Judgment RAM NANDAN PRASAD and CHANDRA MOHAN PRASAD JJ. 1. The appellant Heera Jha @ Hira Jha has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. Out of the remaining appellants, namely, Bona Jha, Hakim Jha and Abhiram Jha have been convicted under Section 325 read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for three years. 2. The prosecution case, as set out in the fardbeyan of the informant Dayanand Jha, recorded on 21.11.1990 at 2.30 p.m. at D.M.C.H. is that, that day (21.11.1990) at about 8 a.m. the appellant Heera Jha who happens to be his (informants) cousin was cutting the "Aar. (platfrom) of his (informants) Gharari land with a view to annexing it in his (appellants) adjacent land. He (informant) objected to it and asked to get the land first measured by Amin and that in course of the talk his (informants) younger brother Laxmi Narain Jha also arrived there and thereafter altercation look place. It is further said that the altercation between the appellant and informant side heated up whereupon Heera Jha (appellant) called the other three appellants and then Bhua Jha carrying garasa, Hakim Jha carrying Bhalla and Abhiram Jha carrying lathi came there. Then it is said that Heera Jha threw the spade with which he was cutting the Aar and he (Heera Jha) took garasa from Boua Jha and he assaulted his (informants) brother Laxmi Narain Jha (deceased) on his head with the back blunt portion of garasa. Receiving the injury the deceased fall down and became unconscious. The informant says that witnesses Bahuram Mishra, Bhogi Jha and others came to the PO and they witnessed the occurrence. It is further said that the deceased was taken to Dr. R.B. Singh it Arrer (Benipatti) who gave First Aid to the deceased and he referred him to D.M.C.H. for further treatment. On the basis of the fardbeyan Arrer P.S. Case No. 0311/90 was registered and investigation commenced. During investigation it appears that the deceased was further referred from D.M.C.H. to P.M.C.H. where he died in course of treatment. On completion of investigation charge sheet was submitted and the appellants were put on trial under Sessions trial No. 73 of 1992 before the Sessions Judge, Madhubani who vide his judgment dated 31.3.2000/6.4.2000 convicted and sentenced the appellants as above. 3. On completion of investigation charge sheet was submitted and the appellants were put on trial under Sessions trial No. 73 of 1992 before the Sessions Judge, Madhubani who vide his judgment dated 31.3.2000/6.4.2000 convicted and sentenced the appellants as above. 3. As many as eight witnesses have been examined by the prosecution. PW 1 Randhir Kumar Jha is the son of the deceased. PW 4 Anandi Devi, wife of the deceased has deposed as an eye-witness, PW 2 Mohan Jha, brother of the deceased is an eye-witness and he also claims to have sustained injuries during the occurrence. PW 3 Rudra Kant Jha has been tendered by the prosecution and he has not said anything about the occurrence. PW 5 Dayanand Jha is the informant himself. PW 6 Dr. Rabindra Kumar Sinha is a private doctor who examined the injured PW 2 on 27.11.1990. PW 7 Dr. Arbind Kumar Sinha held post mortem examination on the dead body of the deceased, PW 8 Shashi Shekhar Thakur is the I.O. who has formally submitted the charge-sheet. The main I.O. who conducted the investigation of the case and took statement of witnesses has not been examined. 4. It is proper to discuss the medical evidence first. PW 6 Dr. R.K. Singh deposed that on 27.11.1990 he examined Mohan Jha (PW 2) and found the following injuries on his persons : Right upper inciser tooth missing with swelling of the adjoining gum. 5. The injury Was caused by hard blunt substance, may be lalthi within seven days. The injury was grievous in nature. He proved his injury report which was marked as Exhibit No. 1. In the cross-examination, he deposed that he had not found any injury on the lip nor there was any laceration on the gum. 6. PW 7, Dr. Arbind Kumar Singh deposed that on 25.11.1990 he conducted post-mortem examination at P.M.C.H. on the dead body of deceased Laxmi Narain Jha and found following ante mortem injuries : One stitched would 8 1/2" long starting from right ear (temporal) to mid line and again on mid-line towards back. On opening the stitch, a 4" x 3" triphyned bone was seen on parietal temporal region. There was blood clots around the brain tissues underneath lacerated and filled with clots. On further dissection, all the Viscera were found congested. Heart (right) was full left empty. Stomach was containing watery food. 7. On opening the stitch, a 4" x 3" triphyned bone was seen on parietal temporal region. There was blood clots around the brain tissues underneath lacerated and filled with clots. On further dissection, all the Viscera were found congested. Heart (right) was full left empty. Stomach was containing watery food. 7. According to PW 7, the doctor, time elapsed since death was between 12 to 24 hours approximately. In the opinion of the doctor, cause of death was head injury which was sufficient to cause death in ordinary course of nature. The injury was grievous. Due to surgical interference opinion regarding weapon used could not be given. It might be obtained from the Surgeon concerned. Post mortem report in the writing and signature of the doctor was proved as Exhibit No 3. 8. The doctor further deposed at paragraph 4 of his evidence that triphyned means removal of bone to expose the brain and that it is done by surgical interference in case of brain injury. 9. In cross-examination he deposed at paragraph 5 that whether the injury was sufficient to cause death was not mentioned in the injury report. He also deposed that the nature of injury was also not mentioned in the post mortem report. He further deposed that the injury which he had examined was surgical wound. 10. The main I.O., who had inspected the P.O. and conducted the investigation has not been examined by the prosecution. The prosecution examined PW 8 Shashi Shekhar Thakur, who simply filed charge sheet on completion of the investigation conducted by another police officer. This witness stated in paragraph 5 that he had not inspected the P.O. nor took the statement of any witness, however, he simply proved the writing of the main I.O. on the case-diary from paragraph 1 to 48 which has been marked as Exhibit-3. 11. AS to the ocular evidence, the informant (PW 5), giving details of the occurrence stated in similar manner as in his fardbeyan. He deposed that Heera Jha left his kudal and took a garasa from hands of Boua Jha (the appellant) and he assaulted the deceased with the same due to which the deceased fell down receiving injury and he became unconscious. He deposed that Heera Jha left his kudal and took a garasa from hands of Boua Jha (the appellant) and he assaulted the deceased with the same due to which the deceased fell down receiving injury and he became unconscious. He further deposed in paragraph 5 that he subsequently learnt that the appellant Abhiram Jha had assaulted Mohan Jha (PW 2) as a result of which his (PW 2s) tooth was broken. Thus the informant who claims to be present through out the occurrence simply says about the assault on the deceased by means of garasa at the hands of Heera Jha and he does not say to have witnessed any occurrence of assault on the PW 2 at the hands of appellant Abhiram Jha rather he says that he heard the same later on. 12. PW 1 Randhir Kumar Jha, who claims to be the eye-witness has deposed that he came to the P.O. on hearing hullah and saw that the appellant Heera Jha threw away his kudal and took garasa from appellant Boua Jha and he (Heera Jha) assaulted the deceased with the back blunt portion of the garasa as a result of which the deceased fell down and became unconscious. He further deposed that the deceased was first taken to Arrer for treatment but he was referred to Darbhanga from where he was further taken to the P.M.C.H. He deposed at paragraph 5 that the deceased and the informant are cousin of appellant Heera Jha. Thus the informant and appellant are agnates. At paragraph 6 of his cross-examination he deposed that altercation was going on and that his father (deceased) had received assault in course of the altercation. At paragraph 8 of the cross-examination he deposed that Mohan Jha (PW 2) had received only one Lalhi blow and that due to the blow his one tooth was broken and the upper lip was also injured. This witness has also deposed at paragraph 6 that the deceased had received two garasa blows and due to the blows a simple fracture injury was caused and that no blood had fallen on the ground. 13. This witness has also deposed at paragraph 6 that the deceased had received two garasa blows and due to the blows a simple fracture injury was caused and that no blood had fallen on the ground. 13. PW 2 who also claims to be an eye-witness deposed that the appellant Heera Jha took garasa from the appellant Boua Jha and he (Heera Jha) assaulted the deceased on his head with the back blunt portion of the garasa due to which the deceased fell down and became unconscious. This witness claims to have received injury during the occurrence and he deposed that the appellant Abhiram Jha gave him a lathi blow on his face as a result of which his one tooth was broken and his upper lip was cut. At paragraph 5 of the evidence he deposed that his statement was never recorded at any stage before he adduced his evidence in Court. He further deposed that he got his injury treated on the same day at Arrer. in this context, learned counsel for the appellants referred to the injury report (Exhibit 1), as proved by the doctor (PW 6) in respect of the injury on this witness which categorically mentions that the doctor had examined him on 27.11.1990 and he had simply found tooth missing and he did not find any injury on the lip or on the gum. In view of this infirmity that the witness was not examined on 21.11.1990 as claimed by him, no injury was found on his lip and gum and also that there is nothing such in the FIR as well as in the evidence of the informant who claimed to be present through out the occurrence, the prosecution story as regards assault on Mohan Jha (PW 2) at the hands of the appellant Abhiram Jha is not believable. 14. At paragraph 5 of the cross-examination, PW 2 deposed that the deceased had received only one blow by the back portion of garasa. It would mean that the appellant Heera Jha had given only one blow on the deceased by means of the back portion of the garasa. 15. 14. At paragraph 5 of the cross-examination, PW 2 deposed that the deceased had received only one blow by the back portion of garasa. It would mean that the appellant Heera Jha had given only one blow on the deceased by means of the back portion of the garasa. 15. PW 4 Anandi Devi, wife of the deceased deposed that the appellant and the informant were quarreling over the matter of cutting of Aar and that her husband (deceased) was pursuading them She further deposed that Heera Jha took garasa from Abhiram Jha and he assaulted her husband (Deceased) with the same as a result of which the deceased fell down receiving injuries. She further deposed that the deceased was taken to Arrer, then to D.M.C.H. and ultimately to P.M.C.H. where he died during course of treatment. At paragraph 6 of cross-examination she deposed that while she was in her angan the heard hullah "KHOON HO GAYA, KHOON HO GAYA" and then hearing this she came to the P.O. and she found that her husband was fallen on the ground and there was injury on his head. Thus this witness is not eye-witness on the point of the assault rather she has come subsequently after hullah and saw the deceased fallen on the ground. From the evidence of the witness as discussed above it is clear that the prosecution story regarding assault on Mohan Jha (PW 2) at the hands of the appellant Abhiram Jha was not borne in the FIR nor in the evidence of the informant nor there is any evidence that he was examined by the doctor the same day as claimed by him but he was examined on 27.11.1990 by a private doctor (PW 6) who also does not find any injury on his lips as claimed by him. Besides that it would also appear from the record that in this case charge under Section 325 of the IPC was framed against the solitary accused Abhiram Jha and no charge was framed against other two appellant Boua Jha and Hakim Jha still they have been convicted under this count. Anyway the charge under Section 325 of the IPC had not been proved by the prosecution. Therefore, each of the three appellants, namely, Abhiram Jha, Boua Jha and Hakim Jha deserve to be acquitted of the charge and accordingly they are acquitted. Anyway the charge under Section 325 of the IPC had not been proved by the prosecution. Therefore, each of the three appellants, namely, Abhiram Jha, Boua Jha and Hakim Jha deserve to be acquitted of the charge and accordingly they are acquitted. The appellant Heera Jha is said to have assaulted the deceased with the back blunt portion of garasa. It has come in the evidence of the witnesses that the assault was given in course of altercation which was going on regarding the matter of cutting of informants Aar by the appellant Heera Jha. 16. Learned counsel for the appellants argued that in this case the assault has been given on the head of Mohan Jha in course of altercation and that too from the back blunt portion of garasa. It was further argued that causing of injury by back blunt portion of garasa would indicate that the appellant had no intention to kill the deceased as because had he any such intention he could have easily given the assault by the sharp edged portion of garasa. In this connection, the evidence of the doctor (PW 7) who conducted the postmortem examination on the deceased is relevant. He deposed at paragraph 2 that due to surgical interference, opinion regarding weapon used cannot be given and that it could be obtained from the surgeon who had earlier treated the deceased. The prosecution has not examined the doctors, who earlier treated the deceased in respect of the injuries caused at the time of occurrence and who had made surgical interference with the injuries. The doctor deposed at paragraph-5 that whether the injury was sufficient to cause death was not mentioned by him in his injury report and that the injury which he found was a surgical wound. Thus there is nothing at this stage to know about the actual injury which was caused by the appellant Heera Jha at the time of assault and whether the same was sufficient in ordinary course of nature to cause death. 17. Thus there is nothing at this stage to know about the actual injury which was caused by the appellant Heera Jha at the time of assault and whether the same was sufficient in ordinary course of nature to cause death. 17. In the case of Jagrup Singh v. The State of Haryana reported in AIR 1981 SC 1552 , in a similar case where the accused had given blow on the deceased with the blunt portion of garasa and the assault was given in a heat of moment without any premeditation the Hon ble Supreme Court held that the case was under Section 304, Part II and not under Section 302 of the IPC and the conviction was converted to a conviction under Section 304, Part II. 18. The instant case, in our opinion, is squarely covered by the above mentioned decision. In such view of the matters, we feel that the appellant deserves to be convicted under Section 304, Part II of the IPC. Accordingly, conviction under Section 302 is converted into a conviction under Section 304, Part II of the IPC. So far the quantum of sentence is concerned, the appellant Heera Jha is sentenced to undergo R.I. for seven years. 19. In the result, Criminal Appeal No. 183 of 2000 is allowed and the conviction and sentence passed by the trial Court is hereby set aside. So far Criminal Appeal No. 219 of 2000 is concerned, the appeal stands dismissed with the modification as indicated above.Appeal allowed with modification.