JUDGMENT : Navaniti Prasad Singh, J. This appeal was originally filed by nine appellants. A supplementary affidavit has been filed today stating and annexing information with regard to death of appellant no. 4 Rabishankar Pandey @ Ravi Panday, appellant no. 5 Dipnath Pandey and appellant no. 9 Mahender Pandey who were said to have died during pendency of this appeal. We have considered the matter. The appeals, in so far as the said three appellants are concerned, would be deemed to have abated as such. 2. This appeal is against the judgment of conviction and order of sentence dated 11.10.1991 passed by the learned 5th Additional Sessions Judge, Arrah in Sessions Trial No. 264 of 1985 whereby the appellant no. 6 Chintesh Pandey has been convicted for the offence punishable under Sections 304 Indian Penal Code (hereinafter in short IPC) and 148 IPC and he has been sentenced to undergo rigorous imprisonment for life under Section 304 IPC but no separate sentence was awarded to him under Section 148 IPC. Appellant nos. 2, 3, 5, 7, 8, and 9, namely, Chutur Pandey, Sheobihari Pandey, Dipnath Pandey, Satendra Pandey, Bangala Pandey and Mahender Pandey respectively were convicted for the offence punishable under Sections 307, 148 and 147 IPC and sentenced to undergo rigorous imprisonment for eight years each under Section 307 IPC but no separate sentence was awarded to them under Sections 148 and 147 IPC. Appellant No. 1 and 4, namely, Bishun Rai and Rabishankar Pandey @ Ravi Panday were convicted for the offence punishable under Sections 307, 323 and 147 IPC and sentenced to undergo rigorous imprisonment for six years each under Section 307 IPC and rigorous imprisonment for one year each under Section 323 Indian Penal Code with the sentences to run concurrently. However, no separate sentence under Section 147 IPC was awarded to them. 3. It may be noted here that originally, in the trial, there were 12 persons who were charged and tried. One Dev Nandan Pandey, who is alleged to be the order giver, died during the pendency of the trial itself. Two of the accused persons i.e. Sachidanand Pandey and Chand Govind Pandey have been acquitted. Three others, as noted earlier, have died during the pendency of this appeal. Thus, out of 12 accused put on trial, this appeal is for consideration of conviction and sentence of six persons, namely, appellant nos. Two of the accused persons i.e. Sachidanand Pandey and Chand Govind Pandey have been acquitted. Three others, as noted earlier, have died during the pendency of this appeal. Thus, out of 12 accused put on trial, this appeal is for consideration of conviction and sentence of six persons, namely, appellant nos. 1, 2, 3, 6, 7 and 8 only. 4. The prosecution case is based upon the fard-beyan of Raghubir Pandey (PW 7) as recorded on 20.3.1984 at 9.00 am in Arrah Sadar Hospital. It alleges that at about 8.00 pm on 19.3.1984, Bishun Rai, the servant of the informant, came running to the house. He was being chased by another Bihun Rai who was the servant of the accused persons. It was disclosed that the servant of the informant had found Bishun Rai, the servant of accused, trying to cut standing wheat crop from the lands of the prosecution party, when objected, he was being chased allegedly to be killed. The informant protested on which Bishun Rai, the servant of the accused, returned. Ten minutes later all the accused persons some of them armed with Bhala and lathi and some empty handed came. They started assaulting Bishun Rai, the servant of the informant, for being loyal to the informant. Appellant Chintesh Pandey is said to have given a Bhala blow near the abdomen of Bishun Rai, the servant of the informant, puncturing his abdomen. He fell down with his intestine protruding. The rest of the people variously assaulted one and other and when the wife of the informant came, she was also assaulted by lathi. The accused persons then retreated. Bishun Rai then was carried to Arrah Sadar Hospital where he received primary treatment and was referred to Patna Medical College & Hospital (hereinafter referred to as PMCH). He was brought there and admitted in the surgical ward. He was operated upon and then, having fully recovered was discharged. But, immediately thereafter, he complained of pain in the abdomen. He rushed to PMCH again where, after four days, he died. The Police investigated the case and submitted chargesheet under Section 304 of the Indian Penal Code so far as appellant Chintesh Pandey is concerned and under Sections 307/149 of the Indian Penal Code and other Sections so far as others are concerned. He rushed to PMCH again where, after four days, he died. The Police investigated the case and submitted chargesheet under Section 304 of the Indian Penal Code so far as appellant Chintesh Pandey is concerned and under Sections 307/149 of the Indian Penal Code and other Sections so far as others are concerned. The case was committed to the Court of Sessions where charges were framed against the appellants, who pleaded not guilty and required to be tried. 5. In order to establish the prosecution case, the prosecution has examined 10 witnesses. The informant Raghubir Pandey is PW 7, his son Yogendra Pandey is PW 6, his wife Chandrawati Devi is PW 4. PWs 1, 2 and 3 are also agnates. It may be relevant to note here that so far as the prosecution side and the accused persons are concerned, they are all close agnates except the appellant Bishun Rai who is their servant. 6. We have perused the evidence as laid on behalf of the prosecution. The evidence is consistent that there was an allegation made by Bishun Rai, the servant of the informant, upon the servant of the accused persons another Bishun Rai that he was wrongfully cutting the wheat crop of the informant. When it was protested, he was chased by the appellant Bishun Rai. He was reprimanded by the informant. Ten minutes later, the accused persons wielding lathi and Bhala came and started assaulting the informant and his family members. Chintesh Pandey allegedly, gave Bhala blow on the abdomen of Bishun Rai which cut his abdomen and his intestine came out. He fell down unconscious. It is not in dispute that he was then, brought to Arrah Sadar Hospital where the fard-beyan was recorded upon the statement of the informant (PW 7). The injured was then, referred to PMCH where he was admitted and operated upon and thereafter, discharged having been made fully recovered. Photo copy of the bed head ticket has been brought on record as Ext. 9 to Ext. 9/12. It has been proved by PW 10 Tarkeshwar Prasad a “Taiyd”. We are surprised as to how this was permitted by the court. Firstly, how can a photo copy of a bed-head ticket be permitted to be led in evidence. Then, how was the “Taiyd” competent to prove the same. To us neither was permissible. 9 to Ext. 9/12. It has been proved by PW 10 Tarkeshwar Prasad a “Taiyd”. We are surprised as to how this was permitted by the court. Firstly, how can a photo copy of a bed-head ticket be permitted to be led in evidence. Then, how was the “Taiyd” competent to prove the same. To us neither was permissible. However, the defence has not raised any objection rather they have relied on it in the sense that the injury had been fully treated and Bishun Rai was discharged upon fully recovered. Subsequently, he had pain in the abdomen for which he was re-admitted to PMCH and he died because of “Pulmonary Embolism”. It is submitted that the death was thus, not because of the Bhala injury. The defence has also relied upon Ext. 3, the death certificate issued by the doctor at PMCH which states the death was because of cardiac respiratory failure. There was no post mortem of Bishun Rai. Obviously, because the death was not because of any injury but because of post recovery surgical complications. 7. PWs 8 and 9 are the two investigating officers. PW 8 Niranjan Prasad Singh is of some importance inasmuch as in his cross-examination he has admitted that when Bishun Rai was admitted to PMCH, the second time, he had gone to PMCH, finding Bishun Rai in a critical state, had requested for a Magistrate to be deputed to record his statement. He has further admitted that a Magistrate had been assigned who had recorded the statement of Bishun Rai at PMCH soon whereafter, Bishun Rai died. That statement would be a dying declaration of Bishun Rai. The same was copied in the case diary but has been withheld by the prosecution. Learned APP is unable to explain why the said dying declaration was withheld from the Court. On the other hand learned counsel for the appellants submits with reference to the deposition of PW 8, the I.O., that the dying declaration virtually falsifies the accusation against the appellants. Bishun Rai clearly states that it being a dark night, he did not see as to who assaulted him with Bhala. He could not identify any of the accused persons as being present when the fight took place. He does not name any of the accused persons. Bishun Rai clearly states that it being a dark night, he did not see as to who assaulted him with Bhala. He could not identify any of the accused persons as being present when the fight took place. He does not name any of the accused persons. Learned counsel for the appellants further submits that before the trial court once this much evidence came on record, the defence filed petition that the Magistrate who recorded dying declaration be summoned and in the interest of justice be examined as a court witnesses, if prosecution does not examined him as a prosecution witness. With reference to the order sheet of the Sessions Court, it is shown that summons were indeed issued to the Magistrate but without waiting for his appearance, the trial was concluded. Learned counsel for the appellants submits that this is sufficient to acquit the appellants. It is further submitted that even if the prosecution evidence is accepted, then, so far as Chintesh Pandey is concerned, at best, it can be alleged against him that he had given a singular Bhala blow to Bishun Rai, even though Bishun Rai himself does not say so. From this it cannot be inferred that there was any intention to kill because, in fact, Bishun Rai did not die because of the injury. He died having recovered from the injury because of a different cause. Thus, no case under Section 304 IPC would be made out as against him. 8. We are unable to accept the same on the facts as has been brought on the record and proved by the prosecution. Appellant Chintesh Pandey cannot escape conviction under Section 304 Part II of the Indian Penal Code. So far as the other appellants are concerned, learned counsel for the appellants is correct that there is no justifiable evidence holding them guilty under Sections 307/149 of the Indian Penal Code. From the evidence of the prosecution itself, the object was to beat Bishun Rai, the servant. The two groups of close agnates, then, got into a fight. Defence is that the accused persons also received injuries, namely, appellant Mahendra Pandey and appellant Dip Nath Pandey whose injuries are substantiated by DW 1 and DW 2 the doctors who examined them at Koilwar Hospital and the injury reports have been brought on record. The two groups of close agnates, then, got into a fight. Defence is that the accused persons also received injuries, namely, appellant Mahendra Pandey and appellant Dip Nath Pandey whose injuries are substantiated by DW 1 and DW 2 the doctors who examined them at Koilwar Hospital and the injury reports have been brought on record. It was two groups of close agnates who got into a spontaneous fight, there was no pre-meditation, nor evidently any intention to kill. The injuries on the prosecution are all simple except two small injuries which have been termed as grievous as they are on the face. They are simple cut injuries. Taking entire evidence, it is clear that really no intention to kill can at all be attributed in such a fight amongst close agnates. We are of the opinion that at best they can be, apart from Chintesh Pandey, held guilty only under Sections 325/149 of the Indian Penal Code. Thus, in our view, the conviction of Chintesh Pandey under Section 304 Part II of the Indian Penal Code cannot be interfered with but so far as others are concerned, their conviction under Sections 307/149 Indian Penal Code cannot be sustained. The charge is accordingly, altered to that under Section 325 IPC read with Section 149 IPC. The judgment of trial court stands modified, accordingly, so far as conviction is concerned. 9. Now coming to sentence. The incident took place on 19.3.1984 i.e. more than 30 years back. It was an instantaneous dispute between close agnates where one of the servants received grievous injury and subsequently died because of purely surgical complications. Out of 12 people who were put on trial, only six appellants are left. Two have been acquitted, four have already died. No useful purpose would be served by further sentencing the appellants. The relationship which soured at the time of occurrence, might have been healed by the passage of these years. By sending them to jail, once again would be counter productive in the peculiar facts noted above. 10. Accordingly, having considered the matter, though upholding the conviction of Chintesh Pandey under Section 304 Part II of the Indian Penal Code and convicting others under Sections 325/149 Indian Penal Code, we deem fit and proper in the facts noted above, that the sentences be limited to the period already suffered by them and undergone by them as such. 10. Accordingly, having considered the matter, though upholding the conviction of Chintesh Pandey under Section 304 Part II of the Indian Penal Code and convicting others under Sections 325/149 Indian Penal Code, we deem fit and proper in the facts noted above, that the sentences be limited to the period already suffered by them and undergone by them as such. They would, thus, not be required to surrender in the court below. With the aforesaid modification in the conviction and sentence, this appeal stands dismissed. Appeal dismissed.