Akhilesh Chandra, J.@mdashHeard. All the four appellants have preferred this appeal against conviction of appellant No. 1, Tej Narain Rai, for the offence u/s 304 Part II and 323 of the Indian Penal Code sentenced to undergo rigorous imprisonment for seven years and six months respectively and remaining three appellants for the offence u/s 325/34 of the Indian Penal Code and sentenced to undergo three years besides appellant No. 3, Prabhu Rai for six months for the offence u/s 323 of the Indian Penal Code. All the sentences are to run concurrently as awarded on 21st February, 2002 by learned First Additional Sessions Judge, Samastipur in Sessions Trial No. 193 of 1986/282 of 1999 arising out of Patory P.S. Case No. 50 of 1985.
2. The prosecution case, based on statement of P.W. 5, Shatrughan Rai, is that in the late evening of 04th April, 1985 there was some quarrel between female inmates of the parties wherein the appellants, armed with lathi, also intervened. Appellant No. 4, Upendra Rai, was also armed with a pistol and after slapping wife of the informant by Prabhu Rai at the dictates of appellant No. 2, Bans Mani Rai, appellant No. 1 gave one lathi blow which hit infant female child in the lap of informant''s wife resulting into her death. Immediately thereafter all fled away. The reason behind the occurrence, as stated, is previous enmity.
3. During trial prosecution has produced the following documents.
besides producing ten witnesses. Out of whom P.W. 2, Satyadeo Mahto and P.W. 7, Lakshminia Devi, a female witness and proved Exhibit-2, were tendered. P.Ws. 8 and 9 Ram Sharan Singh and Vijay Kumar proved Exhibits-2 and 3. P.W. 10 is the doctor, who conducted autopsy of the dead body of the infant and found following three ante mortem injuries:
(i) Bruise covering front half of the head.
(ii) Fracture of all bones of the head.
(iii) Collection of blood clot under the scalp and in the cranial cavity pressing on the brain. Injuries were caused by hard and blunt substance.
Which are sufficient, in his opinion, to cause death and proved Post Mortem Report, Exhibit-4.
4. P.W. 1, Ram Ekbal Rai, has supported the prosecution version with only addition that the lathi blow was aimed on head of informant''s wife whereas P.W. 3, Upendra Mahto, though almost stated prosecution version without addition of aim of the assailant, as stated by P.W. 1. Almost similar is the position of P.W. 4, Gajendra Rai and the informant, P.W. 5. P.W. 6, Bimla Devi, wife of the informant, while stating the prosecution version, has leveled general and omnibus allegation against Appellants No. 2 to 4 of slapping her. Only thereafter appellant No. 1 gave lathi blow which she tried to escape but the same inflicted fatal injury upon head of the infant in her lap who, without any treatment, succumbed.
5. It is contended by learned counsel for the appellants that enmity between the parties was going on and to establish this undisputed position they have also produced exhibits (defence).
But, at the same time, there is nothing to show intention of the appellants to kill P.W. 6 or any one including the infant in her lap. Had it been appellant Upendra Rai, would have used the pistol, allegedly with him, rather it is a simple case of assault in a petty dispute between two females but ultimately resulted into unintentional death of the infant. P.W. 6 was also not examined by the doctor nor there is any injury report but since her statement regarding being slapped by appellants No. 2 to 4 is consistent and supported by the other witnesses. All the appellants may be held guilty for the offence u/s 323 of the Indian Penal Code and that apart from taking into consideration giving lathi blow to a sitting lady having an infant in her lap and act of appellant No. 1, though may be without any intention to kill any one but resulting into death of the infant at least due to careless and harsh act of giving a forceful lathi blow leads noninterference in his conviction for the offence u/s 304 Part-II of the Indian Penal Code.
6. At the same time, it is also to be considered as rightly pointed out from the Bar that in this case of the year 1985 appellant No. 1, who is now aged about seventy nine years, has already suffered detention for about nine months at pre and post conviction stage and remaining appellants have also suffered detention for about two months, besides mental agony and financial loss. But, at the same time informant and P.W. 6, who lost their first issue at very early age, they needs to be compensated in terms of money.
7. Having regard to the facts and circumstances, stated above, conviction of appellant No. 1 for offences under Sections 304 Part II and 323 of the Indian Penal Code remain undisturbed but conviction of remaining appellants for the offence under Sections 325 read with 34 of the Indian Penal Code is not sustainable rather their conviction is modified to the extent for the offence u/s 323 of the Indian Penal Code and subject to payment of fine of Rs. 10,000/- by appellant No. 1, Tej Naraian Rai, within two months, which is to go to the informant and his wife, if alive, or to their heirs. The sentence awarded to the appellants are modified and reduced as the sentence undergone. With the above modification in sentence, the appeal is hereby dismissed.
