Judgment GURUSHARAN SHARMA, J. 1. There are two Appellants in this Appeal. Both of them have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the trial court. 2. According to the prosecution case, on 24-3-1986 at 9 p. m. at village Kamalpur, P. S. Gamharia, District Singhbhum (West), while Kirtan was going on at Hari Mandir, at a short distance therefrom, Bhola Nath Bisai (PW 9) and his brother-in-law Ghandhi Kaibariho were quarreling with Daresh Kaibartho (Appellant No. 1), Mahabir Kaibartho (since deceased), Karmu Kaibartho (Appellant No. 2), Dharmu Kaibartho and Yugal Kaibartho. Abhiram Lah (PW 6) and Bijoy Lah arrived there and asked them not to quarrel. On this Daresh Kaibartho and Mahabir Kaibartho fisted them. Meanwhile, Dwarika Lah alias Dowari Kaibartho (PW 10) came there, noticed the quarrel and informed B. S. Dutta (deceased), who was sitting nearby under a Neem tree along with his son, Bisheshwar Dutta (PW 5) B. S. Dutta went there and asked the reason of quarrel and advised them not to quarrel, on which Daresh Kaibartho told him not to interfere and assaulted him with sword aiming at his neck, which hit on the head causing injury, whereupon he fell down. Thereafter Mahabir and Karmu Kaibartho assaulted him on his head with sword. Bisheshwar Dutta was chased by Daresh with sword but he fled away to his house and narrated the incident to his grand father and uncle, Arjun Dutta (PW 2), who came to the place of occurrence and saw the injured lying. The injured was taken to Railway Hospital on Bullock cart for some distance and thereafter by Tempo, where first aid was given and therefrom by Ambulance he was brought to Tata Medical Hospital, Jamshedpur, where he died. Next morning the police officer posted at the Hospital Camp recorded the Fardbeyan (Exhibit 3) of Bisheswar Dutta (PW 5) which was forwarded to Gamharia Police Station and a formal First Information Report (Exhibit 2) was drawn up. Accordingly Gamharia P. S. Case No. 19 of 1986 against the Appellants and others was registered under Section 302 of the Indian Penal Code and investigation was taken up. 3. After investigation, charge-sheet was submitted and cognizance was taken under Section 302/34 of the Indian Penal Code against the two Appellants herein alongwith two others, namely, Mahabir Kaibartho and Dharmu Kaibartho. 3. After investigation, charge-sheet was submitted and cognizance was taken under Section 302/34 of the Indian Penal Code against the two Appellants herein alongwith two others, namely, Mahabir Kaibartho and Dharmu Kaibartho. On 25-9-1986 the case was committed to the court of Sessions for trial. It was registered as Sessions Trial No. 660 of 1986. Mahabir Kaibartho, one of the accused, died in course of the trial. 4. The prosecution examined 11 witnesses. PWs 5, 6 and 9 claimed to be eye-witness, to the occurrence. PWs 1 and 2 are nephew and full brother of the deceased PWs 3, 7 and 11 are formal witness, who proved certain documents Exhibits 1/2, 1/3, 3, 5 and 6). PWs 4 and 10 were tendered. PW 8 is the doctor who had conducted post-mortem examination on the deadbody of the deceased. The post-mortem report is Exhibit 4. The Investigating Officer was not examined. 5. PW 5, the Informant, who is son of the deceased supported his Fardbeyan (Exhibit 3) and stated that firstly his father was assaulted by Appellant No. 1 with sword on head and subsequently after his father fell down, Manabir Kaibartho (since dead) as well as Appellant No. 2 also assaulted him on his head with sword. Appellant No. 1 also chased him (the informant) with sword but he fled away towards his house and informed his grand father and uncle (PW 2) about the occurrence. The injured was ultimately taken to Tata Medical Hospital, Jamshedpur, where he died and Fardbeyan was recorded there. 6. Another eye-witness of the occurrence, namely, Abhiram Lah (PW 6) has deposed to the effect that the quarrel between Bhola Nath Bishay and others on the one hand and Daresh Kaibartho, Appellant No. 1 and others on the other hand taken place on account of earlier assault of Bijay Lah, the brother of Bhola by Daresh. He asked them not to quarrel and on this Mahabir (since dead) assaulted him with fists on left eye. Thereafter Dowari Kaibartho came and called Sri B. S. Dutta (Bibhisan) who was assaulted by Daresh with sword on his head. On being injured he fell down and thereafter Mahabir Kaibartho (since dead) and Karmu Kaibartho also assaulted on his head with sword. He is the son-in-law of the deceaseds brother Haradhan Datta. He claimed to have reached the place of occurrence earlier to Dwarika Lah alias Dowari Kaibartho. On being injured he fell down and thereafter Mahabir Kaibartho (since dead) and Karmu Kaibartho also assaulted on his head with sword. He is the son-in-law of the deceaseds brother Haradhan Datta. He claimed to have reached the place of occurrence earlier to Dwarika Lah alias Dowari Kaibartho. In paragraph 7 of his cross examination, he stated that on being assaulted, he did not take any step and went to the temple where Kirtan was going on. He again went there on hearing hulla and saw Bibhisan lying injured. 7. PW 9 also claimed to be an eye-witness. Firstly, he saw one Kartik and Khoka quarreling. He askei them not to quarrel and on this Mahabir (since dead) assaulted him. In his presence, Bibhisan Dutta (dead) and his son BW 5 (the informant) also came and asked Appellant No. 1 herein not to quarrel and on that Appellant No. 1 assaulted on his head with a sword. After he fell down, Mahabir (since dead) as well as Appellant No. 2 also assaulted him with sword on head. According to this witness, the informant (PW 5) was chased by Mahabir with sword. In paragraph 9 of his cross-examination, he has given details of specific obvertacts of the Appellants. 8. The doctor (PW 8) conducted post-mortem examination on the dead body of B. S. Dutta alias Bibhisan. He found three ante-mortem injuries on ihe deadbody. "Injury No. 1 Deep transverse cut left side of face on the middle part measuring 15 cm. X 5 cm. X 1 Cm. The impact served the musscles, vessels and underlying lower jaw bone. Injury No. 2 Cut left side of scalp 12 cm. X 3 cm X linear fracture of the parietal bone which lacerated the brain and damaged the meanings. Injury No. 3 Linear cuts (two) on left arm (superficial). This was likely to have occurred from the tip of the weapon (superficial) 5 cm. long X 4 Cm. long" According to the doctor the death was caused due to head injury. The injury No. 2 was sufficient in ordinary course of nature to cause death. 9. According to the defence, the accused persons did not commit the alleged murder and none of the witnesses had seen the occurrence. They were falsely implicated in this case by the informant and his relations. The injury No. 2 was sufficient in ordinary course of nature to cause death. 9. According to the defence, the accused persons did not commit the alleged murder and none of the witnesses had seen the occurrence. They were falsely implicated in this case by the informant and his relations. In course of examination under Section 313 of the Criminal Procedure Code, the accused persons stated that they were innocent and they have not committed the alleged offence. No defence witness was examined in the trial. 10. The trial court came to the finding that Abhiram Lah (PW 6) who was son-in-law of the brother of the deceased was assaulted by the accused persons and this was the reason that the said B. S. Dutta (deceased) interfered which displeased the accused persons and they assaulted him with sword with common intention and knowledge that such assault would surely cause death, and as a result of which he died. The trial Court held that on the basis of the direct and reliable evidence on PWs 5, 6 and 9 and reliable circumstantial evidence of rest material witnesses the prosecution has proved the charge against the accused Daresh Kaibartho and Karmu Kaibartho beyond all reasonable doubt and non-examination of the Investigating Officer was not fatal in this case. Daresh Kaibartho and Karmu Kaibartho were accordingly found guilty under Sections 302/34 of the Indian Penal Code and convicted accordingly and both of them were sentenced to undergo rigorous imprisonment for life with a direction that the period undergone by thorn as under trial prisoners shall bo set off against the term of imprisonment. 11. Mr. Laljee Sahay, loarned counsel for the Appellants submitted that there was inordinate delay in lodging tho First Information Report, that the witnesses named in the FIR were not examined and the prosecution has failed to establish any motive on the part of tho Appellants to kill the father of the informant (PW 5). PW 10 who is said to have called the deceased to the place of occurrence was tendered and as such the prosecution case became doubtful. According to PWs S and 9, the two Appellants and one Mahabir (since dead) had given three different sword blows on the head of the deceased, but in the post-mortem report (Exhibit 4) only one injury was found on head. This also proves the falsity of the prosecution case. According to PWs S and 9, the two Appellants and one Mahabir (since dead) had given three different sword blows on the head of the deceased, but in the post-mortem report (Exhibit 4) only one injury was found on head. This also proves the falsity of the prosecution case. No independent witness came forward to support the prosecution version. PWs 1, 2, 5 and 6 are highly interested witnesses, being relations of the deceased and non-examination of the Investigating Officer has caused serious prejudice to the defence case. 12. On the other hand, learned Additional Public Prosecutor submitted that the prosecution has been abie to prove its case fully. The evidence of eye-witnesses, namely, PWs 5, 6 and 9 proved the Appellants hand in the murder of B. S. Dutta alias Bibhisan and their evidence are no shaken by cross-examination. The medical evidence fully supported the injury which caused death of the deceased. In view of the clear cut statement of the eyewitnesses, which could not be shaken at the cross-examination, non-examination of the Investigating Officer has not caused any prejudice to the defence. Accordingly, the conviction apd sentence imposed on the Appellants by the trial court are quite just and proper and no interference therewith is required by this court. 13. The Appellants had no quarrel or dispute with the deceased B. S. Dutta alias Bibhisan. No malice has been alleged to have been entertained by the accused persons towards the deceased. The incident occurred on the spur of the moment. Probably when the deceased B. S. Dutta told the accused persons not to quarrel, the Appellants retorted by questioning the authority of B.S. Dutta to control them. The presence of B. S. Dutta is wholly accidental. The surrounding circumstances would also shown that it was not a premeditated murder and the Appellants had no motive to kill the victim. There arose a situation in which the accused persons probably misguided by their own ego-centric nature objected as to why B. S. Dutta should ask them not to quarrel and in this back ground Appellant No. 1 gave one blow with a sword, which landed on the head c f the deceased which proved to be fatal. There arose a situation in which the accused persons probably misguided by their own ego-centric nature objected as to why B. S. Dutta should ask them not to quarrel and in this back ground Appellant No. 1 gave one blow with a sword, which landed on the head c f the deceased which proved to be fatal. In the facts and circumstances of the case, in my opinion, the prosecution has not been able to prove that the accused persons-Appellants have committed offence under Section 302/34 of the Indian Penal Code. Having regard to the materials on regard to the materials on record, I am satisfied that the requisite intention cannot be attributed to the Appellants, but io the circumstances herein discussed at Appellants weilded a weapon like sword and therefore they can be attributed with the knowledge that they were likely to cause injury which was likely to cause death. In such a situation, they would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case a sentence of seven years would be quite adequate. 14. Accordingly, this Appeal is allowed in part and the conviction of the Appellants for offence under Section 302/34 of the Indian Penal Code and the sentence of life imprisonment are set aside and the Appellants are convicted for having committed an offence under Section 304 Part II of the Indian Penal Code and they are sentenced to suffer regorous imprisonment for seven years. This Appeal is allowed to the extent herein indicated. S.K.Homchaudhuri, J. 15 I agree.