D.P. Singh, J.

1. Both the appeals arising out of the same impugned judgment, have been heard together and are being disposed of by this common judgment. All the three appellants in both the appeals stand convicted under Sections 302/34 and 307/34 of the Indian Penal Code and they have been sentenced for life under Section 302/34 of the Indian Penal Code and R.I. for seven years and also to pay fine of Rs. 5000/- each under Section 307/34 of the Indian Penal Code. In default of payment of fine they will further suffer three months S.I. each. All the sentences have been ordered to run concurrently.

2. Factual matrix leading to these appeals are that in the morning of 4.4.1997 the informant PW 8 was ploughing his land situated in Mauza Gahanadih, P.S. Gamharia while the deceased Guru Prasad Mahato alongwith his mother Shanti Mahatain was mending ridge of the fields nearby. As further stated at 7.30 a.m. appellant Shib Prasad Mahato arrived there and asked them not to dig the soil on which Shanti Devi (PW 6) asserted her rights claiming the field belonged to them which led to some altercation. Appellant Shib Prasad Mahato went back and came after 20 minutes alongwith all other appellants carrying arms in their hands. According to the informant, father of the appellants, Gahan Mahato exhorted them to kill Shanti Devi and Guru Prasad Mahato on which the appellant Dev Prasad Mahato assaulted Shanti Devi with lathi on her head resulting in head injury. Further stated the appellant Rebindra Prasad Mahato assaulted Guru Prasad Mahato with sword in his hand on his head. Further all the appellants assaulted Guru Prasad Mahato while Shib Prasad Mahato fired from his gun. When the family members of the informant arrived there to protest, they were also assaulted by the appellants variously. According to them the appellants also received some injuries on their persons. Thereafter villagers arrived and brought the injured persons for their treatment in local primary health centre where Guru Prasad Mahato breathed his last.

3. The police was informed which arrived at the T.M.H. Hospital, Jamshedpur and recorded the statement of PW 8 undergoing treatment there. On the basis of this statement Gamharia P.S. Case No. 18 of 1997 was registered under Sections 302, 307, 326/34 of the Indian Penal Code and 27 of the Arms Act. The police investigated the case and finally submitted the charge-sheet against all the appellants and others. The trial Court after trial found and held these appellants guilty under Section 302/34 of the Indian Penal Code and Section 307/34 of the Indian Penal Code and have sentenced as aforesaid. The lady Santoshi Mahatain was acquitted of the charges but convicted under Section 323 of the Indian Penal Code, and released on execution of bond under the Probation of Offenders Act.

4. The present appeals have been preferred mainly on the grounds that the learned trial Court has failed to consider the defence properly regarding the case and counter case. According to the learned Counsel for the appellants Shri M.K. Dey, learned trial Court has accepted the contradictory statements of witnesses to come to conjectures and surmises that the appellants had committed the offence after making preparation resulting in death of Guru Prasad Mahato and serious injuries on other witnesses. Learned counsel further pointed out that all the witnesses examined on behalf of the prosecution were related and highly interested whereas independent witnesses PWs 3 and 9 did not support the prosecution version. Sri M.K. Dey further pointed out that though the appellant Shib Prasad Mahato is said to have fired thrice but no injury was caused to any of the witnesses. Sri Dey stressed before us that the injuries on the person of the appellants have not been explained and concealed by the prosecution giving occasion to serious doubts on the veracity of the prosecution witnesses. According to Sri Dey free fight occurred between the prosecution and defence party in which injuries have been caused. Therefore the appellants were entitled for exercising of their rights of property and life. Therefore the prosecution version should have not been accepted as a whole to sentence the appellants as mentioned above. Our attention was drawn towards the minor contradictions in the statement of PWs 5, 6, 7 and 8 as to who assaulted whom. Accordingly, Sri Dey submitted that the conviction of the appellants be set aside acquitting them of all the charges.

5. The learned APP opposed the contention on the grounds that as per the prosecution version the appellants came prepared within 20 minutes to commit the offence in which one person lost life and three persons received grievous injuries. The learned APP further pointed out that all the witnesses though related were injured who have supported the prosecution version meticulously. In the context, our attention was drawn towards the evidence of PWs 11, 12 and 14 who have examined the injured persons as well as conducted the post-mortem report. Therefore the present appeals deserve to be dismissed.

6. We have considered the submissions made on behalf of appellants as well as the State. The prosecution story as unfolded by the prosecution witnesses PWs 5, 6, 7 and 8 shows that in the morning of 4.4.1997 PW 5 alongwith PWs 6 and 7 was sitting inside the house when all of a sudden halla was heard from the fields. The came out of the house to find that the appellants along with others were assaulting the deceased and PW 6. According to PW 5 when he tried to help PW 6 and deceased he was also assaulted by sharp cutting weapon by Rabindra Mahato. He has been supported by PW 7. PW 6 is another injured supported the prosecution case. These witnesses have been cross-examined at length during which they have submitted that they did not go to police station. He further asserted that he was conscious throughout. PW 7 supported her husband and claimed to have seen the occurrence. She admitted in cross-examination that Guru Prasad Mahato has been assaulted before they arrived at the place of occurrence. She further admitted that PW 1 and PW 8 were only persons available in the neighborhood. They have denied that any injury was caused on the body of the appellants for the same occurrence. PW 6 during her cross-examination admitted that appellants Shib Prasad Mahato has objected while she alongwith deceased were digging soil for mending the ridge. She further admitted that she fell down with first assault but no blow was repeated on her. She further admitted that Section 145, CrPC case was pending between her husband and accused Gahan Mahato which was ultimately in her favour. She has denied the suggestion that on the date of occurrence they were digging the land forcibly resulting in exchange of blows for which counter case was also pending.

7. The learned trial Court has considered all these aspects vide paras 9, 10, 11 and 12 of the judgment. The learned trial Court has further found and held that there was dispute continuing between the parties for the possession of the land on which the occurrence took place. It further mentions that sessions trial No. 179/99 for an occurrence of the same day at same place was pending at that time. However, the defence having not brought on record the right of private defence case, the prosecution story was believed.

8. We further find from the materials on record that the incident took place due to digging of soil and mending ridge on a disputed plot. It has also come on record that appellant Shib Prasad Mahato though having used fire-arms did not aim at any person of the prosecution side. The injuries on the deceased is discussed in para 8. PW 10 Dr. Lalan Choudhary has found ante-mortem incised wound on the temporal bone, frontal region resulting in death of the deceased. The plea taken by the learned Counsel for the appellants that the incident took place in which exchange of blows was made by both sides, though not brought on record, has not been denied by the prosecution side completely. The pendency of session trial No. 179/99 shows that for an occurrence on the same day and on same plot another session trial was continuing, the learned trial Court has not considered these aspects only because the documents related to session trial No. 179/99 were not brought on record.

9. Having considered all the facts and circumstances of the case, we find that the incident took place on sudden provocation from the prosecution side who was claiming the possession of the land of plot No. 75 as discussed by the learned trial Court vide paras 5 and 7 of the judgment. The conduct of the appellant Shib Prasad Mahato while using the fire-arms also shows that he has no intention to cause death of the prosecution side as no gun shot injury has been reported. The use of sharp cutting weapon only on one person in another aspect which has been missed by the learned trial Court while convicting the appellant under Section 302/34 of the Indian Penal Code.

10. Sri Dey relied on 2005 Cr. Law Journal 555; 1996(1) PLJR W5 and AIR 1991 SC 1065 to point out that considering the facts of the case conviction under Section 302, IPC has been converted under Section 304 of the Indian Penal Code. In the facts and circumstances of the case, in our view the offence of causing death of Guru Prasad Mahato is also covered under Section 304 Part II of the Indian Penal Code.

11. Accordingly, we find that the conviction under Section 302/34 Indian Penal Code cannot be sustained. As such conviction of the appellants under Section 302/34 of the Indian Penal Code is hereby set aside and converted into under Section 304 Part II of the Indian Penal Code. The conviction of the appellants under Section 307/34 of the Indian Penal Code is confirmed.

Since the appellants have already remained in custody for more than 11 years by now and therefore the sentences are accordingly, modified to the period already undergone by the appellants in the custody. The appellants who are in custody are directed to be released forthwith if not wanted in any other case.

12. In the result these appeals are dismissed with modification of conviction and sentence as aforementioned.

Amareshwar Sahay, J.

13. I agree.