Narayan Roy, J.
1. Heard learned Counsel appearing on behalf of the parties.
2. All the appellants have been found guilty under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment, for life for committing murder of Saroop Thakur.
3. Prosecution case, briefly stated, is that on 19.11.1979 at about 9.00 a.m. the informant (P.W. 4), Sukhdeo Thakur, and his father, Saroop Thakur, the deceased, went to cut branches of Shisham trees with their labourer Latu Ram. While Latu Ram was cutting the branches of Shisham trees, the appellants came there armed with lathi and questioned them from cutting the branches of the Shisham tree. There was altercation in between the parties, which resulted into assault by the appellants on Saroop Thakur with lathi. The accused-persons also assaulted the informant. On hulla some of the villagers came there and the appellants fled away. Injured Saroop Thakur was immediately shifted to Baswopatti State Dispensary, where he was given first aid and was forwarded to Darbhanga Medical College and Hospital for further treatment. The fardbeyan of Sukhdeo Thakur (P.W. 4) was recorded at Basopatti by P.W. 6, Saroop Thakur, however, succumbed to the injuries in Darbhanga Medical College and Hospital on the next day, that is, on 20.11.1979.
4. On the basis of the fardbeyan a formal First Information Report (Ext. 5) was drawn up and a case under Section 302 of the Indian Penal Code was registered against the accused-persons. After due investigation, the appellants were sent up for trial, where he was ultimately found guilty and were convicted and sentenced as indicated above.
5. Prosecution, in all, examined seven witnesses. Out of them, P.W. 2 Nathuni Thakur has been tendered. P.W. 1, Latu Ram, is the labourer of the informant and he claims that he had seen the occurrence. P.W. 3, Bikau Paswan, is another eye-witness of the occurrence. P.W. 4, Sukhdeo Thakur, is the informant himself. P.W.5, Dinesh Thakur, is Sarpanch of other Panchayat, who has said about the previous Panchayati in between the prosecution side and the appellants. P.W. 6, Ram Raj Ram, is the Investigating Officer of the case. P.W. 7 Dr. V.C.S. Verma held autopsy over the dead-body of the deceased.
6. The defence of the appellants, as it appears from their examination under Section 313 of the Code of Criminal Procedure, is a plea of innocence and false implication. It further appears that the tree in question belonged to the appellants and since the appellants protested on account of cutting of branches of the tree, some Marpit took place in between the parties. The defence in support of its case examined as many as eight defence witnesses.
7. P.W. 1 Latu Ram in his evidence stated that on 19.11.1979 at about 9.00 a.m. he, along with the informant(P.W.4) and the deceased, went to cut branches of Shisham trees and as per the direction of the informant (P.W. 4) and the deceased, he climbed over the trees and started cutting the branches of the Shisham tree, and, in the meantime, the appellants came there armed with lathis and they objected to it. An altercation thereafter took place and the appellants assaulted Saroop Thakur, the deceased, with lathi, as a result of which he sustained injuries and then fell down. This witness has further stated in his evidence that out of fear, he remained on the tree and when the appellants retreated, the deceased was taken to Basopatti hospital for treatment. This witness in his cross-examination candid in his deposition.
8. P.W. 3 Bikau Paswan appears to be an independent witness, who on the fateful day, was passing through the place of occurrence and had seen Saroop Thakur and the informant standing near the Shisham tree. Latu Ram(P.W. 1) was cutting the branches of the trees. This witness has also stated in his evidence that the appellants arrived at the place of occurrence and protested to cutting of the branches of the trees and, ultimately, they assaulted Saroop Thakur with their respective Lathis. There is nothing in the cross-examination to discredit his testimony.
9. P.W. 4 Sukhdeo Thakur, the informant, in his evidence has supported the prosecution version-of the occurrence and has stated that on 19.11.1979 at about 9.00 a.m., he along with his father, the deceased, in the company of Latu Ram had gone to their field to get the branches of the Shisham trees cut and in course of cutting of the branches of the trees the appellants came there armed with lathis and they assaulted his father, the deceased, with lathi and he was also assaulted. After receiving fafto-blows, his father fell down and the appellants retreated. His father thereafter was take to Basopatti hospital for treatment and after a few hours, he was again taken to Darbhanga Medical College and Hospital, where he succumbed to the injuries on the next day. This witness has also stated in his evidence that on 19.11.1979 P.W. 6 Ram Raj Ram, Assistant Sub-Inspector of Police of Basopatti Police Station, came in the Hospital and recorded his fardbeyan (Ext. 4). P.W. 4 has consistently deposed that it were the appellants, who assaulted his father with lathi, as a result of which his father sustained head injuries on other parts of the body as well.
10. P.W. 5 Dinesh Thakur, a Sarpanch of different Panchayat, has stated in his evidence that prior to the alleged occurrence a Panchayati was held for settling the dispute in between the informant’s side and the accused persons with regard to the Shisham trees, but no decision could be taken in the Panchayati.
11. P.W. 6, the Investigating Officer of the case, in his evidence stated that immediately after recording the fardbeyan (Ext. 4) of the informant he inspected the place of occurrence and there he had found some branches of the Shisham tree cut and had also found trampling marks in the field.
12. P.W. 7, who held autopsy over the dead-body, found two ante-mortem injuries on the person of the deceased. Injury No. 1 was the injury caused on the head of the deceased. He found swelling with bruise on the left and right side of the head. On dissection the scalp tissues were found deeply bruised on the left temporal parietal region and also towards right temporal region. The temporals and occipital bones were found broken with communition of the fracture line. He had further found ante-mortem injuries on the chest of the deceased. In the opinion of the doctor, injury No. 1, the head injury was fatal injury and in natural course,, that was sufficient to cause death.
13. The prosecution witnesses, as discussed above, fully proved the place occurrence and also the genesis of the occurrence. The evidence of the Investigating Officer corroborates the prosecution version of the case and the same is further corroborated by the evidence of the doctor, as he has found sufficient injuries on the person of the deceased. The prosecution version of the case consistently is that the deceased was assaulted with Lathi and the injuries found on the person of the deceased were caused by Lathi. From the evidence of the prosecution witnesses, it further appears that the prosecution parties claimed the Shisham tree of their own, as it had fallen in their share and they had semblance of their right over the land in question.
14. The defence witnesses, however, are suggestive of two facts; firstly, that the accused-persons had protested to cutting of the branches of the Shisham tree, as it belonged to them and on account of that an altercation took place and the accused-persons had also sustained injuries. One doctor has been examined by the defence. P.W. 2, Nawal Kishore Singh, in his evidence has said that he had examined Maheshwar Thakur on 20.11.1979 and had found certain injuries on his person.
15. It is true that DW 2 had found certain injuries on the person of appellant No. 1, Maheshwar Thakur, but no material has been placed on record to show that for the alleged assault any case was instituted by the appellants against the prosecution side. Merely it is stated by earned Counsel appearing on behalf of the appellants that a complaint (Ext. C) was filed by injured Maheshwar Thakur disclosing the factum of assault on him. However, I do not know as to the result of the complaint case The Investigating Officer of the case (P.W. 6) nowhere in his evidence has stated that any case was lodged in the police station, by the appellants nor they were made available to the Investigating Officer after the occurrence.
16. On an analysis of the evidence led by the parties, it appears that both the sides had some semblance of right over the land in question, over which the Shisham tree was standing. From the evidence of P.W. 5 and also from the evidence of some of the defence witnesses, it appears that the prosecution side and the appellants are agnates and there was no partition by metes and bounds and both the sides claimed the Shisham tree in question. It further appears to us that on account of cutting of branches of Shisham tree, the quarrel took place, which resulted into assault upon the deceased by the appellant. From the evidence, as discussed above, I further gather that the appellants had no intention to cause murder of the deceased, rather their intention was to cause bodily injury on the person of lire deceased. Earned Counsel appearing on behalf of the appellants, submitted that the appellants having claimed the semblance of right, so far as Shisham trees are concerned, had protested to the informant’s side. Learned Counsel further submitted that the appellants had no intention to commit murder of Saroop Thakur and all of them have remained in custody for some time during the course of trial.
17. From the evidence of the doctor (P.W. 7), injuries were found to haze been caused on the person of the deceased by hard and blunt substance like Lathi. No other weapon appears to have been used by the appellants except Lathi. Having heard Counsel for the parties and appreciating the evidence on record, it appears to me that the appellants had no intention to cause death or to cause bodily injuries which were likely to cause death, Admittedly, the injuries were caused by Lathi. It further appears to me that, the occurrence is of the year 1979 and by now more than 20 years have passed. I further find that the appellants and the informant are close agnates and even after the occurrence, they are living peacefully. Considering the facts and circumstances of the case, therefore, in my opinion, the conviction and sentence of the appellants under Sections 302/34 of the Indian Penal Code are not sustainable and for securing the ends of justice, the same is altered into one under Section 304, Part II read with Section 34 of the Indian Penal Code. It appears that the appellants have suffered imprisonment for some time. It further appears that appellant No. 1, Maheshwar Thakur, by now is aged about 80 years and the rest of the appellants “re his sons. In my considered opinion after lapse of 20 years, it would not be desirable to send the appellants to jail.
18. In that view of the matter, the appellants are sentenced to the period already suffered by them in addition to a fine of Rs. 2,500/- (rupees twenty-five hundred) each and in default of payment of fine, the appellants shall suffer rigorous imprisonment for a period of six months each. If the fine is realised, the same shall be paid to the informant.
19. With this modification in the order of conviction and sentence, this appeal is dismissed.
M.L. Visa, J.