ANJANA PRAKASH, J.:–Appellants Lal Yadav (Criminal Appeal (DB) No.1133 of 2011), Lal Babu Yadav (Criminal Appeal (DB) No.1139 of 2011), Sakaldev Yadav (Criminal Appeal (DB) No.1189 of 2011), Rajendra Yadav, Gangai Yadav, Nageshswar Yadav (Criminal Appeal (DB) No.1133 of 2011) have been convicted under Section(s) 148, 341, 302 and 302 read with149 Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of j 10,000/- each and in default of payment of fine, they have to further undergo rigorous imprisonment for three years under Section 302 Indian Penal Code. Appellants, Dhaneshwar Yadav, Ram Chandra Yadav (Criminal Appeal (DB) No.1083 of 2011) have been convicted under Section(s) 148, 341, 302 read with Section 149 Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine of j 5,000/- and in default of payment of fine they have to further undergo rigorous imprisonment for three years under Section(s) 302 read with 149 Indian Penal Code. They have further been convicted under Section 148 Indian Penal Code and sentenced to undergo rigorous imprisonment for two years by judgment and order of conviction dated 18.10.2011 & 20.10.2011 respectively passed by the Additional Sessions Judge, FTC, II, Madhubani, in Sessions Trial No.128 of 2009 arising out of Phulparas P.S. Case No.222 of 2007. No separate sentence was passed under Sections 341 Indian Penal Code and Section 27 of the Arms Act. 2. The case of the prosecution according to fard-e-bayan given by Pawan Devi (PW 10), wife of the deceased Narayan Yadav on 04.10.2007 at 11.00 AM is that at 9.30 AM while she was cooking inside and her husband was returning home, about 100 yards on the west near the house of accused Rajendra Yadav, about fourteen persons surrounded and assaulted him. When her husband, screamed, her brother-in-law Ramautar Yadav, her mother-in-law, Ram Pari Devi, (PW 5) went there at which Appellant-Gangai Yadav ordered that all of them should be assaulted. On this order, Appellant Lal Babu Yadav and Lal Yadav fired with their guns on her brother-in-law Ramautar Yadav which hit him on the neck and he fell down. Her husband, Narayan Yadav, ran towards the house, but he was chased by the accused persons and pulled out and then Gangai Yadav with Tangari, Rajendra Yadav with Farsa started to assault him. Her husband, Narayan Yadav, ran towards the house, but he was chased by the accused persons and pulled out and then Gangai Yadav with Tangari, Rajendra Yadav with Farsa started to assault him. Appellant Rajendra Yadav and Sakaldeo Yadav fired at her husband on account of which he fell down injured. She (PW 10), her mother-in-law (PW 5), father-in-law (PW 9) were also injured by the accused persons. Her husband was removed to the Phulparas Referral Hospital but he died on the way. 3. When the evidence of the witnesses was placed before us, we on full consideration, decided to convert the conviction of the Appellant to one under Section 304 Part-I Indian Penal Code for which reason, we are discussing the evidence to indicate as to why we have arrived at this conclusion. 4. PW 1 (Pawan Kumar Yadav) stated that on the date of occurrence while he was looking for labour, he found the accused persons at the door of Rajendra Yadav assaulting Narayan Yadav at which deceased Ramautar Yadav, his parents, his wife came to save him. Then Appellant, Gangai Yadav, ordered and then Appellant Lal Yadav, Lal Babu Yadav and, Sakaldeo Yadav fired at him on account of which he fell down dead. Narayan Yadav ran towards his house but the Appellants pulled him out and then all of them assaulted him with various arms. The Inquest Report of Ramautar Yadav was prepared in his presence and he proved his signature on the Inquest Report as Ext.1 and signature of Sita Ram Yadav as Ext.1/1. In cross-examination, he stated that when he had gone to the place of occurrence, there was no altercation with the accused persons. Even though several contradictions were taken from him in regard to the earlier statement, but the attention of the Investigating Officer was not drawn and hence, it is of no worth. He stated that he did not remember as to when the police had come to the place of occurrence. It was suggested to him that, in fact, on the same day Appellant, Gangai Yadav, had been brutally assaulted on account of which he was removed to the Referral Hospital from where he was sent to DMCH, but he denied such suggestion. 5. PW 2 (Ram Nandan Yadav) also reached the place of occurrence and repeated the earlier version given by PW 1. 5. PW 2 (Ram Nandan Yadav) also reached the place of occurrence and repeated the earlier version given by PW 1. It was suggested to him that first place of occurrence was near the cattle shed of deceased Narayan Yadav and Ramautar Yadav, but he denied the same. He also stated that he did not know as to whether there was an altercation between the parties. It was also suggested that, in fact, on the same day at about 7.30 AM, deceased Narayan Yadav, Ramautar Yadav, Ram Narain Yadav (not examined) and Ram Deo Yadav (not examined) had brutally assaulted Gangai Yadav on account of which he was referred to Phulparas Hospital and then removed to DMCH, but he denied it. He stated that Sakaldeo Yadav, Lal Yadav, and Lal Babu Yadav had fired from a distance of 12 feet away and all of them fired simultaneously. He further stated that he was examined two days later. 6. PW 3 (Durga Nand Yadav), who is the son of the deceased Narayan Yadav stated that while he was at his house, he heard halla and then went to the place of occurrence where saw his father being assaulted, so, he ran and then accused persons pulled him out and variously assaulted on account of which he was injured and then they took him to hospital where he was declared dead. His uncle Ramautar Yadav was shot at by the accused. He also stated that his grant parents, his mother had also been injured in the same transaction. He stated that there was no dispute between the parties from before. 7. PW 4 (Sita Ram Yadav) stated that while he was going he heard some halla at which he went near the house of Rajendra Yadav and saw the accused persons assaulting Narayan Yadav at which his mother, wife and parents came. Sakaldeo Yadav, Lal Babu Yadav and Lal Yadav are said to have fired which hit Ramautar Yadav, who died there itself. Narayan Yadav ran towards his house but he was pulled out and there assaulted by the accused persons. He stated that Pawan Devi, the Informant, (PW 10) gave fard-e-bayan upon which he signed. He proved his signature as Ext.1/2. He also identified and proved the signature of Deo Narayan as Ext.1/3. He stated that fard-e-bayan was recorded at about 12-12.30 noon. He stated that Pawan Devi, the Informant, (PW 10) gave fard-e-bayan upon which he signed. He proved his signature as Ext.1/2. He also identified and proved the signature of Deo Narayan as Ext.1/3. He stated that fard-e-bayan was recorded at about 12-12.30 noon. He also stated that Narayan Yadav was dispatched to the hospital at around 9-9.30 AM on a cot and the Phulparas Hospital was about 5 KM away. He denied having seen any fire arm injury on the person of Narayan Yadav. 8. PW 5 (Ram Pari Devi), who is the mother of the deceased, stated that on hearing halla at about 9.30AM, she went near the house of Rajendra Yadav and saw her son, Narayan Yadav, being assaulted. When her other son, Ramautar Yadav came to save, he was fired at by Sakaldeo Yadav, Lal Babu Yadav and Lal Yadav. The accused persons also pulled out Narayan Yadav from inside the court yard and variously assaulted him. She was also injured in the transaction at which he was taken to the hospital along with the deceased’s son. She denied that there was ever any dispute over filling of the road. Surprisingly, she stated that she was not examined by the police during investigation. 9. PW 6 (Munshi Prasad Yadav) is an Inquest witness on the dead body of Narayan Yadav and he proved his signature as Ext.1/4 and that of Ram Sundar Yadav as Ext.1/5. He denied having seen Gangai Yadav in the hospital. 10. PW 7 is Ram Sundar Yadav, who is also a signatory on the inquest of the deceased Narayan Yadav, although his name has been mentioned in the Deposition Form as Ram Chandra Yadav which appears to be a slip of pen. He proved his signature earlier marked Ext.1/5. He stated that he did not see Gangai Yadav, who had been previously admitted in the hospital. 11. PW 8 (Arti Kumari), niece of the two deceased Narayan Yadav/ Ramautar Yadav, stated that while she was in the field, she saw the crowd of miscreants which she identified. Out of them, Appellant Lal Babu Yadav, Lal Yadav and Sakaldeo Yadav fired at Ramautar Yadav on account of which he fell down injured. 11. PW 8 (Arti Kumari), niece of the two deceased Narayan Yadav/ Ramautar Yadav, stated that while she was in the field, she saw the crowd of miscreants which she identified. Out of them, Appellant Lal Babu Yadav, Lal Yadav and Sakaldeo Yadav fired at Ramautar Yadav on account of which he fell down injured. The other accused also assaulted her aunt Pawan Devi and pulled out her uncle Narayan Yadav from the house and assaulted him variously on account of which he had to be removed to the hospital along with grand-mother but Narayan Yadav died there. She stated that she was examined at about 11.30 AM, when the police came after the death of her uncle Narayan Yadav. She stated that she reached her house in five minutes after having heard firing. Her attention was drawn to the earlier statement but it is also of no value because the attention of the Investigating Officer was not drawn to the same. She stated that she heard about the death of Narayan Yadav from her brother Durga Nand (PW 3). 12. PW 9 (Ram Ashis Yadav), father of the two deceased, stated that while he was sitting at his door and his son, Narayan Yadav, was returning, the accused persons surrounded and started assaulting him at which a Halla ensued, so, he along with other family members ran towards the house of Rajendra Yadav. There he saw Gangai Yadav having ordered at which Lal Babu Yadav, Lal Yadav and Sakaldeo Yadav fired at Ramautar Yadav which hit him and he fell down. To save himself, Narayan Yadav ran towards the house but he was pulled out and variously assaulted with hard and blunt substance and brickbat. He denied that, in fact, his sons had assaulted Gangai Yadav on the same day as also that the accused persons belonged to the same family and there was dispute earlier with them in regard to filling of the earth. He stated that he was removed to the hospital after the police had come and not with the deceased. Surprisingly, he stated that the police had recorded his statement first because he was there and only thereafter his daughter-in-law was examined. He stated that he was removed to the hospital after the police had come and not with the deceased. Surprisingly, he stated that the police had recorded his statement first because he was there and only thereafter his daughter-in-law was examined. He denied that in regard to the same occurrence Gangai Yadav had instituted Puhulparas P.S. Case No.228 of 2007 and that Gangai Yadav had been removed to the hospital and then sent to DMCH and then discharged from the hospital only on 09.10.2007 and that Gangai Yadav was all along in police custody during his treatment. 13. PW 10 (Pawan Devi) is the Informant and wife of Narayan Yadav, who repeats the fard-e-bayan but here she stated that Sakaldeo Yadav had also fired at Ramautar Yadav and contrary to the allegation in the fard-e-bayan, she stated that none fired at her husband Narayan Yadav. She stated that she did not know as to how the police had come and asserted that her husband had been sent to Hospital at 11.00 AM for treatment where he died during treatment. She stated that there was a general halla that assault was taking place. Her attention was drawn to the earlier statement that he had not named Sakaldeo Yadav or that the accused had fired at her husband. She asserted that there was no enmity between the Appellants and herself. Surprisingly, she stated that dead body of her husband came two days after the occurrence. She denied that on the same day Gangai Yadav had been assaulted by Ram Ashish Yadav, Ramdeo Yadav, Ram Sundar Yadav, Narayan Yadav, and Ramautar Yadav on account of which he was admitted to Phulparas Referral Hospital from where he was referred to Darbhanga where he remained for some days and thereafter remanded in this case for which reason Phulparas P.S. Case No.228 of 2007 was also instituted. 14. PW 11 (Dr. Karan Kumar) examined Ram Pari Devi (PW 5) on 04.10.2007 at 10.30 AM and found following injuries:— 1. Lacerated wound on right palm dorsum ½” x 1/8” x skin deep 2. Pain and swelling on lower portion of right leg He proved the medical report as Ext.2 15. PW 12 (Rajeshwar Prasad) is the Investigating Officer, who proved the fard-e-bayan (Ext.3), and the First Information Report (Ext.4), and the signature of the Police Officer as Ext.5 on the Inquest Report of Ramautar Yadav. Pain and swelling on lower portion of right leg He proved the medical report as Ext.2 15. PW 12 (Rajeshwar Prasad) is the Investigating Officer, who proved the fard-e-bayan (Ext.3), and the First Information Report (Ext.4), and the signature of the Police Officer as Ext.5 on the Inquest Report of Ramautar Yadav. On examination of the place of occurrence, he found it to be on the west of house of Rajendra Yadav, where a hand pump was dug. It was at this place that Narayan Yadav was said to have been assaulted and Ramautar Yadav was killed. He found lot of blood at the place of occurrence but he did not collect the same. The next place of occurrence was the house of Narayan Yadav and Ramautar Yadav. Both the places of occurrence were about 100 yards away from each other. After recording of the fard-e-bayan, he reached Phulparas Hospital and prepared Inquest Report of Narayan Yadav which he proved as Ext.6. He also examined Ram Pari Devi (PW 5) at the hospital. In cross-examination, he stated that he in paragraph 72 of the Case Diary had noted that Appellant, Gangai Yadav, was getting treated at Referral Hospital, Phulparas, on 04.10.2007 and then removed to DMCH whereafter he was brought to the police station as also that his fard-e-bayan was recorded on the basis of which Phulpars P.S. Case No.228 of 2007 was instituted and charge-sheet was submitted after his Injury Report was obtained from Phulparas Referral Hospital and DMCH. He stated that Phulparas Hospital was about 15-20 minutes away from the village of occurrence even though it is intervened with the river which is dry. However, he also stated that it takes at least about 2 hours for one to remove to Phulparas Hospital from Hanuman Nagar if there is no proper communication. His attention regarding statement of PW 3 and PW 9 was drawn which is quite extensive and it is not clear as to what exactly is the deviation. 16. PW 13 (Dr. Nirmal Kumar Choudhary) performed Post Mortem Examination on the two deceased on 05.10.2007 and found following injuries on the dead body of Narain Yadav:— (i) Lacerated wound on forehead 1” x ½” x skin deep (ii) Incised wound on right elbow- 1½” x ½” x ½”. 16. PW 13 (Dr. Nirmal Kumar Choudhary) performed Post Mortem Examination on the two deceased on 05.10.2007 and found following injuries on the dead body of Narain Yadav:— (i) Lacerated wound on forehead 1” x ½” x skin deep (ii) Incised wound on right elbow- 1½” x ½” x ½”. (iii) Fracture of right tibia with bone fragment protruded outside wound-description 2” x 1” x ½” (iv) Lacerated wound below right knee 1½” x 1” x ½” (v) Lacerated wound above right ankle 1” x ½” x ½” (vi) Fracture left tibia communated outside 1½” x 1” x ½” (vii) Abrasion on outer aspect of right arm 1” x 1” x ¼”. (viii) Bruise and abrasion on left arm- 2” x1” x ¼” Internal finding on dissection- Brain and maninges pale. A large haematoma in frontal part of the brain. It is about 2½” x 2”. All chambers of the heart were empty and pale. Lungs, Liver, Spleen, both kidneys all were pale. Stomach undigested materials and gas. Intestine contained mucoid material with gases. Urinary bladder was entry. Cause of death- Due to hemorrhage and shock cause by the above mentioned injuries. Following injuries were found on the person of deceased-Ramautar Yadav: (i) Multiple small wound surrounded by black coloration, size about 3 M.M. on lower left side of neck and adjoining portion of chest. Eight small pillets were found on lower left part of the neck and chest dissection. It was preserved and sent to Phulparas P.S. Internal findings:- Brain and maninges pale. Heart-pale and a hole on anterior surface of heart. All Chambers were empty. Lungs, liver, spleen, both kidneys all were pale. Stomach contained undigested food particles with gas. Intestine contained faecal matter with gas. Urinary bladder empty. Death was due to haemorrhage and shock caused by the above mentioned injuries. 17. On discussion of the above, we find that the admitted position is that there was another case instituted on the same day by Appellant, Gangai Yadav, for assault upon him by the two deceased, PW 9 (Ram Ashish Yadav) Ram Narain Yadav and Ram Sundar Yadav (PW 7). 18. However, when this fact was put to the witnesses, they denied such occurrence. 18. However, when this fact was put to the witnesses, they denied such occurrence. What leaves us to conclude that it appears to be a self defence of prosecution is the documentary proof which shows that the Appellant, Gangai Yadav, was brutally assaulted on the same day and it is thereafter that some kind of occurrence took place in which two deceased sustained injuries and died. 19. On going through the Post Mortem Examination Report of Ramautar Yadav, it is easy to conclude that he sustained injuries on account of single firing which was also the tentative opinion of the Doctor. 20. We further find that no fire arm injury on the person of Narayan Yadav was found and he had sustained only lacerated injuries caused by hard and blunt substance and only one incised wound was found on his elbow which is very minor in nature. Some witnesses have stated that accused persons were also armed with brickbats which further indicates that present occurrence appears to be part of the same transaction in which Appellant, Gangai Yadav, was also assaulted. No doubt, time of occurrence of the First Information Report instituted by Gangai Yadav is 7.30 AM, whereas, in the present fard-e-bayan, it has been stated as 9.30 AM, but it does not match with the sequence of events. Had Gangai Yadav been assaulted at 7.30 AM and removed to the Hospital thereafter, he could not have participated in the occurrence in the present case which had allegedly taken place at 9.30 AM. 21. The fard-e-bayan takes note of the fact that the deceased, Narayan Yadav, was dead at the time of recording fard-e-bayan at 11.00 AM. The Inquest Report of the deceased, Narayan Yadav, shows that it was prepared at Phulparas Referral Hospital also at 11.00 AM by another Police Officer at Phulparas Referral Hospital and there is no disclosure as to how it was learnt by the Informant that Narayan Yadav had died in the hospital while the fard-e-bayan was being recorded at the place of occurrence. 22. In such circumstances, we dismiss all the appeals but convert the conviction of the Appellants from one under Section(s) 302/148/149 Indian Penal Code to one under Section 304 Part-I Indian Penal Code and sentence of all the Appellants under all the counts are reduced to one already undergone by them. 23. 22. In such circumstances, we dismiss all the appeals but convert the conviction of the Appellants from one under Section(s) 302/148/149 Indian Penal Code to one under Section 304 Part-I Indian Penal Code and sentence of all the Appellants under all the counts are reduced to one already undergone by them. 23. In the result, all the appeals are dismissed but with modification in the conviction and sentence as mentioned above.