Judgment S.B.SINHA, J. 1. This appeal arises out of a judgment of conviction and sentence, dated 17-3-1988 passed by Sri B. P. Sharma, 4th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 254 of 1987, whereby and whereunder the said learned Court convicted the appellant alongwith one Subhash Singh for commission of an offence under Section 302/34 of the Indian Penal Code for having committed the murder of one Taleshwar Thakur on 13-5-1987 at village Deokuli. 2. In short, the case of the prosecution is that on 13-5-1987 at about 8 P.M., the informant, Tahal Thakur (P.W. 6) in his Fardbayan before the Sub-Inspector of Ichak Police Station (P.W. 10) alleged that the Gauna ceremony of his niece was fixed and for the said purpose, Dhaneshwar Thakur, Mangar Thakur alongwith deceased, Taleshwar Thakur had come to his place. It was further stated that the maternal uncle place of the deceased was in his village; his maternal grand father being Janki Thakur. 3. Taleshwar Thakur after his arrival left for the house of his grand father on a bicycle alongwith Govind Thakur (P.W. 7) and when they reached near the house of one Gullu Sao in the village lane, they met the accused persons, namely appellant and one Subhash Singh, who asked the deceased as to why he was riding on the bicycle so fast and thenafter there was altercation between the two. 4. It was further alleged that when Taleshwar Thakur reached near the house of the informant, the appellant and the aforementioned Subhash Singh came there and allegedly the appellant asked his companion to snatch the cycle cf the deceased as a result whereof further altercations took place and at that point of time, Subhash Singh allegedly took out a dagger and assaulted the deceased on his back on the right side, and thereafter, the deceased fell down and became unconscious. It is alleged that Subhash Singh had also caught hold of the hair of P.W. 6 and threatened him to assault, but upon his pleading to let him off, he was let off. 5. It was further alleged that some persons who had collected in the Angan of the informant came out and some of them had seen the occurrence and learnt about the same from the eye witnesses. 6. 5. It was further alleged that some persons who had collected in the Angan of the informant came out and some of them had seen the occurrence and learnt about the same from the eye witnesses. 6. It appears that the aforementioned fardbayan was recorded by P.W. 10 at the village in question, on the basis of an information received by him at the police station at about 6 P.M. on the same day which he entered in the Station diary and proceeded to village Deokulli. 7. In this case, the death of the deceased is not disputed. 8. In support of its case, 10 witnesses had been examined on behalf of the prosecution. 9. In this case, the evidence of Govind Thakur (P.W. 7) is very important. In his evidence, he stated that on the fateful day, the Gauna ceremony of his sister was to take place lor which several relations or his had come from village Kariadpur. He stated that at about 2.30 P.M., they came and after taking tea, the deceased expressed his desire to go to his maternal grand fathers place. Both of them set out of a bicycle. He further stated that while they were passing through a house of one Gullu Sao, appellant intercepted and asked as to why they are riding bicycle at such a high speed. On this, the deceased allegedly retorted that he should be pulled up only if an accident takes place. Thereafter, they proceeded to his grand fathers place. When they were returning, near the Darwaja of Gullu Sao, both the appellant and the said Subhash Singh were standing. Again they accosted the deceased and this witness with regard to the speed of bicycle and at that allegedly, the appellant asked his companion to snatch the cycle. Thereafter, the deceased and the witness returned to their house. In the meanwhile, both the accused persons came running and the appellant caught hold the hand of the deceased and Subhash Singh took out a dagger whereupon a dagger blow on the back of the deceased was given by the Subhash, who fell down. 10. Allegedly, Chootan had asked Subhash to kill P.W. 7 also, but he was spared. Upon a Hallah raised by this witness, other persons came there and the assailants fled away. 11. 10. Allegedly, Chootan had asked Subhash to kill P.W. 7 also, but he was spared. Upon a Hallah raised by this witness, other persons came there and the assailants fled away. 11. This witness had taken the names of Lilo, Baleshwar, Gulki and Bandi Singh who allegedly came to the place of occurrence. This witness further stated that he told about the occurrence to his family members when they arrived at the spot. 12. P.W. 1, Jagan Thakur is the father of P.W. 7. He had also come to participate in the Gauna ceremony of the sister of P.W. 7. Allegedly, when he came out to his house upon hearing hallah, he found that deceased was lying on the ground with a bleeding injury and was told by the witnesses present there that Subhash Singh had inflicted a dagger blow on him. He further saw both the accused persons running away. 13. This witness stated that before his death, the deceased told this witness that he has been killed by Subhash Singh. 14. P.W. 6, who is the informant also supported the case as alleged by him in the first information report. P.W. 3 is Mangal Ram Thakur. He has also stated that he was standing in the Angan when he heard Hallah. He came out and found the deceased lying on the ground in an injured condition and there he came to learn that the appellant and one Subhash Singh had fled away after assaulting the deceased. 15. P.W. 4, Lalu Thakur is the brother of the informant. He is also a hearsay witness. P.W. 5, Janki Thakur is the maternal grand father of the deceased. He stated that the deceased and the P.W. 7 had gone to his house and when he heard that the deceased had been killed, he went to the place of occurrence and saw the dead body of his grand son. This witness further stated that Subhash had killed his grand son and he was a so accompanied by the appellant. 16. P.W. 9 is the father of the bride groom. According to this witness, he heard hallah and he went there and found a boy having dark complexion catching hold of the hand of the deceased and another boy of fair complexion took out a dagger and. hit the deceased on his back. 16. P.W. 9 is the father of the bride groom. According to this witness, he heard hallah and he went there and found a boy having dark complexion catching hold of the hand of the deceased and another boy of fair complexion took out a dagger and. hit the deceased on his back. Allegedly, this witness was also informed by the deceased that he had been assaulted by Subhash Singh. This witness identified the appellants in Court. 17. P.W. 8 is Dr. N. K. Das, who conducted the autopsy over the dead body of the deceased on 14-5-1987, at about 10.30 A.M. According to the doctor, He found an antermorten injury on the back of the chest on the right side 3" x 1" chest cavity. On dissection, right pleura was found ruptured and right chest and cavity contained about 600 C.C. of blood According to the doctor, the time elapsed since death was between 12 to 24 hours and the injury was caused by a sharp cutting weapon like a dagger. He proved the carbon copy or the post mortem report which was marked as Ext. 2. 18. P.W. 10 is the Investigating Officer. He has proved the fardbayan which was marked as Ext. 3 as also a seizure list in respect of seizure of blood stained earth, which was marked as Ext. 4. He had also prepared an inquest report which was marked as Ext. 5. 19. The learned Court below, on the basis of the evidences on record came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts. 20. Mr. Ram, the learned counsel appearing on behalf of the appellant submitted that the fardbayan of P.W. 6 should not have been treated as first information report, as the Investigating Officer (P.W. 10) had already received an information with regard to the commission of a cognizable offence from one Motilal Thakur. 21. We do not find any force in this contention, inasmuch as, P.W.10 categorically stated that he did not receive complete information about the commission of the murder of the deceased from the aforementioned Motilal Thakur. 22. 21. We do not find any force in this contention, inasmuch as, P.W.10 categorically stated that he did not receive complete information about the commission of the murder of the deceased from the aforementioned Motilal Thakur. 22. The learned counsel further submitted that P.W. 7 in paragraph-5 of his statement under Section 164 of the Code of Criminal Procedure stated that he was sitting near his house when the occurrence took place at that time, the accused came and told the deceased : "Turn Ko Bahut Garmi Ho Gaya Hai, Bahut Shhan Ho Gaya Hai" and to which Taleshwar retorted "Bhirna Hai To Beech Maidan Mai Bhirenge, Yaha Kaam Karne Ayye Hai, Kaam Karne Dijiye" to which Subhash Singh said "Accha Beta Ruk Jao, Ak Minute Mai Tumko Sikha De Rahe Hai" According to the learned counsel these statements were not made by P.W. 7 before the Court. 23. We do not find any infirmity in these statements of P.W. 7 From reading of the statement of P.W. 7 recorded under Section 164 of the Code of Criminal Procedure, it is clear that he has substantially made the same statements before the Court. 24. In this case, the evidence of P.W. 7 is absolutely without any blemish. 25. However, P.W. 6 did not state before the Investigating Officer that he saw the occurrence in question rather it appears that his source of knowledge was P.W. 7. P.W. 9, Dhaneshwar Thakur also did not claim himself to be an eye witness before the Investigating Officer. Their evidence in Court to the effect that they were eye witness, therefore, cannot be believed, but in our opinion, their testimonies in their entirety cannot be discarded inasmuch as, they had supported the prosecution case to the effect that upon Hallah they came to the place of occurrence and found the deceased lying in a injured condition and then they came to learn about the actual incident. 26. However, so far as appellant is concerned, it is further evident that he did not take any part in the assault. P.W. 1 also did not say that the deceased took the name of the appellant as one of the persons committing any overtact. 27. P.W. 2 father of the deceased had also stated that there was no enemity with the appellant. 28. P.W. 1 also did not say that the deceased took the name of the appellant as one of the persons committing any overtact. 27. P.W. 2 father of the deceased had also stated that there was no enemity with the appellant. 28. From the evidence on record, it only appears that the incident took place out of a trifling matter and the appellant alongwith Subhash Singh intended to teach the deceased a lesson, in view of the altercation which took place amongst them. 29. It is also evident that while Subhash Singh came alongwith a dagger, the appellant was not armed. The dagger blow by Subhash Singh had also been given on the back of the deceased. It is further evident that they intended to assault P.W. 7 also, but he was let off without any harm being caused to him. 30. Taking thus all facts and circumstances into consideration, therefore, we are of the view that it is possible that the appellant and Subhash Singh did not have any intention to do away with the life of the deceased but they only intended to cause bodilly harm to him. 31. In this situation, the appellant can be convicted only for commission of an offence under Sections 326/34 of the Indian Penal Code and not under Section 301/34 of the Indian Penal Code. 32. It may be mentioned that the aforementioned Subhash Singh, who also preferred an appeal in this Court being Criminal Appeal No. 89/88 (R) has died during pendency of this appeal. 33. In this situation, the conviction of the appellant is converted from an offence under Sections 302/34 to an offence under Sections 326/34 of the Indian Penal Code. 34. The appellant, from the judgment of the Court below, it appears was only 25 years old. Taking thus this aspect of the matter into consideration, we think that the appellant deserves to be dealt with leniently. 35. We are of the view that a sentence of Rigorous Imprisonment for a period of three years shall serve the ends of justice. This appeal is allowed to the aforementioned extent R.N.Sahay, J. 36 I agree.