In cases where the occurrence takes place suddenly and without premeditation, and the accused acts in the heat of the moment, the court may modify the conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC).

Loknath Prasad, J.

This appeal is directed against the judgment of conviction dated 11.4.1989 passed by 4th Additional Sessions Judge. Hazaribagh, in Sessions Trial No. 147/84 through which both the appellants were found guilty under Section 302/34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life.

2. The prosecution case, in short, is that on 5.7.83 the deceased, Mahboob Mian, was in his house situate in village Laiyo, P.S. Mandu, Dist. Hazaribagh and at that time, the other family members were also present in the house. It has been alleged that at that time the appellant, Hashim Mian came to the house of Mahboob and called him and also asked him to show the damaged crop which had been damaged by grazing of his she goat so that he will pay the compensation. Then Mahboob came out and both of them proceeded towards the house of Hashim and the wife of Mahboob also followed him. But on the way, the brother of Hashim, Salim Mian, came and put a towel on the neck of Mahboob and began to assault by fists which led to altercation between the two sides. In the meanwhile, appellant Hashim brought a piece of wood and gave a blow on the head of Mahboob due to which Mahboob became seriously injured and became unconscious and immediately he was taken in a truck to Jharkhand Colliery Dispensary where he was treated but sensing the gravity of the injury, he was referred to Nayee Sarai Hospital and from there he was referred to R.M.C.H., Ranchi. It is the prosecution case that the injured Mahboob was admitted in RMCH, Ranchi in the Neuro-Surgery Ward and in course of treatment he died on 7.7.83. In the meantime, Hussaini Mian, the father of Mahboob returned to his house on 7.7.83 and informed the family members and other villagers that condition of Mahboob was serious in the hospital and on 8.7.93 at 8.15 a.m. a written report was submitted at West Bokaro O.P which was referred to Mandu P.S. for instituting a case. In the meantime, the deceased also died at R.M.C.H. So information was sent to local police at Bariatu and a police officer went to the hospital and recorded the statement of Sattar Hussain, the brother of Mahboob on 8.7.83 at 11 a.m. It was also subsequently referred to Mandu P.S. The police actually treated the first FIR, that is, the FIR recorded at 8 a.m. on 8.7.83 on the basis of the written report submitted at West Bokaro O.P by Hussaini Mian, father of the deceased, and investigation was taken up. The dead body of the deceased was subjected to post mortem examination at RMCH itself. After completing the investigation, charge-sheet was submitted as against these two appellants.

3. Both the appellants claimed themselves innocent in court below and a defence was taken up that only out of previous enmity they have been falsely implicated and no specific defence case was made out.

4. So the defence has not specifically denied that the deceased Mahboob Mian or Mahboob Ansari sustained injury in the afternoon of 5.7.83 at village Laiyo and due to that died in HMCH, Ranchi during the course of treatment on 7.7.83. Simply both the appellants claimed that they had not taken part in the occurrence.

5. To prove the case on behalf of the prosecution as many as 16 witnesses were examined and PW 1 Ibrahim Mian, PW 3 Maksood Hussain, PW4 Sadik Mian, PW 5 Jaimunissa, PW 7 Julekha Khatoon, PW 9 Hussaini Mian, who is the informant, and PW. 10 Sattar Hussain, who is the brother of the deceased are witnesses on the point of the occurrence. PW 9 Hussaini Mian is the father of the deceased and the informant of this case because the first information report was lodged by him by submitting a written report, that is, Ext. 2 at West Bokaro O.P. and so he is an important witness. According to this witness, on the date of occurrence, that is on 5.7.83 at about 4 p.m. or so when Mahboob, his son, was in the house and taking rest, then the appellant Hashim came and asked Mahboob to show the damaged crop which had been da