R. K. PATRA, J. ( 1 ) APPELLANTS 1 to 5 were charged under section 302 read with 149 of the Indian Penal Code (for brevity I. P. C. ). Appellant No. 6 Niranjan was specifically charged under section 302 of I. P. C. All the six appellants were charged under section 148 of I. P. C. Appellant No. 5 Srustidhar was charged under section 323 of I. P. C. The Sessions Judge has convicted appellant No ). 6 Niranjan under section 304 Part-I of I. P. C. and sentenced him to undergo rigorous imprisonment for seven years. Appellants 1 to 5 have been convicted under section 304 Part-I read with section 149 of I. P. C. Each of them has been sentenced to undergo rigorous imprisonment for seven years. All the six appellants having found guilty under section 148 of I. P. C. , have been sentenced to undergo rigorous imprisonment for two years. Appellant No. 5 Srustidhar has been convicted under section 323 of I. P. C. and sentenced to undergo rigorous imprisonment for six months. All the sentences are directed to run concurrently. ( 2 ) BRIEFLY stated, the prosecution case was that the deceased Jaladhar was living at village Biripada along with his un-married daughter Basanti P. W. 1 She had lost her mother about fifteen years ago. Appellant Nos. 1 to 5 are the cousins of P. W. 1 being the sons of her maternal uncles. Their residential houses adjoin the house of the deceased. Appellant No. 6 Niranjan is no way related to them whose house was situated in front of the house of appellants 1 to 5 and the deceased Jaladhar intervened by public road. There was no other residential house locateed near their hoses. There was a common fence mixed with green trees and dry twigs between the homestead of appellant Nos. 1 to 5 and the deceased Jaladhar. On 1. 8. 1988 at about 4 p. m. there was heavy rain with a gale. A portion of the common fence fell down. after rains stopped, the appellant No. 4 Gadadhar came and cut Gaba tree which was standing in the common fence. When P. W. 1 challenged the cutting of the Gobat tree, appellant Gadadhar rebuked her in filthy language. 8. 1988 at about 4 p. m. there was heavy rain with a gale. A portion of the common fence fell down. after rains stopped, the appellant No. 4 Gadadhar came and cut Gaba tree which was standing in the common fence. When P. W. 1 challenged the cutting of the Gobat tree, appellant Gadadhar rebuked her in filthy language. The deceased Jaladhar who was sitting then on the wester side of varandah of his house protested at this and told the appellant Gadadhar that they should not have used such filthy words. There after quarrel ensued between the deceased and appellant Gadadhar. At this point of time, appellant No. 6 Niranjan rushed towards the house of the deceased, removed the peg made of sal wood near tati door and entered inside the premises. The other appellants namely appellants 1 to 5 also arrived at the spot being arm with lathis. They all removed the tati door and threw it. Appellant No. 6 Niranjan dealt a blow with the wooder peg on the head of the deceased who sustained bleeding injury and fell down. Thereafter, appellants 1 to 5 assaulted the deceased on his hands and legs with lathis, P. W. 1 was standing there, came to rescue of her father and at that time appellant No. 5 Srustidhar dealt a lathi blow on her right arm, right knee and back. She cried and shouted and out of fear entered inside her house. After the appellants left the spot, P. W. 1 came out of her house and found that there was profuse bleeding from the head of her father and was lying unconscious. She brought him to the verandah by dragging him by holding his hands. A few minutes Thereafter he died. There was again heavy down-pour of rains. After the rains subsided, she want to the house of P. W. 3 and P. W. 4 and informed that the appellants had killed her father. They told her that unless all the villagers agreed to go to her house, they would not go in that night. In the circumstances, she had to remain helpless in the night. On the next day morning P. Ws. 2, 3,4 and Sher co-villagers came. P. W. 1 went to Amarda Road police out-post accompanied by P. W. 5 to report about the incident. In the circumstances, she had to remain helpless in the night. On the next day morning P. Ws. 2, 3,4 and Sher co-villagers came. P. W. 1 went to Amarda Road police out-post accompanied by P. W. 5 to report about the incident. After it was reported, the police started investigation and the appellants were sent up for trial which has ended in their conviction as of ore said. ( 3 ) THE appellants took the plea of denial. ( 4 ) ON the basis of the evidence of P. W. 1 and P. W. 12 (doctor), it is held that the deceased met with a homicidal death. This fact has also not been challenged by the Counsel for the appellants. ( 5 ) IT was contended on behalf of the appellants that the conduct of P. W. 1 was not free from doubt and she having not informed about the incident immediately after the occurrence to the villagers, her evidence should not be accepted. It was also contended that in absence of any evidence as to which blow was the cause of the death appellant No. 6 Niranjan could not have been convicted under section 304 Part-I of I. P. C. The counsel submitted that in absence of proof of formation. of unlawful assembly by the appellants and in absence of existence of common object amongst the appellants to cause the death of the deceased, section 149 cannot be invoked against them. ( 6 ) LET me first scrutinise the evidence of P. W. 1 who was the main eye witness to the occurrence. Appellants 1 to 5 are her cousins. Appellant No. 6 Niranjan, though a stranger to the family was a resident of the same locality and has intimacy with appellants 1 to 5. P. W. 1 being a close relation of the appellants 1 to 5 would not falsely implicate them in the commission of offence. The occurrence had taken place under her very nose. There is no reason as to why she cannot be relied upon. She testified that on the date of occurrence at about 4 p. m. after the rains stopped appellant Gadadhar came and cut away a Gaba tree which was standing in their common fence and whenshe asked him as to why he did so, he abused her in filthy language. She testified that on the date of occurrence at about 4 p. m. after the rains stopped appellant Gadadhar came and cut away a Gaba tree which was standing in their common fence and whenshe asked him as to why he did so, he abused her in filthy language. At that time, her father who was sitting on the western verandah of the house protested at the behaviour of the appellant Gadadhar for which quarrel ensued between them. At this point of time appellant Niranjan rushed towards her house, threw the tati gate and after removing the sal peg which had been fixed near the tati came towards her father being armed with lathi. The other appellants (her cousins) also arrived at that time being armed with lathis. Then appellant Niranjandealt a Now on the head of her father with the sal peg as a result he sustained bleeding injury on the head and fell down. Thereafter, all her cousins (appellants 1 to 5) assaulted her father with lathis on his hands and legs. When she rushed to rescue her father, appellant Srustidhar dealt a blow with a lathi on the right of her arm right knee and right side of her back after assaulting, all the appellants left the spot. The counsel for the appellants seriously contended that the conduct of P. W. 1 in not reporting the incident to other villagers in the very night of occurrence indicates that she falsely implicated the appellants at the instance of P. W. 5 who was inimically disposed towards the appellants. There is no force in this submission. As the evidence indicates, the houses of the appellants and the deceased were located at a place away from the residential houses of other villagers. P. W. 3 stated that at about 10 p. m. in the night of occurrence, P. W. 1 came to him and informed that the appellants assaulted her father to death and his dead body was lying in her house. He stated that she reported that no body in the village was coming forward to take care of the dead body. As it was late in the night, he himself refused to go to her house and advised her to call other villagers. He stated that she reported that no body in the village was coming forward to take care of the dead body. As it was late in the night, he himself refused to go to her house and advised her to call other villagers. P. W. 4 another co-villager stated that in the night of occurrence at about 10 p. m. P. W. 1 came and told him that the appellants assaulted her father to death Land she called him to tome to her house. He informed her that if all the villagers agreed to go there, then only he would go to see the dead body. In the next morning, when P. W. 1 came, he along with other villagers went to her house and found marks of bleeding injuries on the hands and legs of the deceased who was lying dead on the verandah. It is in the evidence of P. W. 1 that it rained for the second time after the occurrence and it was perhaps on account of this, the villagers immediately did not go to her house. It was therefore not correct to say that P. W. 1 did not report the incident to villagers. As a matter of fact she went to the house of P. Ws. 3 and 4 and informed about the incident; but they did not take any immediate interest on the plea that all other villagers should come. P. W. 1 was forlorn and the death of her father must have heavily shocked her. On perusal of the evidence of P. W. 1, I am satisfied that she has given a clear graphic account of the entire incident and the role played by each of the appellants in assaulting the deceased. Nothing substantial was brought out in her evidence to reject her testimony. 6. P. W. 12 was the Assistant Surgeon in the District Headquarters Hospital, Balasore who conducted post-mortem examination of the deceased Jaladhar. He had found the following injuries: External injuriesi) Lacerated injury of 2-1/2 x 1 x scalp deep present obliquely on occipital area. ii) Lacerated injury of 1-1/2 x 1 x scalp deep on the midline in antero postero direction and half inch above the first injury. iii) Lacerated wound of 1-1/2 x 1/2 x scalp deep on the right parietal area 2 right to the midline, and antero posterially placed. ii) Lacerated injury of 1-1/2 x 1 x scalp deep on the midline in antero postero direction and half inch above the first injury. iii) Lacerated wound of 1-1/2 x 1/2 x scalp deep on the right parietal area 2 right to the midline, and antero posterially placed. iv) Lacerated wound of 2 x 1/2 x skin deep on the middle of the right arm, on its lateral aspect. v) One busise x 2 on the right thigh on the middle in a tranverse direction placed 3" above the knee joint. vi) Lacerated wound of 1" x 1/4" x 1/4" on the right skin on its middle and inner aspect. vii) One lacerated injury 3" x 1" x skin deep over the shin in an inverted "l shape, 3" below the left knee joint. viii) Lacerated wound of 1" x 1/4 x muscle deep on the outer aspect of the left thigh 4" below the left hip joint. ix) Lacerated wound of 4 x 1'1 x muscle deep obliquely on the lower part of the left thigh 1" above the knee joint. Internal injuries. x) One depressed fracture 1 x 1/2 in antero-postero direction seen on the right temporal region just above the right parito temporal suture and just behind the frontal suture. xi) One Y shaped linear fracture seen from right pariotal bone behind the frontal parital suture on right side. xii) One linear fracture of the left parital bone starting from front suture 2" left to the midline up to temporol parital suture, 11/2" above the left audio canal or matus. xiii) The frontal bone is dislocated from the suture line at the suture line from both the temporal and parietal bone. xiv) Haematoma seen below the scalp extending over both temporal both parietal and occipital area. There is extensive subdural haemorrhage with blood clots covering the occipital both the temporal and both the occipital both the temporal and both the parital areas except frontal area. xv) The 8th, 9th and 10th ribs on the right side are fractured at the costochendral joint and thoracic wall at haem atom at that side. Fracture of remur bone (communicated in the lower halfinto 3 pieces)1. He opined that the cause of death was due to injuries to the vital organ like brain with haemorrhage and shock. xv) The 8th, 9th and 10th ribs on the right side are fractured at the costochendral joint and thoracic wall at haem atom at that side. Fracture of remur bone (communicated in the lower halfinto 3 pieces)1. He opined that the cause of death was due to injuries to the vital organ like brain with haemorrhage and shock. According to him the injuries found on the brain of the deceased were sufficient in the ordinary course of nature to cause death. Injuries 1, 2 and 3 were caused by three strokes and injuries 10 to 14 were effect of injuries 1 to 3. The learned counsel for the appellants contended that there is no specific evidence as to which blow given on the head was the cause of death and in absence of such evidence appellant No. 6 Niranjan could not have been convicted under section 304-Pail I of I. P. C. P. W. 1st clear and specific evidence is that appellant No. 6 Niranjan rushed towards their house, threw the tati gate and after removing a sal peg which was fixed near tati, dealt a blow on the head of the deceased Jaladhar with the sal wooden peg as a result her father sustained bleeding injury on his head and fell down. Thereafter, other appellants assaulted the deceased with lathis on his hands and legs. The other eye witness P. W. 2 stated that he saw all the appellants assaulting the deceased Jaladhar and by that time he (deceased) was lying of the ground. The deceased had three injuries (corresponding to external injuries 1 to 3) on the head. The cause of death was due to the injuries to the vital organ like brain with haemorrhage and shock. The doctor P. W. 12 clarified that injuries No. 1 to 3 were caused by three strokes. P. W. 1 had attributed one injury to appellant Niranjan. The cause of death was due to the injuries to the vital organ like brain with haemorrhage and shock. The doctor P. W. 12 clarified that injuries No. 1 to 3 were caused by three strokes. P. W. 1 had attributed one injury to appellant Niranjan. In absence of evidence to show that he caused the fatal injury, he could not have been convicted under section 304 Part-I of I. P. C. It could, however, be presumed that he had at least the intention of causing grievous hurt and therefore, he can appropriately be found guilty of an offence under section 325 of I. P. C. His conviction under section 304 Part-I of I. P. C. is hereby modified to one under section 325 of I. P. C. Appellant Niranjan is undergoing imprisonment from the date of the impugned judgment and has by now suffered imprisonment for four years. The period of sentence already undergone would be adequate punishment for him. He may accordingly be set at liberty forthwith. ( 7 ) LEARNED counsel for the appellants contended that all the appellants could have been convicted under section 304 Part-I of I. P. C. by invoking section 149 of I. P. C. P. W. 1 had stated that appellants 1 to 5 assaulted her deceased father with lath is on his hands and legs. In view of the finding recorded in the preceding paragraph and in view of the evidence of P. W. 1, their conviction is modified to one under sections 3251149 of I. P. C. Appellant No. 2 was released by this Court on bail on 16/2/1989. Appellant Nos. 1,3,4 and 5 were released by this Court on bail on 7/3/1990. Thus, they had suffered imprisonment for varying periods. The imprisonment suffered by them is adequate punishment under sections 325/149 of I. P. C. The conviction of all the appellants under section 148 of I. P. C is hereby maintained. But in the facts and circumstances of the case, the sentence imposed on this count by the learned Sessions Judge is hereby set aside. Appellant No. 5 Srustidhar was been separately found guilty under section 323 of I. P. C. for having cause simple hurt to P. W. 1. But in the facts and circumstances of the case, the sentence imposed on this count by the learned Sessions Judge is hereby set aside. Appellant No. 5 Srustidhar was been separately found guilty under section 323 of I. P. C. for having cause simple hurt to P. W. 1. She has stated that on account of the assault given by the said appellant, she had sustained injustice on her right knee, right elbow and dorsum of the left hand. Her evidence finds support in the evidence of doctor P. W. 8. As such, the conviction of appellant No. 5 Srustidhar under section 323 of I. P. C. is hereby maintained. In view of the fact that he has already suffered imprisonment, no further sentence is awarded oh this count. The appeal is thus partly allowed. Appeal allowed partly. .