JUDGMENT : V.N. SINHA, J. Both these appeals arise out of the judgment and order dated 30th November, 1992 passed by 2nd Additional District & Sessions Judge, Siwan in Sessions Trial No. 222 of 1990/75 of 1992, whereunder the three appellants in these two appeals, i.e. accused nos. 1, 3 and 4 in the trial had been convicted for the offence under sections 302/34 of the Penal Code respectively and sentenced to suffer rigorous imprisonment for life. 2. The prosecution case, as set out in the fardbeyan of informant Rajaur Rahman, resident of Village- Jamal Hata, P.S. Husainganj, District-Siwan recorded by Sub. Inspector P.D. Pandey of Hussainganj Police Station on 10.04.1990 at 8.30 P.M. on Siwan- Siswan pitch road near Harihansh chaur (wet land), is that he is recording his fardbeyan in presence of co-villager Habib Ansari, Haider Ali and the dead body of his younger brother Safiur Rahman stating that in the same evening around 6 P.M. he broke his fast along with younger brother Safiur Rahman, sister Jaiboon Nisha, wife Amina Khatoon and Haider Ali. After about fifteen minutes around 6.15 P.M. informant came out of his house to wash his hands accused no.1 Salauddin Ansari, accused no.2 Hifzu Rahman, accused no.3 Sayeed Akhtar and accused no.4 Shakeel Ahmad began to abuse him in the name of his mother and sister. They also came near his door and asserted that they shall not only finish him but also destroy his house. The informant protested raising alarm. Hearing the alarm younger brother of the informant Safiur Rahman and Haider Ali came from inside his house and found the protest lodged by informant saying that the poultry house is being raised on their own land. Meanwhile lady inmates of the house of Salauddin Ansari began to pelt brick bats hitting the informant on his back. The informant attempted to escape but was apprehended by accused no.2, whereafter younger brother of the informant Safiur Rahman came running to rescue him but was apprehended by Akhtar and Shakeel Ahmad holding his left-right hand facilitating Salauddin Ansari to stab Safiur Rahman. on the alarm raised Habib Ansari, Bahauddin @ Bipat etc. also came, whereafter the accused persons fled away. on the alarm raised Habib Ansari, Bahauddin @ Bipat etc. also came, whereafter the accused persons fled away. Informant’s younger brother having suffered stab injury fell down at the place of occurrence whereafter the informant along with witnesses named above put his brother on a cot and brought him to Gopalpur where a tracker was arranged and while bringing him to Siwan Sadar Hospital his younger brother succumbed to the injuries near Laxmipur railway crossing around 7.30 P.M. From Laxmipur railway crossing the informant and others proceeded to the police station but in the way met the Officer Incharge and recorded fardbeyan on the road itself. In the fardbeyan informant also stated that the occurrence took place because 28 days earlier he wanted to raise a poultry house in front of his residence which was opposed by Salauddin Ansari as the poultry house was likely to obstruct frontage of his double story house. In the fardbeyan the informant also stated that on the date of occurrence also he was threatened by Salauddin Ansari around 5 P.M. while he was returning from Gopalpur with the commodities for breaking fast holding out if construction of poultry house is not stopped the same shall be destroyed. The informant further stated in the fardbeyan that accused nos. 2, 3 and 4 are nephew of accused no.1 Salauddin Ansari. In the last but one paragraph the informant claims that four accused persons with common intention to kill assaulted his younger brother Safiur Rahmam and also killed him. He also stated in the fardbeyan that having found the fardbeyan correctly recorded put his signature in presence of Habib and Haider who also put their signatures and L.T.I. respectively over the fardbeyan. The scribe of the fardbeyan forwarded the fardbeyan to Hussainganj Police station. A formal F.I.R was also drawn by the scribe on 10.04.1990 at 11.30 P.M. indicating that he has already taken up investigation. Prior thereto he conducted inquest proceeding on the dead body of Safiur Rahman on the pitch road itself at 9 P.M. in presence of Md. Ali and Molazim Ansari. Perusal of the inquest report indicates that Safiur Rahman suffered stab injury on his chest. The dead body of Safiur Rahman in the same night was sent for postmortem to Sadar Hospital, Siwan. Ali and Molazim Ansari. Perusal of the inquest report indicates that Safiur Rahman suffered stab injury on his chest. The dead body of Safiur Rahman in the same night was sent for postmortem to Sadar Hospital, Siwan. The dead body was received in the hospital on 11.04.1990 at 8 A.M., postmortem conducted between 8-8.15 A.M. on the same day. Perusal of the postmortem report also confirmed that Safiur Rahman suffered one stab injury 1 ½” x ½” thorasic cavity deep on left boarder of sternum at the level of 5th costo sternal joint. The autopsy surgeon also indicated in his report that time elapsed between death, postmortem of Safiur Rahman is within 24 hours and the cause of death is haemorrhage, shock suffered due to stab injury. Fardbeyan, statement of eye witnesses and contents of the inquest, postmortem report persuaded the investigating officer to submit charge sheet against the four accused persons named in the F.I.R. On the basis of charge sheet cognizance was taken and after supply of police papers to the four accused persons the case was committed to the court of Sessions. The Sessions Court framed charge under order dated 21.02.1991 to which the four accused persons pleaded not guilty and claimed to be tried. 3. In support of the charge prosecution has examined eight witnesses, namely, P.W. 1 Haider Ali joined the informant and the deceased along with their family members in breaking fast just before the occurrence and was first to come out of the house after the informant raised alarm. P.W. 2 Md. Ali Ansari is the witness of the inquest and has stated in his evidence that he also accompanied injured Safiur Rahman on the cot and in his presence after his death at Harihansh chaur the inquest proceeding was conducted and he also put his signature (Ext.1) over the inquest report. P.W. 3 Bahauddin Ansari is eye witness of the occurrence as he reached the place of occurrence hearing the alarm raised by informant, his brother. P.W. 4 Zahiruddin has also deposed on the same lines as that of P.W. 3. P.W. 5 Dr. S.K. Aman, Civil Assistant Surgeon, serving in the Siwan Sadar Hospital conducted postmortem on the dead body of Safiur Rahman. P.W. 6 Mazbool Nisha is the wife of the deceased and hearing alarm she also came out of the house and witnessed the occurrence. P.W. 5 Dr. S.K. Aman, Civil Assistant Surgeon, serving in the Siwan Sadar Hospital conducted postmortem on the dead body of Safiur Rahman. P.W. 6 Mazbool Nisha is the wife of the deceased and hearing alarm she also came out of the house and witnessed the occurrence. P.W. 7 Rajaur Rahman is the informant of the case. P.W. 8 Parmeshwar Dayal Pandey is the scribe of fardbeyan/F.I.R and investigating officer of the case. 4. Besides prosecution witnesses the accused persons also examined Sheo Nandan Prasad, Clerk serving in the District Jail, Siwan who has proved Exts. A and B, wherefrom it appears that the deceased was a convict and he was also remanded in some cases also. 5. Learned counsel for the appellants assailed the judgment of conviction and order of sentence not only on the point that conviction and sentence is disproportionate to the gravity of the overtact committed by the three appellants but also on merit. He submitted that if the evidence of the material prosecution witnesses right from the informant (P.W.7), wife of the deceased (P.W. 6) as also P.W. 1 who came out of the house along with the deceased hearing the alarm raised by the informant as also the evidence of wife of the deceased who came little later, is considered with objectivity by this Court, it may not be difficult for the Court to conclude that none of the prosecution witnesses are the eye witness of the occurrence. According to learned counsel the prosecution evidence is full of contradiction and is fit to be rejected and the three appellants are entitled for acquittal. Such submission we have noticed only because the learned counsel has pressed otherwise submission has no merit at all. 6. We have perused the evidence of the informant, P.W. 1, P.W. 6 who came out of the house hearing alarm raised by informant and intervened to save him. We also considered the evidence of P.Ws. 3 and 4 who came to the place of occurrence little later after hearing alarm raised by informant, deceased P.W. 1, 6. From the evidence of the informant it is very clear that he was threatened by the accused persons on the date of occurrence itself around 5 P.M. when he was returning from Gopalpur after purchasing articles required for breaking fast. From the evidence of the informant it is very clear that he was threatened by the accused persons on the date of occurrence itself around 5 P.M. when he was returning from Gopalpur after purchasing articles required for breaking fast. The informant having broken fast around 6 P.M. came out of his house to wash his mouth, hands around 6.15 P.M, the accused persons entered into altercation with him as he refused to remove the partly raised Poultry house creating obstruction in the clear view of double story house of the accused persons adjoining the house of the informant. The informant protested stating that he was raising construction in his own land and will continue with the construction which led to further altercation between them. Accused no. 1 attempted to over power the informant. The informant thereafter raised alarm, his brother Safiur Rahman deceased and P.W. 1 both came from inside the house and intervened to save the informant from assault. Meanwhile accused Shakil Ahmad @ Shakil Akhtar and Sayeed Akhtar held the right, left hand respectively of Safiur Rahman in order to facilitate accused Salauddin Ansari to inflict dagger injury in his coastal region. Further alarm was raised whereafter P.Ws. 3 and 4 also came and saw the remaining part of the occurrence. 7. Having considered the evidence, we are satisfied that the eye witnesses, namely, P.Ws. 7, 1 and 6 as also P.Ws. 3 and 4 have fully supported the occurrence and we have no reason to doubt their testimony which has been accepted by the trial court. There is however another aspect of the matter. The appellant Salauddin Ansari has inflicted one dagger blow in the coastal region of Safiur Rahman which proved fatal but the redeeming aspect is that Salauddin Ansari had occasion to repeat the blow, yet he restrained and did not inflict any further blow which is indicative of the fact that he had only intention to hurt Safiur Rahman who had come to rescue his brother, the informant (P.W. 7), who was opposing the request of Salauddin Ansari for removal of Poultry house from the land over which same was being raised to some other place as the same was obstructing the view of his double story house. Had the intention of Salauddin Ansari being to kill Safiur Rahman, Salauddin Ansari must have repeated the blow. 8. Had the intention of Salauddin Ansari being to kill Safiur Rahman, Salauddin Ansari must have repeated the blow. 8. In the circumstances, we convert conviction of appellant Salauddin Ansari from section 302 of the Penal Code to section 304 Part-II of the Penal Code and sentence him to period already undergone by him as from the records it appears that he has remained in jail custody for about four years. In our considered opinion the present case is covered under exception-4 of section 300 of the Penal Code. Other two appellants, namely, Sayeed Akhtar and Shakil Ahmad @ Shakil Akhtar having held left, right hand of the deceased had no intention to kill Safiur Rahman, therefore their conviction is also converted from section 302/34 of the Penal Code to section 324/34 of the Penal Code and sentenced to the period already undergone by them. 9. With the aforesaid modification in conviction and sentence, both the appeals are dismissed. The appellants are however discharged from the liabilities of their bail bonds.