Judgment Indu Prabha Singh, J. 1. Appellant KanhaiyaTatwa has been convicted u/s. 304, Part-1 of the Indian Penal Code and has been sentenced undergo Rigorous Imprisonment for ten years. Appellant Dasrath Tatwa has been convicted for offences u/s. 307 and 324 of the Indian Penal Code and has been sentenced to undergo R.I. for five years u/s. 307 of the Indian Penal Code, 1860 No separate sentence has been passed against him for the offence u/s. 324 of the Indian Penal Code, 1860 2. The prosecution case, as alleged, in short is that on 15-8-1984 at about 9 p.m. in the night, the informant Pramod Kumar Singh of village-Dahianwa Tola within Chapra town went near Joginia Kothi in Mohalla Joginia Kothi along with his friend Rajesh Rai. It has been stated that Rajesh Rai went near the shop of the appellant Kanhaiya Tatwa to take sweets from there. In the meantime, the informant Pramod Kr. Singh went at a shop to take Cigarette from there. At that time, an altercation took place between Rajesh Rai and appellant Kanhaiya Tatwa. He saw that during altercation appellant Kanhaiya Tatwa gave a Churra blow in the stomach of Rajesh Rai. He also tried to give another Churra blow to Rajesh Rai but Pramod Kr. Singh intervened to save Rajesh Rai from the Churra blow of Kanhaiya Tatwa. It has been alleged that in the meantime appellant Dashrath Tatwa came there, having a Churra in his hand and he gave a Churra blow to Pramod Kr. Singh, who tried to save himself from this below by the left hand as such he sustained injury on his left hand. Thereafter, the appellant Dashrath Tatwa gave another Churra blow in the stomach of Pramod Kr. Singh. He became seriously injured. Lateron both the injured persons Pramod Kumar Singh and Rajesh Rai were taken to the house and from there they were taken to Sadar Hospital, Chapra where they were given medical treatment. When the police officer of Chapra town police station got the information from the doctor of the aforesaid hospital about the injuries of both the persons, he rushed the Sadar Hospital, Chapra on 15-8-1989 at about 10.45 p.m. and recorded the statement of Pramod Kr. Singh and injured Rajesh Rai was unconscious at that time. When the police officer of Chapra town police station got the information from the doctor of the aforesaid hospital about the injuries of both the persons, he rushed the Sadar Hospital, Chapra on 15-8-1989 at about 10.45 p.m. and recorded the statement of Pramod Kr. Singh and injured Rajesh Rai was unconscious at that time. The police officer of the aforesaid police station on the basis of statement recorded by Pramod Kumar Singh instituted a case at Chapra Town P.S. on 15-8-1989 and accordingly the First Information Report was drawn up. After completion of the the investigation, chargesheet was submitted against the appellants. Accordingly, cognizance was taken and the case was committed to the Court of Sessions for trial. Ultimately the trial concluded with the result indicated above. The appellants have pleaded not guilty and have stated that they have been falsely implicated in this case. 3. The prosecution in support of its case examined altogether nine witnesses. P.W. 1 is Jogi Prasad, P.W. 2 is Pramod Kumar Singh, the informant-injured, P.W. 3 is Raju Kumar, P.W. 4 is Dr. Ram Ekbal Prasad, who has examined the injured ramod Kumar Singh and deceased Rajesh Rai. P.W. 5 is Yogendra Prasad, P.W. 6 is Uday Bhan Dwivedi, who is the Judicial Magistrate and has recorded the dying declaration of deceased Rajesh Rai, P.W. 7 is Sri Achutanand Singh, A.S.I. of Police and l.O. of this case, P.W. 8 is Anil Kumar, he is a formal witness who has proved the certificate, Ext-8, which is the certificate about the death of deceased Rajesh Rai given by Dr. A.P. Singh, P.W. 9 Rabindar Kumar Singh, he is a formal witness, who has proved Ext-9. The defence has also examined Harihar Prasad (D. W. 1) and Muni Pd. Verma (D.W. 2). 4. P.W. 2, Pramod Kr. Singh, the informant in this case has fully supported the case of the prosecution as stated in the Fardbeyan. According to him on 15-8-1989 at about 9 p. m. he and the deceased Rajesh Rai who were friends, When they came near the shop of appellant Kanhaiya Tatwa he was selling sweets on Thela. The deceased Rajesh Rai went there and started eating sweets from the Thela. In the meantime, he went to take Cigarette at another shop. According to him on 15-8-1989 at about 9 p. m. he and the deceased Rajesh Rai who were friends, When they came near the shop of appellant Kanhaiya Tatwa he was selling sweets on Thela. The deceased Rajesh Rai went there and started eating sweets from the Thela. In the meantime, he went to take Cigarette at another shop. He heard cries of deceased Rajesh Rai and when he came near the place of occurrence he saw that the appellant Kanhaiya Tatwa gave Churra blow in the Stomach of Rajesh Rai. The deceased Rajesh Rai sat down and the appellant Kanhaiya Tatwa tried to give another Churra blow as alleged. He tried to save Rajesh Rai. In the meantime, appellant Dashrath Tatwa came there having Churra in his hand and he tried to give Churra blow in the stomach of Pramod Kr. Singh, the informant but he tried to save himself from the blow and he sustained injury on his left hand. Later on the appellant Dashrath Tatwa gave a Churra blow in the stomach of Pramod Kr. Singh and he got serious injuries on his left hand and the stomach. He has stated that both of them came to their house and from there they were taken to the Sadar Hospital, Chapra, where they were treated. According to him, the Officer-in-charge of Chapra Town Police Station came in the hospital and recorded his fardbeyan. The Fardbeyan is marked as Ext-1. P.W. 5 has also supported the version of the informant as stated in the Fard beyan. P.W. 4, Dr. Ram Ekbal Prasad of Chapra Sadar Hospital examined the injuries of Pramod Kr. Singh and deceased Rajesh Rai in hospital on 15-8-1989. According to him, in the night of 15-8-1989 he was on duty in the hospital when deceased Rajesh Rai and injured Pramod Kr. Singh were brought in the hospital and were admitted. He has further stated that he had informed the Police officer of the Town Police Station, Chapra about the admission of both the injured. According to him, at that time injured Rajesh Rai was in shock and semi conscious state. His condition was serious. He examined Rajesh Rai on 15-8-1989 at about 10 p.m. and found the following injuries on his person. According to him, at that time injured Rajesh Rai was in shock and semi conscious state. His condition was serious. He examined Rajesh Rai on 15-8-1989 at about 10 p.m. and found the following injuries on his person. Incised wound of the size 2" x 1/2" x abdominal cavity, situated in the right chondrium region of the abdomen through which abdominal contents were coming out According to him, his injury was probably caused by Churra blow within four hours of the examination. The injury was grievous in nature and caused by sharp cutting weapon. He has also stated that he operated upon the aforesaid injury of Rajesh Rai at that time itself. According to him, the condition of the deceased Rajesh Rai deteriorated, because cf the injury sustained by him and as such he referred him to the Patna Medical College and Hospital at Patna for better treatment. He has further stated that the injury sustained by him was dangerous to life and sufficient to cause his death. He also examined Pramod Singh, the informant and found the following injuries on his person. 1. Incised wound on the upper part of abdomen of the size 2" x 1/2" x abdominal cavity in the left side. 2. One incised wound, in the upper part of the abdomen of the size 1" x 1/2" x muscle deed, in the right side. 3. One incised wound on the dorsal of the left hand of the size 1" x 1/2 " x muscle deep. According to the opinion of the doctor injury No. 1 was grievous in nature which was caused by a sharp cutting weapon, injury Nos. 2 and 3 were simple in nature caused by sharp cutting weapon such as Churra. According to the doctor, injury No. 1 was dangerous to the life of the injured. 5. P.W. 6 is Uday Bhan Dwivedi, who is the Judicial Magistrate and was posted at the Civil Courts, Chapra on the date of occurrence. According to him, on 16-8-1989, as per order of the C.J.M., Chapra he went to the Sadar Hospital, Chapra for recording the dying declaration of two persons, namely, Prampd Singh and Rajesh Rai. He stated that on 16-8-1989 he recorded the statement of alleged Rajesh Rai in the surgical ward of the Sadar Hospital, Chapra. According to him, on 16-8-1989, as per order of the C.J.M., Chapra he went to the Sadar Hospital, Chapra for recording the dying declaration of two persons, namely, Prampd Singh and Rajesh Rai. He stated that on 16-8-1989 he recorded the statement of alleged Rajesh Rai in the surgical ward of the Sadar Hospital, Chapra. According to him, before recording the statement of alleged Rajesh Rai he got himself satisfied that alleged Rajesh Rai was fully conscious and he was in a position to understand the questions put to him and to answer the questions. According to him, Dr. Ram Ekbal Prasad was on duty in the hospital at that time and he also certified that alleged Rajesh Rai was conscious. Thereafter this witness recorded the alleged dying of Rajesh Rai. According to him, after recording the alleged dying declaration of Rajesh Rai he read over and explained the contents of the dying declaration to Rajesh Rai, who put his L.T.I. on it. According to him, the injured Pramod Singh was also fully conscious and he recorded the statement of Pramod Singh and after recording his statement, the same was read over and explained to the injured Pramod Singh, who put his L.T.I. on it. P.W. 7, Achuta Nand Singh, the I.O. of this case has stated that on 15-8-1989 at about 10.15 p.m. he received on OD slip from the Sadar Hospital, Chapra and thus he went to the Hospital at that time and he said there Pramod Singh who was admitted in the hospital having sustained injuries. He has further stated that he recorded the Fard beyan of Pramod Singh. According to him, at that time the deceased Rajesh Rai was unconscious then he could not record the statement of Rajesh Rai at that time. He has proved the Fard beyan of Pramod Singh, marked as Ext-5. According to him, he made investigation of the allegation of this case and visited the alleged place of occurrence in the next morning. He has given the full description of the place of occurrence. Thereafter, again he came to the Hospital where he found that the condition of Pramod Singh and Rajesh Rai was serious. Thus he filed a requisition to the C.J.M. at Chapra for deputation of a Judicial Magistrate for recording the dying declaration of both the injured persons. He has given the full description of the place of occurrence. Thereafter, again he came to the Hospital where he found that the condition of Pramod Singh and Rajesh Rai was serious. Thus he filed a requisition to the C.J.M. at Chapra for deputation of a Judicial Magistrate for recording the dying declaration of both the injured persons. According to him, on 16-8-1989 at about 7 p.m. he had gone to the Hospital where he found that Pramod Singh and Rajesh Rai were in conscious position and he recorded the further statement of Pramod Singh at that time but Rajesh Rai did not give his statement to him at that time. According to him, the house of the appellant Kanhaiya Tatwa was located at some distance from the place of occurrence, he did not find blood stains there. According to him, he recorded the statement of Rajesh Rai on 17-8-1989 at about 2.15 p.m. 6. Learned counsel for the appellants has submitted that there is discrepancy in the place of occurrence. However, it appears that the place of occurrence was near a Thela on which the appellants used to sell sweets which was near a Dry cleaner shop which was situated on the road which goes from Joginia Kothi to Saran Academy. This fact got support from the evidence of P.W. 7 in paragraph 4 as well as the evidence of P.W. 4 in Paragraph 6 of his deposition. Since the occurrence took place near a Thela, there is found to be some discrepancy over the place of occurrence. The informant, P.W. 2 has himself supported the case of the prosecution that the deceased Rajesh Rai was assaulted with Churra by the appellant Kanhaiya Tatwa. The informant, P.W. 6 was also purchasing Cigarette nearby the place of occurrence and went to save the deceased and he also received injuries while trying to save Rajesh Rai by the appellant Dasrath Tatwa who gave a Churra blow on his person. On factum of injury, P.W. 4, who was Civil Surgeon, Chapra Sadar Hospital has stated that he examined the injuries of Pramod Singh and deceased Rajesh Rai and has stated that the deceased Rajesh Rai had three Incised injuries which corroborates the prosecution story. On factum of injury, P.W. 4, who was Civil Surgeon, Chapra Sadar Hospital has stated that he examined the injuries of Pramod Singh and deceased Rajesh Rai and has stated that the deceased Rajesh Rai had three Incised injuries which corroborates the prosecution story. The other witnesses P.W. 3 has also supported the factum of occurrence and saw assault on deceased Rajesh Rai and he also saw the deceased in the Sadar Hospital where he was admitted. It has been further submitted by the learned counsel for the appellants that the injuries on the person of the deceased were not the immediate cause of death rather the deceased died due to negligence and was not given proper medical treatment as such death could not be attributed solely to the injuries inflicted by appellant Kanhaiya Tatwa. However, from the deposition of Dr. Ram Ekbal Prasad, P.W. 4 in paragraph-2 where it has been clearly stated that the injuries which was sustained by the deceased Rajesh Rai was dangerous to life and it was sufficient to cause his death in ordinary course. That apart at Patna the deceased was operated in the Private Clinic of Head of the Department and Professor Dr. Anant Prasad Singh for further specialised treatment which goes to prove that his treatment had been properly been done even at Patna. Further submission of the learned counsel is that no post mortem was held so as to ascertain the cause of death of deceased Rajesh Rai. However, a certificate (Ext-8) was issued from the Clinic of Dr. Anant Prasad Singh which clearly indicates that the death of Rajesh Rai was caused due to shock and (sic) lackage cause by Churra blow and as such there remains no doubt about the cause of death was Churra blow on the abdomen of the person of Rajesh Rai. I find that there are ample evidence of eye-witnesses about the death of deceased and also dying declaration duly certified by the doctor (Ext-3) which was proved in the Court by P.W, 6, as such the prosecution has proved its case beyond all reasonable doubts. I find that there are ample evidence of eye-witnesses about the death of deceased and also dying declaration duly certified by the doctor (Ext-3) which was proved in the Court by P.W, 6, as such the prosecution has proved its case beyond all reasonable doubts. It has been submitted by learned counsel for the appellants that there was no motive, considering this aspect the Court below has convicted the appellant Kanhaiya Tatwa u/s. 304, Part-1 of the Indian Penal Code, 1860 for committing his act knowingfully well that it might cause such injury which may eventually result into the death of deceased. It is true that the occurrence stated on small matter of playing of Cassette but the way the deceased was assaulted, was enough to establish that appellant assaulted the deceased wrecklessly to cause serious badily injury. Other accused Dasrath Tatwa assaulted P.W. 2 with Churra blow and also repeated the Churra blow as such certainly he had knowledge, if not the intention that the assault might cause death to the injured Pramod Singh. However luckly he survived. Thus the act of appellant Dasrath Tatwa attracts the offence punishable under Secs. 307 and 324 of the Indian Penal Code, 1860 I do not find any reason to interfere with the conviction of the appellants and it is upheld. 7. However, coming to the question of sentence, the learned counsel for the appellants have submitted that the occurrence took place on 15-8-1989 about 13 years ago and since then the appellants have been amply punished and harassed from the prolonged litigation. It has further been submitted that there is no criminal antecedent and previous conviction against them. Appellant Dasrath Tatwa is an old man, aged about 66 years and had remained in jail for some time. So far Dasrath Tatwa is concerned, the appellant is old person of 66, as such it will not be proper to sent him again in jail to serve out the remaining period of sentence. The interest of justice will be met if the sentence of this appellant is reduced to the period already undergone in jail with a fine of Rs. 3,000.00 (three thousand) to be deposited by him within three months from the date of receipt/production of a copy of this judgment. The interest of justice will be met if the sentence of this appellant is reduced to the period already undergone in jail with a fine of Rs. 3,000.00 (three thousand) to be deposited by him within three months from the date of receipt/production of a copy of this judgment. It is made clear that the amount of fine, if and when realised from the appellant Dasrath Tatwa, shall be paid to the informant Pramod Singh, In default of payment of fine, the appellant Dashrath shall have to under R.I. for one year. The sentence awarded to appellant Kanhaiya Tatwa by the Court below is reduced to R.I. for seven years from the R.I. for ten years. With the aforesaid modification in the sentence, the Criminal appeal is dismissed.