IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.200 of 2014

Arising Out of PS. Case No.-90 Year-2007 Thana- JAGDISHPUR District- Bhagalpur

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1.Ram Prasad Mandal. S/o Chhedi Mandal

2.Fantush Mandal S/o Ram Prasad Mandal

3.Anirudh Mandal S/o Ram Prasad Mandal

4.Sudhir Mandal S/o Ram Prasad Mandal

All residents of Village- Kadwa Mohanpur, P.S- Goradih, District-

Bhagalpur.

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s: Mr.Davendra Kumar Pandey, Advocate.

For the Respondent/s: Mr.Abhay Kumar, APP.

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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

C.A.V. JUDGMENT

Date : 28-04-2026

Heard Mr. Davendra Kumar Pandey, learned counsel

appearing on behalf of the appellants and Mr. Abhay Kumar,

learned APP for the State.

2. The present appeal has been filed under Sections

374(2) and 389(1) of the Code of Criminal Procedure

challenging the judgment of conviction and order of sentence

dated 31.03.2014 passed by the learned Ad hoc Additional

Sessions Judge-I, Bhagalpur in Sessions Trial No. 1185/2007

(Tr. No. 332/2013) (arising out of Jagdishpur (Goradih) P.S.

Case No. 90 of 2007, G.R. No. 1290/07), whereby and

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whereunder, the appellants have been convicted for the offence

punishable under Section 323/34 of the Indian Penal Code and

have been sentenced to undergo simple imprisonment for six

months.

3. Being aggrieved and dissatisfied with the

aforesaid judgment of conviction and order of sentence, the

appellants have preferred the present appeal before this Court.

The appellants have assailed the impugned judgment primarily

on the ground that the learned Trial Court failed to appreciate

the evidence available on record in its proper perspective and

has wrongly recorded the conviction of the appellants despite

the existence of serious contradictions and deficiencies in the

prosecution case.

FACTS OF THE CASE

4. The prosecution case, in brief, is that as per the

fardbeyan of the informant recorded on 13.05.2007 at about

4:00 P.M., on 12.05.2007 at about 11:00 A.M., a quarrel took

place between the informant’s son, Om Prakash Sah, and one

Mukesh Mandal while they were playing, and when the

informant’s wife intervened to pacify the matter, accused Ram

Prasad Mandal and Fantush Mandal, armed with lathi, arrived

there, abused her and assaulted her, causing injuries on her

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hand, forearm and waist; it is further alleged that upon the

informant returning home, accused Anrudh Mandal and Sudhir

Mandal, armed with danda and khanti, came to his door, abused

and assaulted him, resulting in injuries on his head and right

hand, and during the occurrence, accused Sudhir Mandal

allegedly took away Rs. 5,000/- from his pocket along with a

Sonata wristwatch and two silver rings, the entire incident

having arisen out of a dispute between the children, and on the

basis of the said fardbeyan, Jagdishpur (Goradih) P.S. Case No.

90 of 2007 dated 12.05.2007 was instituted under Sections 341,

447, 323 and 379/34 of the Indian Penal Code.

5. Charges were framed on 30.11.2007 under

Sections 307, 323, 341, 379, 447 and 504/34 of the Indian Penal

Code against all the accused persons, to which they pleaded not

guilty and claimed to be tried.

ARGUMENT ON BEHALF OF THE APPELLANTS

6. Learned counsel appearing on behalf of the

appellants submitted that the impugned judgment of conviction

and order of sentence passed by the learned Trial Court is

wholly illegal, perverse, and unsustainable both in law and on

facts. It is contended that there is unexplained delay in lodging

the F.I.R., which casts serious doubt on the prosecution story

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and suggests possibility of false implication due to admitted

prior enmity between the parties. The counsel further submitted

that although the appellants were charged under Sections 307,

323, 341, 379, 447 and 504/34 IPC, the medical evidence does

not support the allegation of attempt to murder, as no grievous

or cut injury has been found despite the allegation of use of a

sharp weapon (Khanti), and all injuries are simple in nature. It is

further argued that the testimonies of PW-2, 3 and 5 suffer from

material contradictions and inconsistencies, which go to the root

of the case and render the entire prosecution version unreliable.

7. Learned counsel further submitted that the

prosecution has failed to prove the charges against the

appellants beyond reasonable doubt, and the learned Trial Court

has erred in convicting the appellants without proper

appreciation of evidence on record. It was also contended that

the defence evidence has not been considered in its proper

perspective and has been wrongly discarded. The appellants

have remained on bail throughout the trial and have never

misused the privilege granted to them, which reflects their bona

fide conduct. On these grounds, learned counsel submits that the

impugned judgment of conviction and order of sentence is liable

to be set aside and the appellants deserve to be acquitted of all

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the charges in the interest of justice.

ARGUMENT ON BEHALF OF THE STATE

8. Per Contra, learned APP appearing on behalf of the

State while opposing the appeal submitted that the learned

District court, after considering all the evidences, both oral and

documentary, adduced during the course of trial, has committed

no error, either of fact or of law, in recording the conviction of

the appellants on the basis of cogent and reliable material on

record, warranting no interference by this Court.

ANALYSIS AND CONCLUSION

9. Heard the parties.

10. I have perused the lower court records and

proceedings and also taken note of the arguments canvassed by

learned counsel appearing on behalf of the parties. It would be

apposite to discuss the oral/documentary evidences as available

on record to re-appreciate the evidences for just and proper

disposal of the present appeal.

11. During the trial, the prosecution has examined

altogether nine witnesses, namely:

1.PW-1 Makhan Mandal

2.PW-2 Sita Devi,

3.PW-3 Om Prakash Sah

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4.PW-4 Munia Devi

5.PW-5 Manoj Kumar Sah

6.PW-6 Pradip Sah

7.PW-7 Ram Pravesh Sharma

8.PW-8 Ajablal Mandal

9.PW-9 Dr. Manoj Kumar Jha

The Defence have also examined three witnesses, namely,

1. DW.1 – Pawan Mandal

2. DW-2 Jay Prakash Mandal

3. DW-3 – Om Prakash Mandal

12. The prosecution has also relied upon following

documents exhibited during the course of trial:

(i) Exhibit-1 – Signature of the informant on the

fardbeyan

(ii) Exhibit-1/1- signature of the brother of the

informant on fardbeyan

(iii) Exhibit-2- Formal FIR

(iv) Exhibit-3- Marginal note

(v) Exhibit-4- fardbeyan of the informant

(vi) Exhibit-5- writing and signature of the

chargesheet

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(vii) Exhibit-6 and 6/A - injury report

13. Upon a meticulous examination of the record,

the evidence of the prosecution witnesses (PWs) can be

summarized as follows:

(I) P.W.-1: Makhan Mandal: P.W.-1 has deposed

that on the alleged date at about 11:00 A.M., while he was at his

house, he came to know about an occurrence of assault between

Ram Prasad Mandal and Manoj Mandal. He stated that he heard

that Manoj Mandal was assaulted on his shoulder by lathi.

However, he clearly admitted that he had not witnessed the

occurrence and his knowledge is purely hearsay. He further

stated that he had not heard about any bleeding injury and also

admitted that he did not visit the place of occurrence. He could

not say who took the injured to the hospital or for how long he

was treated. PW-1 is a Hearsay witness and not an eye-witness.

(II) P.W.-2: Sita Devi (Injured Witness): P.W.-2

deposed that the occurrence took place on 12.05.2007 at about

11:00 A.M. While she was at home, she went to pacify a quarrel

between Om Prakash and Mukshi Mandal. During this, accused

Ram Prasad Mandal and Fantush Mandal, armed with lathi,

came and assaulted her, causing injuries on her waist and hand.

She further stated that when her husband (Manoj) came and

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questioned the accused persons, Anirudh Mandal (armed with

garasa) and Sudhir Mandal (armed with khanti/lathi) assaulted

her husband on the head, causing bleeding and he fell down.

She also alleged that the accused persons took away Rs. 5000/-,

a Sonata watch, and a silver ring from her husband. She stated

that she also sustained injury on her forehead. After the

occurrence, they went to the police station and were sent to

Mayaganj Hospital, where her husband was hospitalized for

about 15 days.

(III) P.W.-3: Om Prakash Sah (son of the injured):

P.W.-3 deposed that the occurrence took place on 12.05.2007 at

about 11:00 A.M. while he was playing cricket. A quarrel started

with Mukshi Mandal, who assaulted him with a lathi. He stated

that when his mother (Sita Devi) came to intervene, Ram Prasad

Mandal assaulted her, causing bleeding injury. Thereafter, when

his father Manoj came and questioned the accused, Anirudh

Mandal assaulted his father with a garasa on the head and

Sudhir Mandal assaulted him with a lathi. He further alleged

that Sudhir Mandal took away Rs. 5000/-, a Sonata watch, and a

silver ring. The injured was taken to police station and then to

Mayaganj Hospital for treatment.

(IV) P.W.-4: Muniya Dev: P.W.-4 deposed that the

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occurrence took place at about 11:00 A.M. due to a quarrel

between children over cricket. She stated that Sita Devi was

assaulted and fell unconscious. She further deposed that when

Manoj Sah came and questioned the accused persons, all

accused assaulted him. Specifically, Sudhir Mandal assaulted

Manoj with a garasa on the head causing bleeding, while others

assaulted him with lathi. She stated that Manoj was taken to

Goradih Police Station and then to Mayaganj Hospital where he

remained admitted for about 8 days. She is the Eye-witness of

the occurrence and supports the prosecution case.

(V) P.W.-5: Manoj Kumar Sah (Informant &

Injured): P.W.-5 is the informant of the case. He proved his

signature and that of his brother on the fardbeyan (Exhibit-1

series). He deposed that on 12.05.2007 at about 11:00 A.M., his

wife informed him about a quarrel between children and

subsequent assault. Later, accused Ram Prasad Mandal and

Fantush Mandal came to his house and assaulted his wife. When

he went to question them, Anirudh Mandal (armed with khanti)

and Sudhir Mandal (armed with lathi) along with others

assaulted him. He specifically stated that Anirudh Mandal

caused injury on his head and Sudhir Mandal assaulted him on

his waist. He further alleged that Rs. 5000/-, a Sonata watch,

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and two silver rings were taken away. He was taken to

Mayaganj Hospital, where his fardbeyan was recorded.

(VI) P.W.-6: Pradeep Sah: P.W.-6 deposed that the

occurrence took place on 12.05.2007 at about 11:00 A.M. due to

a quarrel between Om Prakash and Mukshi Mandal during

cricket. He stated that Sita Devi was assaulted by Muski and

Fantush. He further stated that later he heard from Om Prakash

that Manoj Sah was assaulted by accused persons. Upon

reaching the place, Manoj told him that Ram Prasad and

Anirudh Mandal had assaulted him. He helped in taking Manoj

to the police station and then to hospital, where he was treated

for about 6–7 days. He stated that he has no knowledge

regarding theft.

(VII) P.W.-7 (Investigating Officer): Ram Pravesh

Sharma (Investigating Officer): P.W.-7 deposed that he

investigated the case, visited the place of occurrence, and

recorded statements of witnesses. He described the place of

occurrence as a parti land in front of the informant’s house at

village Kadwa Mohanpur, with specific boundaries. He proved:

•Formal FIR (Exhibit-2)

•Marginal note (Exhibit-3)

•Fardbeyan in his handwriting (Exhibit-4)

•Charge-sheet (Exhibit-5)

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He stated that after investigation, he found the case true and

submitted charge-sheet.

(VIII) P.W.-8: Ajab Lal Mandal (Hostile

Witness): P.W.-8 deposed that he neither witnessed nor had

direct knowledge of the occurrence. He only heard that a quarrel

had taken place. He was declared hostile by the prosecution.

(IX) P.W.-9: Dr. Manoj Kumar Jha (Doctor):

P.W.-9 deposed that on 12.05.2007, he examined Manoj Sah at

about 3:00 P.M. and found the following injuries:

1.Lacerated injury on right side of skull

2.Swelling and bruise on right hand

3.Abrasion on left hand

4.Complaint of body ache

He advised X-ray and CT scan and reserved opinion. He

opined that injury no. 3 was simple and caused by hard and

blunt substance. Injury report was marked as Exhibit-6.

He further examined Sita Devi at 4:00 P.M. and found:

1.Lacerated injury on forehead

2.Complaint of body ache

Her injury report was marked as Exhibit-6/A.

14. On the basis of materials surfaced during the trial,

the appellants/accused was examined under Section 313 of the

CrPC by putting incriminating circumstances/evidences

surfaced against them, which they denied and showed their

complete innocence.

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15. It would be appropriate to reproduce the

provisions of Sections 307 and 323 of IPC for the sake of

convenience and better understanding of the facts, which is as

under:-

“ 307. Attempt to murder.—Whoever

does any act with such intention or knowledge, and

under such circumstances that, if he by that act

caused death, he would be guilty of murder, shall be

punished with imprisonment of either description for

a term which may extend to ten years, and shall also

be liable to fine; and if hurt is caused to any person

by such act, the offender shall be liable either to

[imprisonment for life], or to such punishment as is

hereinbefore mentioned.

Attempts by life-convicts.—[When any

person offending under this section is under

sentence of [imprisonment for life], he may, if

hurt is caused, be punished with death].

323. Punishment for voluntarily

causing hurt.—

Whoever, except in the case provided

for by section 334, voluntarily causes hurt, shall

be punished with imprisonment of either

description for a term which may extend to one

year, or with fine which may extend to one

thousand rupees, or with both.

16. The record reveals that PW-8 was declared hostile

during the trial, in absence of any corroboration of oral evidence

of the other prosecution witnesses who supported the

prosecution case. Therefore, the testimony of PW-8 is not

relevant for the purpose of establishing the guilt of the

accused/appellant.

17. The prosecution case substantially rests upon the

testimony of P.W.-2 Sita Devi, P.W.-3 Om Prakash Sah and

P.W.-5 Manoj Kumar Sah, with partial support from P.W.-4

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Muniya Devi, while P.W.-1 Makhan Mandal and P.W.-6 Pradeep

Sah do not provide direct evidence of the occurrence. The

testimony of the material witnesses attributes specific overt acts

mainly against Ram Prasad Mandal, Fantush Mandal, Anirudh

Mandal and Sudhir Mandal; however, their version contains

embellishments and inconsistencies, particularly regarding the

nature of assault, the weapons used (lathi, garasa, khanti), and

the manner of occurrence. Allegations of theft of Rs. 5,000/-, a

Sonata wristwatch and silver rings are also not consistently

supported, as P.W.-6 Pradeep Sah has categorically stated

having no knowledge of such occurrence.

18. The medical evidence of P.W.-9 Dr. Manoj Kumar

Jha indicates only simple injuries, such as lacerations, abrasions

and swelling, caused by hard and blunt substance, and does not

fully corroborate the prosecution version of assault by multiple

accused persons with different weapons, including sharp-cutting

instruments like garasa or khanti. P.W.-8 Ajab Lal Mandal has

turned hostile and other independent witnesses have not

supported the prosecution case on material particulars. It is also

evident that the occurrence arose out of a quarrel which took

between children while playing cricket, which subsequently

escalated into free fight. Simple injury suggests possibility of

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exaggeration and false implication of all the accused persons.

COMMON INTENTION WHETHER PROVED?

19. It is well settled that an attempt to commit murder

must be clearly distinguished from a mere intention to commit

the offence or from acts that amount only to preparation for its

commission. The law recognizes that the existence of a guilty

intention alone is not sufficient to constitute an attempt. There

must be something more than planning or arranging the means

to commit the crime. Therefore, in order to secure a conviction

under Section 307 of the Indian Penal Code, the prosecution

must prove the presence of a definite intention or knowledge to

cause death, accompanied by some overt act that directly moves

towards the execution of that intention. In other words, the

accused must not only possess the intention to commit murder

but must also perform an act that clearly demonstrates the

commencement of the offence.

20. The Apex Court laid down the litmus test for

determination of nature of offence in Pulicherla Nagaraju v.

State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts

and circumstances of a particular case, the Court needs to decide

the pivotal question of existence of intention with care and

caution. The following factors needs to be examined:

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(i) nature of the weapon used;

(ii)whether the weapon was carried by the accused or

was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or

sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether

there was any premeditation;

(vii) whether there was any prior enmity or whether the

deceased was a stranger;

(viii)whether there was any grave and sudden

provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken

undue advantage or has acted in a cruel and unusual

manner;

(xi) whether the accused dealt a single blow or several

blows.

21. The similar question came up before the Supreme

Court in the case of Joseph v. State of Kerala, reported in 1995

SCC (Cri) 165 has observed in para 3 which is reproduced

hereinafter:

“3. In this appeal the learned

counsel for the appellant submits that the

intention to cause the injury which was found

sufficient to cause the death in the ordinary

course of the nature was not established. In

support of this submission he relied on the

circumstances namely that the whole incident

took place because of a trivial incident which

resulted in a quarrel and that the weapon

used was only a lathi and in the

circumstances it cannot be said that the

accused intended to cause the death by

inflicting that particular injury which

objectively was proved by the medical

evidence to be sufficient in the ordinary

course of nature to cause death. In other

words he submits that clause 3rdly of Section

300 IPC is not attracted in this case. We find

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considerable force in the submission. The

weapon used is not a deadly weapon as

rightly contended by the learned counsel. The

whole occurrence was a result of a trivial

incident and in those circumstances the

accused dealt two blows on the head with a

lathi, therefore, it cannot be stated that he

intended to cause the injury which is

sufficient (sic). At the most it can be said that

by inflicting such injuries he had knowledge

that he was likely to cause the death. In

which case the offence committed by him

would be culpable homicide not amounting

to murder. We accordingly set aside the

conviction of the appellant under Section 302

IPC and the sentence of imprisonment for life

awarded thereunder. Instead we convict the

appellant under Section 304 Part II IPC and

sentence him to five years' RI.”

22. The judgment of Joseph (supra) was referred

by the Apex Court in the case of Jugatram Vs. State of

Chhattisgarh, reported in (2020) 9 SCC 520.

23. Further, to sustain a conviction under Section

307 IPC, the Apex Court in the case of Sivamani v. State,

reported in, 2023 SCC OnLine SC 1581, in paragraph no. 9 has

held as under:

“ 9. In State of Madhya Pradesh v.

Saleem, (2005) 5 SCC 554, the Court held that to

sustain a conviction under Section 307, IPC, it was

not necessary that a bodily injury capable of

resulting in death should have been inflicted. As

such, non-conviction under Section 307, IPC on the

premise only that simple injury was inflicted does

not follow as a matter of course. In the same

judgment, it was pointed out that ‘…The court has

to see whether the act, irrespective of its result, was

done with the intention or knowledge and under

circumstances mentioned in the section.’ The

position that because a fatal injury was not

sustained alone does not dislodge Section 307, IPC

conviction has been reiterated in Jage Ram v. State

of Haryana, (2015) 11 SCC 366 and State of

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Madhya Pradesh v. Kanha, (2019) 3 SCC 605. Yet,

in Jage Ram (supra) and Kanha (supra), it was

observed that while grievous or life-threatening

injury was not necessary to maintain a conviction

under Section 307, IPC, ‘The intention of the

accused can be ascertained from the actual injury,

if any, as well as from surrounding circumstances.

Among other things, the nature of the weapon used

and the severity of the blows inflicted can be

considered to infer intent.”

24. Admittedly, from the prosecution case itself, it

transpires that the alleged occurrence arose out of a trivial

quarrel between children while playing cricket, which suddenly

escalated into a physical scuffle without any premeditation or

prior meeting of minds, the incident having taken place in the

heat of passion upon a sudden altercation; further, the

prosecution evidence suffers from material infirmities as the

case primarily rests upon the testimonies of P.W.-2 Sita Devi,

P.W.-3 Om Prakash Sah and P.W.-5 Manoj Kumar Sah, whose

versions are not wholly consistent on material particulars,

particularly with regard to the manner of assault, weapons

allegedly used, and specific roles of the accused persons, while

independent witnesses do not lend reliable support inasmuch as

P.W.-1 Makhan Mandal is admittedly a hearsay witness, P.W.-6

Pradeep Sah has only limited knowledge and does not support

the allegation of theft, and P.W.-8 Ajab Lal Mandal has turned

hostile; moreover, the medical evidence of P.W.-9 Dr. Manoj

Kumar Jha shows that the injuries are simple in nature and

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caused by hard and blunt substance, which does not substantiate

any grievous or life-threatening assault, and when considered

along with the admitted background of a minor dispute giving

rise to the occurrence, the cumulative effect of these infirmities

clearly indicates exaggeration and absence of intention or

knowledge to cause death, thereby rendering the charge under

Section 307 of the Indian Penal Code unsustainable.

(emphasis supplied)

25. I find that the facts of the present case are

squarely covered by the judgment passed by the Apex Court in

Sivamani (supra) in view of the aforesaid discussion of factual

and legal aspects and upon a comprehensive re-appreciation of

the entire evidence available on record, it emerges that the

occurrence took place in a sudden manner on account of a trivial

quarrel between children while playing cricket, which escalated

without any premeditation or prior meeting of minds of the

appellant; the nature of the incident, the surrounding

circumstances, and the medical evidence, particularly the

testimony of P.W.-9 Dr. Manoj Kumar Jha, indicate that the

injuries sustained by the injured persons are simple in nature,

and although incised in character, do not establish the requisite

intention or knowledge to cause death so as to attract the

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provisions of Section 307 of the Indian Penal Code; rather, the

materials on record demonstrate that the act of the appellants

falls within the ambit of voluntarily causing hurt by a dangerous

weapon, and thus, this Court is of the considered opinion that

the offence under Section 307 IPC is not made out and the

learned trial court has rightly appreciated the evidence in

convicting the appellants under Section 323/34 of the Indian

Penal Code, particularly in view of the injury reports showing

simple incised injuries caused by a sharp-cutting weapon.

26. Accordingly, this Court finds that the impugned

judgment of conviction dated 31.03.2014 passed by the learned

Ad hoc Additional Sessions Judge-I, Bhagalpur in Sessions Trial

No. 1185/2007 (Tr. No. 332/2013) (arising out of Jagdishpur

(Goradih) P.S. Case No. 90 of 2007, G.R. No. 1290/07)

whereby, the appellants have been convicted under Section

323/34 of the Indian Penal Code, does not warrant interference

so far as the finding of conviction is concerned.

27. However, so far as, the sentence is concerned,

having regard to the facts and circumstances of the case and the

period already undergone by the appellants, the sentence of

simple imprisonment for six months is modified and reduced

to the period already undergone. It is directed that if the

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appellants have already undergone the modified sentence, they

shall be set at liberty forthwith, unless required in connection

with any other case. The appellants are discharged from the

liabilities of their bail bonds, if any.

28. Accordingly, the present appeal stands partly

allowed.

29. Office is directed to send back the lower court

records along with a copy of the judgment to the learned District

Court forthwith.

mantreshwar/-

(Purnendu Singh, J)

AFR/NAFR NAFR

CAV DATE 21.04.2026

Uploading Date 28.04.2026

Transmission Date 28.04.2026