JUDGMENT : The Criminal Appeal (SJ) No. 152 of 2004 has been preferred against the judgment of conviction dated 18.12.2003 and order of sentence dated 20.12.2003, passed by learned Special Judge-cum-1st Additional Sessions Judge, Deoghar, in Special Case No. 97/1997 whereby both the appellants have been convicted for offence committed under Section 304 (II) of the Indian Penal Code and the appellant no. 2 Idrish Ansari @ Idrish Mian has further been convicted under Section 323 of the Indian Penal Code. The learned Trial Court has awarded rigorous imprisonment for seven years for the offence committed under Section 304 (II) of the Indian Penal Code to both the appellants and further Idrish Ansari @ Idrish Mian has been awarded rigorous imprisonment for a period of six months under Section 323 of the Indian Penal Code and both the sentences are directed to run concurrently. By the same impugned judgment the learned Trial Court has also acquitted appellant no. 1 Basiruddin Ansari along with other eight accused persons facing trial from the charge under Sections 147, 504, 452, 380, 323, 307 of the Indian Penal Code and 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Thus, these two appellants, who have been separately charged also under Sections 148 and 302 of the Indian Penal Code have been found guilty under Section 304(II) of the Indian Penal Code and appellant no. 2, Idrish Ansari @ Idrish Mian has further been convicted under Section 323 of the Indian Penal Code. 2. The prosecution case is based upon written report submitted by Pancham Manjhi (P.W. 11), before the Officer-in-Charge, Sarwan Police Station on 7.10.1997 alleging therein, that today in the morning at around 07.00 a.m., his co-villager, Basiruddin Ansari, Sahadat Ansari, Mutar Ansari, Idrish Ansari, Bhado Mian, Rashid Mian, Habub Mian, Saleem Mian, Kadeem Ansari were damaging the bamboo sapling, which was sown by the informant and his uncle Tipan Mian (P.W. 1) in the month of jeth this year. The informant has alleged, that he along with his uncle asked the accused persons not to do so, upon which the accused persons started abusing the informant and with intention to kill, they chased the informant and his uncle. The informant and his uncle, to save their life entered into the house. The informant has alleged, that he along with his uncle asked the accused persons not to do so, upon which the accused persons started abusing the informant and with intention to kill, they chased the informant and his uncle. The informant and his uncle, to save their life entered into the house. The accused persons were having weapons in their hands, Basiruddin Ansari was having tangi in his hand, Idrish Ansari was having rod in his hand and the rest of the accused persons named in the First Information Report were having lathi in their hands. The accused persons, entered into the house of his uncle, Tipan Manji, where the informant has also taken shelter and the accused persons abused the informant’s wife, who has been blessed with a child recently on 06.07.1997, by pushing her and assaulted her, due to which she fell down and thereafter all the accused persons assaulted Tipan Manji. Basiruddin Ansari assaulted Tetu Manjhi (P.W. 2), on his head by means of tangi with an intention to kill. Idrish Ansari assaulted Tetu Manjhi by means of iron rod, due to which he fell down and became unconscious. It is alleged that, when the wife of Tipan Manjhi namely Dulari Devi, Pancham Mian (informant), Tipan Manjhi, Ado Manjhi went for rescue of Tetu Manjhi, they were also assaulted. Idrish Ansari and Basiruddin Ansari also assaulted Ado Manjhi, with intention to kill, due to which Ado Manjhi fell down and became unconscious and thereafter all the accused persons assaulted Dulari Devi. The accused were also saying that kill all these “harijans”. The informant has alleged that, when the victims tried to go to the Police Station, the accused persons warned them, that if they will go to the police station, they will be killed. Thereafter, the accused persons have taken two bronze plates, and one globular water pot worth Rs. 200/- and one hen, which was kept for Dussehera was also taken by Sahadat Ansari. 3. On the basis of the fardbeyan, the police registered Sarwan P.S. Case No. 108 of 1997 dated 07.10.1997 under Sections 147, 148, 149, 452, 341, 323, 324, 307, 380, 504 and 427 of the Indian Penal Code and 3(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 3. On the basis of the fardbeyan, the police registered Sarwan P.S. Case No. 108 of 1997 dated 07.10.1997 under Sections 147, 148, 149, 452, 341, 323, 324, 307, 380, 504 and 427 of the Indian Penal Code and 3(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. After investigation the police submitted chargesheet against all the named accused persons vide charge Sheet No. 46 of 1997 dated 31.10.1997 under Sections 147, 148, 149, 452, 341, 323, 324, 307, 302, 380, 427 and 504 of the Indian Penal Code and 3 (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 4. The cognizance of the offence has been taken vide order dated 11.12.1997 and the case has been transferred to the Special Judge, Deoghar vide order dated 11.12.1997. The charge has been framed against all the nine accused persons under Sections 307, 380, 147, 452, 504 and 323 of the Indian Penal Code and Section 3 (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act but apart from that the learned Trial Court has framed charge against these two appellants Basiruddin Ansari @ Ledo Mian and Idrish Ansari @ Idrish Mian under Sections 148 and 302 of the Indian Penal Code vide order dated 01.08.1998 to which the appellants have pleaded their innocence and thus they were put under trial. 5. The prosecution to prove its case has examined altogether fourteen witnesses apart from the oral evidence. The prosecution has also exhibited a number of documents. Tipan Manjhi has been examined as P.W. 1, Tetu Manjhi has been examined as P.W. 2, Mahangu Manjhi has been examined as P.W. 3, Bhotro Manjhi has been examined as P.W. 4, Budhni Devi has been examined as P.W. 5, Charki Devi has been examined as P.W. 6, Janki Manjhi has been examined as P.W. 7, Baleshwar Manjhi has been examined as P.W. 8, Titiya Devi has been examined as P.W. 9, Anant Lal Manjhi has been examined as P.W. 10, Pancham Manjhi (informant of the case) has been examined as P.W. 11, Dr. Arvind Kumar, who has examined the injured, has been examined as P.W. 12, Dr. Jugal Kishore Choudhary, who has conducted the autopsy of the deceased, has been examined as P.W. 13 and Kailash Nath Singh (investigating Officer) has been examined as P.W. 14. 6. Arvind Kumar, who has examined the injured, has been examined as P.W. 12, Dr. Jugal Kishore Choudhary, who has conducted the autopsy of the deceased, has been examined as P.W. 13 and Kailash Nath Singh (investigating Officer) has been examined as P.W. 14. 6. The signature of Mahangu Manjhi, on the inquest report has been proved and marked as Exhibit-1, signature of Anant Lal Manjhi, on the inquest report has been proved and marked as Exhibit-1/1, injury report of Ado Manjhi has been proved and marked as Exhibit-2, injury report of Budhni Devi has been proved and marked as Exhibit-2/1, injury report of Tetu Manjhi has been proved and marked as Exhibit-2/2, post-mortem report of Ado Manjhi has been proved and marked as Exhibit-3. 7. After closure of the prosecution evidence, the appellants have been examined under Section 313 Cr.P.C. on 26.03.2003, where the appellants have denied the allegation levelled against them but the appellants have not examined any defence witnesses, rather they have produced the certified copy of the judgment passed in T.R. No. 305 of 2003 as Exibit-‘A’. After hearing the parties, the learned Trial Court passed the impugned judgment of conviction and order of sentence, which has been assailed before this Hon’ble Court by the appellants. 8. Learned counsel for the appellants, Mr. Ranjan Kumar Singh has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that the learned Trial Court has disbelieved half of the prosecution case and thus acquitted eight of the accused persons from the trial and only convicted these two appellants under Sections 304 (II) and 323 of the Indian Penal Code, although these persons have also been acquitted under Section 148 of the Indian Penal Code and other Sections, in which other accused persons have been acquitted by the learned Trial Court. Learned counsel for the appellants has further submitted, that against the acquittal of the co-accused and these appellants in some of the Sections, in which they have also been charged, State has not preferred any acquittal appeal, as such, learned counsel for the appellants has submitted, that half of the prosecution case has been disbelieved by the learned Trail court itself, while passing the impugned judgment of conviction and order of sentence against these two appellants. Learned counsel for the appellants has further submitted, that there is a vital contradictions in the evidence of the prosecution witnesses. Learned counsel for the appellants has submitted that Exhibit-2, the initial injury report of Ado Manjhi shows following injuries: 1. lacerated wound right left side of head 1" away from mid line 3" x 1/4" x 1/4". Direction-vertical and longitudinal away from hair line. 2. Bruise over left shoulder 2½" x 2½". Opinion reserved as patient referred to Sadar Hospital Deoghar for further treatment and till the further report is received”. Learned counsel for the appellants has further submitted, that from perusal of Exhibit- 2 and Exhibit-3, the injury report and the post-mortem report of the deceased, Ado Manjhi, there is vital contradictions as stated above. The initial injury report showing the injuries upon head and shoulder but in the post-mortem report, which has been marked as Exhibit-3, the doctor has found two injuries but different from Exhibit-2. In the post-mortem report following injuries have been found: 1. Lacerated wound 2½" x 1" x bone deep over left parietal region of skull. Blood clot present. 2. Swelling 4" x 3" over center and parietal region left of skull. Injury no. 1 is lying over the swelling. The doctor has opined that patient died because of Haemorrhage and shock as a result of above noted, ante mortem injuries, caused by hard and blunt substances. Learned counsel for the appellant has further submitted that, as per the case of the prosecution, the informant (P.W. 11) has stated that Basiruddin Ansari @ Ledo Mian has assaulted Ado Manjhi by means of tangi, over head causing bleeding injury and thereafter Idrish Ansari @ Idrish Mian has also assaulted by means of iron rod but the injury report, which has been proved and marked as Exhibit- 2 shows one lacerated would right left side of head 1" away from mid line 3" x 1/4" x 1/4" Direction- vertical and longitudinal away from hair line and second bruises over left shoulder 2½" x 2½" but post-mortem report, which has been proved and marked as Exhibit-3 shows lacerated wound 2½" x 1" x bone deep over left parietal region of skull. Blood clot present and swelling 4" x 3" over center and parietal region left of skull. Injury no. 1 is lying over the swelling. Blood clot present and swelling 4" x 3" over center and parietal region left of skull. Injury no. 1 is lying over the swelling. These injuries of Exhibit-3, if compared with initial injury report, Exhibit-2, vital contradictions in dimension of the injuries are found. Learned counsel for the appellants has further, submitted that injury no. 2 is bruises over left shoulder 2½" x 2½", if it is compared with Exhibit- 3, then in the post-mortem report, this injury was not found on the shoulder, rather the doctor has found swelling 4" x 3" over center and parietal region left of skull and as such, vital contradictions have been found in the Exhibit-2 and Exhibit- 3, which are to be explained by the prosecution for convicting the appellants under Sections 304 (II) and 323 of the Indian Penal Code. Learned counsel for the appellants has further submitted, that the cause of occurrence as alleged by the prosecution is damage of the bamboo sapling implanted by the prosecution side. The learned counsel for the appellants has submitted, that deceased, Ado Manjhi died at Deoghar Sadar Hospital, on the next day and thereafter his autopsy was conducted. Learned counsel for the appellants has further submitted, that there is also contradictions in the evidence of the prosecution witnesses. If the evidence of P.W. 5, Budhni Devi is considered, whom the prosecution has examined, as one of the injured witnesses sustaining injury on her finger, the entire prosecution case has to be disbelieved. Learned counsel for the appellants has further submitted, that Dulari Devi (wife of Tipan Manjhi), who has been alleged to have been assaulted by the accused persons and has sustained injury, has not been examined in this case and the prosecution has not brought any satisfactory explanation for non-examination of the so called injured eye-witness Dulari Devi, wife of Tipan Manjhi (P.W. 1). Learned counsel for the appellant has further submitted, that parties are co-villagers and on a trivial issue, the occurrence took place, as alleged by the prosecution and the appellant Basiruddin Ansari @ Ledo Mian was aged about 55 years in the year 2003 meaning thereby he is approximately aged about 70 years and Idrish Ansari @ Idrish Mian was aged about 40 years in the year 2003, meaning thereby that he is approximately aged about 55 years and as such, the learned counsel for the appellants has submitted that in case, the appellants are not being acquitted, the conviction of the appellants cannot sustain under Section 304 (II) of the Indian Penal Code, rather the opinion of the doctor with respect to the injury upon Ado Manjhi has not been brought on record either in Exhibit-2 or Exhibit-3 and as such, the appellants may be convicted under Section 323 of the Indian Penal Code only in instead of Section 304 (II) of the Indian Penal Code by converting the same under Section 323 of the Indian Penal Code. 9. Learned counsel for the State, Mrs. Niki Sinha, Additional Public Prosecutor has submitted, that the impugned judgment of conviction and order of sentence are based on factual materials brought on record. Learned counsel for the State has further submitted, that evidences of P.W. 1, Tipan Manjhi, P.W. 2, Tetu Manjhi and P.W. 6, Charki Devi are consistent. So far the prosecution case is concerned, learned counsel for the State Mrs. Niki Sinha, learned Additional Public Prosecutor has further submitted, that the doctor has found corresponding injuries. The investigating Officer of this case has proved the place of occurrence and as such, the impugned judgment of conviction and order of sentence has rightly been passed by the learned Trial Court. 10. After hearing the learned counsel for the appellants, Mr. Ranjan Kumar Singh, learned counsel for the State Mrs. The investigating Officer of this case has proved the place of occurrence and as such, the impugned judgment of conviction and order of sentence has rightly been passed by the learned Trial Court. 10. After hearing the learned counsel for the appellants, Mr. Ranjan Kumar Singh, learned counsel for the State Mrs. Niki Sinha, Additional Public Prosecutor and from perusal of the First Information Report, framing of the charge, evidence of the fourteen prosecution witnesses including the exhibits proved and marked from Exhibit-1 to 3 by the prosecution, the statement of the appellants recorded under Section 313 Cr.P.C. and defence Exhibit-‘A’, the judgment of T.R. Case No. 305 of 2003, this Court is of the opinion, that there is a consistent evidence against these two appellants, that they have assaulted Ado Manjhi but the injury report, which has been proved and marked as Exhibit-2 and the post-mortem report, which has been proved and marked as Exhibit-3, there are vital contradictions with respect to the injury found on the person of the deceased. This Court is also of the opinion, that the prosecution has to prove its case beyond all reasonable doubts but in the present case, the injury reports are not in consistent with the oral evidence and also the post-mortem report of the deceased. Under such background, this Court is of the opinion that the conviction of the appellants under Section 304 (II) of the Indian Penal Code be modified as Section 323 of the Indian Penal code in absence of any opinion by the doctor with regard to the nature of injury. Further from perusal of Section 320 of the Indian Penal Code, injury of Ado Manjhi will not come under any of the eight category as illustrated under the said section. The place of occurrence seems to be the house of informant and occurrence took place within the same premises, as such this Court is of the view that instead of sentencing the appellants for rigorous imprisonment of seven years under Section 304 (II) of the Indian Penal Code, which has been converted under Section 323 of the Indian Penal Code is modified as period already undergone. The appellants remained in custody during trial and at the stage of appeal for approximately two years, the age of the appellants are 70 years and 55 years respectively, the occurrence took place in the year 1997 and as such appellants have suffered the rigors of trial for approximately 20 years. Considering these aspects of the matter, the appellants are directed to pay a sum of Rs. 30,000/- to the legal heirs of the deceased, Ado Manjhi within a period of eight weeks from the date of receipt of a copy of this order, otherwise the appellants shall have to serve a sentence of further one year. Both the appellants will deposit Rs. 15,000/- each to the Court below and the learned Trial Court will issue notice to the legal heirs of Ado Manjhi and on verification, pay the sum to the legal heirs of the victim as compensation. If the wife of the deceased is alive, she shall be paid the entire amount and in case the wife is not alive, then the legal heirs will be paid the amount in equal shares. 11. In the result, the present criminal appeal against the impugned judgment of conviction dated 18.12.2003 and order of sentence dated 20.12.2003, passed by learned Special Judge-cum-1st Additional Sessions Judge, Deoghar, in Special Case No. 97/1997, in connection with Sarwan P.S. Case No. 108 of 1997, consequent to G. R. No. 619 of 1997 is dismissed with the modifications as stated above. 12. The appellants who are on bail, their bail bond is cancelled to deposit the amount within eight weeks or serve out sentence as directed by this Court. 13. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.