Criminal Appeal (SJ) No. 155 of 1996

Against the judgment of conviction dated 17.07.1996 passed by

Sri Rukmini Kant Choudhary, Ist Additional Sessions Judge,

Banka in Sessions Trial No. 607 of 1994.

1. Tetar Mandal, Son of Jumman Mandal, resident of village –

Assimakaita, Police Station – Dhoraiya, District – Banka.

2. Upendra Mandal, Son of Late Baiju Mandal, resident of

village – Assimakaiya, Police Station – Dhoraiya, District –

Banka.

.... .... Appellant/s

Versus

The State Of Bihar .... .... Respondent/s

--------------

For the Appellant/s : Mr. Sunil Prasad, Advocate.

For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P.

P R E S E N T

THE HON’BLE MR. JUSTICE GOPAL PRASAD

Gopal Prasad, J. The appellants have been convicted under Section

304 part II/34 of the Indian Penal Code and have been sentenced to

undergo rigorous imprisonment for three years.

2.

The prosecution case as alleged in the fardbeyan by the informant

is that the father of the informant had dug a ditch beside a hand pump

and had stored water. Accused Sanjoy Kumar Mandal, Tetar Mandal and

Upendra Mandal after cutting a ditch were using the water to irrigate

their land which was protested by the father of the informant on which it

is alleged that three accused persons assaulted him by lathi on his head

2

near the ear and it is further alleged that when his father made a halla

then the informant came and saw the three accused persons including the

appellants assaulting him.

3.

On the fardbeyan, the First Information Report was lodged and

after investigation charge-sheet was submitted cognizance taken, case

was committed to the court of sessions and the charge was framed under

Section 302/34 of the Indian Penal Code.

4.

However, during the trial seven witnesses were examined and

after considering the oral and documentary evidence the appellants have

been sentenced to undergo rigorous imprisonment for three years under

Section 304 part II/34 of the Indian Penal Code.

5.

Learned counsel for the appellants, however, contended that

though there is vague and omnibus allegation of assault by all the three

accused persons and there is no specific allegation that who assaulted on

what part of the body. However, during the trial it has come that Sanjoy

Kumar Mandal who is not appellant here assaulted the deceased by lathi

at the ear and head and these two appellants have been attributed to have

assaulted the informant on hand and back which is not vital part of the

body. It has further been contended that the occurrence took place in fit

of moment for irrigating the land from the water in the ditch which is a

trifle matter and the weapon used is also a lathi and there was no

intention to kill and both the appellants and the deceased were

3

neighbours. There is no enmity and nothing except that the occurrence

took place in the fit of moment on verbal altercation. It has further been

contended that the post-mortem report indicates the three injuries and the

fatal injury alleged to be injury no. 2 which is on the head near ear and in

the evidence of the witnesses it has come that the said injury no. 2 is

attributed to Sanjoy Kumar Mandal and not these appellants.

6.

Learned counsel for the State, however, fairly conceded that as per

the evidence of the witnesses the role attributed to these appellants who

have assaulted on the hand or leg and on the back and the injury no. 2

which has been shown to be fatal was attributed to Sanjoy Kumar

Mandal and hence supported the order of conviction.

7.

Hence, the question for consideration whether the prosecution

prove the charges and the appellants are entitled to benefit.

8.

However, the prosecution case as alleged is that the dispute arose

while the appellants were trying to take water from the ditch for

irrigating their l