JUDGMENT : Pradeep Kumar Srivastava, J. 1. We have already heard the arguments of Mr. Sanjay Prasad, learned counsel for the appellant and Mrs. Priya Shrestha, learned counsel for the State. 2. It is to be mentioned at the very outset that the present appeal was filed by three accused persons, out of them, appellant No.1, Kanto Gorai and appellant No.2, Ananda Mandal have been died and their appeal has been abated vide order dated 01.09.2025. This appeal is now heard on behalf of the sole appellant, namely, Banshi Mandal. 3. The instant criminal appeal is preferred by the appellants for setting aside the judgment of conviction dated 29.11.2002 and order of sentence dated 30.11.2002 in S.C. No.244 of 2001/25 of 2002 passed by learned 2nd Additional Sessions Judge, (Fast Track Court), Jamtara, whereby and whereunder, the appellants have been held guilty for the offence under Section 302 /34 of INDIAN PENAL CODE and sentence to undergo rigorous imprisonment for life along with fine of Rs.1,000/- each along with default stipulation. Factual Matrix:- 4. The factual matrix giving rise to appeal is that on 03.07.2000 at about 7:00 am, a she-goat of the appellant, Kanto Gorai(since deceased) while grazing went to the ‘bari’ of the informant, which was drove away by Haren Saw(deceased) by throwing stones. Upon this, wife of Kanto Gorai, Pushpa Devi started abusing Haren Saw. It is further alleged that Haren Saw tried to let Pushpa Devi to understand that his maize crops has been damaged by her she-goat. In the meantime, accused Kanto Gorai arrived and they also called upon Anand Mandal and Banshi and all the accused persons armed with lathi came there. It is further alleged that Kanto Gorai gave lathi blow to Haren with intention to kill him. Thereafter, Banshi and Puspa also assaulted Haren by lathi push blow on his chest and ribs due to which Haren became unconscious and fell down on spot. Upon hearing hulla, some villagers arrived at the place of occurrence, then all the accused persons fled away. The injured was brought to hospital at Jamtara for treatment, where he died. The police also arrived at the hospital and recorded fardbayan of the informant. 5. Upon hearing hulla, some villagers arrived at the place of occurrence, then all the accused persons fled away. The injured was brought to hospital at Jamtara for treatment, where he died. The police also arrived at the hospital and recorded fardbayan of the informant. 5. On the basis of above information, FIR was registered against all the accused persons for the offence under section 302/34 of I.P.C. After completion of investigation, charge-sheet was submitted against the accused persons for the offence under section 302/34 of IPC. After taking cognizance, the case was committed to the court of Sessions where S.C. No.244 of 2001/25 of 2002 was registered respectively. The accused persons have denied the charges leveled against them and claimed to be tried. After conclusion of trial, the impugned judgment and conviction and sentence of the appellants was passed, which has been assailed in this appeal. 6. In the course of trial, altogether 12 witnesses have been examined by the prosecution, namely:- P.W.1 Vimal Das P.W.2 Punuchandra Gorai P.W.3 Jaydeo Gorai P.W.4 Jip Bhandari P.W.5 Nandu Gorai P.W.6 Dr. V.P. Gupta P.W.7 Jhuki Devi P.W.8 Prabhat Ranjan Gupta P.W.9 Mantu Chandra Gorai (informant) P.W.10 Lalita Gorai P.W.11 Lal Bahadur Gorai P.W.12 S.I. Jagat Narayan Singh (investigating officer) 7. Apart from oral testimony of the witnesses, following documentary evidence has also been adduced by the prosecution:- Exhibit Number Description Ext. 1 Fardbayan Ext. 2 Post-mortem report Ext. 3 Signature of the informant on the fardbayan. Ext. 4 The fardbayan has also been inadvertently marked as Ext. 4 on the evidence of the I.O. Ext. 5 Inquest report. 8. On the other hand, the defence has also examined one witness, Dhananjay Bhandari (D.W.1), who has formally proved the writing and signature of Dr. V.R.P. Gupta on the injury reports of accused, Pushpa Devi and Kanto Gorai, which were marked as Ext. C and C/1. D.W.1 has also proved the writing and signature of Jagat Narayan Singh, S.I., Jamtara Police Station, who issued requisition for injury reports of the said accused persons, which were marked as Ext.D and D/1. V.R.P. Gupta on the injury reports of accused, Pushpa Devi and Kanto Gorai, which were marked as Ext. C and C/1. D.W.1 has also proved the writing and signature of Jagat Narayan Singh, S.I., Jamtara Police Station, who issued requisition for injury reports of the said accused persons, which were marked as Ext.D and D/1. Ext.B is the certified copy of FIR, Jamtara P.S. Case No.112 of 2000, Ext.B/1 is the certified copy of Final From submitted by the police against the informant party and Ext.A is the Final Form of Jamtara P.S. Case No.37 of 1999 against Nando Gorain (P.W.5 of the present case and Ors.) Submission on behalf of the Appellant:- 9. Learned counsel for the appellant has vehemently argued that the occurrence took place on a very trivial issue on grazing of she-goat in the field of maize of the informant, which accelerated on spur of moment in exchange of abuse and assault between the parties. No deadly weapon has been used by the appellants particularly the appellant, Banshi Mandal against whom the allegation is that he gave lathi push blow on the chest and ribs of the deceased along with other co-accused. The post-mortem report of the deceased shows that the injury near abdomen was found in nature of abrasions, no fracture of ribs or any abnormal thing was detected. There was head injury and none of the injuries were found sufficient in ordinary course of nature to cause death rather death was caused due to shock and hemorrhage as a result of cumulative effect of injuries caused by hard and blunt substance. Learned trial court has absolutely failed to consider that there was no intention of the appellant to cause death of the deceased rather there was exchange of assault from both side and FIR being Jamtara P.S. Case No.112 of 2000 (Ext-B) was lodged by the defence. The occurrence has taken place in a sudden manner without any premeditation, therefore, the case of the appellant comes under section 304 part II of the IPC. The appellant, Banshi Mandal has remained in custody for more than 9 years and has sufficiently been punished for his guilt. The appellant was granted bail vide order dated 18.01.2010. The occurrence has taken place in a sudden manner without any premeditation, therefore, the case of the appellant comes under section 304 part II of the IPC. The appellant, Banshi Mandal has remained in custody for more than 9 years and has sufficiently been punished for his guilt. The appellant was granted bail vide order dated 18.01.2010. Hence, the impugned judgment and order of conviction and sentence of the appellant for the offence under section 302/34 requires to be altered/modified for the offence under section 304 Part (II) of IPC and the appellant may be sentenced for the period of imprisonment already undergone. Submission on behalf of State:- 10. On the other hand, learned Spl. P.P. for the State controverting the aforesaid contentions raised on behalf of the appellant has submitted that the present appellant along with other co-appellants (since deceased) have given deadly assault to the deceased on a trivial issue. The intention to kill the deceased developed on the spot by hurling instigation by female accused persons, namely, Pushpa Devi and Bhadu Devi, who have been acquitted by the trial court. Although, it is not mentioned in the post-mortem report of the deceased that the injuries sustained by the deceased was sufficient in ordinary course of nature to cause death but the injuries sustained on the stomach of the deceased affecting the liver has been opined to be cause of death. Therefore, the very nature of injury was serious, which the offenders were knowing that it was likely to cause death. Therefore, no lenient view should be taken in altering the conviction and sentence of the appellant for lesser offence. This appeal has no merits and fit to be dismissed. Analysis, Reasons and Decision:- 11. We have gone through the record of the case along with impugned judgment and order of conviction and sentence of the appellant in the light of contentions raised on behalf of the both side. 12. For better appreciation of this case, it is here pertinent to briefly discuss the evidence led by the prosecution. P.W.1-Vimal Das has been declared hostile. We have gone through the record of the case along with impugned judgment and order of conviction and sentence of the appellant in the light of contentions raised on behalf of the both side. 12. For better appreciation of this case, it is here pertinent to briefly discuss the evidence led by the prosecution. P.W.1-Vimal Das has been declared hostile. P.W.2-Punuchandra Gorai has claimed to be an eye- witness of the occurrence and stated that the she-goat of the accused was grazing in the field of Haren Gorai, which was protested by him, then Pushpa Gorai and other accused persons started assaulting by lathi to Haren Saw by pushing into abdomen, due to which, he died during course of treatment. P.W.3-Jaydeo Gorain is also an eye-witness and specifically stated that the incident has taken place on the issue of assaulting the she-goat of the accused persons by Haren due to grazing maize crops in his field. According to him, Anand Mandal, Kanto Gorai, Bhado Gorai, Pushpa Gorai have assaulted to the deceased by lathi, however, he has not taken the name of Banshi Gorai(present appellant). P.W.4- Jip Bhandari is a formal witness, who has proved the fardbayan of the informant, which is in the writing and signature of S.I. Mohan Prasad Sinha, the then Officer-in-Charge, Jamtara, which is marked as Ext. 4. P.W.5.-Nandu Gorai has also stated that the incident has occurred on the issue of grazing the maize crops of the informant by the she-goat of the accused persons, which was turned out by pelting stones. He has further stated that Haren Gorai was assaulted by Anand Gorai, Banshi Gorai, Bahdu Devi, Kanto Gorai and Pushpa Devi with lathi, due to which he died. P.W.6- Dr. V.P. Gupta has conducted autopsy on the dead body of the deceased, Haren Goray on 03.07.2000 and found following injuries:- External Examination External appearance black complexion, average body built, eyes closed pupil dilated, small black hairs or scalp & putrid region, mud mixed in scalp hairs and also found on the body. Eyes closed, pupils dilated, continuative-white, mouth semi open exploring upper four incisor teeth, rigor mortis present in both extremities. External genitalia normal, blood at two ounces present. Eyes closed, pupils dilated, continuative-white, mouth semi open exploring upper four incisor teeth, rigor mortis present in both extremities. External genitalia normal, blood at two ounces present. Ante-mortem injuries: (i) abrasion on medial border of right scapula in back ½” x 2 ½” reddish colour (ii) Abrasion over back of right elbow joint 2” x ½” red in colour (iii) Abrasion over right leg above lateral malleolus ½” x 1” red in colour (iv) Abrasion over abdomen in upper part of right side ½” x 3” red in colour. Internal Appearance:- (i) On opening scalp and skull: No fracture of skull bones, brain and meninges pale. (ii) On opening the neck-larynges, phyma introduce normal, mucosa normal (iii) On opening the chest-No fracture of ribs, lungs pale, heart empty (iv) On opening abdomen-peritoneal cavity-full of blood and blood clots of varying sizes for 50 gm to 5 gm. Liver-lacerated wound of liver of right lobe 3” x 1 ½” directed Anteroposteriorly in outer surface and interior border present. Spleen-pale, kidney pale, stomach about 2 ounce semi digested food material present mostly rice, small and large intestine full of gases. Urinary bladder-empty. Cause of death, according to this witness, is shock and hemorrhage due to injury of liver caused by hard and blunt substance. Time elapsed since death at the time of post-mortem examination within 12 hours. This witness has proved the post-mortem report, which is marked as Ext.2. P.W.7- Jhuki Devi is also an eye-witness of the occurrence and stated that the occurrence has taken place on the issue of assaulting the she-goat of the accused persons, which was grazing in the field of the informant. In the meantime, Kanto Gorai, Banshi Gorai, Bhado Devi assaulted Haren by lathi push, which resulted in his death. P.W.8-Prabhat Ranjan Gupta is a formal witness and has proved the fardbayan and signature of the informant on fardbayan (Ext.3). P.W.9-Mantu Chandra Gorai is the informant and father of the deceased. According to his evidence, on the date of occurrence at about 7:00 am, he was in his house and his son was outside to drive away the she-goat, which entered into his maize filed. Meanwhile, Pushpa Devi started abusing his son and entered into scuffle, then after hearing hulla, Anand Gorai, Kanto Gorai, Bhado Devi and Banshi arrived there armed with lathi and assaulted to his son by giving lathi push on his abdomen. Meanwhile, Pushpa Devi started abusing his son and entered into scuffle, then after hearing hulla, Anand Gorai, Kanto Gorai, Bhado Devi and Banshi arrived there armed with lathi and assaulted to his son by giving lathi push on his abdomen. Due to which, his son became unconscious and was brought to hospital, where he died. He has proved the signature on fardbayan (Ext.3), which was recorded by the police at hospital. P.W.10- Lalita Gorai has also corroborated the prosecution story regarding assault given by lathi push to the deceased by Banshi, Kanto, Anand, Bhado Devi and Pushpa Devi on the issue of grazing maize crops by the she-goat of the accused in the field of informant. P.W.11- Lal Bahadur Gorai has also corroborated the prosecution story as stated by above witnesses that the occurrence took place on the issue of grazing maize crops by the she-goat of accused persons in the field of the informant, which was turned out by the deceased by pelting stones. Therefore, he was assaulted by lathi push by the accused persons, namely, Anand, Banshi, Bhado Devi, Pushpa Devi. P.W.12-Jagat Narayan Singh is the Investigating Officer of this case and he has proved fardbayan, forwarding report (Ext.4). During investigation, he has recorded re- statement of the informant, Mantu Chandra Gorai. He prepared inquest report of the deceased in presence of other witnesses and the father of the deceased. He has visited the place of occurrence and inspected the same. He found maize crops of the informant in “bari” wherein she-goat of the accused persons entered while grazing and was also ousted by the deceased by pelting stones. He recorded the statement of the other witnesses namely, Nandu Gorai, Jagdeo Gorai, Punnu Chand Gorai, Vimal Das, Lalita Devi and Pramila Devi etc. After post-mortem of the deceased, he arrested the accused persons, Anand Mandal, Pushpa Devi and Bhado Devi and Mandallain. Banshi Mandal surrendered before the court and he recorded his statement also. This witness, after finding sufficient evidence, submitted charge-sheet against the all the accused persons. 13. We have given thoughtful consideration to the testimony of the witnesses as discussed above. It appears that the genesis of occurrence is dispute regarding grazing of maize crops of the informant by she-goat of the accused persons, which was turn out by the deceased through pelting stones. Upon this, the wife of Kanto Gorai started abusing the deceased. 13. We have given thoughtful consideration to the testimony of the witnesses as discussed above. It appears that the genesis of occurrence is dispute regarding grazing of maize crops of the informant by she-goat of the accused persons, which was turn out by the deceased through pelting stones. Upon this, the wife of Kanto Gorai started abusing the deceased. In this manner, the scuffle took place between the parties and a sudden fight also ensued wherein the accused persons Kanto Gorai and Pushpa Devi have also sustained injuries and the injury reports were proved as Ext. C and C/1 and the said report was also issued on the requisition slip of the same Investigating Officer. The counter case bearing Jamtara P.S. Case No.112 of 2000 was also lodged by the appellant. The injuries as mentioned in the post-mortem report of the deceased shows that there was no repeated assault on the vital part of the body rather in the shape of abrasions but one injury caused, affected the liver and was responsible for death of the deceased. The cumulative effect of the facts and circumstances of this case and the nature of injury caused by the accused persons to the deceased and also in view of the opinion of P.W.6, Dr. V.P. Gupta, it appears that the injury sustained by the deceased were not found to be sufficient in ordinary course of nature to cause death. As such, the conclusion, which may safely be drawn lead to commission of offence of culpable homicide not amounting to murder punishable under section 304 Part (II) of IPC, because act of the accused persons were done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death in all probability. 14. In our considered view, learned trial court has not considered the evidence and materials available on record in right perspective and held the appellant guilty for the offence under section 302/34 of IPC. Therefore, the conviction and sentence of the appellant for the offence under section 302 of IPC is altered/modified to section 304 part (II) of IPC for which the appellant is directed to undergo the sentence of imprisonment already undergone by him, which is more than 9 years during pendency of the trial and post conviction. 15. Therefore, the conviction and sentence of the appellant for the offence under section 302 of IPC is altered/modified to section 304 part (II) of IPC for which the appellant is directed to undergo the sentence of imprisonment already undergone by him, which is more than 9 years during pendency of the trial and post conviction. 15. In view of above discussion and reasons, this appeal is dismissed on merits with modification in conviction and sentence of the appellant to the extent mentioned above. 16. The appellant is on bail, hence, he is discharged from liability of bail bonds. The sureties are also discharged. 17. Pending I.A(s), if any, is also disposed of accordingly. 18. Let a copy of this judgment along with Trial Court Records be sent back to the concerned trial court for information and needful.