Judgment B.N.SINHA, J. 1. The appellant along with five others were tried by the Ist Additional Sessions Judge, Bettiah in Sessions trial No. 63/ 121 of 1975/ 1984. Charges under Ss.302 and 148 I.P.C. were framed against the appellant and charges under Ss.302/ 149, I.P.C. and 147, I.P.C. were framed against the remaining five accused. Two of the remaining five accused were acquitted by the trial Court and the remaining three accused, namely, Bhola Dusadh, Samal Dusadh and Chana Dusadh were found guilty under S. 147, I.P.C. only and they were given benefit of S.3 of the Probation of Offenders Act and ordered to be released on due admonition. The appellant has been found guilty under Ss.302 and 148, I.P.C. and sentenced to undergo rigorous imprisonment for life and for two years respectively under two counts which are to run concurrently. The appellant has filed the present appeal against his conviction and sentence. 2. The prosecution case as presented by the P.Ws. in the Court may be briefly stated. On 10th of January, 1974 at about 5 p.m. the informant Dhorha Manjit (P.W. 6) was at his Darwaja along with his son Jamuna Dusadh (the deceased) situated at village Barauni, P. S. Sikta, Distrct - West Champaran. Accused-appellant, Bishwanath Dusadh along with accused Bhola Dusadh, Samal Dusadh, Chana Dusadh and Budhu Dusadh came there. Appellant, Bishwanath Dusadh was armed with Farsa and the remaining accused were armed with Lathi. Accused started dismantling the Nad and uprooting Pegs (Khuta) of the first informant. The informant and the deceased, Jamuna Dupadh prevented them from doing so. Thereupon the accused Bishwanath Dusadh gave a Farsa blow on the head of the deceased, Jamuna Dusadh who fell down and became unconscious, accused Samal Dusadh assaulted the informant and his sister Ram Pyari Devi (P.W. 4) with Lathi. On hearing hulla the villagers had arrived there and some of them witnessed the occurrence. Accused persons after assaulting the deceased, the informant and Ram Payari Devi fled away. Jamuna Dusadh was taken to Sikta State Dispensary and from there on being asked by the doctor, he was taken to Duncan Hospital, Raxaul for treatment, but, the deceased succumbed to his injury on 11/01/1974 in the said Hospital. Police came from Raxual Police Station and held inquest on the dead body of the deceased and prepared inquest report (Exhibit-5). Jamuna Dusadh was taken to Sikta State Dispensary and from there on being asked by the doctor, he was taken to Duncan Hospital, Raxaul for treatment, but, the deceased succumbed to his injury on 11/01/1974 in the said Hospital. Police came from Raxual Police Station and held inquest on the dead body of the deceased and prepared inquest report (Exhibit-5). The informant after the death of the deceased went to Sikta Police Station and lodged information regarding occurrence and on his statement the first information report (Exhibit-4) was recorded. 3. The police after usual investigation submitted charge sheet against seven accused and thereafter congnizance of the case was taken and the case was committed to the Court of Session. It appears that after commitment and before the trial could be taken up one accused, named, Budhu Dusadh died. Hence, the trial proceeded against the remaining six accused including this appellant. 4. The accused pleaded not guilty to the charges and claimed to be tried. The defence taken by the accused was that they have been falsely implicated. 5. Prosecution examined altogether nine witnesses. Out of them P.W. 8 Saimum Karmakar and P.W.9 Subhash Chandra Ojha were formal witnesses. P.W. 2 Naresh Prasad Sahu was tendered by the prosecution. P.W. I Thag Raut, P.W. 3 Balli Bin, P.W.4 Ram Pyari Devi, P.W.5 Most. Manbagia Devi were examined as eyewitnesses of the occurrence, who supported the evidence of P.W.6 Dhorha Manjit, the first informant. P.W.7 Dr. B. D. Pandey held post-mortem examination on the dead body of the deceased, Jamuna Dusadh. 6. Learned trial Court on examination of the evidence produced by the prosecution and on consideration of the facts and circumstances of the case accepted the prosecutions case, as deposed to by the P.Ws. 1, 3, 4, 5 and 6 as true as fully established. 7. The learned counsel for the appellant has not challenged the fact that the deceased died due to the injury on his person. It also stands established on the evidence produced by the prosecution. P.Ws 1, 3, 4, 5 and 6 stated in their evidence that the deceased after receiving Farsa injury on his head fell down on the ground and became unconscious. It also stands established on the evidence produced by the prosecution. P.Ws 1, 3, 4, 5 and 6 stated in their evidence that the deceased after receiving Farsa injury on his head fell down on the ground and became unconscious. The evidence of P.W. 6, Dhora Manjit (first informant) is that he took his son, Jamuna Dusadh (deceased) to Sikta State Dispensary and from there to Duncan Hospital at Raxaul, where on the following; day Jamuna Dusadh died and threafter at Motihari Postmortem was held on the dead body of the deceased. The evidence on P.W. 7, the doctor, is that on 13-1-1974 at about 10 a.m. while he was posted as Civil Assistant Surgeon in Sadar Hospital, Motigari, he performed postmortem examination on the dead body of the deceased, Jamuna Hajra and found the following ante-mortem injury on his person : (i) Lacerated wound about 2" ?1/2" ?1/6" on the upper surface of the head near his centre. His evidence is that on dissection he found that there was deep fracture of the skull bone at the centre. According to him death of the deceased had taken place due to shock and hemorrhage due to the said injury and the time elapsed since his death at the time of post-mortem examination was between 26 to 48 hours. 8. On these evidence it is proved beyond reasonable doubt that the deceased Jamuna Dusadh died due to the injury found on his person. 9. Next, it has to be considered, if the said injury had been inflicted on the deceased by the appellant as deposed to by the P.Ws. 1, 3, 4, 5, and 6. P.W. 6, the first informant in his evidence in Court has stated the facts stated above while stating the case of the prosecution. P.Ws. 1, 3, 4, and 5 has fully corroborated the evidence of P.W. 6. 10. P.W. 1, Thug Raut has got his house near the house of the first informant intervened by three houses. It was suggested to this witness on behalf of the defence that he has falsely implicated the appellant at the instance of one Raghubir Ram with whom the appellant was on litigating term but this witnesses denied the same. His positive evidence was that he did not know any Raghubir Ram. It was further suggested to this witness that there was 107 proceeding between him and the appellant. His positive evidence was that he did not know any Raghubir Ram. It was further suggested to this witness that there was 107 proceeding between him and the appellant. This was also denied by this witness. There is nothing on the record to substantiate these suggestions thrown to this witness on behalf of the defence. P.W. 3 happens to be a neighbour of the first informant. To this witness also it was suggested on behalf of the defence that he has falsely implicated the accused at the instance of Raghubir Ram but he also denied the same Rather his evidence was that he did not know that there was any person named Raghubir Ram in his village. It was further suggested to him that the accused persons had ponded his cattle, but, this suggestion too was denied by this witness. To substantiate these suggestions thrown to this witness nothing his been brought on record by the defence. P.W. 4 happens to be the sister and P.W. 5 is wife of the first informant. P.W. 5 has stated in her evidence that the deceased was her only son. There is nothing in the evidence of P.Ws. 4, 5, and 6 to indicate that there could be any reason for these witnesses to falsely implicate the appellant. P.W. 6 being the father, P. W. 5 being the mother and P.W. 4 being the Aunt (Fua), a close relation, it is not expected that they would falsely implicate the appellant and allow the real assailant of the deceased to be let off. On consideration of their evidence, I see no reason to disbelieve their testimony and on these evidence, I find any hold that it is proved beyond reasonable doubt that the injury found on the person of the deceased had been inflicted by the appellant. 11. The learned counsel for the appellant has submitted that the learned trial Court ought not to have placed reliance on the evidence of P.Ws. who claimed to be the eyewitness of the occurrence because their evidence is not being supported by the findings of the doctor, P.W. 7, who held postmortem examination on the dead body of the deceased. 11. The learned counsel for the appellant has submitted that the learned trial Court ought not to have placed reliance on the evidence of P.Ws. who claimed to be the eyewitness of the occurrence because their evidence is not being supported by the findings of the doctor, P.W. 7, who held postmortem examination on the dead body of the deceased. Learned counsel for the appellant elucidating his argument submitted that according to the evidence of the eye-witnesses in this case, the appellant assaulted the deceased with Farsa on his head and in that situation the deceased could have sustained incised injury; but the evidence of the doctor, P.W. 7 is that he found lacerated wound on the head of the deceased. The attention of the trial Court was also drawn to this aspect of the matter and the trial Court has given reasons for accepting the evidence of the eyewitnesses. 12. True it is that generally the blow by a Farsa is expected to produce incised wound, but, P.W. 7 found a lacerated wound on the head of the deceased. But, it cannot be said that a lacerated wound was impossible by Farsa. A Farsa can produce a lacerated wound, if a person is hit by the blunt portion of the stick which holds the Farsa. In the present case, it appears from the evidence of the P.Ws. that the assault by the appellant on the head of the deceased was abrupt. In that situation P.Ws. could have missed to mark as to what portion of the Farsa actually hit the deceased. The evidence of the P.Ws. is that the accused persons were dismantling the Nad and uprooting the peg on the Sahan of the first informant and that the deceased and the first informant were asking them not to do so. In the mean time the appellant assaulted the deceased on head with Farsa. In this situation there was nothing improbable if the witnesses actually missed to see as to what portion of the Farsa struck the head of the deceased. Hence, on this ground the testimony of the eye-witnesses cannot be rejected. 13. In the mean time the appellant assaulted the deceased on head with Farsa. In this situation there was nothing improbable if the witnesses actually missed to see as to what portion of the Farsa struck the head of the deceased. Hence, on this ground the testimony of the eye-witnesses cannot be rejected. 13. It was further submitted by the learned counsel for the appellant that P.W. 4 in her evidence has admitted that a cattle belonging to the first informant charged the appellant and on that account there was quarrel between the first informant and the appellant, which resulted in assault by the appellant and, hence, the genesis of the occurrence as given by this witness appears to be quite different and her evidence does not support the genesis of the occurrence as disclosed by the prosecution. But, there appears no substance in this submission. 14. It appears from the evidence of P.Ws. including the evidence of P.W. 4 that the cattle belonging to the first informant used to be tied to the peg near the Nad which were situated in the Sahan of the first informant and that the accused persons used to pass through this Sahan belonging to the first informant. In this situation, if a cattle belonging to the first informant had charged the appellant, that could be the reason for the accused persons for dismantling the Nad and uprooting the peg lying in the Sahan of the first informant. Hence, this evidence of P.W. 4 does not in any way impair the veracity of the prosecution case. 15. It has been next submitted by the learned counsel for the appellant that on the facts of the prosecution case no offence under S.302, I.P.C. is made out against the appellant. There appears substance in this submission. 16. It appears from the evidence of P.W. 4 that there was never any quarrel between the first informant and the accused before this incident. In this situation, it cannot be said that the appellant had assaulted the deceased with an intention to kill him or to cause such bodily injury which will be sufficient to cause death in ordinary course of nature. If there would be any intention on the part of the appellant there being no intervening circumstances, he could have repeated the assault which he did not do. If there would be any intention on the part of the appellant there being no intervening circumstances, he could have repeated the assault which he did not do. Under these circumstances, I find that the conviction of the appellant under S. 302, I.P.C. cannot be sustained. 17. But the appellant knew that the assault is likely to cause death of the deceased, hence he committed an offence punishable under S. 302, Part II of the Indian Penal Code. 18. Lastly, it has been submitted by the learned counsel for the appellant that the occurrence took place on 10-1-1974 and for last 16 years the horror of the prosecution of the appellant in this case has been hanging on the head of the appellant and, therefore, a liberal view with regard to his sentence may be taken in this case. It appears that the appellant has been in jail in connection with this case for about five and half years. 19. Taking into consideration the facts and circumstances of the case, the appellant is sentenced to the period of imprisonment already undergone by him under Sec. 304 Part II of the Indian Penal Code. 20. In the result, the convicion and sentence of the appellant under Sec. 302 I.P.C. is hereby set aside and he is convicted under Sec. 304 Part II of the Indian Penal Code and sentenced as above. His conviction and sentence under Sec. 148 I.P.C., which he has already undergone, is hereby upheld. The appellant is still in jail. Hence he is directed to be set at liberty forthwith, if not required in any other case. 21. With the above modification in conviction and sentence, the appeal is dismissed. 22. G. G. SOHANI, C. J. I agree. Appeal dismissed.