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9. Sri Avanindra Kumar Jha, learned Amicus Curiae, while arguing the case, initially, tried to create doubt on the prosecution case, however; considering the consistent evidence of eye-witnesses corroborated with other evidences, he was not in a position to argue the case, as if it was a case of acquittal. However, he has argued that even if entire evidence is examined in its totality, it cannot be a case for offence under Sections 302/34 of the Indian Penal Code. He submits that for proving the charge under Section 302 of the I.P.C., basic ingredient is to prove about the intention. He submits that there is consistent evidence on the point that deceased was assaulted by those appellants, out of them two appellants namely Dulli Rai (appellant no. 5) was carrying farsa and Birjee Rai (appellant no. 4) was carrying bhala and all the accused persons were extensively participating in assaulting the husband of the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 informant, but there is no allegation that either of the two appellants namely Dulli Rai or Birjee Rai had used sharp portion of their weapons in the occurrence. On the contrary, the eye-witnesses have said that the accused persons Dulli Rai and Birjee Rai had used back portion of the farsa and lathi portion of the bhala respectively. He submits that evidence suggests that the intention was only to assault, not to cause death of deceased Sonelal Rai. By way of referring to Ext. - 3 i.e. post-mortem examination report, he submits that on the dead-body of the deceased, none of the injuries were found on vital part of the deceased. All the injuries were lacerated and no injury was found, which was caused by sharp cutting weapon. The doctor, who conducted post-mortem examination, has not given specific opinion regarding the death by which injury. He has suggested that death was caused due to shock and haemorrhage. He submits that it was a case for offence under Section 304 Part II read with Section 34 of Indian Penal Code, considering the evidences brought on record. To substantiate his submission, he has placed heavy reliance on a judgment of the Apex Court, reported in (1994) 2 Supreme Court Cases 568 (Raja Ram and others vs. State of M.P.). He submits that in the said case also accused persons were held guilty for offence under Sections 302/149 of the Indian Penal Code and conviction was approved by the High Court, however; the Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 Supreme Court opined that on the basis of evidences on record, there was material to suggest that it was not a case of intention to kill and Supreme Court altered the conviction from Section 302/149 of the Indian Penal Code to Section 304 Part II read with Section 149 of the Indian Penal Code.

10. So far as conviction and sentence in respect of other offences i.e. Sections 452 and 323 of the I.P.C. against all the accused persons and Section 148 of the I.P.C. in respect of appellant no. 4 & 5 and Section 147 of the I.P.C. in respect of appellant no. 6, appellant no. 1, appellant no. 2 and appellant no. 3 is concerned, considering the consistent evidence, learned Amicus Curiae was not in a position to raise any objection to the judgment of conviction and sentence. Sri Jha, learned Amicus Curiae has also placed reliance on AIR 1993 Supreme Court 2317 (Ramesh Kumar vs. State of Bihar & Ors.). He submits that in the said case also conviction under Section 302/34 of the I.P.C. was converted in appeal by the High Court to offence under Section 304 Part II/34 of the Indian Penal Code and judgment of the High Court was approved by the Supreme Court. On aforesaid ground, it has been argued that in any event, the conviction and sentence, so far as Section 302 of the I.P.C. is concerned is required to be altered to Section 304 Part II r/w Section 34 of the I.P.C.

13. Considering the entire evidence, the Court is of the opinion that learned Trial Judge has rightly held all the appellants guilty for offence under Section 452 of the I.P.C. and Section 323 of the I.P.C. and there is no reason to doubt on the conviction and sentence for offence under Section 148 of the I.P.C. against accused appellant no. 4 & 5 i.e. Birjee Rai and Dulli Rai respectively who Patna High Court CR. APP (DB) No.371 of 1993 dt.29-06-2017 were carrying deadly weapons in the occurrence and similarly, there is no reason to doubt regarding the conviction and sentence to appellant no. 6, 1, 2 and 3 for offence under Section 147 of the I.P.C. However, the conviction and sentence for the offence under Section 302/34 of the Indian Penal Code is required to be interfered with, considering the evidence that there was nothing to suggest that there was element of any intention to kill the deceased.

14. Accordingly, conviction for the offence under Section 302/34 of the Indian Penal Code is, hereby, set aside and altered to Section 304 Part II read with Section 34 of the Indian Penal Code and as such, they are sentenced for offence under Section 304 Part II read with Section 34 of the Indian Penal Code to undergo rigorous imprisonment for seven years.

15. Considering the fact that in the case, occurrence had taken place long back in the year 1991, the judgment of conviction and sentence is modified to the extent, as indicated above.