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2002 DIGILAW 891 (PAT)

Jogendra Manjhi v. Jiut Manjhi

2002-08-16

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. These two cases have been heard together as they arise out of the common judgment passed in S.T. No. 211/86 passed by Shri Laloo Prasad Yadav, Sessions Judge, Gopalganj. This judgment will govern both of them. 2. In Criminal Appeal No. 128/91 three appellants figured as accused in the above noted sessions case in which all of them were convicted under section 324/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for three years each. 3. The prosecution case, in short, is that there was a quarrel between the son of the informant and the younger son of appellant Jogendra Manjhi 2-3 days before the alleged occurrence. On 15.10.1985 at 2 P.M. appellant Jogendra Manjhi called Baijnath Manjhi, the husband of the informant Most. Ram Sakhi Devi (petitioner in Cr. Rev. No. 275 of 1991) and both of them went to Kali Asthan in the village. The other two appellants were already present there from before. An altercafion ensued between them about the quarrel between the children of their families. There were allegations and counter allegations. At this stage all the three appellants pushed down the husband of the informant on the ground. The appellant Surendra Manjhi took out a knife with which he hit Baijnath Manjhi the husband of the informant at the buttock. The appellant Jiut Manjhi pulled his Hydrocele. Baijnath Manjhi became unconscious. On way to Baikunthpur Hospital he, however, succumbed to his injuries. The F.I.R. was lodged under section 302/34 of the Indian Penal Code. The case was committed to the court of session. The appellants were tried by the learned Sessions Judge who framed charge under section 302/34 of the Indian Penal Code against them. They were, however, convicted under section 324/34 of the Indian Penal Code as indicated above. It is against this judgment of conviction that this appeal has been filed. 4. In this appeal the appellants denied the alleged occurrence. According to them the deceased Baijnath Manjhi who used to tap palm trees fell down from the tree and sustained injury from the sickle that he kept on his back side. Taking advantage of this injury the appellants have been falsely implicated in this case. Nine P.Ws. have been examined in this case. However, they have not been able to prove the prosecution case. Taking advantage of this injury the appellants have been falsely implicated in this case. Nine P.Ws. have been examined in this case. However, they have not been able to prove the prosecution case. The learned Sessions Judge has wrongly found the prosecution case true and has wrongly held the appellants guilty under section 324/34 of the Indian Penal Code. Appellant, Surendra Manjhi was a juvenile on the alleged day of occurrence. The prosecution has failed to prove common intention and common object amongst the appellants. On these grounds, amongst other, it has been contended that this appeal be allowed and the judgment of conviction be set aside. 5. In Criminal Revision No. 275 of 1991 the petitioner Most. Ram Sakhi Devi, the widow of the deceased, has contended that though learned Sessions Judge had found the prosecution case true but instead of convicting the members of the opposite party under section 302/34 of the Indian Penal Code he convicted them under section 324/34 of the Indian Penal Code on wrong grounds. In this case the charge sheet was submitted under section 302 of the Indian Penal Code and the learned Sessions Judge also framed charge under section 302/34 of the Indian Penal Code against the members of the opposite party. The learned trial court has held that the prosecution has been able to prove its case beyond all reasonable doubts. However, for want of the examination of the Doctor who held the post mortem examination the learned Sessions Judge instead of convicting the members of the opposite party under section 302/34 of the Indian Penal Code has convicted them under section 324/34 of the Indian Penal Code. This is totally against the provisions of law. On these grounds it has been contended that opposite party nos. 2 to 4 be convicted under section 302/34 of the Indian Penal Code. 6. The parties have been heard at length with respect to this appeal as well as the criminal revision mentioned above. I will firstly take up for consideration Cr. Revision No. 275 of 1991. Criminal Revision No. 275 of 1991. 7. 2 to 4 be convicted under section 302/34 of the Indian Penal Code. 6. The parties have been heard at length with respect to this appeal as well as the criminal revision mentioned above. I will firstly take up for consideration Cr. Revision No. 275 of 1991. Criminal Revision No. 275 of 1991. 7. At the out-set the learned counsel appearing on behalf of the opposite party has seriously contended before me that this revision application at the instance of a private party is not maintainable inasmuch as a private party has got no locus standi to file a revision petition for enhancing the sentence or for setting aside the order of acquittal passed in a case. This takes us to the consideration of the fact whether a private person has got any locus standi in the matter vis-a-vis the judgment passed by the Sessions Judge in a sessions trial either ending in acquittal or awarding of insufficient sentence to the accused. In the present case there is no question of judgment of acquittal passed by the learned Sessions Judge since the case has ended in conviction. I will firstly summarise briefly the law on the point whether any private person can file the revision application against the judgment of acquittal passed by the learned Sessions Judge. In this connection a reference may be made to the well known case of K. Chinnaswamy Reddy V/s. State of Andhra Pradesh and another (A.I.R. 1962 S.C. 1788) wherein the Hon ble Supreme Court in paragraph 7 of has held as follows : "It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought it fit to appeal; but this jurisdiction should, in our opinion, be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction by the indirect method of ordering retrial, when it can not itself directly convert a finding of acquittal into a finding of conviction." 8. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction by the indirect method of ordering retrial, when it can not itself directly convert a finding of acquittal into a finding of conviction." 8. From the aforesaid decision it would appear that in a given situation a revision application by a private person against the judgment of acquittal can be maintained in the High Court. The exceptional cases have been mentioned in this judgment one of which is that when there is manifest error on the point of law and consequently there has been flagrant miscarriage of justice. This decision in the case of K. Chinnaswamy Reddy (supra) has been explained by three Judges Bench of the Hon ble Supreme Court in the case of Ayodhya Dube and others V/s. Ram Sumer Singh (A.I.R. 1981 S.C. 1415) in which while affirming the ratio of the decision in the aforesaid case the Hon ble Supreme Court held that the case mentioned in it were only illustrative in nature and not exhaustive. Before this a two Judge Bench of the Hon ble Supreme Court in the case of State of Orissa V/s. Nakula Sahu & Ors.,(A.I.R. 1979 S.C. 663) has held as follows : "It is well settled that normally the jurisdiction of the High Court under Sec. 439 to be exercised only in exceptional case when there is glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of Justice. In spite of wide language of section 435 the High Court is not expected to act under section 435 or section 439 as it is hearing as appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly." 9. The matter again came up for consideration before the Hon ble Supreme Court in the case of Vimal Singh V/s. Khuman Singh and another (A.I.R. 1998 S.C. 3380). In this decision also the earlier decision in the case of K. Chinnaswamy Reddy (supra) has been confirmed. The matter again came up for consideration before the Hon ble Supreme Court in the case of Vimal Singh V/s. Khuman Singh and another (A.I.R. 1998 S.C. 3380). In this decision also the earlier decision in the case of K. Chinnaswamy Reddy (supra) has been confirmed. Here also it has been held that under section 401 of the Code of Criminal Procedure, 1973 (in short the Code) the High Court does not ordinarily interfere with the judgment of acquittal passed by the trial court except in the cases mentioned in it one of which is whether the trial courts order suffered from the flaring (sicglaring ?) illegality and has caused miscarriage of justice. 10. From the aforesaid it would appear that a private person can also move the High Court in revision to set aside an order of acquittal. 11. It may be noted in this connection that in the present case there is no order of acquittal inasmuch as the members of opposite party have been convicted under section 324/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years each. On behalf of the opposite party it has been submitted that in view of the fact that the judgment of conviction has been passed against them, the aforesaid decisions noted above will not apply to the present case inasmuch as those judgments referred to the cases of acquittal. No doubt cases mentioned above relate to the cases which ended in acquittal and not in conviction. However, from the aforesaid decision it would become clear that a private person has also got a locus standi in the matter to file a revision application at least against the judgment of acquittal. 12. The next question that comes up for consideration before us is whether against a judgment of conviction even when the sentence is in-adequate or under wrong provisions of law has a private person got a right to file a revision application for enhancement of sentence? The provisions of revision application have been given under sections 397 and 401 of the Code. I will not (sic now ?) proceed to examine the scope of these two sections. So far section 397 of the Code is concerned it relates to calling for the records to exercise powers of revision. The provisions of revision application have been given under sections 397 and 401 of the Code. I will not (sic now ?) proceed to examine the scope of these two sections. So far section 397 of the Code is concerned it relates to calling for the records to exercise powers of revision. It provides that the High Court may even suo motu call for and examine the record of any proceeding before inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior court. Section 401 of the Code lays down the High Court power of revision. It runs as follows : "401. High Courts power of revision. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Sessions by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. XXX XXX XXX XXX XXX (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. XXXX XXX XXX XXX XXX" 13. Thus I find a reference to section 386 of the Code given in this section which provides that in exercise of the power of revision the High Court can exercise any of the powers conferred on the court of appeal under section 386 and other sections mentioned above. This takes us to the consideration of section 386 of the Code which runs as follows : "386. This takes us to the consideration of section 386 of the Code which runs as follows : "386. Powers of the Appellate Court.After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may xxxx xxxx xxxx xxxx (c) in an appeal for enhancement of sentence xxxx xxxx xxxx xxxx (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence so as to enhance or reduce the same." 14. From the above it would appear that section 386(c)(iii) deals with an appeal for enhancement of sentence and authorises the court to alter the nature and extent of the sentence so as to enhance the same. The court is also empowered in such a case to alter the finding. Fom this it would appear that even in the case of enhancement of sentence a revision at the instance of a private person is maintainable if the court finds that there is manifest error in any finding sentence or order passed by the inferior court because under section 397 of the Code the High Court gets the power to exercise its jurisdiction for satisfying itself as to the correctness, legality or propriety of any finding sentence or order passed by any inferior cout and this power can be exercised even suo motu. If this power can be exercised suo motu it can certainly be exercised at the instance of a private party. From this it would also appear that there is no bar for any private person to invoke the revisional jurisdiction of the High Court in accordance with sections 397 and 401 of the Code under which the present application has been filed. 15. I have already noted the decision in the case of K. Chinnaswamy Reddy (supra) and Vimal Singh (supra). In both the cases it has been held that if there is manifest error on the point of law and consequently there has been a flagrant miscarriage of justice the High Court can interfere in revision against the order passed by the inferior court. In both the cases it has been held that if there is manifest error on the point of law and consequently there has been a flagrant miscarriage of justice the High Court can interfere in revision against the order passed by the inferior court. In this back ground I will now proceed to examine whether in the present case there has been manifest error on the point of law resulting in a flagrant miscarriage of justice. In this connection I will firstly refer to certain paragraphs of the judgment passed by the learned court below. Before him the present members of the opposite party were being tried for the offence punishable under section 302/34 of the Indian Penal Code for causing the death of Baijnath Manjhi in furtherance of their common intention. The charge under this section was framed against them. I will quote paragraph 22 of this judgment in extenso which runs as follows : "22. Thus on a consideration of the evidence of the P.Ws. I find that the prosecution has successfully established the alleged occurrence that accused Surendra Manjhi has struck a dagger blow on the buttock of the deceased Baijnath Manjhi and at that very time the other accused persons, namely, Jiut Manjhi and Jogindra Manjhi was catching hold of his Hydrocele and pressing him sitting of his back respectively." 16. From the aforesaid observation it would become clear that the learned trial court was satisfied from the prosecution evidence on record that the prosecution has been able to prove the charge against the accused persons (present O.P.) However, the learned court below instead of convicting the appellants under section 302/ 34 of the Indian Penal Code proceeded to convict them under section 324/34 of the Indian Penal Code for the reasons mentioned in paragraph 25 of the judgment which runs as follows : "25. It may be recalled here that the doctor holding the post mortem examination on the dead body of Baijnath Manjhi has not been examined on behalf of the prosecution. The injury on the person of the deceased Baijnath Manjhi is not at all disputed by the defence. The death has taken place on account of injury. (emphasis supplied by me). The post mortem report (Ext. 6) has simply been proved by P.W. 10 which cannot be accepted in absence of the examination of the doctor. The injury on the person of the deceased Baijnath Manjhi is not at all disputed by the defence. The death has taken place on account of injury. (emphasis supplied by me). The post mortem report (Ext. 6) has simply been proved by P.W. 10 which cannot be accepted in absence of the examination of the doctor. Now it is to be seen as to which offence the accused persons have committed. In the absence of medical evidence, it is difficult to hold the accused persons guilty under section 302/ 34 I.P.C. But they can very well be held guilty and convicted under section 324 I.P.C." This is how that the learned trial court has convicted the present opposite party under section 324/34 of the Indian Penal Code, instead of convicting them under section 302/34 of the Indian Penal Code. 17. On behalf of the petitioner it has been seriously contended before me that non-examination of the Doctor who held the post mortem examination on the dead body of the deceased cannot lead to the acquittal of the accused of the charges under section 302 of the Indian Penal Code. It has been contended that even the trial court has held that the injury on the person of the deceased is not at all disputed by the defence. If that is not disputed then obviously it will follow that the prosecution case with respect to giving a knife blow on the buttock of the deceased has not been disputed by the defence. Under this circum stances the question that will arise for the consideration would be whether in such a situation the opposite party could only be convicted under section 324/34 of the Indian Penal Code for inflicting a Chura injury on the person of the deceased resulting in his death by one of the accused which can be easily deduced from the fact that even the defence has not disputed this injury on the person of the deceased. Even if it be held that this injury was not sufficient to cause death if medical aid was made readily available to the deceased can it be said that a case only under section 324/34 of the Indian Penal Code has been made out against the opposite party? 18. Even if it be held that this injury was not sufficient to cause death if medical aid was made readily available to the deceased can it be said that a case only under section 324/34 of the Indian Penal Code has been made out against the opposite party? 18. In this case the death has taken place as a result of a stab injury on the vital part of the body of the deceased. Now I have to find out what offence and under which section has been committed by the members of the present opposite party. In this connection I will firstly refer to section 299 of the Indian Penal Code. "299. Culpable homicide.Whoever causes death by doing an act with the intention of causing death, or with the intention of a causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. XXX XXX XXX XXX XXX Explanation (2)Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. XXX XXXX XXXX XXXX XXXX" 19. I will next refer to section 300 of the Indian Penal Code which provides the circumstances under which a culpable homicide becomes murder. The third circumstance is if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this connection reference may also be made to section 304 of the Indian Penal Code which runs as follows : "304. Punishment for culpable homicide not amounting to murder.Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is accused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death." 20. Under the aforesaid provisions of law it really appears surprising how the learned Sessions Judge could convict the opposite party only under section 324/34 of the Indian Penal Code even if the doctor holding the post mortem examination on the deceased was not examined. In any view of the matter as per his own findings the learned Sessions Judge has held that the prosecution has proved its case. He has also not found accused opposite party Surendra Manjhi to be a juvenile on the alleged date of occurrence as will appear from paragraph 24 of the judgment. As such according to him obviously the case proved was of culpable homicide not amounting to murder in absence of examination of the Doctor holding the post mortem examination. Under these circumstances it is really surprising how could the learned Sessions Judge proceed to convict the members of the opposite party only under section 324/34 of the Indian Penal Code instead of proceeding to convict them under section 304 of the Indian Penal Code or other relevant sections of Chapter XVI of the Indian Penal Code. 21. From the aforesaid it would appear that there has been a manifest error on the point of law committed by the learned trial court which has consequently resulted in a flagrant miscarriage of justice inasmuch as instead of convicting the opposite party at least under section 304/34 of the Indian Penal Code he has proceeded to convict under section 324/34 of the Indian Penal Code. The common intention appears to be well established inasmuch as all the three accused had caught hold of the deceased and one of them had given a knife blow on the buttock of the deceased. 22. This criminal revision application is being heard alongwith the Criminal Appeal No. 128 of 1991 preferred by the members of the opposite party. Both the parties have been heard at length with respect to both two cases. In the present revision application, the stand of the petitioner is two-fold, namely (i) the order of conviction and sentence has been passed under wrong section of the Indian Penal Code and secondly, the sentence passed by the learned court below is insufficient and calls for enhancement. Both the parties have been heard on these points also as also with respect to the merits of Criminal Appeal No. 128 of 1991. Both the parties have been heard on these points also as also with respect to the merits of Criminal Appeal No. 128 of 1991. Under the aforesaid circumstances I hold that there has been sufficient complement with the provision of the first proviso to section 386 of the Code which provides that the sentence shall not be enhanced unless the accused has an opportunity of showing "cause against such enhancement. In the present case the criminal revision has been filed for the enhancement of sentence and it was ordered to be heard alongwith Criminal Appeal No. 128 of 1991. With respect to both these cases, both the parties have been heard at length and under these circumstances, I think that sufficient opportunity was given to the opposite party to show cause against enhancement and as such this provision of law was complied with. 23. According to section 386 (c)(iii) of the Code the High Court has power to enhance a sentence so as to alter its nature and extent subject to the limitation of the second proviso to section 386. According to the clear provisions of section 386 (c) (iii) the interference by the revisional court would be justified when the sentence is inadequate or unduly lenient or when the failure to impose a proper sentence may result in miscarriage of justice as has been held in the case of Kodavaudi Moideen V/s. State of Kerala (A.I.R. 1973 S.C. 467) by the Hon ble Supreme Court. In the case of Shiv Govind V/s. The State of Madhya Pradesh (A.I.R. 1972 S.C. 1823), also the Apex Court has held that interference under section 386(c)(iii) is called for when the sentence is manifestly inadequate. 24. Under the aforesaid circumstances, and in view of the clear provisions of law mentioned above, I hold that this is a fit case for enhancing the sentence by altering the conviction of the members of the opposite party from section 324/34 of the Indian Penal to one under section 304/34 of the Indian Penal Code. I accordingly hold them guilty under this section under which they are convicted and sentenced to undergo rigorous imprisonment for a period of five years each. This revision application is, accordingly, allowed and the judgment of the learned court below is modified to this extent. Criminal Appeal No. 128 of 1991. 25. I accordingly hold them guilty under this section under which they are convicted and sentenced to undergo rigorous imprisonment for a period of five years each. This revision application is, accordingly, allowed and the judgment of the learned court below is modified to this extent. Criminal Appeal No. 128 of 1991. 25. In the earlier part of the judgment I have already given the facts of this case as well as the ground taken in this appeal. The facts have also been given in detail while discussing the criminal revision application. Hence I need not discuss them in detail at present. As stated above in this case the charge under section 302/34 of the Indian Penal Code was framed against the present appellants. On the conclusion of the trial, however, the present appellants instead of being convicted under section 302/34 of the Indian Penal Code have been convicted under Section 324/34 of the Indian Penal Code for the reasons stated in paragraph 24 of the judgment. In this paragraph the learned trial court has rejected the submissions made on behalf of the appellant Surendra Manjhi to the effect that on the alleged date of occurrence he was a minor and according under the provisions of the Children Act his trial should have been separated. On the basis of the detailed discussions made in this paragraph the learned court below has come to the conclusion that on the alleged date of occurrence appellant, Surendra Manjhi, would be approximately 20 years of age. This being the position he has held that the case of this appellant will not come under the Children Act. On this ground he has rejected the aforesaid submission made on behalf of this appellant. 26. In paragraph 25 of its judgment which has been reproduced by me in the earlier part of my judgment the learned trial court has held that the injury on the person of the deceased Baijnath is not at all disputed by the defence. He has also held that the death had taken place on account of this injury. Before the learned Sessions Judge, however, it was submitted that the prosecution has failed to show as to how the deceased sustained this injury. Also since the Doctor who held the post mortem examination on the dead body of the deceased could not be examined, the learned. Before the learned Sessions Judge, however, it was submitted that the prosecution has failed to show as to how the deceased sustained this injury. Also since the Doctor who held the post mortem examination on the dead body of the deceased could not be examined, the learned. court below has held that in absence of the medical evidence it is difficult to hold the accused persons guilty under section 302/ 34 of the Indian Penal Code. It has further held that nevertheless the appellants can very well be held guilty and convicted under section 324/34 of the Indian Penal Code. This is how the appellants have been convicted and sentenced under this section against which the present appeal has been filed. 27. In this appeal it has been contended that PWs. examined in this case have not supported the case of the prosecution. In this connection reference may be made to the evidence of P.W. 3 Ram Sakhi Devi who happens to be the informant, as also to that of P.W. 4 who has also claimed to be an eye witness. Same is the case with P.W. 2 Kanhaya Manjhi and P.W. 5 Bhim Singh who have also claimed to be the eye witnesses of the alleged occurrence. I have examined the evidence of these witnesses mentioned above. It appears that they had consistently supported the case of the prosecution and have proved the manner of alleged occurrence. They have stood the test of cross examination. I see no reason to disbelieve their evidence. From the judgment under appeal it appears that the learned Sessions Judge has also taken into consideration the evidence of these witnesses and has found the same trust-worthy and consistent. It is on the basis of the evidence of P.Ws. available on record that the learned court had proceeded to hold that the prosecution had been able to prove the alleged occurrence and also the manner in which it had taken place. The learned counsel appearing on behalf of the appellants has not been able to show any inconsistency or defect in the evidence of RWs. on record. So far as RW. 6 Khalifa Singh is concerned he is a seizure list witness and he has been declared hostile. However, this will not effect the merits of the prosecution case. The learned counsel appearing on behalf of the appellants has not been able to show any inconsistency or defect in the evidence of RWs. on record. So far as RW. 6 Khalifa Singh is concerned he is a seizure list witness and he has been declared hostile. However, this will not effect the merits of the prosecution case. The only other witness who could not be examined is the Doctor who had held the post mortem examination on the dead body of the deceased. It was precisely on this ground that the learned court below instead of convicting the appellants under section 302/ 34 of the Indian Penal Code has proceeded to convict them under section 324/ 34 of the Indian Penal Code. This finding of the learned court below does not appear to be correct and I have discussed this point in detail in my judgment while discussing the criminal revision. Hence I do not intend to repeat the same here. From my findings recorded earlier I have held that a case under section 304/34 of the Indian Penal Code against the appellants has been made out and I have enhanced their sentences to rigorous imprisonment for five years in place of rigorous imprisonment for three awarded to them by the learned Sessions Judge. On this appeal, however, I have simply to find out whether there are grounds for allowing this appeal and for acquitting the appellants of the charge framed against them. Learned counsel appearing on behalf of the appellants has not been able to show any inconsistency in the judgment under appeal except as noticed above in my judgment, namely, that a case under section 304/34 of the Indian Penal Code and not only under section 324/34 of the Indian Penal Code has been made out against the appellants. 28. So far as evidence of D.W. 1 is concerned he appears to be a formal witness who has been examined to show that the appellant, Surendra Manjhi, was a child on the alleged date of occurrence. This witness has been found to be untrustworthy as per paragraph 24 of the judgment of the learned trial court and I feel inclined to agree with this findings. 29. This witness has been found to be untrustworthy as per paragraph 24 of the judgment of the learned trial court and I feel inclined to agree with this findings. 29. Even at the cost of repetition I would like to mention here that under the facts and circumstances of this case a clear case under section 304/34 of the Indian Penal Code has been made out against the appellants as held by me in criminal revision heard anologous with this appeal. The deceased was caught hold of and overpowered by the three appellants in broad day light and in presence of several other persons. According to the case of the prosecution while the other two appellants were holding the deceased, appellant, Surendra Manjhi, took out a dagger from his waist with which he struck the deceased on his buttock. As per my discussion made in the criminal revision petition I have held that a case under section 304/34 of the Indian Penal Code has been made out against all the appellants under the facts and circumstances of this case. 30. From the detailed discussions made above it becomes clear to me that there is no merit in this appeal. The judgment of conviction has already been modified with respect to the conviction and sentence passed against the appellants while disposing of the criminal revision application. Hence I need not repeat the same at this stage here. 31. The appeal is, accordingly, dismissed in the light of the observation made above.