Judgment S.B.SINHA and DHARAMPAL SINHA JJ. 1. This Criminal Appeal arises out of a judgment of conviction and sentence, dated 22-6-1987 passed by Sri Eqbal Raza, Ist Addl. Sessions Judge, Chaibasa whereby and whereunder the said learned Court convicted the appellants under Sections 302/149 and 148 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. The fact of the matter lies in a very narrow compass. 3. A first information report was lodged by Singrai Gagrai (P.W. 3) who is the brother of the deceased Budhu Gagrai at about 5 P.M. on 22-9-1982 at Keraikella P.S. alleging therein that on 21st September, 1982 at about 9 P.M. the deceased had gone to the house of one Sogna Hembron where altercation and quarrel took place, between him and Raged Hembron on one hand and Narayan Hembron on the other. Allegedly both the aforementioned persons assaulted the deceased but at the intervention of some persons, he was saved. 4. Upon hulla of the said Ragod Hembron some other persons including the appellant along with some others came to help Ragod Hembron and upon seeing them the deceased started running away to his house for safety but the accused persons followed him, entered into his house and drugged him in the courtyard where he was assaulted by accused persons. 5. In the first information report it was further alleged that Ragod Hembron assaulted the deceased with a Sabal and Knife whereas other accused persons assaulted him with lathi. The aforementioned fardbeyan was marked as Ext. 1 and the formal first information report was marked as Ext. 1-A. 6. It is the case of the prosecution as alleged in the first information report that the wife of the deceased and his father were also assaulted. 7. In this case eight witnesses were examined on behalf of the prosecution. Out of the said eight witnesses, P.W. 3 Singrai Gagrai (informant) and P.W. 5 Jamuna Kui were declared hostile. P.W. 2 was merely tendered. P.W. 7 Awdesh Prasad Singh is a police officer who merely submitted the charge-sheet. The said P.W. 7 did not investigate into the alleged offence. P.W. 8, Dr. R. K. Ghosh is the doctor who held the postmortem examination on the dead body of the aforementioned Budhu Gagrai. P.W. 2 was merely tendered. P.W. 7 Awdesh Prasad Singh is a police officer who merely submitted the charge-sheet. The said P.W. 7 did not investigate into the alleged offence. P.W. 8, Dr. R. K. Ghosh is the doctor who held the postmortem examination on the dead body of the aforementioned Budhu Gagrai. The said postmortem examination was conducted by P.W.8 on 23-9-1982 at about 4 P.M. The postmortem report was marked as Exts. 1 and 4. 8. It appears that four accused persons were charge-sheeted but the case of the appellant was separated as he had been absconding. 9. P.W. 3 has been declared hostile. However, he has supported a part of the prosecution case. In his examination-in-chief he has stated that the deceased went to the house of Sogna Hembrom for taking haria and there marpit took place and thereafter he came running to the house followed by the accused Turi Gagrai etc., where he was assaulted. But he did not say anything as to what happened thereafter. 10. However, in his cross-examination by the prosecution, after he was declared hostile, he admitted the entire case of the prosecution and further admitted the earlier statement made by him before the I.O. He also admitted that he had gone to the police station along with Mukhia and others to lodge the first information report. 11. However, in his cross-examination by the defence he denied to have seen the occurrence with his eyes. It alleged that he heard thereof from some other persons. In this view of the matter, the evidence of P.W. 3 can not be relied upon with regard to the manner of occurrence. 12. In this back-ground, the evidence of remaining two eye witnesses namely Gurubari Kui (P.W. 1) and Siddhu Gagrai (P.W. 4) may be considered. P.W. 1 was wife of the deceased while P.W. 4 was his father. 13. P.W. 1 stated that the deceased was assaulted by some persons only by lathi. She alleged that she had also been assaulted. She further alleged that her father-in-law (P.W. 4) was also assaulted. In her cross-examination she could not state as what weapon was held by whom. 14. Similarly, P.W. 4 who is aged about 60 years old on the date of his deposition alleged that the four accused persons came and assaulted the deceased. 15. She further alleged that her father-in-law (P.W. 4) was also assaulted. In her cross-examination she could not state as what weapon was held by whom. 14. Similarly, P.W. 4 who is aged about 60 years old on the date of his deposition alleged that the four accused persons came and assaulted the deceased. 15. According to this witness the night was drak and his vision is poor. 16. P.W. 8 in his evidence stated the following injuries : "Lacerated wound 2"x 1" brain deep on the left temporal bone. The fracture portion of the partial bone entered into the brain matter injuring vein, artery punctured by the fracture end of the sixth, seventh and eight rile of the right side." 17. According to the doctor, the injuries were caused by hurt and blunt substance. 18. Mr. R. K. Prasad, learned counsel appearing on behalf of the appellant submitted that the prosecution witnesses did not specify particular overt acts committed by the appellant. He further submitted that in the instant case the investigating officer was not examined. It was further submitted that no independent witness also supported the case of the prosecution. 19. The learned counsel further submitted that as the night was dark, it was not possible for P.W. 4 to identify the accused persons. In this connection he particularly drew our attention to the fact that P.W. 4 did not have a good vision. 20. The learned counsel further submitted that the prosecution could not prove existence of any intention on the part of the appellant along with others to cause death of the deceased and thus the appellant could not have been convicted under Sections 302/149 of the Indian Penal Code. 21. Mr. M. K. Laik, the learned counsel appearing on behalf of the State, on the other hand, submitted that the prosecution case has fully been proved by P.W. 1 and P.W. 4. The learned counsel further submitted that even P.W. 3 and P.W. 5 supported a part of the prosecution case inasmuch as they had stated that the deceased had gone to the house of Sogna Hembrom where he had been assaulted by Ragodh Hembrom and Narayan Hembrom. 22. The learned counsel further submitted that even P.W. 3 and P.W. 5 supported a part of the prosecution case inasmuch as they had stated that the deceased had gone to the house of Sogna Hembrom where he had been assaulted by Ragodh Hembrom and Narayan Hembrom. 22. The learned counsel further submitted that the nature of injury found on the persons of the deceased as mentioned by P.W. 8 in his post-mortem report shows that all the accused persons had premediation to cause the death of the deceased. He further submitted that the manner in which the occurrence took place is a tale tell one as when the deceased had fled from the house of Sogna Hembrom to his own house for safety but despite the same he was chased upon his room and was drugged out in the courtyard and had been assaulted there which clearly shows that the intention on the part of the accused persons was to commit his murder. 23. In this view of the matter, the only question which arises for consideration is as to whether the prosecution has been able to prove its case as against the appellant. 24. As noticed hereinbefore, P.W. 1 and P.W. 4 both have supported the prosecution case to the effect that the deceased Budhu Gagrai came running to his house and he had been chased by the four accused persons. 25. They have further stated that all the four accused persons assaulted the deceased Budha Gagrai. 26. It is not in dispute that all the accused persons are residents of the same village. Further both P.W. 1 and P.W. 4 also received some injuries at the hands of the accused persons and thus their testimonies cannot be rejected only on the ground that they could not catagorically state as to what weapon was in the hand of which accused person. 27. It is not a case where charge has been framed under Section 302 of the Indian Penal Code as against a particular accused person but in this case all have been charged and convicted under Sections 302/149 and 148 of the Indian Penal Code. In this situation, in our opinion, the question as to whether what part was actually paid by each accused person is not very relevant. 28. In this situation, in our opinion, the question as to whether what part was actually paid by each accused person is not very relevant. 28. In the instant case the learned counsel for the appellant has not been able to show that non-examination of investigation officer has caused any prejudice of the accused persons. 29. Further although P.W. 4 stated that his eye sight was weak and the night was dark but taking into consideration the fact that he saw the accused persons chasing the appellant, catching him in the room, drugging him out in the courtyard and assaulting him which must have taken a long time, we have no doubt in our mind that he had sufflcient time to identify the accused persons on the spot. 30. As noticed hereinbefore, P.W. 4 was also assaulted by the accused persons. The submissions made by Mr. R. K. Prasad, learned counsel appearing on behalf of the appellant to the aforementioned effect cannot therefore, be accepted. 31. However, we cannot shut our eyes to another aspect of the matter. Admittedly, the deceased had gone to the house of Sogna Hembrom. The two accused persons Ragod Hembrom and Narayan Hembrom were present there. It is further evident from the prosecution case that there had been a quarrel between the deceased on the one hand and Ragod and Narayan on the other hand. It is further evident that all the concerned parties had taken Haria. 32. It is further evident that the appellant came there at the call of the aforementioned Ragodh Hembrom immediately before the deceased began fleeing away from the house of Sogna Hembrom. Evidently he came out with a lathi only on the call of Ragodh Hembrom. 33. There cannot be any doubt that at a point of time when he reached the house of the deceased, an unlawful assembly was formed but taking into consideration the facts and circumstances of the case, it cannot be said that their common object was to kill the deceased Budhu Gagrai. 34. Further the prosecution has not stated that there had been a previous enemity by and between the accused and deceased. A scuffle at the place of Sogna Hembrom is also admitted. The occurrence also arose out of a trifling matter. 35. Further it is not clear as to who gave the fatal blow. 34. Further the prosecution has not stated that there had been a previous enemity by and between the accused and deceased. A scuffle at the place of Sogna Hembrom is also admitted. The occurrence also arose out of a trifling matter. 35. Further it is not clear as to who gave the fatal blow. The prosecution could not prove that the appellant gave the fatal blow on the head of the deceased. It is not clear from material on records as to which accused gave the fatal blow to the deceased. 36. In Shri Kishan V/s. State of U. P., reported in AIR 1972 SC 2066 , the Supreme Court in an almost identical situation converted the conviction from Section 302 read with Section 34 of the Indian Penal Code to one under Section 325 read with Section 34 of the Indian Penal Code. 37. Following the aforementioned decision, we also hold that the appellant is guilty only under Sections 325/149 of the Indian Penal Code as also under Section 148 of the Indian Penal Code. 38. Mr. R. K. Prasad, learned counsel appearing on behalf of the appellant, states that the appellant has been in custody for a period of five years. Mr. M. K. Laik, learned counsel appearing on behalf of the State also does not dispute this fact. 39. Taking thus, all facts and circumstances of the case particularly in view of the fact that the occurrence took place as far as back in the year 1982 and further that the petitioner is a poor Adibasi, the petitioner is sentenced to the period already undergone by him. This appeal is dismissed with the modification in the conviction and sentence aforementioned.