HEMANT KUMAR SRIVASTAVA, J.:–Both the above stated criminal appeals have arisen out of common judgment of conviction and sentence order dated 08.08.2001 passed by Sri B. N. Sahi, 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 107 of 1993/24 of 1997 by which and whereunder he convicted the appellant in criminal appeal no. 271 of 2001, namely, Hari Charan Paswan for the offence punishable under Section 304 (ii) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of rupees five thousand and in default of payment of fine, he was directed to further undergo rigorous imprisonment for six months whereas appellants in criminal appeal no. 290 of 2001, namely, Rameshwar Paswan and Kusheshwar Paswan and one co-accused, namely, Raj Kumar Paswan were convicted for the offences punishable under Sections 323/34 of the Indian Penal Code and appellants in criminal appeal no. 290 of 2001 were ordered to be released on entering bond of rupees two thousand with one surety to maintain peace for a period of one year and to be of good behaviour. Since all the above stated appellants have been convicted and sentenced by the above stated common judgment of conviction and sentence order, a common judgment is being passed in all the above stated criminal appeals. 2. The brief fact, which lies to file above stated criminal appeals is that P.W.6, namely, Shambhu Paswan gave his Ferdbeyan (Exhibit-2/1) to S.I., Surajghra Police Station on 19.05.1992 at about 05:15 P.M. in injured condition at State dispensary along with his brother and father to this effect that on the same day at about 02:00 P.M. he along with his father and brother was giving foundation of his house in his land but in the meantime, Kusheshwar Paswan armed with samath, Hari Charan Paswan armed with lathi, Raj Kumar Paswan armed with barchi and Rameshwar Paswan armed with lathi came there and asked him as to why he was giving foundation whereupon he stated that he was giving foundation according to verdict of Panchayat. The aforesaid persons forbade him to give foundation there but he did not stop the work upon which the aforesaid persons assaulted him, his brother as well as his father with their weapons and appellant, Kusheshwar Paswan gave lathi blow to him as a result of which he sustained injury on his head. The aforesaid persons forbade him to give foundation there but he did not stop the work upon which the aforesaid persons assaulted him, his brother as well as his father with their weapons and appellant, Kusheshwar Paswan gave lathi blow to him as a result of which he sustained injury on his head. Appellant, Hari Charan Paswan also gave lathi blow to him as a result of which he sustained injury on his left panjra and having sustained injury he became unconscious. He further stated that Raj Kumar Paswan gave barchi blow to his father causing injury to him on his chin and furthermore, appellant, Hari Charan Paswan assaulted his brother Bhuneshwar Paswan with lathi as a result of which Bhuneshwar Paswan sustained injury on his head, hands and other parts of the body and having became unconscious, he fell down there. P.W.6, Shambhu Paswan, further, stated that Devendar Paswan (P.W.1), Kamo Paswan and several other persons witnessed the aforesaid occurrence. P.W.6 further stated that appellants and other accused wanted to grab his land and on account of the aforesaid reason, the alleged occurrence took place. 3. On the basis of aforesaid Ferdbeyan, Nayagaon P.S. Case No. 35 of 1992 under Section 307 and other minor sections of the Indian Penal Code was registered and accordingly, formal first information report against the appellants and other accused for the aforesaid offences was prepared and later on, Section 302 of the Indian Penal Code was added in the formal first information report. The matter was investigated and after completion of investigation, charge sheet was submitted for the offences under Sections 341, 323, 307, 302/34 of the Indian Penal Code against the appellants and co-accused, Raj Kumar Paswan. The cognizance of the offences was taken and the case was committed to the court of Sessions, in usual way. 4. The appellants and co-accused, Raj Kumar Paswan were put on trial and accordingly, they were charged for the offences punishable under Sections 302/34, 307/34 and 341 of the Indian Penal Code. The appellants and co-accused denied the charges and claimed to be tried. 5. In course of trial, prosecution examined, altogether, nine witnesses and also got exhibited some documentary evidences. The statements of appellants and other accused were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The appellants and co-accused denied the charges and claimed to be tried. 5. In course of trial, prosecution examined, altogether, nine witnesses and also got exhibited some documentary evidences. The statements of appellants and other accused were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced on behalf of the appellants and other accused in support of their defence but from perusal of statements recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses it appears that appellants were claiming their possession on the land on which the foundation was being given by the P.W.6 and furthermore, the defence of the appellants is that it was prosecution party who assaulted the appellants for which Nayagaon P.S. Case No. 34 of 1992 was lodged against the prosecution party. 6. The learned trial court having perused the materials available on the record came to the conclusion that prosecution succeeded to prove the offence of Section 304(ii) of the Indian Penal Code only against the appellant in criminal appeal no. 271 of 2001 and furthermore, the learned trial court came to conclusion that prosecution succeeded to prove offences under Sections 323/34 of the Indian Penal Code against the appellants in criminal appeal no. 290 of 2001 as well as other accused and furthermore, learned trial court came to conclusion that prosecution could not succeed to prove charge under Section 341 of the Indian Penal Code against the appellants and other accused and on the basis of aforesaid conclusion, the learned trial court passed the impugned judgment of conviction and sentence order in the manner as stated above. 7. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that according to prosecution case itself, the alleged occurrence took place at the time of giving of foundation on a land on which the appellants were also laying their claim and, therefore, it is apparent from the aforesaid fact that prosecution party was trying to make construction on a disputed land and when the appellants and other accused tried to stop P.W.6 and others from making construction over the disputed land, an scuffle took place between the parties and persons from both the sides sustained injury and for which case and counter case were lodged. He submitted that in the aforesaid backdrop, it is clear that even if it assumed that appellant in criminal appeal no. 271 of 2001 gave fatal blow to deceased, then also, it cannot be said that appellant in criminal appeal no. 271 of 2001 had knowledge that by the aforesaid assault, he might have caused the death of the deceased and, therefore, Section 304(ii) of the Indian Penal Code is not attracted in the present case. He further submitted that appellants had right to protect their possession on the disputed land so, even in protecting their property, they caused any injury to deceased and others, then also, the appellants are entitled to get benefit of Section 104 of the Indian Penal Code. He further submitted that moreover, the prosecution witnesses made contradictory statements on the point of assault. Continuing his submission, he submitted that only appellant in criminal appeal no. 271 of 2001 has been convicted by the learned trial court for the offence under Section 304(ii) of the Indian Penal Code whereas P.W.6, Shambhu Paswan has admitted in his deposition that appellant in criminal appeal no. 271 of 2001 as well as appellant no. 2 of criminal appeal no. 290 of 2001 assaulted the deceased with lathi. He further submitted that only one injury was found on the person of the deceased and, therefore, it is not clear as to who gave fatal blow to deceased and, therefore, appellant in criminal appeal no. 271 of 2001 could not have been convicted under Section 304(ii) of the Indian Penal Code and the learned trial court ought to have given benefit of doubt to appellant in criminal appeal no. 271 of 2001. He further submitted that learned trial court passed the impugned judgment of conviction and sentence order on the basis of surmises and conjectures and the impugned judgment of conviction and sentence order cannot sustain in the eye of law. He also submitted that the appellant in criminal appeal no. 271 of 2001 has already suffered a lot by remaining in jail custody in course of trial as well as during the pendency of this appeal for the period of more than nine months and so, if the appellant in criminal appeal no. He also submitted that the appellant in criminal appeal no. 271 of 2001 has already suffered a lot by remaining in jail custody in course of trial as well as during the pendency of this appeal for the period of more than nine months and so, if the appellant in criminal appeal no. 271 of 2001 is found guilty under Section 304(ii) of the Indian Penal Code by this Court, his sentence should be reduced up to the period already undergone by him in jail. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W.1, P.W.2 and P.W.4 are material witnesses on the point of assault and they have fully proved the story of assault and furthermore, prosecution also examined doctor and Investigating Officer who proved the prosecution case and, therefore, the judgment of conviction and sentence order have been delivered by the learned trial court on the basis of evidences came in course of trial. 9. On perusal of evidences available on the record, I find that P.W.1, Devendar Paswan has been shown as witness in Ferdbeyan of P.W.6 and furthermore, P.W.6 stated in his Ferdbeyan that at the time of occurrence, P.W.1 was working there as labourer. P.W.1 stated that on the alleged date of occurrence he was working as mason at the house of P.W.6. This witness further stated that an exchange of words took place between P.W.6 and appellants and after that appellants removed some bricks from the wall and appellant, Kusheshwar Paswan gave samath blow on the head of P.W.6 and furthermore, appellant, Hari Charan Paswan assaulted P.W.6 and similarly, appellant, Hari Charan Paswan gave lathi blow on the head of Bhuneshwar Paswan. This witness further stated that accused, Raj Kumar Paswan gave barchi blow to the injured Chaturi. He further stated that injured Bhuneshwar became unconscious and he was taken to Surajghra hospital from where he was brought to Mokama hospital where he died. On being cross examined, this witness stated that disputed land was in possession of the P.W.6 since long. 10. P.W.2, Kamleshri Paswan deposed that on the alleged date of occurrence he was working as labourer for construction of brick’s wall of P.W.6. On being cross examined, this witness stated that disputed land was in possession of the P.W.6 since long. 10. P.W.2, Kamleshri Paswan deposed that on the alleged date of occurrence he was working as labourer for construction of brick’s wall of P.W.6. This witness stated that an exchange of words took place between P.W.6 and appellants but appellants started removing bricks from the wall upon which P.W.6 forbade but appellant, Kusheshwar Paswan gave lathi blow to P.W.6 causing injury on his head and similarly, appellant, Hari Charan Paswan also assaulted the P.W.6, Shambhu Paswan. This witness further, specifically, stated that appellant Hari Charan Paswan gave lathi blow on the head of Bhuneshwar Paswan and appellant Kusheshwar Paswan also assaulted Bhuneshwar Paswan with lathi. 11. P.W.3 does not claim himself to be an eye witness of the alleged occurrence but this witness stated that having heard noise, he came at the house of P.W.6 and saw the P.W.6, and Bhuneshwar Paswan lying there in injured condition. He also noticed injury on the chin of Chaturi Paswan. 12. P.W.4 claimed, himself, to be an eye witness of the alleged occurrence and stated that appellant Hari Charan Paswan gave lathi blow on the head of Bhuneshwar Paswan. 13. P.W.5 Chaturi Paswan has been tendered by the prosecution and he is said to be an injured witness of this case. 14. P.W.6, Shambhu Paswan is informant as well as injured of this case. This witness stated that dispute started between the parties on the point of foundation of wall on his land and after that appellant, Kusheshwar Paswan assaulted him with lathi causing head injury to him whereas appellant Hari Charan Paswan also assaulted him with lathi. This witness further stated that Raj Kumar Paswan gave barchi blow to Chaturi Paswan whereas appellant, Rameshwar Paswan assaulted Bishundeo Paswan with lathi. This witness stated that Kusheshwar Paswan and Hari Charan Paswan gave lathi blows to Bhuneshwar Pawan as a result of which he fell down on the earth. This witness further stated that Raj Kumar Paswan gave barchi blow to Chaturi Paswan whereas appellant, Rameshwar Paswan assaulted Bishundeo Paswan with lathi. This witness stated that Kusheshwar Paswan and Hari Charan Paswan gave lathi blows to Bhuneshwar Pawan as a result of which he fell down on the earth. He further stated that after the occurrence he as well as other injured were taken to hospital by the bull cart of Bagho Paswan but his brother, Bhuneshwar Paswan was referred to Mokama hospital as the condition of Bhuneshwar Paswan was deteriorating, the doctor advised to take Bhuneshwar Paswan to Mokama hospital without any delay and after that Bhuneshwar Paswan was taken to Mokama hospital where he died. He further stated that police came at Surajghra hospital and recorded his statement. This witness proved his Ferdbeyan. This witness also stated that disputed land was acquired by his father through government parcha which is Exhibit-4. 15. P.W.7, Pramod Sharma is Investigating Officer of this case. He investigated the case and submitted charge sheet and admitted that a counter case had also been filed for the occurrence of same day which was registered as Nayagaon P.S. Case No. 34 of 1992. He further admitted that he had mentioned in the case diary about this fact that there was free fight between the parties. 16. P.W.8, Dr. Manjula Rani Mandal stated that on 19.05.1992, she examined P.W.6 and found injuries on his person and on the same day she also examined Chaturi Paswan as well as Bhuneshwar Paswan. She found Bhuneshwar Paswan in unconscious state and also found swelling on his right parietal region 3”x3” caused by hard and blunt substance. She also found swelling behind right eye 1/2”x1/2” caused by hard and blunt substance. 17. P.W.9, Dr. Dhanesh Kumar Singh did post mortem examination on the corpus of deceased, Bhuneshwar Paswan and he found one swelling of right parietal region extending up to vertex on the corpus of deceased. 18. On perusal of aforesaid evidences, it is explicit clear that P.W.1, P.W.2 and P.W.4 supported the statement of P.W.6 and furthermore, doctor also found injuries on the person of P.W.6 and other injured of this case. It is also apparent from the statement of P.W.9 that there was fracture of right parietal bone of deceased, Bhuneshwar Paswan and, therefore, it is proved that deceased Bhuneshwar Paswan died due to his head injury. It is also apparent from the statement of P.W.9 that there was fracture of right parietal bone of deceased, Bhuneshwar Paswan and, therefore, it is proved that deceased Bhuneshwar Paswan died due to his head injury. 19. It has been argued by learned counsel for the appellants that P.W.6 stated that two persons gave lathi blows to deceased and it is not clear as to which of the accused persons gave fatal blow to deceased, Bhuneshwar Paswan and, therefore, only appellant Hari Charan Paswan in criminal appeal no. 271 of 2001 could not have been convicted under Section 304(ii) of the Indian Penal Code but I am not, at all, convinced with the aforesaid submission of learned counsel for the appellants because P.W.6 stated only to this extent that deceased, Bhuneshwar Paswan was assaulted by appellant Hari Charan Paswan and appellant Kusheshwar Paswan and the aforesaid witness has, nowhere, stated this fact that as to on which part of the body of deceased, the blow of aforesaid two appellants caused injury but the other prosecution witnesses i.e. P.W.1, P.W.2 and P.W.4 specifically stated that it was appellant, Hari Charan Paswan who gave lathi blow on the head of deceased, Bhuneshwar Paswan and so far as appellant, Kusheshwar Paswan is concerned, the aforesaid witnesses stated that he gave lathi blow to deceased, Bhuneshwar Paswan on his panjra but admittedly, no injury on the panjra of deceased was found and, therefore, I am of the opinion that prosecution succeeded to prove this fact that it was appellant Hari Charan Paswan who gave lathi blow on the head of deceased, Bhuneshwar Paswan. Moreover, even if it assumed that some minor contradictions occurred in the depositions of prosecution witnesses regarding the manner of occurrence then also, the aforesaid minor contradictions do not go to the root of the prosecution case and, therefore, I am of the opinion that learned trial court rightly convicted the appellant Hari Charan Paswan for the offence punishable under Section 304(ii) of the Indian Penal Code. 20. No doubt, appellants were claiming their possession on the disputed land but admittedly, appellants did not produce even a chit of paper before the trial court to prove their possession over the disputed land. Furthermore, I find that material prosecution witnesses as well as Investigating Officer proved the place of occurrence and there is no ground to disbelieve the depositions of prosecution witnesses. Furthermore, I find that material prosecution witnesses as well as Investigating Officer proved the place of occurrence and there is no ground to disbelieve the depositions of prosecution witnesses. 21. On the basis of aforesaid discussions, I am of the opinion that learned trial court rightly convicted the appellants passing impugned judgment of conviction and there is no scope for this Court to interfere with the findings recorded by learned trial court in impugned judgment of conviction. 22. So far as order of sentence is concerned, admittedly, appellants in criminal appeal no. 290 of 2001 were released by the trial court on execution of bonds but the appellant in criminal appeal no. 271 of 2001 was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of rupees five thousand. It is an admitted position that the alleged occurrence took place on account of giving foundation over the disputed land and furthermore, the appellants are next door neighbour of P.W.6. It has come in the evidence that the appellants were also claiming their possession over the disputed land though the aforesaid fact could not be proved in course of trial. The alleged occurrence took place in the year 1992 i.e. more than 21 years ago and appellant in criminal appeal no. 271 of 2001 gave single blow of lathi to deceased which became fatal and the aforesaid blow was given in sudden fight and therefore, I am of the opinion that the end of justice would be met, if the sentence of the appellant in criminal appeal no. 271 of 2001 is reduced up to three years and accordingly, appellant in criminal appeal no. 271 of 2001 is sentenced to undergo rigorous imprisonment for three years in place of rigorous imprisonment for seven years and so far as imposition of fine of rupees five thousand is concerned, the same shall be intact and in default of payment of fine, the appellant in criminal appeal no. 271 of 2001 shall have to further undergo rigorous imprisonment for six months. 23. On the basis of aforesaid discussions, these criminal appeals stand dismissed with modification in sentence order in the manner as stated above. The bail bonds of appellant in criminal appeal no. 271 of 2001 shall have to further undergo rigorous imprisonment for six months. 23. On the basis of aforesaid discussions, these criminal appeals stand dismissed with modification in sentence order in the manner as stated above. The bail bonds of appellant in criminal appeal no. 271 of 2001 stands cancelled and he is directed to surrender before the trial court within a month from the date of this order and if he fails to do so, the learned trial court shall take all possible steps to procure the attendance of appellant in criminal appeal no. 271 of 2001 so that he could serve out his sentence.