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2019 DIGILAW 911 (JHR)

Devendra Bhagat v. State Of Bihar (now Jharkhand)

2019-04-23

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellants Mr. P.S. Dayal, assisted by Mr. Vikash Kumar and learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor. 2. Both criminal appeals have been heard together as they arise out of the common judgment of conviction dated 19.12.1995 and order of sentence dated 21.12.1995 passed by the 1 st Additional Sessions Judge, Godda in Sessions Case No. 67 of 1993/2 of 1995, whereby both appellants have been held guilty and convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life. Though, by the same impugned judgment, father of these appellants Sitaram Bhagat has been held guilty and convicted for the offence committed and punishable under section 302/109 of the Indian Penal Code and awarded imprisonment for life, but during the pendency of the Criminal Appeal, preferred by him along with co-convict Mahendra Bhagat vide Cr. Appeal (DB) No. 16/1996, Sitaram Bhagat has died. As such, Cr. Appeal (DB) No. 16/1996, as against the appellant Sitaram Bhagat, stands abated. 3. The prosecution case is based upon the fardbeyan of Raj Kishore Bhagat (P.W.3), recorded by the Sub Inspector Mr. M.M. Sharma, Officer-in- Charge, Godda (M) Police Station on 25.03.1992 at 19.00 hrs at Godda (M) Police Station. It is stated by the informant that he brought his brother Jugal Kishore Bhagat in injured condition on a rickshaw to the police station. The informant has stated that today at around 12.00 in the noon, his brother Jugal Kishore Bhagat, who has cultivated wheat crop on 10 kattha of land given by his father, was processing the paddy by sending the crop to the thrasher. It is stated that Devendra Bhagat and Mahendra Bhagat, both sons of Sitaram Bhagat came to the house of the victim Jugal Kishore Bhagat. Thereafter, the accused Mahendra Bhagat caught hold of the victim Jugal Kishore Bhagat and the accused Devendra Bhagat assaulted him on his head by means of a wooden log, causing injury on his head, due to which, his brother fell down and thereafter he was assaulted twice-thrice by lathi, which was witnessed by Ravindra Bhagat (P.W.10), Puran Manjhi (P.W.9) and Narsingh Manjhi (P.W.5). The informant has further stated that when the injured was inquired about the incidence, he could not say any word except ''leave him'' ''leave him''. The informant has further stated that when the injured was inquired about the incidence, he could not say any word except ''leave him'' ''leave him''. On the basis of fardbeyan of the Informant, police has registered Godda (T) P.S. Case No. 91/1992 dated 25.03.1992 under sections 341/323/307 of the Indian Penal Code against the accused Devendra Bhagat and Mahendra Bhagat. Subsequently, by order dated 24.04.1992, section 302 of the Indian Penal Code was added. On completion of the investigation, police has submitted final form vide Charge Sheet No. 159/1992 on 28.07.1992 against the named accused Devendra Bhagat, Mahendra Bhagat and Sitaram Bhagat under section 302, 109, 114 and 34 of the Indian Penal Code . 4. Cognizance of the offence has been taken vide order dated 12.08.1992 and the case has been committed to the Court of Sessions vide order dated 02.02.1993. Charge has been framed against the accused Devendra Bhagat and Mahendra Bhagat under Section 302/34 of the Indian Penal Code and against the accused Sitaram Bhagat under section 302/109 of the Indian Penal Code vide order dated 19.07.1993, which was read over and explained to the accused in Hindi, to which they have pleaded not guilty and claimed to be tried. 5. In order to prove the case, prosecution has examined altogether twelve prosecution witnesses and also adduced number of documentary evidence up to Ext.6 series. Anuj Kumar Bhagat, son of the deceased, has been examined as P.W.1. Dhananjay Mandal, an eyewitness to the occurrence, has been examined as P.W.2. Raj Kishore Bhagat, informant of the case, has been examined as P.W.3. He has proved the fardbeyan, which has been marked as Ext.1 Dr. Ashok Kumar, Medical Officer, has been examined as P.W.4.He has initially examined the injured Jugal Kishore Bhagat and proved the Injury Report, which has been marked as Ext.2. Narsingh Manjhi has been examined as P.W.5. Pramod Yadav has been examined as P.W.6. Siddhe Prasad Singh, A.S.I being the Investigating Officer of the case, has been examined as P.W.7. Madan Mohan Sharma, Officer-in-Charge of Godda (M) Police Station, has been examned as P.W.8. He has issued requisition for medical examination of the injured, which has been proved and marked as Ext.3. He has proved paragraph-41 to 95 of the case diary written by him, which has been marked as Ext.4. Puran Manjhi has been examined as P.W.9. Madan Mohan Sharma, Officer-in-Charge of Godda (M) Police Station, has been examned as P.W.8. He has issued requisition for medical examination of the injured, which has been proved and marked as Ext.3. He has proved paragraph-41 to 95 of the case diary written by him, which has been marked as Ext.4. Puran Manjhi has been examined as P.W.9. Ravindra Bhagat has been examined as P.W.10, but has been declared hostile by the prosecution. Urmila Devi, wife of the deceased and a hearsay witness, has been examined as P.W.11. She has proved her fardbeyan recorded after death of her husband Jugal Kishore Bhagat at Patna, which has been marked as Ext.5. Sajal Mandilwar, Judicial Magistrate who has recorded the statement of Dhananjay Mandal, Jagdish Mandal and Pramod Yadav under section 164 of the Cr.PC , has been examined as P.W.12. He has proved the statement of the witnesses recorded under section 164 of the Cr.PC, which have been marked as Ext.6, 6/1 and 6/2. 6. After closure of the prosecution evidence, accused/appellants were examined under section 313 Cr.PC initially on 22.09.1994 and subsequently on 01.11.1995, where they denied their involvement in the occurrence but nothing has been adduced on behalf of the defence in support of their contention. No defence witness or exhibit has been brought on record. 7. After hearing the learned counsel for the parties and on the basis of materials available on record, learned Trial Court has held these two appellants Devendra Bhagat and Mahendra Bhagat guilty for offence committed and punishable under section 302 of the Indian Penal Code and awarded imprisonment for life. So far father of these two appellants Sitaram Bhagat is concerned, he was held guilty for the offence committed and punishable under section 302/109 of the Indian Penal Code and awarded imprisonment for life. But during pendency of the present appeal, the appellant Sitaram Bhagat has died and as such, Criminal Appeal preferred by him stands abated. 8. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred the present appeals assailing the same. 9. Heard learned counsel for the appellants Mr. Praveen Shankar Dayal, assisted by Mr. Vikash Kumar and learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor. 10. 8. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred the present appeals assailing the same. 9. Heard learned counsel for the appellants Mr. Praveen Shankar Dayal, assisted by Mr. Vikash Kumar and learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor. 10. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence passed by the learned Trial Court is bad in law as well as facts and cannot sustain, so far as the conviction of the appellants under section 302 of the Indian Penal Code is concerned. Learned counsel for the appellants has submitted that there is no medico legal evidence on record to suggest that the death of the deceased Jugal Kishore Bhagat was caused because of assault made by the appellants. Learned counsel for the appellants has further submitted that the inquest report and the postmortem report have not been legally brought on record, nor the same has been proved, so as to consider the same as substantive piece of evidence for holding the appellants guilty under section 302 of the Indian Penal Code. Learned counsel for the appellants has further submitted that the appellants have been charged under section 302/34 of the Indian Penal Code, but they have been convicted under section 302 of the Indian Penal Code, though there is no allegation or evidence against the appellant Mahendra Bhagat of assaulting the victim. Learned counsel for the appellants has submitted that the deceased, appellants and the informant are own brothers and there is no material on record to constitute an offence under section 302/34 of the Indian Penal Code, so far as the accused Mahendra Bhagat is concerned. Learned counsel for the appellants has further submitted that in the First Information Report, it has been alleged that the accused Mahendra Bhagat caught hold of Jugal Kishore Bhagat (deceased), but during trial, the informant (P.W.3) at paragraph-5 of his Examination-in-Chief, has categorically stated that on the order of his father, Devendra entered into verandah of Jugal Kishore Bhagat and took a wooden Rolla 2-3 hands in size lying there and hid himself behind the door. Mahendra Bhagat caught hold of Jugal Kishore Bhagat and thereafter released him. Mahendra Bhagat caught hold of Jugal Kishore Bhagat and thereafter released him. This witness has further stated that as soon as Jugal Kishore Bhagat proceeded further, he was assaulted by Devendra Bhagat by means of Rolla on his head, due to which, he fell down. Learned counsel for the appellants has submitted that the accused persons have no intention to commit murder of Jugal Kishore Bhagat. As per the prosecution case, they came to verandah of Jugal Kishore Bhagat empty handed and on the order of Sitaram Bhagat, Devendra Bhagat took the wooden Rolla 2-3 hands in size lying there and hide himself. They have no common intention to murder Jugal Kishore Bhagat. Had it been so, Mahendra Bhagat would not have caught him and released him subsequently. Rather, if they had a common intention to kill Jugal Kishore Bhagat, then Mahendra Bhagat ought to have caught hold of him and provide an opportunity to Devendra Bhagat to assault him on the head by means of wooden Rolla, so as to constitute an offence under section 302/34 of the Indian Penal Code. 11. Learned counsel for the appellants has submitted that premeditation is one of the ingredients to establish the charge of common intention. Though common intention can also be developed at the spot on the spur of moment, but the evidence of this case does not show as such, rather it shows that the accused persons have no common intention and the act has been committed in the spur of moment by Devendra Bhagat who has assaulted the victim Jugal Kishore Bhagat causing injury, nor there is any evidence on record to suggest that accused after having common intention, assaulted the deceased with weapon of assault. Learned counsel for the appellants has further submitted that the injury report which has been brought on record as Ext.2 shows that the deceased has suffered two external injuries, (i) lacerated wound on mid parietal region of scalp 2"x1/4"x1/4" and (ii) bruises on the left cheek 1"x ". Injuries were caused by hard and blunt object. The Medical Officer Dr. Ashok Kumar (P.W.4) who has examined the injured, has opined that the nature of injuries are simple, but because of the fracture of head injury, final opinion was kept reserved. Injuries were caused by hard and blunt object. The Medical Officer Dr. Ashok Kumar (P.W.4) who has examined the injured, has opined that the nature of injuries are simple, but because of the fracture of head injury, final opinion was kept reserved. Learned counsel for the appellants has submitted that the prosecution has not brought anything on record to suggest that the injury which have been opined by the doctor as simple, has been found to be grievous by bringing any medico legal evidence on record. Learned counsel for the appellants has thus submitted that even the postmortem report and the inquest report have not been brought on record to connect the death of the deceased Jugal Kishore Bhagat as a result of the injury sustained on the head. Learned counsel for the appellants has thus submitted that the appellants Devendra Bhagat and Mahendra Bhagat cannot be convicted for the offence under section 302 of the Indian Penal Code in view of the contradictory evidence brought on record. The informant has initially claimed in his fardbeyan that the accused Mahendra Bhagat caught hold of the deceased Jugal Kishore Bhagat and he was assaulted by Devendra Bhagat, but he has changed his version before the Court while examining as P.W.3 by stating that initially Mahendra Bhagat caught hold of Jugal Kishore Bhagat, but he subsequently released him. Learned counsel for the appellants has thus submitted that there is no allegation against the appellant Mahendra Bhagat that he has assaulted the victim Jugal Kishore Bhagat. As such, in absence of any material brought on record to suggest that the appellant Mahendra Bhagat had common intention, his conviction cannot sustain in the eyes of law under section 302 or 302/34 of the Indian Penal Code. Learned counsel for the appellants has submitted that even after considering the injury report which has been marked as Ext.2, the appellant Devendra Bhagat cannot be convicted for the offence under section 302 of the Indian Penal Code. At best, he can be convicted for the offence under section 325 of the Indian Penal Code. As such, the impugned judgment of conviction and order of sentence warrants interference by this Court. 12. Learned counsel for the State Mr. At best, he can be convicted for the offence under section 325 of the Indian Penal Code. As such, the impugned judgment of conviction and order of sentence warrants interference by this Court. 12. Learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has submitted that the Informant Raj Kishore Bhagat (P.W.3) is the own brother of the appellants Devendra Bhagat, Mahendra Bhagat and the deceased Jugal Kishore Bhagat. Informant is the eye witness to the occurrence, who has witnessed the entire occurrence of assault made by Devendra Bhagat, who was assisted by Mahendra Bhagat, who caught hold of him and father Sitaram Bhagat had given order to kill him. As such, the learned Trial Court has rightly convicted the appellants Devendra Bhagat and Mahendra Bhagat under Section 302 of the Indian Penal Code and the appellant Sitaram Bhagat has been convicted under Section 302/109 of the Indian Penal Code. Learned counsel for the State has submitted that all the witnesses who have been examined on behalf of the prosecution, have categorically stated that Jugal Kishore Bhagat died on 10.04.1992 at Patna while he was under treatment. Learned counsel for the State has further submitted that the victim was initially examined at Godda, but seeing his condition, he was referred to Bhagalpur and subsequently victim was referred to Patna where he was taken by his son, son-in-law, his wife and mother. After death of the victim Jugal Kishore Bhagat, Police had recorded fardbeyan of Urmila Devi (P.W.11), wife of the deceased and her fardbeyan recorded by the Patna Police has been proved and marked as Ext. 5. 13. Learned counsel for the State has further submitted that Anuj Kumar Bhagat, son of the deceased has been examined as P.W.1; Dhananjay Mandal, co-villager being an eye witness, has been examined as P.W.2; Raj Kishore Bhagat, informant and brother of the deceased and the appellants, being an eye witness, has been examined as P.W.3; Narshing Manjhi, whose name has been mentioned in the fardbeyan as an eye witness to the occurrence, has been examined as P.W.5; Pramod Yadav, another eye witness to the occurrence has been examined as P.W.6. All of them have supported the prosecution case. Even their statement recorded during investigation under Section 164 Cr.PC by the learned Judicial Magistrate, Sajal Mandilwar (P.W.12) has been brought on record as Exhibit 6 series. Learned State Counsel has submitted that statements of Dhananjay Mandal (P.W.2), Jagdish Mandal (not examined in this case) and Pramod Yadav (P.W.6) recorded under section 164 Cr.PC, have been brought on record and marked as Ext.6, 6/1 and 6/2. Learned State Counsel has further submitted that one of the witness named in the First Information Report Ravindra Bhagat (P.W.10) has not supported the case of the prosecution and has been declared hostile by the prosecution. Learned State Counsel has thus submitted that the ocular evidence adduced by the eyewitnesses, suggest that the victim Jugal Kishore Bhagat died during treatment at Patna and his death has not been doubted. Even such evidence has been confronted to the appellants during their statement recorded under Section 313 Cr.P.C. and they have not given any satisfactory reply. As such, the learned Trial Court has rightly convicted the appellants under Section 302 of the Indian Penal Code and the same does not warrant any interference by this Court. 14. Heard, learned counsel for the appellant Mr. P.S. Dayal, assisted by Mr. Vikash Kumar and learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor and perused the materials on record i.e., First Information Report, framing of charge, evidence of twelve prosecution witnesses, six prosecution exhibits, statement of the accused recorded under Section 313 Cr.PC initially on 22.09.1994 and thereafter on 01.11.1995 as well as the impugned judgment of conviction and order of sentence. 15. This Court while re-appreciating the evidence, has minutely scanned the evidence brought on record. From perusal of the fardbeyan and evidence of Informant, it appears that the informant Raj Kishore Bhagat (P.W.3) being the brother of the victim and the appellants, has categorically stated that Jugal Kishore Bhagat was in his house. Appellant Devendra Bhagat entered into the verandah and on the order of his father Sitaram Bhagat, Mahendra Bhagat caught hold of Jugal Kishore Bhagat and Devendra Bhagat assaulted him by means of a wooden Rolla kept there causing injury on the head of the victim. Injury report has been brought on record, which has been proved and marked as Ext.2 by the Medical Officer Dr. Ashok Kumar (P.W.4). Injury report has been brought on record, which has been proved and marked as Ext.2 by the Medical Officer Dr. Ashok Kumar (P.W.4). The evidence of Anuj Bhagat (P.W.1), Dhananjay Mandal (P.W.2), Raj Kishore Bhagat (P.W.3), Narsingh Manjhi (P.W.5) and Parmod Yadav (P.W.6) are consistent, so far as the occurrence is concerned. But from perusal of the evidence of Raj Kishore Bhagat (P.W.3), particularly at para-4, it has been stated that his father had given 10 Kathas of land to Jugal Kishore Bhagat in which he had cultivated wheat crop, which was kept near the thrasher. Father Sitaram Bhagat and brother Devendra Bhagat have said to the deceased Jugal Kishore Bhagat that they will not give the wheat, upon which Jugal Kishore Bhagat has stated that since he has harvested the crops, he will take the same and thereafter quarrel took place. The accused persons started abusing and there was fisticuffs with the victim. Certain persons also assembled there. This witness has subsequently stated in para-5 that upon which father Sitaram Bhagat has asked to kill him. Thereafter Devendra Bhagat entered into verandah and took out the wooden Rolla of the size of 2-3 hands lying there and hide himself behind the door. Accused Mahendra Bhagat caught Jugal Kishore Bhagat and released him and as soon as Jugal Kishore Bhagat tried to proceed, he was assaulted by Devendra Bhagat by means of wooden Rolla on his head, due to which, he has sustained injury and fell down. Thereafter, again Devendra Bhagat assaulted Jugal Kishore Bhagat by means of Rolla. Jugal Kishore Bhagat became unconscious and after giving him water, he regained his consciousness and thereafter, he was brought to Godda Hospital, where he was treated and thereafter taken to the Police Station. This witness has stated in para 22 of his cross examination that when he reached his house, at that time, his father and all brothers were sitting in the eastern side of the room after taking lunch, which was adjacent to the verandah. This witness entered into the room and went before his mother, who asked him to have lunch. Thereafter, he went to the verandah and sat on the bed where altercation started and subsequently assault took place. The injured was taken to the hospital. This witness entered into the room and went before his mother, who asked him to have lunch. Thereafter, he went to the verandah and sat on the bed where altercation started and subsequently assault took place. The injured was taken to the hospital. These evidence show that the occurrence of assault was not premeditated, rather it happened on the spur of the moment in the heat of passion. Quarrel started from both side because of sharing of wheat crop cultivated by the deceased Jugal Kishore Bhagat on 10 Kathas of land, given to him by his father Sitaram Bhagat. Injury report brought on record as Ext. 2 shows (i) lacerated wound 2" x " x " on the mid parietal region of the scalp (ii) bruise on the left cheek 1 x " caused by hard and blunt substance. Doctor has opined that such external injuries are simple. Nothing has been brought on record to suggest that these injuries found on the head of Jugal Kishore Bhagat was grievous or was ultimate cause of death of the victim. 16. Victim died on 10.04.1992 within 14 days of the alleged occurrence. Grievous hurt has been defined under Section 320 of the Indian Penal Code under eight categories. The eighth category of the grievous hurt is any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. From the ocular evidence brought on record, it appears that the victim was taken to Godda Hospital and from where he was referred to Bhagalpur. Injury report has been brought on record which has been marked as Ext. 2. Subsequently, as per the oral evidence, victim was taken to Bhagalpur and later on taken to Patna, where the victim died within 14 days of the occurrence. Fardbeyan of the wife Urmila Devi (P.W.11) has been recorded at Patna by the police after death of the victim Jugal Kishore Bhagat, which has been brought on record as Ext. 5. This shows that the victim suffered such bodily injury which endangered his life and he was under treatment for approximately 14 days and ultimately died. As such, the injury found on the person of the victim would come within the definition of grievous hurt, as defined under Section 320 of the Indian Penal Code. 5. This shows that the victim suffered such bodily injury which endangered his life and he was under treatment for approximately 14 days and ultimately died. As such, the injury found on the person of the victim would come within the definition of grievous hurt, as defined under Section 320 of the Indian Penal Code. From the evidence brought on record, it appears that the inquest report or the post mortem report has not been brought on record. It is true that the medico legal evidence, so far as the death of the deceased Jugal Kishore Bhagat is concerned, has not been brought on record except the oral testimony of the witnesses. From perusal of the record, it appears that the medico legal evidence has not been brought on record, learned Trial Court has marked para 41 to 95 of the Case Diary as Ext. 4, which contains the narration of the post mortem report at paragraph-75 of the case diary, but admittedly the post mortem report has not been brought on record. Since the post mortem report has not been legally brought on record, nor exhibited under Section 294 Cr.P.C , as such, material brought through the case diary cannot be said to be substantive piece of evidence for holding the appellants guilty under Section 302 of the Indian Penal Code. Reliance is placed on the judgment of the Apex Court in the case of Akhtar & others Vrs. State of Uttaranchal reported in (2009) 13 SCC 722 , para 21 thereof is quoted here under: "It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section(3) of Section 294 CrPC. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined". Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined". Reliance is also placed upon a judgment of the Apex Court in the case of Suraj & another Vrs. State of Uttar Pradesh reported in (2010) 7 SCC 515 , para 8 to 13. In the said case, the medico legal evidence has not been brought on record and the doctor had turned hostile. He had not supported the prosecution case. The Honble Apex Court after perusal of the record has found that though, the post mortem report has been brought on record, but the same has not been supported by the doctor, who has been declared hostile by the prosecution. The eyewitness''s account were consistent and there is no material contradiction in their evidence to discredit their truthfulness. 17. Considering the above, we cannot consider the materials brought in the case diary, though wrongly exhibited as Ext.4, to be substantive piece of evidence to hold the appellants guilty under Section 302 of the Indian Penal Code. Nevertheless, the deceased remained under treatment and ultimately died within 14 days of the occurrence at Patna, the death has been proved but the medico legal evidence so far as the cause of death, has not been proved by the prosecution. As such, considering the oral testimony of the witnesses and in view of the Injury Report (Ext. 2) as also in the light of the judgment in the case of Parusuraman Alias Velladurai & others Vrs. State of Tamil Nadu reported in 1992 Supp (1) SCC 429 , we are of the view that the appellant Devendra Bhagat unintentionally caused grievous hurt. As such, the offence committed by the appellant Devendra Bhagat comes within the parameter of Section 325 of the Indian Penal Code. State of Tamil Nadu reported in 1992 Supp (1) SCC 429 , we are of the view that the appellant Devendra Bhagat unintentionally caused grievous hurt. As such, the offence committed by the appellant Devendra Bhagat comes within the parameter of Section 325 of the Indian Penal Code. So far as the evidence against the appellant Mahendra Bhagat is concerned, in view of the contradictory statement of the informant himself, as recorded in his fardbeyan and as stated while examining as P.W.3 in para 5 that Mahendra Bhagat caught hold of Jugal Kishore Bhagat and subsequently released him and thereafter Jugal Kishore Bhagat proceeded ahead when he was assaulted by Devendra Bhagat by means of Rolla on his head coupled with the fact that Devendra Bhagat came empty handed and picked up wooden rolla kept there, there is complete lack of evidence so as to constitute an offence of common intention. Reliance is placed upon a judgment of the Apex Court rendered in the case of Dukhmochan Pandey & others Vrs. State of Bihar reported in (1997) 8 SCC 405 , para 6 and reiterated in the case of Rajendra Singh & others Vrs. State of Bihar reported in AIR 2000 SC 1779 , para 6. 18. In the present case, we also find that there is no common intention on the part of the accused persons for committing the crime. Common intention could only be inferred from the circumstances. In the present case, the occurrence took place on the spur of the moment in the heat of passion as all the brothers and father were sitting in the Bangla door and some altercation took place on sharing of the wheat crop. The victim refused to part with the same, upon which father Sitaram Bhagat has ordered to assault him. Subsequent thereto, Devendra Bhagat entered into Verandah, picked up one wooden Rolla kept there and hid himself behind the door. It is alleged that Mahendra Bhagat caught hold of Jugal Kishore Bhagat, but as per the statement of the informant at para-5 of his examination-in-chief, after catching Jugal Kishore Bhagat, Mahendra Bhagat subsequently released him. When Jugal Kishore Bhagat tried to proceed, he was assaulted by Devendra Bhagat by means of wooden Rolla on his head causing injury. It is alleged that Mahendra Bhagat caught hold of Jugal Kishore Bhagat, but as per the statement of the informant at para-5 of his examination-in-chief, after catching Jugal Kishore Bhagat, Mahendra Bhagat subsequently released him. When Jugal Kishore Bhagat tried to proceed, he was assaulted by Devendra Bhagat by means of wooden Rolla on his head causing injury. Entire facts of the case does not link up all these events to show that appellants have common intention to commit the same, nor any overt act has been alleged against Mahendra Bhagat, after fall of Jugal Kishore Bhagat. 19. Under the aforesaid circumstances, we are of the opinion that Mahendra Bhagat cannot be held liable under Section 302 or 302/34 of the Indian Penal Code. As such, we acquit the appellant Mahendra Bhagat from the charge and conviction under Section 302 of the Indian Penal Code. So far as appellant Devendra Bhagat is concerned, as discussed above, he has caused grievous hurt on the victim Jugal Kishore Bhagat. No medico legal evidence has been brought on record to suggest that the death of Jugal Kishore Bhagat was caused because of such injury inflicted by Devendra Bhagat. Accordingly, we hold the appellant Devendra Bhagat guilty for the offence committed and punishable under Section 325 of the Indian Penal Code. Accordingly, the conviction of the appellants under Section 302 is hereby set aside. Appellant Mahendra Bhagat is acquitted from the charge and conviction under Section 302 of the Indian Penal Code. So far as appellant Devendra Bhagat is concerned, he is convicted under Section 325 of the Indian Penal Code. 20. While considering the sentence of Devendra Bhagat, it has been submitted by learned counsel for the appellants that occurrence took place in March 1992 and at that time, appellant was aged about 27 years and he has remained in custody for approximately 4 years during trial. Considering the same, we modify the sentence to the period already under gone by him with a fine Rs. 25,000/- payable to the wife of the victim or in case she is not alive, the same shall be paid to the legal heirs of the victim upon due notice by the learned Trial Court. Accordingly, the appellant Devendra Bhagat is directed to deposit a sum of Rs. 25,000/- before the learned Trial Court within a period of 8 weeks. 25,000/- payable to the wife of the victim or in case she is not alive, the same shall be paid to the legal heirs of the victim upon due notice by the learned Trial Court. Accordingly, the appellant Devendra Bhagat is directed to deposit a sum of Rs. 25,000/- before the learned Trial Court within a period of 8 weeks. On deposit of the same, learned Trial Court shall issue notice to the wife/legal heir of the victim and after due verification, the same shall be paid to the wife/legal heirs of the victim. In case of default in payment of fine, appellant Devendra Bhagat has to undergo rigorous imprisonment for three months. 21. Accordingly, Criminal Appeal (DB) No. 16/1996 (Mahendra Bhagat) is allowed in the manner and to the extent, as discussed above. So far Criminal Appeal (DB) No. 83/1996 (Devendra Bhagat) is concerned, it is party allowed. Let the lower court records along with a copy of the judgment be sent down to the learned court below.