JUDGMENT S.A. Khan, J. – Nobody appears for the appellant. Mr. Shailendra Kumar Jha is appointed Amicus Curiae in this case to assist this Court. 2. This appeal arises out of a judgment of conviction passed by the 1st Additional Sessions Judge, Saharsa in Sessions Trial No. 48/84 by which he has convicted the sole appellant under Section 323 of the Indian Penal Code to undergo Rigorous Imprisonment for six months. 3. The prosecution case is that the informant Rameshwar Ram was digging the lands supposedly belonging to Jagarnath Singh, P.W. 6. His brother was digging the field of Sita Ram Singh. In the meantime, Yogi Yadav objected to the informant digging the field. It is said that he gave a blow with a “Paina” on the leg of the informant. On hearing the commotion the appellant who is the brother of Yogi Yadav came to the place of occurrence armed with “Musal” and is said to have assaulted the brother of the informant Guneshwar Ram on his head. 4. The genesis of the occurrence as made out by the prosecution is that Yogi Yadav was the “Bataidaar” of Suresh Singh and as such he had objected when the informant was ploughing the field of Suresh Singh. The defence case is that Suresh Singh had mortgaged the lands to Jagarnath Singh and the informant was working in the field on behalf of Jagarnath Singh. 5. Nine witnesses have been examined in this case out of which P.W. 1 is a formal witness who has proved the signature of the Investigating Officer. P.W. 4 is also a formal witness. P.W. 8 has proved the inquest report, Ext. 2 and P.W. 9 has supposedly proved the post mortem report in this case. At the very outset, it may be stated here that the Investigating Officer has not been examined in this case. However, examination of the Investigating Officer is not of much importance as the attention of the witnesses has not been drawn to the statements made before the Investigating Officer. At the very outset, it may be stated here that the Investigating Officer has not been examined in this case. However, examination of the Investigating Officer is not of much importance as the attention of the witnesses has not been drawn to the statements made before the Investigating Officer. The evidence of P.W. 9 that he claims to recognize the handwriting of the doctor who had conducted the post mortem was not acceptable to the Trial Court or this Court for the reason that P.W. 9 has not been able to show that he had any special knowledge by virtue of which he could identify the handwriting/signature of the doctor who conducted the post mortem as such this case proceeded on the basis of the evidence that has been given in Court. 6. I should begin with the evidence of P.W. 5 who is the informant in this case. The informant has supported the prosecution case in his chief by stating the manner in which the occurrence had taken place. According to this witness, he has gone to the hospital and signed on the inquest report. Regarding the genesis of the case, this witness has stated that he was ploughing the field of Jagarnath Singh who is his “Maalik”. He accepts that Suresh Singh had given the land to Jagarnath Singh on mortgage. He denies having seen the copy of the mortgage deed. He supports the fact that he was assaulted by Yogi Yadav on his legs and that the appellant assaulted Guneshwar Ram, his brother on his head by means of “Musal”/”Samath” (an agricultural took used for pounding wheat, gram etc.). 7. P.W. 2 was working in the field nearby when he heard the sound of raised voices and he ran towards the place of occurrence and supposedly witnessed the occurrence. In his cross-examination he has stated as follows:- ^?kks?ku ;kno vius ?kj ij ls nkSM+dj ogk¡ ij vk;k FkkA ?kks?ku ;kno dk ?kj ?kVuk LFky ls if’pe rjQ fLFkr gSA ge mRkj ls ?kVuk LFky ij vk, FksA xqus’oj jke ls ?kks?ku ;kno dks dksbZ >xM+k ugha FkkA mldks eqn~nkys yksd ekjuk ugha pkgrs FksA^^ thereby meaning that Ghoghan Yadav was not present at the place of occurrence at the outset of the fight but had reached later to help his brother Yogi Yadav. He also clarifies that there was no “intention” to kill the informant. 8. He also clarifies that there was no “intention” to kill the informant. 8. P.W. 3, Dhuran Ram has supported the prosecution case. He has stated that Ghoghan Yadav had assaulted Guneshwar Ram on the head. He also states that Suresh Singh had mortgaged the land on which the occurrence had taken place to Jagarnath Singh. According to this witness the occurrence ekjihV took place all of a sudden. 9. P.W. 6 is the person who is said to have taken the land on mortgage from Suresh Singh. He is not an eye witness to the occurrence. According to this witness there is no written document with respect to mortgage. He admits that the “Maalgujari” etc. are being paid by Suresh Singh and that the “Jamabandi” is also in the name of Suresh Singh. In this context the evidence of Suresh Singh, P.W. 7 would be important. 10. According to Suresh Singh he had mortgaged his land in the year 1978 to Jagarnath Singh because he required the money for the wedding of his niece. According to this witness he had redeemed the mortgage in the year 1984 and thereafter he was in possession of the land in question. He admits that Yogi Yadav was the “Bataidaar” of Jagarnath Singh. 11. On the basis of the aforesaid facts it is pleaded that the case of the informant that he had a right to plough the field on behalf of Jagarnath Singh ought not to be believed by the Court in view of the evidence of Suresh Singh, P.W. 7. Moreover, Jagarnath Singh admits that there is no written document to indicate that he had taken the land on mortgage or to specify whether there was any period fixed for redeeming the mortgage. On the other hand, this Court finds that the ocular evidence cannot be discarded inasmuch as it has come on record that Guneshwar Ram had died two or three days after receiving the injuries on his head. It is true that the post mortem report has not been proved and, therefore, the Court cannot conclude finally as to whether the injury was grievous or simple in nature or whether the injury inflicted by the appellant led to the death of Guneshwar Ram. It is true that the post mortem report has not been proved and, therefore, the Court cannot conclude finally as to whether the injury was grievous or simple in nature or whether the injury inflicted by the appellant led to the death of Guneshwar Ram. Nevertheless, there can be no doubt about the fact that the occurrence took place in the manner alleged and that the appellant had assaulted the deceased on his head which caused an injury leading to his treatment in the hospital. I, therefore, confirm the conviction passed by the Trial Court in this case but alter the sentence to period already undergone and further direct that the appellant Ghoghan Yadav should pay a sum of Rs. 1,000/- to the heirs of Guneshwar Ram by way of fine within a period of four months of valid service of notice to the appellant failing which he would be required to undergo sentence imposed on him by the Trial Court. The informant may be noticed to receive the fine amount on behalf of the heirs of Guneshwar Ram. 12. This appeal is dismissed with the aforesaid alteration of sentence.