JUDGMENT : V.N. SINHA, J. Heard learned counsel for the appellants, the State and the counsel for the informant. 2. Both these appeals arise out of judgment/ order dated 06/09.11.1992, passed by 2nd Additional District and Sessions Judge, Saran, Chapra, in Sessions Trial No. 65/91/ 52/91 whereunder Appellant Nand Dubey @ Anand Dubey (Accused No. 1) has been convicted for the offence under Section 302/109 of the Penal Code. The other two appellants, namely, Jitendra Dubey, Shashi Singh (Accused Nos. 2, 3) have been convicted for the offence under Section 302 of the Penal Code simpliciter. The three appellants have been sentenced to suffer rigorous imprisonment for life. 3. Prosecution case, as set out in the fardbeyan of the informant Saligram Singh (P.W. 3), son of Sri Gautam Singh of Village Bhairopur, P.S. Ekma, District Saran, recorded by Sub- Inspector Vishwanath Singh of Ekma Police Station on 28.08.1990 at 14.45 hours in State Dispensary, Ekma, is that on the same day around 01.30 P.M. he along with his elder brother Bhagwan Singh was returning home in village Bhairopur from Ekma market on a bicycle. No sooner they reached near the house of Yasodanand Yadav in Gopali Tola the three co-villager accused persons, namely, Nand Dubey, Jitendra Dubey and Shashi Singh appeared, surrounded them. Nandji Dubey stopped the bicycle by holding its handle. Jitendra Dubey, Shashi Singh assaulted Bhagwan Singh with dagger causing injury on his chest, head. Jitendra Dubey repeated the assault on the person of Bhagwan Singh. Informant suffered injury when he fell down from the bicycle. On alarm being raised Awadhesh Singh (P.W. 1) and Bashishth Singh (P.W. 2) sitting in the adjoining shop came running asking the passers by to catch hold the three assailants. The dagger held by Jitendra Dubey fell on the ground while he was making good his escape. The three assailants, however, succeeded in making good their escape from the place of occurrence. After sometime Bhagwan Singh succumbed to the injuries. Passers by present carried the dead body to Ekma Hospital. Medical Officer present in Ekma Hospital declared him brought dead. Reason behind the occurrence has also been disclosed in the fardbeyan as altercation took place between the parties 2-3 days earlier at the ration shop of Krishna Giri. After sometime Bhagwan Singh succumbed to the injuries. Passers by present carried the dead body to Ekma Hospital. Medical Officer present in Ekma Hospital declared him brought dead. Reason behind the occurrence has also been disclosed in the fardbeyan as altercation took place between the parties 2-3 days earlier at the ration shop of Krishna Giri. The fardbeyan statement was read over to Shaligram Singh, who having found the same to be correctly recorded put his signature over the fardbeyan in presence of Awadhesh Singh and Bashishth Narayan Singh. Scribe of the fardbeyan Sub-Inspector Vishwanath Singh conducted inquest over the dead body of Bhagwan Singh in Ekma Hospital itself on the same day at 16.00 hours in presence of Raj Kishore Singh and one another whose name is not legible in the carbon copy of the inquest report (Exhibit-6). Perusal of Exhibit-6, however, indicates that Bhagwan Singh was done to death by inflicting dagger injury on his chest. In the light of the fardbeyan First Information Report was registered on the same day at 8.30 P.M. and dispatched to the court for perusal by Chief Judicial Magistrate through special messenger, which was, however, seen by the Chief Judicial Magistrate on 30.08.1990. Post mortem report of Bhagwan Singh (Exhibit-3) indicates that the dead body was received in Sadar Hospital, Chapra on 29.08.1990 at 6.00 A.M. and post mortem conducted on the same day between 9.45-10.00 A.M. Post mortem report also confirmed that Bhagwan Singh suffered two incised wound on upper part of left forearm, arm and one penetrating wound on his chest near left nipple and the time elapsed between death and the post mortem is within 24 hours. In the light of the fardbeyan, further statement of the informant, police statement of the witnesses as also the contents of the inquest, post mortem report the Investigating Officer submitted charge-sheet against the three accused persons named in the fardbeyan, on the basis of which cognizance of the offence found true during investigation was taken. After issue of summons, appearance of the accused person and on furnishing police papers to them case was committed to the Court of Sessions. Sessions Court framed charge against the three accused persons under order dated 09.04.1991 to which the three pleaded not guilty and claimed to be tried. 4. In support of the charge prosecution examined as many as nine witnesses, out of whom P.Ws. Sessions Court framed charge against the three accused persons under order dated 09.04.1991 to which the three pleaded not guilty and claimed to be tried. 4. In support of the charge prosecution examined as many as nine witnesses, out of whom P.Ws. 1, 2 Awadhesh Singh, Bashishth Singh, the two eye-witnesses of the occurrence, who at the time of occurrence were sitting at the adjoining shop and came to the place of occurrence after alarm was raised by the informant. P.W. 3 Shaligram Singh is the informant of the case and brother of the deceased Bhagwan Singh. P.W. 4 Gautam Singh is the father of the informant and the deceased. P.W. 5 Satya Narayan Singh is an Advocate’s Clerk and appears to be a formal witness as he proved the handwriting of the Investigating Officer on the seizure memo. P.W. 6 Dr. Shaligram Vishwakarma is the Medical Officer, who conducted autopsy on the dead body of Bhagwan Singh. P.W. 7 Dr. Rajeshwar Prasad is the Medical Officer serving in Ekma Hospital and examined the informant on the date of occurrence at 9.00 P.M. P.W. 8 Vishwanath Singh is the scribe of the fardbeyan, Investigating Officer of the case and on the date of occurrence was posted as Sub-Inspector of Ekma Police Station. P.W. 9 Birendra Singh is also an Advocate’s Clerk and appears to be a formal witness and has proved the handwriting of the Investigating Officer over the formal First Information Report. 5. Besides the prosecution, defence also examined two witnesses. D.W. 1 Radha Mohan Prasad Singh is the Block Supply Officer, Ekma, who come forward to depose that Accused No. 3 Shashi Singh is not a constituent of the ration shop of Krishna Giri and in support of such fact has also produced Unit Register. D.W. 2 Awadhesh Prasad is the Crime Reader serving in the office of Superintendent of Police, Saran at Chapra and has come forward to prove the supervision report submitted by Superintendent of Police, Saran at Chapra in connection with the case. 6. Learned counsel for the appellants in both the appeals submitted that the finding of conviction recorded by the trial court does not merit acceptance by this Court, as according to learned counsel, the evidence of two eye-witnesses P.Ws. 6. Learned counsel for the appellants in both the appeals submitted that the finding of conviction recorded by the trial court does not merit acceptance by this Court, as according to learned counsel, the evidence of two eye-witnesses P.Ws. 1, 2 as also that of the informant lacks credibility and does not inspire confidence on the basis of which finding of guilt recorded against the three appellants can be accepted. In this connection, it is pointed out that P.Ws. 1, 2 came to the place of occurrence after hearing the alarm raised by the informant and others including the deceased, went with the informant, deceased and others to Ekma Hospital where in their presence fardbeyan of informant (P.W. 3) was recorded, in token of which both P.Ws. 1, 2 also put their signature over the fardbeyan. It is submitted that from the evidence of P.W. 1 in Paragraph 21 and P.W. 2 in Paragraph 11 it will appear that both admitted that they had no occasion to meet Sub-Inspector Vishwanath Singh in Ekma Hospital and if that is so then the assertion of the prosecution party that P.Ws. 1, 2 were present at the time of recording of the fardbeyan by the informant does not appear to be correct. It is submitted that if P.Ws. 1, 2 were not present in Ekma Hospital at the time of recording of the fardbeyan their signature could not have been obtained at the time of its recording and perhaps to obtain the signature of both P.Ws. 1, 2 over the fardbeyan dispatch of First Information Report was delayed even after the same was drawn on 28.08.1990 at 8.30 P.M. and that is why First Information Report of the instant case (Exhibit-8) was perused by Chief Judicial Magistrate, Saran at Chapra on 30.08.1990. 1, 2 over the fardbeyan dispatch of First Information Report was delayed even after the same was drawn on 28.08.1990 at 8.30 P.M. and that is why First Information Report of the instant case (Exhibit-8) was perused by Chief Judicial Magistrate, Saran at Chapra on 30.08.1990. It is further pointed out that even presence of the informant Shaligram Singh (P.W. 3) at the time of recording of the fardbeyan in Ekma Hospital is doubtful, as on his own showing he suffered injury after falling down from the bicycle while his elder brother Bhagwan Singh was being assaulted but informant was examined by the doctor at 9.00 P.M. on the date of occurrence in Ekma Hospital and not at the time of recording of the fardbeyan at 14.45 hours in the hospital, which is indicative of the fact that for his examination alone he went to the hospital again in the night though did not choose to get examined at the time when he recorded the fardbeyan in the same hospital at 14.45 hours. 7. Counsel for the State and the informant, however, have supported the judgment and submitted that P.Ws. 1, 2 have categorically deposed in their evidence in the paragraphs referred to above that they had no occasion to meet Sub-Inspector Vishwanath Singh of Ekma Police Station in Ekma Hospital on 28.08.1990, as such, their presence at the hospital may be doubtful, but the informant having categorically stated, lodged the fardbeyan in Ekma Hospital on 28.08.1990 at 14.45 hours, his presence at the said hospital cannot be disputed only for the reason that he has chosen to appear for his own examination by the doctor on the same day at 9.00 P.M. In this connection, both the lawyers pointed out that the informant having suffered death of his brother and himself suffered minor injury in the nature of bruise, abrasion in spite of being present at the hospital while recording the fardbeyan may not have chosen to get his injury examined by doctor (P.W. 7) of Ekma Government Hospital at the time of lodging fardbeyan. 8. Scribe of the fardbeyan, Investigating Officer of the case (P.W. 8) has categorically asserted in his evidence that the occurrence having taken place within 500 meters of the hospital campus the injured Bhagwan Singh was carried to the hospital soon after the occurrence by his brother (informant) and other passers by present there. 8. Scribe of the fardbeyan, Investigating Officer of the case (P.W. 8) has categorically asserted in his evidence that the occurrence having taken place within 500 meters of the hospital campus the injured Bhagwan Singh was carried to the hospital soon after the occurrence by his brother (informant) and other passers by present there. Injured, however, was declared brought dead by the doctor who examined him in the hospital. In the heat of moment, it is just possible that informant may not have cared for examination of his injuries by the doctor who declared his elder brother brought dead, in the circumstances, we have no reason to disbelieve the contents of the fardbeyan lodged by P.W. 3, as we are satisfied from his evidence that he accompanied his brother at the time of occurrence on the bicycle and also went along with him to Ekma Hospital, lodged the fardbeyan at 14.45 hours. The occurrence, assault as narrated, deposed by the informant in the fardbeyan and in the court even if true the conviction of the three appellants, Accused No. 1 Nand Dubey @ Anand Dubey for the offence under Section 302/109 I.P.C. and Accused Nos. 2, 3 for the offence under Section 302 I.P.C. is not warranted in view of the fact that appellant Nand Dubey @ Anand Dubey (Accused No. 1) has not played any dominant part in the assault on the person of Bhagwan Singh and is acquitted. Appellant Jitendra Dubey (Accused No. 2) though repeated the assault by a traditional weapon dagger but only one injury being on the vital part his conviction is altered from Section 302 to Section 304 Part I I.P.C and as he has already remained in jail custody for about 10 years his sentence is also altered from rigorous imprisonment for life to the period already undergone by him. Appellant Shashi Singh (Accused No. 3) inflicted injury on the deceased on his waist, which is simple in nature, as such, his conviction is converted from Section 302 to one under Section 324 I.P.C. and is also sentenced to the period already undergone by him. 9. In the result, both the appeals are dismissed with the modification in conviction and sentence. Appellants Nand Dubey @ Anand Dubey, Shashi Singh and Jitendra Dubey are discharged from the liability of their respective bail bond.