ORAL JUDGMENT Heard learned counsel for the appellants, learned counsel for the respondent and learned Additional Public Prosecutor for the State. 2. Both the appellants have preferred this appeal against their conviction under section 304(II) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 1000/- only in default whereof to undergo further simple imprisonment for six months as awarded by 1st Additional Sessions judge, Bhojpur at Ara, in Session Trial No. 163 of 1998 arising out of Udwantnagar P.S. Case No. 167/96 registered under section 302/34 of the Indian Penal Code at the instance of P.W. 5 namely Siya Kunwar. 3. At the out set, it is relevant to mention that though the case appears to have been instituted on the fard-e-beyan of P.W.5 rcorded on 26th November 1996 at Sadar Hospital, Ara, after the death of solitary injured cum deceased in the case Ram Badan Singh. But, in fact, on the date of occurrence i.e. 23rd November 1996 itself after being admitted in the Hospital for treatment, his fard-e-beyan (Exhibit – 3) was recorded and transmitted to the police station concerned for the needful and as it reveals from it (Exhibit – 3) at about 2.00 P.M. on the same day while he was with his she-buffalo near north high school situated north of village Masarh, both the appellants arrived and tried to persuade him not to have any connection with one Kuldip Singh (co-villager) but being annoyed of his denial, of having any concern both the appellants assaulted him by Lathi resulting into injuries on his left palm and right elbow. The witnesses Satyendra Singh (P.W.3) and Mithilesh Singh (not examined) etc. have seen the occurrence, intervened and brought him at the Hospital for treatment. The police official of local police station who recorded this fard-e-beyan also issued requisition for the injuries (Exhibit – E) indicating only two injuries one on left palm and another on right elbow. The witnesses Satyendra Singh (P.W.3) and Mithilesh Singh (not examined) etc. have seen the occurrence, intervened and brought him at the Hospital for treatment. The police official of local police station who recorded this fard-e-beyan also issued requisition for the injuries (Exhibit – E) indicating only two injuries one on left palm and another on right elbow. He was treated at the hospital, where on third day he died and at this stage another fard-e-beyan of P.W.5 was recorded with only addition that deceased was assaulted by Lathi by appellant Brij Kishore Singh on left hand and when he fell down appellant Bhagwan Singh assaulted by slaps and fists and on raising alarm by him Ranjay Singh (not examined) Arvind Kumar Singh (P.W.7) and Satyendra Singh (P.W.3) intervened in rescue, brought him to the Hospital where he died due to some internal injuries. The dispute between the parties was related with land. This fard-e-beyan was further witnesses by Gauri Shankar Singh (P.W.1) 4. Police after institution the case and completing the investigation submitted charge-sheet, trial commenced and in order to substantiate the charges prosecution examined altogether nine witnesses besides producing exhibits: Exhibit – 1 – Signature of informant on fard-e-beyan. Exhibit – 2 – Post Mortem Report Exhibit – 3 - Fard-e-beyan of Ram Badan Singh Exhibit – 3/1 - Fard-e-beyan In defence also six witnesses were examined besides producing exhibits: Exhibit – A – Fardbeyan of Udwantnagar P.S. Case No. 166/96 Exhibit – B – Inquiry report of accused Brij Kishore Singh Udwantnagar P.S. Case No. 166/96 Exhibit – B/1 - Inquiry report of accused Bhagwan Singh Udwantnagar P.S. Case No. 166/96 Exhibit – C – Requisition of S.I. Komal Ram for injury report of Brij Kishore Singh Exhibit – C/1 – Requisition for injury report by S.I. Komal Ram for Sri Bhagwan Singh Exhibit – B/B – Injury report of Ram Badan Singh Exhibit – D – Bed Head Ticket of Ram Badan Singh Exhibit – E – Injury requisition of Ram Badan Singh Exhibit – B/4 – Signature of Naiyer Aejaj Ahmad P.S.I. on F.I.R. of Udwantnagar P.S. Case No. 166/96. Exhibit – F – C.C. of order of consolidation officer in Appeal Case No. 123/78-79 Exhibit – G – C.C. of Khatian of Khata No. 70 of Thana No. 340 Exhibit – G/1 – C.C. of Khatian of Khata No. 1244 of Thana No. 343 Exhibit – H – C.C. of Charge-sheet of Udwantnagar P.S. Case No. 166/96 Exhibit – I – C.C. of order sheet in case no. 2821/96, Tr. No. 339/99 dated 20-12-99 to 5-1-2000 Exhibit – J – C.C. of Warrant of arrest of accused Arvind Singh in case no. 2821/96, Tr. No. 339/99 Exhibit – K – C.C. of bail bond of accused Arbind Singh in case no. 2821/96 dated 21.12.99. Exhibit – L - C.C. of bail petition of accused Arbind Singh dated 20.12.99. Exhibit – M – Original map of mauza Bibiganj P.S. 340 of Udwantnagar. Exhibit – M/1 – Original map of mauza Masarh P.S. 343 Chadar no. 1 Exhibit – M/2 – Original map of Mauza Masarh P.S. 343 Chadar no. 5 Exhibit – O – Discharge Certificate Exhibit – O1 - Discharge Certificate Exhibit – Y – Register Exhibit – P - Register 5. On consideration of the materials referred to above, court below convicted and sentenced the appellants in the manner aforesaid. 6. It is contended by learned counsel for the appellants that in fact the persons claiming as eye witnesses have not seen the occurrence, they have concealed the truth and also not explained the injury sustained by the appellants, in same chain of transaction rather the witnesses and the deceased all are accused in counter case instituted at the instance of appellant no. 1 bearing Udwantnager P.S. Case No. 166/96 and from the medical evidence also it appears that death of the deceased was not caused by any injuries sustained by him. On the other hand, learned counsel representing the informant and State both supported the finding and sentence apart from the reasons mentioned in the judgment. 1 bearing Udwantnager P.S. Case No. 166/96 and from the medical evidence also it appears that death of the deceased was not caused by any injuries sustained by him. On the other hand, learned counsel representing the informant and State both supported the finding and sentence apart from the reasons mentioned in the judgment. Submission is that there is no necessity to explain any injury sustained to the accused persons unless and until they are of such a nature which could not be caused during transactions in natural course and even if the case was not instituted on the earliest version of the deceased no prejudice is caused to the appellants and present fard-e-beyan and P.W.5 even may be treated as statement under section 161 of the Code of Criminal Procedure. 7. Out of eight witnesses P.W.2 Chandeshwar Singh has been declared hostile and P.W. 1 Gauri Shankar Singh, the witness contesting fard-e-beyan of P.W.5 after stating the details regarding family genealogy and in para – 2 stated the prosecution case as stated in the fard-e-beyan (Exhibit – 3/1) and bringing the entire to the hospital where his statement was recorded and after being acquainted of the contents he (not the witness) put L.T.I. 8. In cross examination para 16 he says that he could be able to see the occurrence from his house in spite of everything he did not bring even one Danda with him while arriving at the same. He claimed to make the statement before the police about assault by appellant Shri Bhagwan Singh by fists on stomach and chest of the deceased whereas the Investigating Officer P.W. 9 has denied. P.W. 3 namely Satyendra Kumar Singh also stated the prosecution version as per Exhibit – 3/1 and claimed to accompany the injured up to Hospital and claims to arrive at the scene at the earliest since he was at the distance of 50 yards denied any injury on the appellants but in para 10 admits filing affidavit in the case stating that neither seen nor heard about the occurrence. Thus, testimony of this witness is not acceptable. 9. Thus, testimony of this witness is not acceptable. 9. P.W.4 namely Tuntun Singh, stated the prosecution version as per Exhibit 3/1 and he too as per para 5 after viewing the occurrence from the house proceeded without any arm even a Danda, and further in para – 7 denied making statement before the police about sustaining injuries by the appellants also in the transaction initiated after hot exchange of words. In para – 8 he says that in the way to hospital he had already intimated the injured about he being one of the eye witness but Exhibit – 3 lacks his name. 10. P.W.5 namely Siya Kunwar, the informant stated the prosecution version as per Exhibit – 3/1 , cross examination (para 6). He admits regarding of statement of the injured by the police but Exhibt – 3 lacks her name. she is not even witness to the same. Further, place of occurrence situates roughly 100 to 150 yards, aware of her house and when she arrived there several persons had already arrived. She further states about the treatment provided to the injured. P.W. 6 namely Dr. Sachhidanand Singh, conducted autopsy and found the following injuries : 1. Rigor Mortis was present on all over the body. On external examination and abrasion 3” x1” was found in the wabe between index and middle finger of left hand. On internal examination – Skull – Brain & meanines were slight pale. Chest Cavity – Both lunges congested. Heart – Right chamber full left chamber empty. Abdominal cavity – Peritonial cavity full of gastric contains (semi digested and semi liquid) Stomach and oval diameter about 1 and 1½ apertured found on the left side of the stomach, gastric contents emptied into peritoneal cavity. Liver – Pale Urinary blooder contains about 100 c.c urine. All above mentioned injuries were anti mortem in nature time elapsed since death between 3 to 72 hours. And he states during cross examination that death was not caused by any injury sustained by him deceased rather it was due to Peritonitis caused by Gastric contents swelling the abdominal cavity due to rupture of stomach due to any kind of trauma, which is also possible due to taking certain kinds of drugs and his testimony finds corroboration by the statement of D.W.3 Dr. Pursottam Singh, who examined and treated the deceased right from beginning and found only three injuries but none on the stomach or chest and proved injury report Exhibit B-3 which contains in consonance with exhibit – E, the following injury sustained by the deceased: (i) Bruise 3” x 1” on right elbow anteriorly. (ii) Lacerated would –V- shape 1” long each limb 1/2 CM x skip deep on left index finger. (iii) Abrasion linear 1” long on left fore-arm. 11. P.W. 7 namely Arbind Kumar Singh also like other witnesses stated the case narrated by Exhibit 3/1. P.W.8 namely, Syama Ram the police officials recorded (Exhibit – 3) i.e. fard-e-beyan of the deceased and proved the same. He also in cross examination proved (Exhibit – E & B/4). 12. P.W.9 is Kamal Ram, Investigating Officer after recording of statement of witnesses and inspection of place of occurrence submitted charge-sheet and in cross examination also admits institution of counter case, beside submission of charge-sheet therein against the prosecution witnesses including the deceased, finding the injuries upon the appellants who on his requisitions (Exhibit C & C1) were treated in the Hospital. Further, denied the statements claimed to be made by the prosecution witnesses upon which their attention was specifically drawn during cross examination. 13. On behalf of the defence D.W.1 Dr. Surendra Kumar Prasad examined Sri Braj Kishore Singh at 4.20 p.m. and found the following injuries on the person: - 1. One tender swelling 5”x1” ½” insize over anterior part of both parietal wounds on which 1 1/2” x 1/6” lacerated wound is present. 2. One 2” in diameter tender swelling over base of right thumb. 3. Multiple 1/3”x1/6” lacerated wounds on left hand and fore-arm. 4. One 5” x 1 1/2” tender swelling over lower part of lateral aspect of right leg. 5. One bruised swelling 4”x1” over middle of front of right arm. 6. One bruised 5” x 1 1/2” bruised swelling over back of upper part of left leg. 7. One 5” x 1” tender swelling over middle of back of turn. On the same day at 4.05 p.m. he examined Sri Bhagwan Singh and found the following injuries: 1. One 1/3” x 1/3” lacerated wound over upper part of right ear pinna. 2. One tender (marked) swelling 6” in diameter over left shoulder. 3. One bruised 4”x2” swelling over right shoulder. 4. On the same day at 4.05 p.m. he examined Sri Bhagwan Singh and found the following injuries: 1. One 1/3” x 1/3” lacerated wound over upper part of right ear pinna. 2. One tender (marked) swelling 6” in diameter over left shoulder. 3. One bruised 4”x2” swelling over right shoulder. 4. One bruised 3”x1” & 1/2” swelling over right shoulder. 5. One bruised area 4”x1” over left shoulder near neck. 6. One bruised almost elliptical 4”x2” over right side of lumber reason. 7. One bruised wound 2”x1” over middle of back of turn. 14. D.W. 2 namely Murat Ram formal witness proved Exhibit – C & C/1. D.W.3 is Dr. Purshottam Singh, who examined the deceased already discussed. D.W.4 namely Deepak Rudra record keeper bringing registers from hospital at Calcutta where subsequently appellant Brij Kishore Singh was treated and D.W.5 Dr. Anand, who treated the appellant Braj Kishore Singh and found the following injuries (i) Lacerated injury 1½” in the centre of scalp which was already stitched outside. (ii) There was multiple abrasion on the hands. (iii) There was history of unconsciousness and vomiting. (iv) There was no convulsion. 15. D.W.6 is Santosh Kumar Singh son of appellant Brij Kishore Singh assisting the appellant admitted in the hospital at Kolkata. 16. From the facts and circumstances stated above, it is crystal clear that deceased in his statement (Exhibit – 3) which may be treated dying declaration since he died during treatment of injury sustained by him irrespective of the fact he died of the injury sustained or caused otherwise during treatment as indoor patient for the problems arose due to medicines or negligence etc. has not said a word about any sort of assault at any other part than his two hands, it was never complained by him to the doctor that he got any injury on any other part or any complain around, rather for the first time, after his death perhaps finding some complain of stomach pain etc. as per doctor his reluctant of some gastric problem in Exhibit – 3/1, a case has been developed about the assault on his stomach and chest by fists just to give a colour of sustaining some internal injury, but this is consistent statement of both the doctors D.W. 5 and D.W.6 that cause of oval ligature may be due to gastric problem etc. it has got no concern with the injury sustained. 17. Thus, in spite of the developed statements of the prosecution right from Exhibit 3/1 (causing no prejudice) and statement of the witnesses, it is not acceptable that deceased sustained any internal injury resulting into his death rather it appears to be a case of simple assault, in absence of anything otherwise to show injuries were grievous in nature and during treatment of the same due to acute gastric problem he had to die, such problems might have been caused due to antibiotics to sustain its effect. He might not have been provided required food or other supplements as in the opinion of the doctors cropping of such problem could be non suitability of any drug also. 18. The remaining documentary evidence by way of exhibits on behalf of the defence are not going to serve our purpose, hence, during argument nothing was addressed except conceding they are irrelevant. But, this much is evident from the materials placed that due to long disputes there was free fight between both the sides, injuries were inflicted to them and both the side got the cases instituted and the deceased died during treatment for the reasons discussed. 19. Thus, conviction of the appellants for the offences under section 304(II) of the Indian Penal Code is not sustainable, but in view of the admitted case of assault of both sides it is converted into section 323 of the Indian Penal Code and since the appellants have already spent little more than three months during trial their sentence is reduced as undergone. Accordingly, with the above modification, this appeal is hereby dismissed.