Judgment NARINDER SINGH RAO, J. 1. Sarbeshwar Pragnait, the sole appellant, stands convicted under S.302 of Penal Code and sentenced to undergo imprisonment for life on the finding that he had, on 8-4-1985 in his village Angwali, police station Petarwar, District Giridih, committed murder of Baldeo Pragnait by intentionally causing his death. 2. The prosecution version, in brief, is that a Panchayat was held in village Angawali in the forenoon of 8-4-1985 for considering the matter regarding causing injury to Mani Ram Manjhi by Ramjit Manjhi and Chetan Manjhi. Baldeo Pragnait, the deceased, and Sarbeshwar Pragnait, the appellant, as also Lobin Pragnait, Basu Manjhi, Bir Singh Pragnait and Jagarnath Pragnait P.Ws. were the panches. These panches, after holding deliberations, had imposed a fine of Rs. 120.00 each upon Ramjit Manjhi and Chetan Manjhi, and they had paid that fine in the shape of currency notes amounting to Rs. 240.00 to the appellant. Out of that amount of Rs. 240.00 a he goat was purchased for Rs. 200.00 and its meat distributed to the panches. The balance amount of Rs. 40.00 was allowed to remain with the appellant. Baldeo Praganait had taken his share of meat to the house and had given the same to his wife Smt. Chamru Manjhian P.W. for cooking. Thereafter, Baldeo Pragnait had gone out saying that he was on way to the house of Mani Ram Manjhi. 3. The prosecution version further proceeds that Baldeo Pragnait along with Lobin Pragnai, Basu Manjhi, Jagarnath Pragnait and Bir Singh Pragnait P.Ws. had arrived at the house of the appellant on the same day shortly before sun set for demanding the balance amount of Rs. 40/-. Their repeated calls to the appellant in coming out were ignored by him. Thereupon, Baldeo Pragnait and his companions had started raising shouts in asking the appellant to come out. Consequent thereupon the appellant had come out and he was then armed with a Tangi. On seeing the appellant so armed, Baldeo Pragnait and his companions had started running away. However, Baldeo Pragnait had lagged behind. The appellant had then given a blow with his Tangi on the back of neck of Baldeo Pragnait, resulting in his falling down. After causing that injury, the appellant had left his Tangi near Baldeo Pragnait and gone away. 4. However, Baldeo Pragnait had lagged behind. The appellant had then given a blow with his Tangi on the back of neck of Baldeo Pragnait, resulting in his falling down. After causing that injury, the appellant had left his Tangi near Baldeo Pragnait and gone away. 4. Information regarding Baldeo Pragnaits receiving injury was conveyed to his wife Smt. Chamru Manjhian P.W. by their daughter aged about seven years. At that time, Smt. Chamru Manjhian P.W. was grinding spices for cooking the meat. She had then rushed to the house of the appellant and found Baldeo Pragnait lying seriously injured in the courtyard. In the meanwhile, Fuleshwar Pragnait, Dineshwar Pragnait and others had also reached there. Before them, Baldeo Pragnait had named the appellant as the author of his injury. After a couple of hours, Baldeo Pragnait had breathed his last. Smt. Chamru Manjhian P.W. had then left for police station Petarwar in the company of Lobin Pragnait, Basu Manjhi and Fuleshwar Pragnait P.Ws. and reached at about 7.30 a.m. on the following day (9-4-1985). There Smt. Chamru Manjhian P.W. had lodged her FIR Ext. 4. 5. S.I. Shiv Chandra Chaudhury P.W. after registering the case, had started carrying out the investigations. At 7.45 a.m. and the appellant along with chaukidar of the village had arrived. He was arrested. S.I. Chaudhury P.W. had recorded statements of PWs and after reaching the spot, held inquest proceedings with respect to the dead-body of Baldeo Pragnait. The dead body was then sent to Sadan Hospital, Giridih where it was subjected to post mortem examination by Dr. Madhu Sudan Narayan. S.I. Shiv Chandra Chaudhury PW. had taken into possession blood-stained earth, and Tangi of the appellant from inside the courtyard of his house vide seizure memo Ext. 3. After completion of the investigations, the appellant was charge-sheeted. 6. Dr. Madu Sudhan Narayan had conducted the post mortem examination on the dead body of Baldeo Pragnait on 9-4-1985 at 5.30 p.m. and had found a heavy incised wound 2" X 1" X 3" on the middle of the back of the neck at its root. On dissection of this wound, two lower cervical vertebrae were found fractured into pieces. Muscles, soft tissues, and blood vessels were found cut. The spinal chord was also cut. Baldeo Pragnait was opined to have died because of shock and haemorrhage Time elapsed since death was about 24 hours. Ext. 5. On dissection of this wound, two lower cervical vertebrae were found fractured into pieces. Muscles, soft tissues, and blood vessels were found cut. The spinal chord was also cut. Baldeo Pragnait was opined to have died because of shock and haemorrhage Time elapsed since death was about 24 hours. Ext. 5. is the Post mortem report. 7. For proving its case, the prosecution had examined Smt. Chamru Manjhain PW-1, Lobin Pragnait PW 2, Basu Manjhi PW-3, Fuleshwar Pragnait PW-4, Jagarnath Pragnait PW-5, Dineshwar Pragnait PW-6, Bir Singh Pragnait PW-7, Ekramuddin PW-8, Hari Narain Mishra PW-9, S.I. Shiv Chandra Chaudhury PW-10 and S.I. Lakshman Narayan Gupta PW-11. Out of these PWs, Ekramuddin and Hari Narayan Mishra had attested the inquest report Ext-1 and seizure memo Ext-3 and S.I. Lakshman Narain Gupta had proved the handwriting and signatures of Dr. Madu Sudhan Narayan on the post mortem report Ext.5. 8. The appellant, in his examination, had denied the prosecution allegations and stated that he was innocent. He had not examined any witness in defence. 9. Learned counsel for the appellant and the learned counsel appearing for the State have been heard, and the records carefully gone through. 10. It has remained admitted that for considering the matter regarding causing injury to Mani Ram by Chetan Manjhi and Ramjit Manjhi, a panchayat was held on 8-4-1985 of which the deceased and the appellant, as also Lobin Pragnait, Basu Manjhi, Jagarnath Pragnait and Bir Singh Pragnait PWs were the panches, and they had imposed a fine of Rs. 120.00 each on Ramjit Manjhi and Chetan Manjhi. There is also no denying that out of that fine, Rs. 200.00 were spent in purchasing a goat and its meat was distributed amongst the panches. Undisputedly, the balance amount of Rs. 40.00 was allowed to remain with the appellant. Now according to prosecution, the deceased and the above named PWs had gone to the house of the appellant for taking back that balance sum of Rs. 40/-, when the latter had given a tangi blow to Baldeo Pragnait resulting in his death. From the side of the defence, a case of denial simpliciter has been put forward. The material question for determination is to see if satisfactory evidence has been brought on record for bringing home the guilt against the appellant. 11. 40/-, when the latter had given a tangi blow to Baldeo Pragnait resulting in his death. From the side of the defence, a case of denial simpliciter has been put forward. The material question for determination is to see if satisfactory evidence has been brought on record for bringing home the guilt against the appellant. 11. For proving that it was the appellant who had caused the injury to the deceased with Tangi, we have the reliable evidence of Bir Singh Pragnait, Jagarnath Pragnait, Lobin Pragnait and Basu Manjhi PWs. They have unanimously deposed that when they and Baldeo Pragnait had gone to get back Rs. 40.00 from the appellant, he had initially ignored their calls, and further that when he had subsequently come out, he had given a Tangi blow to Baldeo Pragnait. True that these PWs are the Gotias of the deceased, but that by itself would be no reason to discard their evidence. The appellant was also their Gotia. Therefore, these PWs can be termed as independent witnesses. Their evidence, in the given circumstances, is sufficient for holding that the appellant was the author of the injury caused to the deceased. 12. Apart from the direct reliable evidence, the prosecution had examined Smt. Chamru Manjhian, Fuleshwar Pragnait and Dineshwar Pragnait PWs for establishing that the deceased had, in his dying declaration made before them, had named the appellant as the person responsible for causing his injury. The evidence of these PWs is equally satisfactory. They had reached the courtyard of the house of the appellant, the place of occurrence, immediately after the occurrence, and found Baldeo Pragnait lying injured there. As the injury of Baldeo Pragnait affected his mental faculties, he had not become unconscious. His injury was on back of the neck and had not cut the vocal chord. Therefore, he was in a speaking condition when these PWs had arrived. It was but natural for Baldeo Pragnait to tell everyone, including these PWs, as to who had caused his injury. He had, in his dying declaration, named the appellant as the sole culprit in the case. His making that statement stands fully proved from the evidence of Fuleshwar Pragnait, Dineshwar Pragnait and Smt. Chamru Manjhian PWs. It was but natural for Baldeo Pragnait to tell everyone, including these PWs, as to who had caused his injury. He had, in his dying declaration, named the appellant as the sole culprit in the case. His making that statement stands fully proved from the evidence of Fuleshwar Pragnait, Dineshwar Pragnait and Smt. Chamru Manjhian PWs. During the course of his elaborate arguments, learned counsel for the appellant was not in a position to advance any cogent and sound reason warranting rejection of that dying declaration of the deceased. 13. It having thus been found that the appellant had caused the fatal injury to Baldeo Pragnait, the next, rather all important, question is as to what offence he had committed. 14. Basu Manjhi PW had admitted that the appellant is considered the Pragnait of his Tola in the village. It was because of his enjoying that position of responsibility and status that the whole amount of Rs. 240.00 was handed over to him. Out of that amount, Rs. 200.00 had been spent for purchasing the goat and the appellant was asked to keep the balance amount of Rs. 40.00 by the panchayat. The deceased, and for that matter Lobin Pragnait, Basu Manjhi, Jagarnath Pragnait and Bir Singh Pragnait PWs also, had no right to go to the house of the appellant for demanding back that amount of Rs. 40/-. When they had reached the house of the appellant, they had found the same closed from inside. According to the PWs, the appellant had not come out of his house in spite of their repeated calls. Jagarnath Pragnait and Bir Singh Pragnait PWs have admitted that thereafter they and their companions had started raising a loud hulla in the courtyard of the appellant. Their that act was undoubtedly uncalled for and amounted to creating nuisance. From the prosecutions own evidence, it is clear that the appellant had initially ignored their that act of hooliganism, but when the deceased and his other companions had continued behaving in such a shameless manner, the appellant had no option but to come out. There is no truth in the prosecution allegation that after the appellant had so come out with a Tangi, the type of which is generally available with the villagers, the deceased and his companions had started fleeing away. There is no truth in the prosecution allegation that after the appellant had so come out with a Tangi, the type of which is generally available with the villagers, the deceased and his companions had started fleeing away. Jagarnath Pragnait PW has admitted that neither he nor any of his companions had started running away subsequent to coming out of the appellant. S.I. Shiv Chandra Chaudhury PW has admitted that the dead body of Baldeo Pragnait was found in the courtyard of the appellant only at a distance of about 3 feet from the outer door of his residential room. The deceased and his companions namely Basu Manjhi, Lobin Pragnait, Bir Singh Pragnait and Jagarnath Pragnait PWs were thus guilty of enacting an ugly and disorderly scene at the house of a respectable person like the appellant, and the given circumstances clearly show that it was because of their that wrong act that the appellant had lost his mental balance momentarily. Again, it was because of their that condemnable action that the appellant was deprived of his power of self-control by grave and sudden provocation, and on coming out had the misfortune of giving a blow to Baldeo Pragnait, which however proved fatal. But that act of the appellant in causing the injury to the deceased was done with the knowledge that it was likely to cause death, although without any intention to do so, or to cause such a bodily injury as was likely to cause death. That being so, the conviction of the appellant under S.302 of Penal Code deserves to be set aside, but he is to be held guilty only under S.304 (Part II) of Penal Code. 15. For reasons stated above, this appeal is partly allowed. The conviction and sentence of the appellant under Sec.302 of Indian Penal Code are set aside, but he is held guilty, and accordingly convicted, under Sec.304 (Part II) of Indian Penal Code, and is sentenced to undergo rigorous imprisonment for five years. BIMALENDU NARAYAN SINHA, J. 16 I agree.