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2007 DIGILAW 436 (JHR)

Mohan Rabidas v. State of Bihar

2007-05-17

D.K.SINHA

body2007
JUDGMENT D.K. Sinha, J. -Both the appeals are directed against the common judgment of conviction recorded by the 2nd Additional Sessions Judge, Giridih in Sessions Trial No. 81/1997 and order of sentence whereby the appellants of Cr. Appeal No. 207/ 1998(R) were convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months and fine of Rs. 200/- each with stipulation. The appellants of Cr. Appeal No. 213/1998(R) by the common judgment were convicted under part I of Section 304 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for seven years. It is relevant to mention at the outset that the appellant Giri Rabidas of Cr. Appeal No. 213/1998(R), convicted under part I of Section 304 I.P.C. died during the pendency of appeal and his death certificate has been filed with the supplementary affidavit. Similarly the appellant Kailash Rabidas of Cr. Appeal No. 207/1998(R) also died and his death certificate has also been filed as Annexure-A with the supplementary affidavit. In view of the above fact and the death certificates, their appeal stands abated. 2. The prosecution story in brief is that (one Sishundeo Hazara (since deceased) had been to the house of the appellant Giri Rabidas on 21.10.1996 at about 6 P.M., and demanded his money, which he had lent to him. While both were settling the account of the loan amount, altercation arose and the other accused persons Ramdeo Rabidas, Manik Rabidas, Mohan Rabidas, Kailash Rabidas & Bahadur Rabidas started assaulting Bishundeo Hazara. On hearing the cry of Bishundeo Hazara when the informant rushed there to rescue his brother, he witnessed that his brother Sishundeo Hazara was lying on the earth and the appellant Giri Rabidas was pressing his neck by sitting on his chest. The informant further witnessed the other appellants assaulting his brother with sticks, fists and kicks. On the intervention of the villagers the appellants escaped. The victim was treated in the village, then taken to Jamua and from there he was removed to Sadar Hospital, Giridih in precarious condition where in course of treatment Bishundeo Hazara succumbed to his injuries on 23.10.96. On the intervention of the villagers the appellants escaped. The victim was treated in the village, then taken to Jamua and from there he was removed to Sadar Hospital, Giridih in precarious condition where in course of treatment Bishundeo Hazara succumbed to his injuries on 23.10.96. The Fard Bayan of the informant Janki Hazara was recorded at the Sadar Hospital, Giridih on 23.10.96, which was referred to Jamua police on the basis of which Jamua P.S. Case No. 184/96 was instituted against the appellants under Sections 341,323,302/34 I.P.C. In his Fard Sayan the informant disclosed the names of the witnesses who assembled at the place of occurrence on the cry of Bishundeo Hazara and witnessed the occurrence. The informant further narrated therein that his brother Sishundeo Hazara, prior to his death had disclosed the names of the appellants being the assailants. The police after investigation submitted chargesheet in the said Sections of I.P.C. against all the six appellants. Accordingly charge was framed by the trial court. 3. As many as 10 witnesses were produced and examined on behalf of the prosecution. On the other hand appellant Manik Rabidas of Cr. Appeal No. 213/ 1998(R) produced himself as the defence witness and the another witness, who was produced on behalf of the defence was D.W.2 Hulas Mandal. 4. The prosecution proved the postmortem report Ext. 1, Fard Sayan of the informant Ext. 2 signature of the informant on his Fard Sayan Ext. 2/1, endorsement of the Jamua police on the Fard Sayan Ext. 2/2, inquest report Ext. 3, signature on the inquest report Ext. 3/1 and the formal ELR. Ext. 4. 5. The appellants also produced certain documents in their defence viz. written report of Jamua P.S. Case No. 180/ 1996 (counter-case) Ext. A, Formal F.I.R. of that case Ext. S, statement of Chhotu Hazara Ext. C, statement of Gulbi Devi Ext. D and statement of Mina Devi Ext. E. 6. Mr. R.S. Mazumdar assisted by Mr. T.K. Sinha, learned Counsel for both sets of appeal on behalf of the appellants submitted that the appellants are innocent and have been falsely implicated in the instant case. As a matter of fact, the occurrence did not take place in the manner presented by the prosecution in view of the fact that the appellants before the trial court had produced certain documents in support of counter case (Ext. As a matter of fact, the occurrence did not take place in the manner presented by the prosecution in view of the fact that the appellants before the trial court had produced certain documents in support of counter case (Ext. A) giving rise to Jamua P.S. Case No. 180/96 first point in time on 21.10.96 in which informant and other witnesses were figured as the accused. The offence was instituted under Section 323/341/447/337/34 in which the order of acquittal was recorded by the trial court. The case was instituted on the instance of the appellant Manik Das as against the informant of the instant case Janki Hazara, Sishundeo Hazara (since deceased) and one Damodar Hazara. The Trial Court lost sight of the fact that altogether a different case was presented by the appellants in the counter-case in which there was mention of altercation between the mother of Sishundeo, Hazara and the wife of the appellant Giri Rabidas @ Giro Rabidas. Similarly the genesis of the occurrence could not be proved by the prosecution. 7. Advancing his argument Mr. Mazumdar submitted that the appellants Giri Rabidas and Manik Rabidas were convicted under part I of Section 304 I.P.C. in spite of material contradiction in the statements of the witnesses. The informant P.W. 9 Janki Hazara testified that it was none other than Giri Rabidas to whom he witnessed pressing the neck of Bishundeo Hazara sitting on his chest. But on the other hand, P.W. 1 Rukmini Devi and P.W. 3 Gulbi Devi have testified that it was the appellant Manik Rabidas who was strangulating Bishundeo Hazara sitting on his chest and there was no explanation of the prosecution about such vital contradiction. 8. The prosecution has projected P.W. 1 Rukmini Devi, P.W. 2 Chhotu Hazara, P.W. 3 Gulbi Devi, P.W. 5 Mina Devi and the informant P.W. 9 Janki Hazara as the eye-witnesses of the occurrence. They are all related to the informant and deceased somehow or other. P.W. 3 Gulbi Devi was the mother of the deceased whereas P.W. 5 Mina Devi was the widow and P.W. 9 Janki Hazara was the brother of the deceased. They are all related to the informant and deceased somehow or other. P.W. 3 Gulbi Devi was the mother of the deceased whereas P.W. 5 Mina Devi was the widow and P.W. 9 Janki Hazara was the brother of the deceased. The occurrence as alleged took place in the evening of 21.10.96 and the witnesses are consistent that Doctor was called for from Jamua for treatment of Bishundeo Hazara in the village but there is no explanation as to why Jamua police was not informed about such alleged occurrence. The victim Bishundeo Hazara was taken to Jamua and from there he was removed to Sadar Hospital, Giridih on 22.10.96 but neither Jamua police was informed on the arrival of the victim nor any information was given to Giridih police while the victim was taken to Sadar Hospital but only after death of Bishundeo Hazara Giridih police was informed by the Sadar Hospital authority on O.D. Slip. No attempt was made by the witnesses to inform the police for recording the dying declaration of Bishundeo Hazara who was removed to Giridih Sadar Hospital in precarious condition upon being referred by the Doctor of Jamua. Such delay in lodging the F.I.R. has been left unanswered by the prosecution which gives rise to a reasonable suspicion about the false implication of the appellants and therefor, their conviction is unsustainable. 9. According to the prosecution story, no weapon was used by the appellants in assaulting Bishundeo Hazara and that there was allegation against the appellants Giri Rabidas that he was pressing the neck of Bishundeo Hazara sitting on his chest, contradictory to the statement of the other two witnesses but the Doctor in the post mortem report did not find any injury on the neck. Similarly in the opinion of the Doctor (P.W. 4) head injury could be possible by falling on stone or hard surface. In this manner the entire prosecution case has been negatived with the inference that the occurrence did not take place in the manner presented by the prosecution as also on the fact that the genesis of the occurrence about lending money by the deceased to Giri Rabidas could not be proved. The witnesses had found injury on the person of Giri Rabidas which could not be explained and for which the appellants are prejudiced for not explaining such injury on the person of Giri Rabidas. 10. The witnesses had found injury on the person of Giri Rabidas which could not be explained and for which the appellants are prejudiced for not explaining such injury on the person of Giri Rabidas. 10. From the impugned judgment I find that relying upon the evidence of P.W. 1, Rukmini Devi, P.W. 2 Chutto Hazara, P.W. 3 Gulbi Devi, P.W. 5 Mina Devi and P.W. 9 Janki Hazara, the Trial Court convicted the appellants. P.W. 1 Rukmini Devi having claimed to be the eye-witness of the occurrence testified that at about 6 P.M. on the date of occurrence she heard alarm while she was in courtyard. On such alarm she went to the doors of Giro Rabidas and witnessed that all the appellants were assaulting Bishundeo Hazara with their specific attribution. She narrated that appellant Giro Rabidas with stone and Manik Rabidas was strangulating whereas the other accused Ramdeo Rabidas, Mohan Rabidas and Kalsu Rabidas etc. were assaulting him with fists and kicks. She identified the assailants in the dock. In the cross-examination she testified that the house of Giro Rabidas was situated at the distance of about 1A k.m. with the intervening houses of 7 persons but she did not find any of the said neighbours at the place of occurrence. She admitted having witnessed that when did she arrive at the scene of occurrence she found Bishundeo Hazara lying on the earth with bleeding from his head and that his "Ganji" was smeared with blood. Finally she deposed that Bishundeo Hazara died at the Giridih Sadar Hospital on the day of the occurrence during his treatment. She further admitted having found bleeding injury on the person of the appellant Giro Rabidas but there was no injury on the person of other assailants. 11. P.W. 2 Chutto Hazara .has given altogether a different sequence of the occurrence inconsistent with the statements of the other witnesses. He testified that while Bishundeo Hazara (since deceased) was playing football he was apprised by some villagers that his mother was assaulted by Rabidas people. Pursuant to, such information Bishundeo Hazara with his brother Janki Hazara (P.w. 9) went to the house of Manik Rabidas and asked the appellants as to why they had assaulted his mother which resulted into altercation and the appellants started assaulting both Bishundeo Hazara and Janki Hazara. Pursuant to, such information Bishundeo Hazara with his brother Janki Hazara (P.w. 9) went to the house of Manik Rabidas and asked the appellants as to why they had assaulted his mother which resulted into altercation and the appellants started assaulting both Bishundeo Hazara and Janki Hazara. This witness claimed having attempted to pacify the parties but in the same transaction Bishundeo Hazara and Janki Hazara sustained injuries. The statement of this witness is contradictory to the statemer.t of other witnesses and his testimony does not inspire credence. 12. P.W. 3 Gulbi Devi is the mother of the deceased and the trial court considering her statement as well as the statements of P.W. 5 and P.W. 9 sustained the conviction of the appellants. Gulbi Devi testified that the occurrence took place during Oashara festival and on the eve of Oashara the appellant Giro Rabidas had come to his home village Bijodih from Calcutta where he was living. On the date of occurrence at about 6 P.M., when her son Bishundeo Hazara went to ask Giro Rabidas to return his three thousand rupees which Giro had obtained loan on the eve of his daughter's marriage there started altercation with alarm. On such alarm she alongwith Damodar went to the house of Giro Rabidas where she witnessed that the appellant Giro Rabidas was sitting on the chest of her son Bishundeo Hazara and it was appellant Manik Rabidas who was pressing his neck. The other appellants were assaulting her son Bishundeo Hazara with fists and kicks. A number of witnesses assembled there including the witnesses Rukmini and Chutto. Her another son Janki Hazara had arrived at the scene much prior to her arrival. She found the injuries on the head, neck, chest and eyes of Bishundeo Hazara. He was removed to home and was examined by quack and upon whose advise Bishundeo Hazara was taken to Jamua Hospital on the next morning. Keeping in view the critical condition of Bishundeo Hazara the Doctor of Jamua referred him to Giridih Hospital and accordingly he was brought to the Sadar Hospital where he succumbed his injuries at about 8 P.M. She deposed that after the occurrence when Bishundeo Hazara was taken to his home he had narrated the names of the assailants. About the place of occurrence the witness testified that it was the homestead land (Bari) of Giro Rabidas. About the place of occurrence the witness testified that it was the homestead land (Bari) of Giro Rabidas. Though there was blood stains on the earth but the same was washed away by the time, the police arrived there. The blood stained clothes of Sishundeo Hazara .was made over to the police but she could not say as to whether any seizure list was prepared. In the crossexamination she specifically denied having quarreled with the wife of Giro Rabidas at about 9 A.M., on the date of occurrence, which was the defence of the appellants in the trial court. She further denied any free fight between the parties. 13. P.w. 4 Dr. Rajendra Chaudhary held post mortem on the body of Sishundeo Hazara on 23.10.96 at about 2 P.M. at the Sadar Hospital, Giridih and found the following:(i) Rigor mortis present in all limbs. Eyes closed, mouth partially open, hair black, abrasion on the right side of the neck 1/2" x 1/4". (ii) Sruice on left forearm 2" x W'. (iii) Swelling on left side of head 1"x %". On dissection:(iv) Subcutaneous tissues of scalp on left side Haematoma with dark clotted blood. (v) Crack (fracture) of left parietal bone. (VI) Trachea, larynx-NAD, Hyoid bone-intact. (vii) All injuries were ante-mortem in nature caused by hard and blunt substance. 14. In the opinion of the Doctor the cause of death was shock and haemorrhage due to above injuries. Time elapsed since death was assessed about 18 to 20 hours and he proved the post-mortem report Ext. 1. In the opinion of the Doctor head injury caused to the deceased was possible due to fall on a stone or hard surface, forcefully pushed down on the earth, may be by holding his neck. The Doctor further observed that abrasion could be caused by friction between the skin and hard blunt and rough surface. Lastly he observed that if the neck could be pressed with force, injuries on larynx and trachea could be possible but there was no such injury on the dead body. It can well be inferred from the testimony of this expert witness that strangulation was not the cause of death of Sishundeo Hazara and that no injury was found on the trachea or larynx or hyoid bone of the dead body. 15. It can well be inferred from the testimony of this expert witness that strangulation was not the cause of death of Sishundeo Hazara and that no injury was found on the trachea or larynx or hyoid bone of the dead body. 15. P.W. 5 Mina Devi is the widow of the deceased who has categorically narrated the occurrence by corroborating the evidence of her mother-in-law P.W. 3 Gulbi Devi but with slight difference. Though she has named all the six appellants as the assailants of her husband as the eyewitness. She claimed having seen injuries on the person of her husband on his occipital region, chest, neck and head and narrated about the treatment extended to him by the quack in the village as also at Jamua and Sadar Hospital, Giridih where he succumbed his injuries. She corroborated the genesis that her husband had lent Rs. 3,000/- to the appellant Giro Rabidas and he had been to the doors of the appellant to ask his money back where the appellants picked up quarrel with her husband and assaulted him. 16. P.W. 6 Manoj Kumar Singh SubInspector of Police deposed that he took up the charge of investigation of Jamua P.S. Case No. 184/96 on 13.12.96 and pursuant to the supervision note he submitted charge-sheet against the appellants. In course of investigation he had not recorded the statement of any witness. Similarly P.W. 7 S.1. Mustaq Ahmad testified that he had recorded the Fard Sayan of the informant Janki Hazara at the Sadar Hospital, Giridih on 23.10.96 at 9.30 A.M. He proved the Fard Sayan Ext. 2 and the inquest report Ext. 3. He referred the Fard Sayan to the Jamua police station for institution of police case as the place of occurrence fell within the jurisdiction of the said police station. He testified that pursuant to receipt of O.D. Slip from the Sadar Hospital, Giridih he made entry in the station diary of the Police Station but he could not remember the station diary entry number. P.W. 8 Basudeo Hazara admitted his signature on the inquest report of the dead body of Bishundeo Hazara which was marked Ext. 3/1. 17. P.W. 9 Janki Hazara is the important witness as well as the informant of the instant case. He testified that the occurrence took place during Dashara. P.W. 8 Basudeo Hazara admitted his signature on the inquest report of the dead body of Bishundeo Hazara which was marked Ext. 3/1. 17. P.W. 9 Janki Hazara is the important witness as well as the informant of the instant case. He testified that the occurrence took place during Dashara. It was Monday at about 6 P.M. and while he was near the house of Chhuto Hazara, he heard the alarm of Bishundeo Hazara originated from the house of Giro Rabidas. He rushed there alongwith Rukmini Devi P.W. 1 and Chhuto Hazara P.w. 2. In the meantime, his mother P.W. 5, Damodar Hazara (not examined) and his Bhabhi P.W. 5 also arrived at the scene. He further testified that when he arrived at the place of occurrence with the witnesses he witnessed that his brother was being assaulted by all the appellants. He further witnessed that the appellant Giro Rabidas was pressing the neck of Bishundeo Hazara sitting on his chest whereas Manik Rabidas was assaulting with brick and the other appellants were assaulting his brother with kicks and fists. Bishundeo Hazara sustained injuries in his head on its back side with the injuries on his nose, near eyes and on other parts of his body. There was abrasion on the neck of his brother. He found his brother trembling and crying to save him. On the arrival of the witnesses the appellants escaped. He claimed having seen the occurrence. The condition of Bishundeo Hazara turned critical sustaining injuries and he was removed to his home. At his home Bishundeo Hazara narrated the occurrence and also disclosed the names of the appellants being his assailants. He also narrated the genesis of the occurrence that he had been to the house of the appellant Giro Rabidas to ask him to return his money to which he had lent but he was assaulted. A Doctor was called for and in the morning he was removed to Jamua Hospital but keeping in view the deteriorating condition of Bishundeo, he was referred to Sadar Hospital, Giridih where he was admitted. In course of treatment at Giridih Sadar Hospital, Bishundeo succumbed his injuries at about 8 P.M. On the subsequent day morning the police came and recorded his statement which was read over and after finding it correct he put his signature on his Fard Bayan Ext. 2/1. In course of treatment at Giridih Sadar Hospital, Bishundeo succumbed his injuries at about 8 P.M. On the subsequent day morning the police came and recorded his statement which was read over and after finding it correct he put his signature on his Fard Bayan Ext. 2/1. He identified some of the appellants in the dock and also claimed to identify the other appellants who were represented through their lawyers. In the cross-examination the witnesstestified that Jamua Police Station was situated at about 5/6 k.m. from his village and there was Kachchi road to be used only by cycle. When his attention was drawn, the witness denied that any case was instituted against him or against any member of his family by the appellant Manik Rabidas. The witness has corroborated his earlier statement what he had narrated before the police with slight difference which could be ignored in the back drop that he had given account of the place of occurrence, manner of occurrence, complicity of all the appellants and their attribution. Nothing could be elicited in his cross-examination to disbelieve his testimony except his denial that any case was instituted by the appellant Manik Rabidas against him and other members of his family to which the appellants had produced documentary evidence in the Trial Court, probably, with his little knowledge being the rustic that he was acquitted in that case. 18. P.W. 10 Ram Lochan Tiwari was the Investigating Officer of the case. He testified that on 23.10.96 while he was posted as Officer-in-Charge of Jamua Police Station, he received the Fard Sayan of Janki Hazara from Giridih town police station on the basis of Which he registered Jamua P.S. Case No. 184/96 for the offence under Section 341/323/302/34 LEC. He proved his endorsement on the Fard Sayan in his pen and signature Ext. 2/2. He further proved the formal F.I.R. Ext. 4. He took up the charge of investigation of the case and visited the place of occurrence. The investigating Officer testified that it was a village lane at the distance of about 10 yards north from the house of the appellant Giro Rabidas whereas the house of Gura Rabidas was situated at the distance of about 20 yards south. He testified by narrating the boundary of the place of occurrence and admitted having recorded the statement of the witnesses Gulbi Devi P.W. 3, Chhuto Hazara EW. He testified by narrating the boundary of the place of occurrence and admitted having recorded the statement of the witnesses Gulbi Devi P.W. 3, Chhuto Hazara EW. 2, Rukmini Devi P.w. 1, Mina Devi P.w. 5, Hemlal Hazara (not examined) Rohan Rabidas (not examined) Mahendra Rabidas (not examined). He again visited the place of occurrence on 24.10.96 and recorded re-statement of the informant EW. 9 Janki Hazara as also the statement of Damodar Hazara (not examined). He obtained the post-mortem report. In the cross-examination the witness admitted that he had examined the O.P.D. register of Jamua Hospital and also recorded the statement of the Doctor of the Hospital. He found the name and address of the deceased there but without description of the line of treatment. 19. When attention of this witness was drawn in his cross-examination towards the statement of P.W. 3 Gulbi Devi, EW. 5 Mina Devi and P.W. 9 Janki Hazara recorded under Section 161 Cr.P.C. by him, the witness testified that P.W. 3 Gulbi Devi in her statement had not narrated that she alongwith Janki and Damodar had arrived at the door of Giro Rabidas on hearing alarm and that she witnessed Manik Rabidas pressing the neck of Sishundeo Hazara. Similarly when his attention was drawn towards the statement of the widow of' the deceased Mina Devi P.W. 5 recorded by him, he testified that she had not narrated before him that when she arrived at the place of occurrence she found the appellant assaulting her husband with the injuries on the occipital region, neck and chest rather the witnesses testified that Mina Devi narrated before him that when she arrived at the place of occurrence on hearing alarm all' had already escaped. 20. In this manner I find that P.W. 3 Gulbi Devi who has claimed to be the eye-witness of the occurrence and is the mother of the deceased has made partial development in her substantive evidence before the trial court but the witness Mina Devi has made substantial development in her statement before the trial court. In her statement recorded under Section 161 Cr.P.C. she did not claim to be the eyewitness of the occurrence but in her substantial evidence she has projected herself as the eye-witness and therefore, her statement is not reliable and hence liable to be discarded. In her statement recorded under Section 161 Cr.P.C. she did not claim to be the eyewitness of the occurrence but in her substantial evidence she has projected herself as the eye-witness and therefore, her statement is not reliable and hence liable to be discarded. When his attention was drawn towards the statement of informant Janki Hazara recorded under Section 161 Cr.P.C. the witness testified that Janki Hazara had not narrated before him that the appellant Manik Rabidas had assaulted Sishundeo Hazara with bricks-otherwise, the informant witness had corroborated his Fard Sayan (Ext. 2) before the Trial Court in his substantive evidence. 21. Having regard to the facts and circumstances of the case, perusal of the impugned judgment, I find that the learned trial court relying upon the testimonies of EW. 3 Gulbi Devi, EW. 5 Meena Devi and EW. 9 Janki Hazara corroborated by the evidence of EW. 1 Rukmini Devi and the post-mortem report Ext.1 recorded the judgment of conviction against the appellants Giro Rabidas (since deceased) and Manik Rabidas under part I of Section 304 I.P.C. and against other four appellants 1. Kailash Rabidas (since deceased), 2. Mohan Rabidas 3. Sahadur Rabidas and 4. Ramdeo Rabidas under Section 323 I.P.C. 22. In so far as substantive evidence of prosecution witnesses are concerned, P.W. 1 Rukmini Devi testified by projecting herself as an eye witness that it was the appellant Manik Rabidas who was pressing the neck of Bishundeo Hazara whereas appellant Giro Rabidas with stone and other appellants with kicks and fists were assaulting him. In the cross-examination she admitted that when she arrived at the place of occurrence, she witnessed Bishundeo Hazara was lying on the ground and there was bleeding from his head injury. 23. Contrary to the statements of P.W. 1 Rukmini Devi, P.W. 3 Gulabi Devi, mother of the deceased testified that when she appeared at the scene of occurrence on hearing alarm, she witnessed that the appellant Giro Rabidas was sitting on the chest of Bishundeo Hazara and Manik Hazara was pressing his neck whereas other appellants were assaulting with kicks and fists. 24. 24. P.W. 5 Meena Devi i.e. the widow of the deceased has narrated an eye witness account of the occurrence in fier testimony with general and omnibus allegation of assault against all the appellants but when the attention of the Investigating Officer P.W. 10 Ram Lochan Tiwari was drawn towards her earlier statement recorded under Section 161 Code of Criminal Procedure it could be gathered that she had narrated that when she did arrive at the place of occurrence all (appellants) had escaped by that time. In this manner she cannot be put in the category of eyewitness and her statement, therefore, does not inspire confidence. The informant P.W. 9 Janki Hazara having claimed to be the eye-witness testified that when he arrived at the scene of occurrence opposite the door of the appellant Giro Rabidas, he found all the six appellants assaulting his brother Bishundeo Hazara with specific attribution that Giro Rabidas was pressing neck by sitting on his chest whereas Manik Rabidas with brick and other appellants with kicks and fists were assaulting Bishundeo as a result of which he sustained bleeding injuries on the back side of his head, nose, eyes and other parts of his body. 25. The medical evidence as recorded in the post mortem report (Ext. 1 ) supports the other corresponding injuries including on the back side of head except the injuries on the neck of the deceased Bishundeo Hazara alleged to be caused by pressing neck. In the post-mortem examination of the deceased nothing abnor. mal was detected on dissection of trachea and larynx and similarly hyoid bone was found intact and this finding negatives the allegation of strangulation (pressing of neck) against any of the two appellants. 26. The prosectuion witnesses in their testimonies are consistent that the flank of the village lane opposite the house of the appellants was the place of occurrence corroborated by the Investigating Officer in his objective finding. 27. From the critical analysis of the entire materials on the record I find that the learned trial court failed to appreciate the vital contradiction in the statement of P.w. 1, P.w. 3 and F~W. 9 in so far as attribution of appellants Manik Rabidas and Giro Rabidas is concerned in assault. 27. From the critical analysis of the entire materials on the record I find that the learned trial court failed to appreciate the vital contradiction in the statement of P.w. 1, P.w. 3 and F~W. 9 in so far as attribution of appellants Manik Rabidas and Giro Rabidas is concerned in assault. None of the prosecution witnesses could be able to testify as to who had pushed Bishundeo Hazara down on the earth causing fatal head injury being the basic cause of death. Injuries inflicted by stone or bricks or kicks or fists in the opinion of the Doctor was not in the nature of causing death. 28. I, therefore, find and hold and it can safely be observed that the offence of culpable homicide under part I of Section 304 I.P.C. is not made out against either Giro Rabidas or against Manik Rabidas for which they have been held guilty. Admittedly, the prosecution failed to prove pre-determination of the appellants of causing death of Bishundeo Hazara. It was Bishundeo Hazara (deceased) who had visited the house of Giro Rabidas to ask him to return his money to whom he had lent and this fact (genesis) has been supported by the material witnesses where there developed altercation between the two intervened by the other appellants and they assaulted Bishundeo Hazara with bricks/stones, kicks and fists, as a result of which he fell down sustaining injuries. No conventional weapon including stick was used in such assault and the occurrence took place. in the spur of moment and heat of passion which comes within the category of exception 4 of Section 300 I.P.C. I have reasons to believe that the act of the appellants Manik Rabidas and Giro Rabidas (since dead) by which death of Bishundeo Hazara was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death and hence their conviction under part I of Section 304 I.P.C. is unsustainable. 29. As regards the complicity of other four appellants Kailash Rabidas (since dead), Mohan Rabidas, Bahadur Rabidas and Ramdeo Rabidas is concerned I find that their complicity have been attributed in the statements of P.W. 1 Rukmini Devi, P.W. 3 Gulbi Devi and P.W. 9 Janki Hazara who have been held guilty by the trial court for the offence under Section 323 LRC. It was neither the prosecution case that these four appellants had given effect to the occurrence by assaulting Bishundeo Hazara with fists and kicks in furtherance of their common intention nor it was proved rather the allegation was general against all the four appellants aforesaid and no ground is made out in the present appeal to interfere in their conviction order recorded by the trial court. 30. Needless to say that the appellant Manik Rabidas by producing himself as P.W. 1 unsuccessfully tried to •prove that the occurrence did not take place in the manner presented by the prosecution by proving the formal F.I.R. of Jamua P.S. Case No. 180/96 lodged on 20.10.96 on the basis of his statement (Ext. A) which was drawn against the informant of the instant case Janki Hazara, Bishundeo Hazara and Damodar Hazara but the case could not be proved and the accused of the counter case of Jamua RS. Case No. 180/96 was acquitted and therefore, the defence version is not reliable. 31. In the result, I find and observe that the materials on the record are sufficient to hold the appellants Giro Rabidas and Manik Rabidas guilty for the offence under Section 323 I.P.C., and the prosecution miserably failed to prove the charge under part I of Section 304 I.P.C. against any of them and hence their conviction and sentence under part I of Section 304 I.P.C. is unsustainable. Accordingly it is set aside. Both the appellants of Cr. Appeal No. 213/1998(R) are convicted under Section 323 I.P.C. each and sentenced to undergo imprisonment for six months each and fine of Rs. 200/- each. With such modification in their conviction and sentence this appeal is dismissed. 32. Needless to say that the appeal of the appellant Giro Rabidas stands abated on his death. In so far as the appeals of the other four appellants viz. Kailash Rabidas @ Kalsu Rabidas (since dead), Mohan Rabidas, Bahadur Rabidas and Ramdeo Rabidas is concerned I do not find any ground to. interfere in the judgment of their conviction under Section 323 LRC. and order of sentence of six months rigorous imprisonment recorded by the trial court with fine of Rs. 200/- each in respect of Criminal Appeal No. 207/ 1998(R). However, their rigorous imprisonment is modified into simple imprisonment for the consistency. The appellant Kailash Rabidas is dead and hence his appeal stands abated. The Cr. and order of sentence of six months rigorous imprisonment recorded by the trial court with fine of Rs. 200/- each in respect of Criminal Appeal No. 207/ 1998(R). However, their rigorous imprisonment is modified into simple imprisonment for the consistency. The appellant Kailash Rabidas is dead and hence his appeal stands abated. The Cr. Appeal No. 207/ 1998(R) is dismissed. The period of the detention of the appellants in the judicial custody is directed to be set off. The trial court to take effective steps.