SAMARENDRA PRATAP SINGH, J.:–Both the appeals arise out of judgment of conviction dated 05.09.2012 and order of sentence, dated 06.09.2012, passed by learned Additional Sessions Judge, Rosera, district Samastipur in Sessions Trial No. 382 of 2010, arising out of Bibhutipur Police station Case No. 88 of 2009. 2. As per the aforesaid judgment, appellants have been convicted and sentenced in following way:— (a) Sole appellant Lal Babu Sahni (of Cr.Appeal(DB) No.1028 of 2012) has been convicted under sections 302, 148, 147 and 448 of the Indian Penal Code. For the offence u/s 302 IPC, he has been sentenced to undergo imprisonment for life with a fine of Rs.5000/- and in default to undergo simple imprisonment for one year. He has been further sentenced to undergo simple imprisonment of two years for the offence under sections 148 IPC; simple imprisonment of one year for offence under section 147 IPC; and simple imprisonment of six months for offence under section 448 IPC. (b) Appellants Rajo Sahni, Jathu Sahni, Kailash Sahni, Chhote Lal Sahni, Gore Lal Sahni, Jangi Lal Sahni, Jageshwar Sahni have been convicted under sections 302/149, 147 and 448 of the IPC. For the offence u/s 302/149 IPC, they have been sentenced to undergo imprisonment for life with a fine of Rs.5000/- and in default to undergo simple imprisonment for one year. They have been further sentenced to undergo simple imprisonment for one year for the offence under sections 147 IPC; simple imprisonment of six months for offence under section 448 IPC. (c) Appellants Binda Sahni and Asharfi Sahni have been convicted under sections 302/149, 147, 448 and 323 of the IPC. For the offence u/s 302/149 IPC, they have been sentenced to undergo imprisonment for life with a fine of Rs.5000/- and in default to undergo simple imprisonment for one year. They have been further sentenced to undergo simple imprisonment of one year for the offence under sections 147 IPC; simple imprisonment of six months for offence under section 448 IPC; and simple imprisonment of six months for offence under section 323 IPC. (d) All the sentences were directed to run concurrently. 3. They have been further sentenced to undergo simple imprisonment of one year for the offence under sections 147 IPC; simple imprisonment of six months for offence under section 448 IPC; and simple imprisonment of six months for offence under section 323 IPC. (d) All the sentences were directed to run concurrently. 3. The prosecution case, as set out in the fard beyan (exhibit 4) of Rita Devi (PW 5), wife of deceased Vinod Sahni, recorded by Sub inspector B.D.Ram of Bibhutipur Police Station on 22.03.2009 at 5.45 AM, is as follows:— (a) Informant stated that on 21.03.2009 at about 7.30 PM, her husband Vinod Sahni was sitting at his house for taking meal. In the meantime, co-villagers Lal Babu Sahni having sabal (iron rod with sharp edge for digging soil), Rajo Sahni, Jathu Sahni, Jangi Lal Sahni, Ashrfi Sahni, Vinod Sahni and Jageshwar Sahni, all variously armed, came at her house. (b) Accused persons threatened informant’s husband stating that he has purchased land and has also lodged a case, and if, he does not compromise, he would not be allowed to reap the benefits. (c) When informant’s husband protested, accused Lal Babu Sahni ordered to kill him, whereupon, all the accused began to assault him. In the meanwhile, accused Lal Babu Sahni assaulted the informant’s husband on his head by sabal, who fell down on the ground. Blood too oozed from his head. When the informant came for rescue, accused Binda Sahni caught her hair and pushed her on the ground. (d) The informant took her injured husband to the Dalsingsarai Hospital, where the doctors declared him brought dead. (e) The informant claims that land dispute and refusal of the deceased to compromise the case with the accused is cause of the incident. 4. The prosecution, in support of its case, has examined altogether nine witnesses. Out of which, PW 10 Jageshwar Sahni is a formal witness who has proved the fard beyan of informant as exhibit 4. 5. PW 2 (Ram Pramod Sahni) is brother of deceased Vinod Sahni. He stated that the occurrence took place two and a half years back in the night at 7.30 PM. He stated that at the relevant time he was in his courtyard. Accused persons, namely, Lal Babu Sahni, Rajo Sahni, Gorelal Sahni, Kailash Sahni, Binda Sahni, Jageshwar Sahni, Jangilal Sahni, armed with lathi, farsa and sabal etc. arrived there. He stated that the occurrence took place two and a half years back in the night at 7.30 PM. He stated that at the relevant time he was in his courtyard. Accused persons, namely, Lal Babu Sahni, Rajo Sahni, Gorelal Sahni, Kailash Sahni, Binda Sahni, Jageshwar Sahni, Jangilal Sahni, armed with lathi, farsa and sabal etc. arrived there. Accused Lal Babu Sahni was armed with sabal; Asharfi Sahni was armed with farsa, the rest were armed with lathi. The accused persons were saying that his brother Vinod Sahni had purchased land and he should compromise the case, otherwise he would not be permitted to utilize the land. However, Vinod Sahni reminded them that he has purchased the land after making due payment. Thereafter, on order of accused Lal Babu Sahni, other accused started assaulting his brother by means of lathi. Accused Lal Babu Sahni hurled sabal blow on the head of his brother causing head injury. PW 2 has further stated that when his Bhabhi PW 5 (Rita Devi) came to rescue his brother, she too was assaulted. Accused Binda Sahni caught her hair and pushed her on the ground. He has further deposed that when his father PW 3 Mahendra Sahni went to save him, accused Asharfi Sahni assaulted him by farsa. Thereafter, Vinod Sahni was taken to Dalsingsarai Hospital, but he died on the way. This witness has identified the fard beyan as exhibit 2. He stated that Daroga jee prepared Inquest report of dead body of deceased in his presence and he put his signature on the said Inquest report which has been marked as exhibit 3. 6. In the cross-examination, he stated that when his Bhabhi had gone to save her husband Vinod Sahni, accused persons also assaulted her. Besides this, accused Asharfi Sahni assaulted PW 3 (Mahendra Sahni) with farsa, as he tried to save Vinod Sahni. He stated that accused Asharfi Sahni was armed with farsa; accused Lal Babu Sahni armed with sabal and other accused persons were armed with lathi etc. 7. Though, this witness has been examined at length, the defence has not been able to elicit anything material to render his testimony unworthy of reliance. 8. PW 3 (Mahendra Sahni) is the father of the deceased. He stated that the occurrence took place 2 ½ years ago at about 7.30 PM. 7. Though, this witness has been examined at length, the defence has not been able to elicit anything material to render his testimony unworthy of reliance. 8. PW 3 (Mahendra Sahni) is the father of the deceased. He stated that the occurrence took place 2 ½ years ago at about 7.30 PM. He stated that on the said day, his son Vinod Sahni was taking meal on Varandah. At that time, accused Lal Babu Sahni and nine others armed with sabal, lathi came to his house. Accused Lal Babu Sahni was having sabal in his hand and Asharfi was having farsa in his hand and others were carrying lathi. He stated that accused Lal Babu Sahni dragged Vinod Sahni and gave a sabal blow on his head on account of which, he fell on the earth. Thereafter, his daughter-in-law (PW 5) Rita Sahni went to save him, who too was assaulted by accused Binda Sahni. Other accused persons also assaulted Vinod Sahni by lathi. He further stated that he took his son Vinod Sahni and daughter-in-law to Dalsingsarai Hospital, where the doctor declared his son dead. He further stated that when he tried to save Vinod Sahni, the accused Asharfi Sahni also caused injuries by farsa on his eyes and fore arm. 9. In the cross-examination, PW 3 stated that the occurrence took place, when his son was taking meal at about 7.30 PM, at which time he was also present at the doors of his house. He stated that on the date of incident, his son PW 2 (Ram Pramod Sahni) was in his Sasural and he returned to the house same day at about 11 PM on the information sent to him by telephone. 10. According to this witness, PW 2 (Ram Pramod Sahni) is not an eye witness to the occurrence. Again the defence has not been able to elicit any material to discredit the evidence on the point of causing injury on the head of deceased by accused Lal Babu Sahni. 11. PW 4 Babloo Kumar is son of informant and is also son of deceased Vinod Sahni. He stated that the occurrence took place 2 ½ years ago at about 7.30 PM. At the time of occurrence, he was at his house and his father Vinod Sahni was taking meal and accused Lal Babu Sahni assaulted on his head by sabal causing head injury. He stated that the occurrence took place 2 ½ years ago at about 7.30 PM. At the time of occurrence, he was at his house and his father Vinod Sahni was taking meal and accused Lal Babu Sahni assaulted on his head by sabal causing head injury. He stated that his mother went to save, accused Binda Sahni caught her hair and assaulted her. His father was taken to Dalsingsarai Hospital, where he died. 12. This witness, in his cross-examination, stated that he did not tell Daroga jee that at the time of occurrence, he was at his doors and not in his court yard. However this fact is not been confirmed by the Investigating officer or by the defence. 13. PW 4 (Rita Devi) is the informant of the case and wife of the deceased. She stated that occurrence took place about 5 ½ years back at about 7.30 PM. At that time, she had come to her courtyard to serve food to her husband. In the meanwhile, accused Lal Babu Sahni, Gorelal Sahni, Chhote Lal Sahni, Jangi Lal Sahni, Jagaeshwar Sahni, Binda Sahni, Jathu Sahni, Kailash Sahni and Rajo Sahni, all forming a common intention, came to her darwaja (door) and asked her husband as to why he has got the sale deed executed in his favour. To the query of Lal Babu Sahni, her husband replied that he had got the land registered after payment of consideration amount, whereupon accused Lal Babu Sahni ordered accompanying accused persons to kill him. All the accused persons started to assault her husband. Accused Lal Babu Sahni gave sabal blow on the head of her husband. Accused Asharfi Sahni was armed with country made pistol. When, she tried to save her husband, she was also struck three to four lathi blows on her head. One of the accused, Binda Sahni caught her hair and assaulted her. Asharfi Sahni assaulted her father-in-law Pw 3 (Mahendra Sahni) with katta (country made pistol) near his eyes. Her husband was carried to Dalsingsarai Hospital, where the doctor declared her husband dead. Daroga Jee took her statement in presence of PW 3 (Mahendra Sahni) and Ram Pramod Sahni (PW 2). She along with her father-in-law were treated at Bibhutipur Hospital. She stated that the occurrence took place because her husband had got the land executed in his favour. 14. Daroga Jee took her statement in presence of PW 3 (Mahendra Sahni) and Ram Pramod Sahni (PW 2). She along with her father-in-law were treated at Bibhutipur Hospital. She stated that the occurrence took place because her husband had got the land executed in his favour. 14. PW 4 in the cross-examination stated that on hulla when she rushed to the darwaja, she saw the injuries near the eyes and forehead of her father-in-law Mahendra Sahni. Though, this witness has been cross examined at length, the defence has not been able to elicit any material contradictions from her. 15. PW 7 Dr. Vinod Kumar Satra was posted at Primary Health Center, Bibhutipur as Medical officer on 22.3.2009 and on the said day he examined PW 3 (Mahendra Sahni) and found following injuries on his persons:— (i) Abrasion of about 1” on right check. (ii) Diffused swelling around right eye. (iii) Abrasion of about 2” on right forearm. (iv) Diffused swelling on middle thigh. According to him, the injuries were simple in nature caused by hard and blunt substance. This witness has proved the injury report of PW 3 (Mahendra Sahni) which has been marked as exhibit 7. 16. PW 7 (Dr. Vinod Kumar Satra) also examined Rajiya Devi (not examined in the case) on 22.3.1999 and found one diffused swelling and two abrasions on her body. Both injuries were found to be simple in nature. He proved the injury report of Rajiya Devi, which is marked as exhibit 7/1. 17. PW 7, in his cross-examination, has stated that the injuries found on the body of both the injured, namely, PW 3 (Mahendra Sahni) and Rajiya Devi, were superficial in nature and can be manufactured also. 18. PW 9 Dr. Pursottam Kumar in his evidence stated that on 22.3.2009, he was posted as Medical officer at Sadar Hospital, Samastipur. On the relevant day, he performed post mortem examination on the dead body of Vinod Sahni and found following ante mortem injuries on his body:— (i) Two abrasions over right shoulder superiorly size 1” x 1” -1 cm x ½ cm. (ii) Bleeding from both nostrils (iii) Lacerated wound over frontal parietal region in mid-line longitudinally size 3 ½” x ½” x bone deep (iv) On dissection:- scalp:- subcutaneous haemotoma found over fight side of forehead. (v) on further deep dissection:- Fracture of frontal and parietal bone fond in mid-line longitudinally. (ii) Bleeding from both nostrils (iii) Lacerated wound over frontal parietal region in mid-line longitudinally size 3 ½” x ½” x bone deep (iv) On dissection:- scalp:- subcutaneous haemotoma found over fight side of forehead. (v) on further deep dissection:- Fracture of frontal and parietal bone fond in mid-line longitudinally. (vi) Brain cavity contains blood and haemotoma and meninges fond lacerated. According to him, cause of death was haemorrahage and shock produced by above mentioned injuries, especially wound no. (iii). He proved the post mortem report marked as exhibit 8. 19. PW 8 (Dr. Hemant Kumar Singh) in his examination has said that on 22.3.2009, he was posted as Medical officer, Sadar Hospital, Samastipur and he supervised the post mortem examination conducted by Dr. Pursottam Kumar on the dead body of Vinod Sahni. 20. PW 6 (Md. Sanobar Khan) is the investigating officer of this case. He stated that on 22.3.2009, he was posted as Officer in charge of Bibhutipur police station. On the same day Rita Devi gave her fard beyan, which was recorded by Sub inspector B.D.Ram. He has identified and proved the fard beyan of Rita Devi as exhibit 4. On basis of the fard beyan, a formal FIR, being Bibhutipur Police station Case No. 44 of 2009 was registered. In course of investigation, he prepared the inquest report of the dead body of Vinod Sahni in presence of witness Shankar Prasad and Pramod Sahni and both of them signed on the said inquest report. This witness has proved the inquest report which has been marked as exhibit 5. He then inspected the place of occurrence and seized blood stained soil, and sabal, said to be used in commission of murder, and made seizure list. He proved the seizure list which has been marked as exhibit 6. He obtained injury reports of Rajiya Devi and Mahendra Sahni and also obtained post mortem report of deceased. According to him, the place of occurrence is sahan (court yard) of the deceased Vinod Sahni, where he was taking his meal. The main door of the house was opened in west and one could enter the court yard, after entering into main door from the west. He recorded restatement of PW 4 (Rita Devi) and also took statement of Rajiya Devi (not examined), Anita Devi (not examined), Shankar Sahni (not examined), Mahesh Sahni (PW 3), Babloo Kumar (PW 4). The main door of the house was opened in west and one could enter the court yard, after entering into main door from the west. He recorded restatement of PW 4 (Rita Devi) and also took statement of Rajiya Devi (not examined), Anita Devi (not examined), Shankar Sahni (not examined), Mahesh Sahni (PW 3), Babloo Kumar (PW 4). After receipt of the post mortem report, and the injury report he submitted charge sheet under sections 127, 323, 302/307 and 448 of the IPC. 21. In the cross examination, PW 6 admitted that he had not sent the seized blood soaked earth for examination. He also stated that he had not investigated the case from the angle of land dispute. Even seized articles (blood soaked earth and sabal) were not produced by the investigating officer in the court. 22. Mr. Suraj Narayan Prasad Sinha, learned Senior counsel appearing on behalf of appellant Lal Babadur Sahni (Cr.Appeal (DB) No.1028 of 2012) submits that even as per prosecution case there is allegation against him of giving one sabal blow on the head of the deceased. There was no repetition of blow and thus there was no intention on part of the appellant to cause death, as such at the maximum, the case would fall under section 304 Part II of the IPC. In support of his submission, leaned counsel has relied upon a decision in case of Sarup Singh Vs. State of Haryana, reported in (2009)16 SCC 479 . 23. Mr. Kanhaiya Prasad Singh, learned Senior counsel appearing on behalf of appellants Rajo Sahani, Jathu Sahani, Kailash Sahani, Asharfi Sahani, Binda Sahani, Chhote Lal Sahani, Jageshwar Sahani, Jangi Lal Sahani and Gorelal Sahani (Cr. Appeal (DB) No.950 of 2012) submits that none of the prosecution witnesses have alleged that these appellants, though armed, even touched the deceased much less assaulted him. Mere presence of the appellants on the spot without any overt act would not be sufficient to hold them guilty under sections 302/149 IPC. He further submits that even accused Binda Sahni would not be liable for the offence under sections 147, 338, 323 IPC as the injury report falsifies the allegation that he assaulted Mahendra Sahani by farsa near his eyes, as the doctor has found only one simple injury on his person caused by hard and blunt substance. Furthermore, there is no injury report of Rajiya Devi on record. 24. Furthermore, there is no injury report of Rajiya Devi on record. 24. It would appear from the evidence discussed above that PW 2 (Ram Pramod Sahni), PW 3 (Mahendra Sahni) and PW 5 (Rita Devi), the informant are the eye witnesses of the occurrence. According to them, all the appellants, variously armed, entered into the court yard, on entering so, appellant Lal Babu Sahni enquired from her husband as to why he got executed in his favour, to which Vinod Sahni replied that he purchased the land after making due payment of consideration amount. Being aggrieved, accused Lal Babu Sahni assaulted Vinod Sahni on head with sabal causing fracture injury. PW 9 Dr. Purusottam Kumar, who conducted post mortem examination on the dead body of the deceased, found (a) two abrasions over right shoulder of size 1” x 1’- 1 cm x ½ cm and (b) lacerated wound over frontal parietal region in mid-line longitudinally size 3 ½” x ½” x bone deep. According to him, cause of death was haemorrahage and shock produced by lacerated wound over frontal parietal region in mid-line longitudinally size 3 ½” x ½” x bone deep. Though it is established that firing made by Lal Babu Sahni killed the deceased. It also appears that occurrence took place on heat of the moment and they had no intention to kill the deceased. 25. In the circumstances, we convert the conviction of appellant Lal Babu Sahni (Cr.Appeal (DB) No.1028 of 2012) dated 05.09.2012 to one under section 304 Part I of the IPC from under section 302 of the IPC. 26. Learned counsel for the appellants submits that the appellant Lal Babu Sahni has already put in nine years in custody, as such, the order of sentence dated 06.09.2012 may be reduced/modified to the period already undergone by him in custody. 27. We consider that it would meet the ends of justice if the sentence of the appellant Lal Babu Sahni is reduced/modified to the period already undergone in custody by him. 28. So far as appellants Rajo Sahani, Jathu Sahani, Kailash Sahani, Asharfi Sahani, Binda Sahani, Chhote Lal Sahani, Jageshwar Sahani, Jangi Lal Sahani and Gorelal Sahani (of Cr. 27. We consider that it would meet the ends of justice if the sentence of the appellant Lal Babu Sahni is reduced/modified to the period already undergone in custody by him. 28. So far as appellants Rajo Sahani, Jathu Sahani, Kailash Sahani, Asharfi Sahani, Binda Sahani, Chhote Lal Sahani, Jageshwar Sahani, Jangi Lal Sahani and Gorelal Sahani (of Cr. Appeal (DB) No. 950 of 2012) are concerned, we find that there is no allegation against them, save and except, of being present variously armed with weapons, and there is no allegation of overt act against them. In our view, mere presence on the spot without any overt act, though armed with weapon, would not be sufficient in itself to hold them guilty under sections 302/149 IPC. 29. Furthermore, there is no material to hold Binda Sahni guilty under sections 448 and 323 of the IPC, as medical report does not support the allegation that he assaulted PW 3 (Mahendra Sahni) with farsa near his eyes, as the injury sustained by him was found to be simple caused by hard and blunt substance. 30. As such, the conviction and sentence dated 05.09.2012/ 06.09.2012, awarded to the appellants (of Cr. Appeal (DB) No. 950 of 2012) under sections 302/149, 147, 448 and 323 of is set aside and they are acquitted of the charges and conviction. 31. In the result, Cr. Appeal (DB) No.1028 of 2012 is partly allowed with the modification of conviction and sentence as indicated above. Accordingly, he is directed to be released forthwith. 32. Cr. Appeal (DB) No.950 of 2012 is allowed. It appears that all the nine appellants of this appeal are on bail vide order of this Court dated 27.09.2012, passed in Cr. Appeal (DB) No.950 of 2012, therefore, they are discharged from the liabilities of their bail bonds.