The acceptance of a strong alibi and the assessment of the manner of occurrence influenced the court's decision in acquitting one appellant and modifying the conviction of the other.

Anjana Prakash, J.

1. The Appellant Ghanshyam Kumar has been convicted under Section 307 I.P.C. and sentenced to R.I. for five years, whereas Appellant Samendra Kumar @ Sabendra Kumar @ Sabindra Kumar has been convicted Under Section 304 I.P.C. and sentenced to R.I. for six years by the 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 28 of 1991/18 of 1991 by a judgment dated 26.2.1994.

2. The case of the prosecution is that on 31.10.1990 when the deceased had gone to the shop of Appellant Samendra Kumar, an altercation took place between them over a minor matter, in course of which Appellant Ghanshyam Kumar is said to have assaulted the deceased with a chhura which hit him on the elbow, whereas Appellant Samendra Kumar is said to have assaulted also with the dagger which struck on his back.

3. During trial the prosecution has examined twelve witnesses on its behalf. Out of whom, P.W. 6 and P.W. 11 are the doctors, who had examined the deceased and P.W. 12 is the doctor, who had conducted the postmortem examination. P.W. 1, P.W. 2, P.W. 7 and P.W. 8 have been examined as eye witnesses. P.W. 3, P.W. 4 and P.W. 5 are hearsay witness and P.W. 9 has been declared hostile. The Investigating Officer has been examined as P.W. 10.

4. The defence of the Appellant Ghanshyam Kumar was that he was admitted in the Hospital on the date of occurrence and, therefore, pleaded alibi. Four witnesses were examined on his behalf. Out of whom, D.W. 1 is the doctor and D.W. 4 is the person, who had accompanied the Appellant for marriage negotiations.

5. It has been pointed out by the learned Counsel for the Appellant Ghanshyam Kumar that the Investigating Officer (P.W. 10) in paragraph 26 has conceded the fact that the Appellant had pleaded alibi at the earliest instance and an enquiry had been made by him in the said regard and it was found that the Appellant Ghanshyam Kumar was admitted in the Hospital. The corresponding documents had been directed to be kept in safe custody by the Investigating Officer to be produced during trial.

6. In view of such clinching material supporting the alibi, I am inclined to accept the same and in the result, Criminal Appeal No. 58 of 1994 of Appellant Ghanshyam Kumar is allowed and he is acquitted of the charge and the order of conviction and sentence against the Appellant Ghanshyam Kumar passed on 26.2.1994 by the 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 28 of 1991/18 of 1991 is set aside. The Appellant is discharged from the liability of his bail bonds.

7. Where the Appellant Samendra Kumar @ Sabendra Kumar @ Sabindra Kumar is concerned, I find that the evidence of P.W. 1, P.W. 2, P.W. 7 and P.W. 8 is completely trustworthy that he had assaulted the informant on the back with a dagger. The said injury was found fatal by the doctor but the manner of occurrence suggests that there was no knowledge that such injury would result in the death of the informant. In the facts of the case, therefore, the conviction of Appellant Samendra Kumar @ Sabendra Kumar @ Sabindra Kumar is converted to one Under Section 326 I.P.C. from 304 I.P.C. and he is sentenced to a period already undergone by him during trial.

8. The Criminal Appeal No. 110 of 1994 of Samendra Kumar @ Sabindra Kumar is dismissed with the aforesaid modifications.