to what was the condition of Bikarma Chaudhur at that time. He has stated that Bikarma was lying on the ground, but he was not unconscious and he was speaking. P. W. 9 also arrived after the occurrence and he has stated that he found Bikarma lying in a semiconscious state. These are some of the important facts, which have to be considered in the light of the medical evidence and the opinion of the Doctor stated above. 9. Now, turning again to the evidence of the Doctor, I have already pointed above that as far as the deceased Bikarma is concerned, he found injuries only in the nature of abrasion. None of these injuries are either on the abdomen or on the lower part of the body and it has been urged by learned counsel appearing for the appellants that the location of the injuries and the nature of the injuries show that rather these may have been caused on a person falling with his face downward. It has also been submitted that the consistent evidence on behalf of the prosecution was that the injuries had been caused by fists and slaps, but injuries by fists and slaps could not have resulted in abrasion. It has also been submitted that the consistent evidence on behalf of the prosecution was that the injuries had been caused by fists and slaps, but injuries by fists and slaps could not have resulted in abrasion. It may also be mentioned that the informant had also been examined by the Doctor and the Doctor found four injuries on the person of the informant, which are as follows :- (1) Swelling 2" x 1" on the upper part of left forearm; (2) Swelling 1«" x 1" on the left side of back; (3) Abrasion with swelling/¬" x ¬" on the middle finger of the left leg; (4) Swelling 2" x 1«" on the dorsum of the left foot. 10. It has been submitted that rather conspicuously enough both the informant and the deceased, Bikarma Chaudhur are said to have been beaten by fists and slaps, but the injuries found on the person of the deceased show that there was no swelling on the person of the deceased. It has also been urged that abrasion could not have been caused by fists and slaps. The Doctor had also been questioned about it and he had also stated that abrasion can be caused by scratching of the nails and that the fist blows are generally expected to cause swelling. A fist blow may or may not cause abrasion. I may, in this connection, refer to Modis Medical Jurisprudence under the heading "Abrasion" at p. 217. He is of opinion that abrasions are produced by a blow, a fall on a rough surface or being dragged in a vehicular accident, by scratching with the finger nails, by teethbites, or by friction and pressure of strings or ropes tied round neck or other parts of the body. In my opinion, it cannot be definitely said that the injuries in the nature of abrasion cannot be caused by fist and slap, but naturally it will depend upon the manner and the circumstances of the assault. Now, it is necessary to examine the evidence and the circumstances of the case. The prosecution examined 11 witnesses in all out of whom P. W. 11 is the Doctor, I have discussed his evidence. P. W. 10 is the Investigating Officer. Now, it is necessary to examine the evidence and the circumstances of the case. The prosecution examined 11 witnesses in all out of whom P. W. 11 is the Doctor, I have discussed his evidence. P. W. 10 is the Investigating Officer. P. W. 6 is the informant himself and undoubtedly he is a very important witness, because he was not only the informant but he must have been present at the time of the occurrence, because undoubtedly the injuries were found on his person. The informant in the Fardbeyan, on the basis of which the First Information Report was drawn up, did not attribute any injury to have been caused by Jamuna Chaudhur. A perusal of the First Information Report which is very clear on the point that according to the informant at first there was bata-bati that is altercation and thereafter Kanhai Chaudhur, that is, appellant No. 3, assaulted the informant with fist and slap and Jagarnath and Kanhai caught hold of the deceased, Bikarma Chaudhur, and assaulted him with kicks and fists and that when he fell down on the ground then they gave blows on his stomach and mouth and Bikarma Chaudhur, deceased, became unconscious. There was, therefore, allegation in the First Information Report only to the effect that the assailants were appellants 2 and 3 only and there was no mention of the appellant No. 1 Jamuna Chaudhur being one of the assailants. It has been urged that it was most unlikely that Jamuna Chaudhur appellant No. 1, who was aged about 65 years, would have participated in giving fist and slap blows, because of his advanced age and this is a circumstance which supports this fact that there was, there-fore, no mention about him in the First Information Report. It has been further urged that it was only at a subsequent stage of the case that the developments were made in the prosecution case and the name of appellant No. 1 was included. Learned counsel appearing for the State has also submitted that the First Information Report is not a substantive piece of evidence and secondly that the name of Jamuna Chaudhur also, as accused, finds place in the First Information Report and that there was only an inadvertant mistake or slip and that is why the name of Jamuna Chaudbur was left out. The learned Assistant Sessions Judge has also, in his judgment, considered this aspect of the matter and he was of opinion that there was an inadvertant omission and mistake in the Fardbeyan. He seems to have been of the opinion that the case of the prosecution was that Kanhai first started assaulting the informant and he was engaged in assaulting the informant and so the remaining two must have assaulted the deceased. In this connection, the evidence of P. W. 5 has to be seen. He was the Officer-in-charge, Gopalganj Police Station and he had recorded the Fardbeyan. He has proved the Fardbeyan and he has also stated that Gunjeshwar Chaudhur, informant, had put his signature in his presence in token of the correctness of the contents of the Fardbeyan marked Ext. 2. In his cross-examination, he has stated that the informant was speaking and he was recording his statement except for improving upon the language. Now, in this connection, the evidence of P. W. 6 may be seen in which he admitted that he had also been examined by the Mirganj Police, and this statement of his has to be read along with the evidence of the Investigating Officer, who is P. W. 10. His evidence shows that Gunjeshwar, the informant, did not make any statement before him other than what he had made in the Fardbeyan. This naturally leads to a reasonable inference that the informant even at that stage when he was examined by the Mirganj Police, he did not say anything besides what had been stated by him in the First Information Report. The prosecution has also led evidence on the point that there was assault still continuing after the deceased had fallen down and that Kanhai, at that time, after leaving the informant had given a kick blow on the abdomen of the deceased. The First Information Report is again silent about this allegation in respect of Kanhai. P. W. 1, who was a witness of the occurrence and he has been named also in the First Information Report, stated that there was an altercation and then Kanhai assaulted the informant, that is, P. W. 6 with fists and slaps and the remaining two persons Jamuna and Jagarnath started beating Bikarma Chaudhur with fists and slaps. Then Bikarma fell down on the ground. This witness does not say about Kanhai having assaulted the deceased Bikarma. Then Bikarma fell down on the ground. This witness does not say about Kanhai having assaulted the deceased Bikarma. It also appears from the evidence of the Investigating Officer, P.W. 10, that this witness when examined by him did not state that the assaults continued even after the deceased fell down. It also strikes me that had the assault continued in such a merciless manner that even after Bikarma had fallen down he had been assaulted with kicks, fists and slaps and then many more and some serious injuries would have been found on his person. P. W. 2 was not a witness of the occurrence, but he had arrived after the occurrence. He has stated in his evidence that Bikarma was not unconscious and was speaking. P. W. 3 is Sukath Chamar (Sukhi). He has also stated that there was an altercation and then assault on the informant. This witness also has stated that the assault continued even after Bikarma had fallen down and then he had further stated that Bikarma had stated that three two persons Jamuna and Jagarnath had first assaulted and that Kanhai left the informant and dealt a kick blow on his abdomen when he was lying down. But, it appears from the evidence of this witness that both in the Court of the Magistrate and before the Police Officer he had not stated that the assault continued even after Bikarma had fallen down. P. W. 4 had also stated that there was an altercation and then Kanhai fell on Gunjeshwar and then Jamuna and Jagarnath caught hold of Bikarma Chaudhur, deceased, by hand and dealt fist and slap blows even after he fell down and then Kanhai gave heavy kick on the abdomen of the deceased. This witness has used the expression heavy which has not been used by the other witnesses. Now, according to him, there was only one sided assault, but it appears that when he was examined before the Magistrate, he had clearly stated that there was a marpit going on on both sides. This witness when examined before the Police also did not state that Jamuna and Jagarnath continued to assault the deceased when he fell down. P. W. 7, no doubt, stated about the assault even after he had fallen down and then also about the assault by the kick by Kanhai on the abdomen. This witness when examined before the Police also did not state that Jamuna and Jagarnath continued to assault the deceased when he fell down. P. W. 7, no doubt, stated about the assault even after he had fallen down and then also about the assault by the kick by Kanhai on the abdomen. But, the witness was examined by the Police after 4 or 5 days of the occurrence. P. W. 8 was tendered. P. W. 9 came after the occurrence and stated that Bikarma was semiconscious. 11. On an examination of all the evidence and the circumstances, it is clear that there was an altercation between the parties and this was on account of a controversy and dispute with regard to the removal of the hedge. Parties had, no doubt, gone there, but undoubtedly the accused persons had not gone with the intent to commit assault inasmuch as there was no evidence to show that there was any kind of arm with them and there was no assault with arms. There could not have been obviously any intent at that time to commit or to cause any such injury as to cause death. The injuries found on the person of Bikarma Chaudhur, deceased, have to be examined in the light of all these facts and circumstances particularly the developments of the case, which I have pointed above, and on a consideration of all these facts and circumstances I feel that there are good grounds for reasonable doubts with regard to the charge under S. 304/34. The charge under S. 304/34 cannot be sustained and conviction and sentence have to be set aside. 12. Now with regard to the charge under S. 323, Penal Code, as far as Kanhai is concerned, there is a consistent evidence right from the time of the recording of the Fardbeyan that Kanhai assaulted Gunjeshwar, the informant, and there is also consistent evidence to support it that there were injuries caused on him with fists and slaps. In my opinion, there cannot be any doubt that this part of the prosecution version is correct that Kanhai assaulted Gunjeshwar, informant. In my opinion, there cannot be any doubt that this part of the prosecution version is correct that Kanhai assaulted Gunjeshwar, informant. It also appears that the injuries were not of a very serious nature and the occurrence arose out of an altercation about the dispute regarding the ridge and considering all these aspects of the matter, I think it is a fit case in which instead of sentence of imprisonment, a sentence of fine is imposed, which will meet the ends of justice. The conviction of Kanhai under S. 323 is upheld but the sentence is altered to one of fine only of Rs. 200/- or in default to undergo rigorous imprisonment of six months. In the event of realization of fine, Rs. 100/- will be paid to the informant by way of compensation. 13. The appeal is partly allowed and partly dismissed on the lines indicated above.