Judgment Loknath Prasad, J. 1. This appeal is directed against the order of conviction recorded by 6th Additional Sessions Judge, Palamu at Daltonganj vide his judgment dated, 26-8-1994 in Sessions Trial No. 253 of 1988 through which the sole appellant was convicted and sentenced to undergo rigorous imprisonment for 10 years under Section 304 of the Indian Penal Code. 2. The facts in short giving rise to this appeal is that on 16-10-1985 at about 11 a. m. the deceased Dhanu Oraon along with Rati Oraon, the Informant and his family members, namely, Samudari Devi (PW 4), Mangari Devi (PW 1), and Ram Dayal Oraon (PW 3) cut the grown paddy over a piece of land belonging to Dhanu Oraon situate by the side of river at Jay Nagar, P. S. Chainpur and after that they removed the entire cut paddy in bundles and only one bundle was left to be removed from the P. O. land. It has also been alleged that in the meantime this appellant alongwith Pragas Oraon, Prayag Oraon and two females came and all the male accused persons including the appellants were armed with lathi and they snatched the rope meant for tying cut paddy boundles then the deceased Dhanu asked for return of the rope. Then immediately this appellant Dhanu gave two lathi blows on the head of Dhanu due to that Dhanu became unconscious and fell on the ground. It is also the prosecution case that at that Rati, informant of this case had gone to rescue Dhanu but he too was assaulted Pragash. On Hullah, two witnesses, namely Nagu Oraon and Ramdeo Oraon came to P. O. who had also seen the occurrence and then the accused persons escaped away. The injured Dhanu Das in unconcious stage remove to his house, where he succumed to the injuries sustained by him. He died at about 4 p. m. and it was raining, so. information was given on the same night and the next day i. e. on 17-10-1985 the informant along with village Choukidar had gone to the Chainpur Police Station and lodged information about this occurrence. The police, then instituted this case and immediately the I. O. visited the P. O., prepared the inquest of deceased (Ext. information was given on the same night and the next day i. e. on 17-10-1985 the informant along with village Choukidar had gone to the Chainpur Police Station and lodged information about this occurrence. The police, then instituted this case and immediately the I. O. visited the P. O., prepared the inquest of deceased (Ext. 1) and after completing the investigation, submitted charge-sheet as against this appellant and three others, namely, Pragash Oraon, Prayag Oraon, and Basant Oraon under Section 304/34 of the I. P. C. and also under Section 323 of the I. P. C. and further two female accused where not sent up for trial. 3. The appellant claimed to be innnocent and denied to have participated in this occurrence and the only defence they had taken before the court below that due to dispute over the possession of the P. O. land they had been implicated. The trial Court vide its judgment dated 26-8-1994 found the appellant Mangra guilty under Section 304 of the I. P. C. and convicted and sentenced him to undergo R. I. for 10 years whereas the accused Prayag and Pragas were acquitted of the charges levelled against them under Section 304/34 of the I. P. C. but they were found guilty under Section 323 of th I. P. C. for causing voluntary hurt to PW 5 Rati Oraon but as they were in custody for about two months during investigation, so it was ordered that no further sentence has to be awarded against them. The accused Basant Oraon was acquitted of the charges levelled against him by the trial court. 4. Being aggrieved and dissatisfied with the order of conviction, the sole appellant preferred this appeal and has challenged the findings of the learned trial Court merely on the ground that the trial Court erred in not accepting the contention of the appellant about his bona fide claim over the P. O.land. 5. The only question for consideration before me if, it at all the prosecution has been able to establish that this appellant has assaulted the deceased on 16-10-1985 in village Jay Nagar and due to that injury, the deceased died on that very day. 6. To prove the prosecution case, as many as five witnesses i. e. PWs. 1 to PW 5 were examined. 6. To prove the prosecution case, as many as five witnesses i. e. PWs. 1 to PW 5 were examined. Three witnesses were examined on the point of occurrence whereas P. O. 6 is a witness on the point of inquest and PW 7 is a formal witness. PW 8 is Dr. Bharat Manjhi who held post-mortem of the deadbody of the deceased. 7. On the point of occurrence, PW 5 Rati Oraon who if informant of this case is a most important witnesses and he had claimed in his evidence that on the day he along with his family members i. e. Samundri Devi, Mangri PW 1 and Ramdayal PW 3 and also with deceased Dhanu Oraon had gone to their land near river i. e. on plot No. 551 for harvesting the paddy and they actually harvested the paddy and brought the harvested paddy crops in bundles and only one bundle of paddy crop was left on the P. O. land to be carried to the house. In the meantime, this appellant and Prayag Oraon, Pragas Oroan and one Basant who had been acquitted by the court below came and they were armed with lathi and the rope meant for tying the bundle was taken away to which the deceased said and requested them to return the rope and immmediately the appellant gave two lathi blow on the head due to that the deceased became unconscious and had fallen on the ground and PW 5 raised alarm and tried to rescue but he too was assaulted by Prayag and Pragas. Ho doubt, this witness is a relation of the deceased but he is informant of this case and on the next day he lodged first information report in the P. S.and on the date of occurrence and after the death of the deceased at 4 p.m. it was raining and so it was not possible to go to the police station and the evidence of this witness finds corroboration from the first information report lodged by him. Moreover, he appears to be an injured witness because some of other accused were found guilty under Section 323 of the I P.C for causing voluntarily hurt to this witness in the very occurrence as he tried to rescue the deceased. Moreover, he appears to be an injured witness because some of other accused were found guilty under Section 323 of the I P.C for causing voluntarily hurt to this witness in the very occurrence as he tried to rescue the deceased. So the evidence of this witness definitely inspire confidence and there is no evidence on record to disbelieve his testimony, 8. The evidence of the informant also finds support from the evidence of PW 1, Mangari Devi, PW 3 Ramdayal Oraon, PW 4 Samudri Devi and they too consistently stated that this very appellant gave two blows by lathi on the head of the deceased and the names of these witnesses also figured in the first information report which was lodged at the P. S. on next day of the occurrence which supports the prosecution case that they were present at the time of occurrence and in that view of the matter they were also competent witnesses on the point of occurrence. Surprisingly in the cross-examination of PW1, not a single word was asked about the occurrence or assault alleged to have been attributed to the appellant. Similarly it is also the prosecution case as mentioned in the first information report that alarm Nagu Oraon and Karamdeo Oraon, arrived at the P. O. and they had seen the occurrence PW 2 is Nagu Oraon and he too claimed that he was present in his pwn field at the time of occurrence which is near to the P. O. land and had seen the appellant assaulting the deceased by lathi. So the prosecution case on the point of assault also finds support from the witness who was near the P. O. land at the time of occurrence. 9. Above all, the prosecution case also finds corroboration from the evidence of the Doctor Bharat Manjhi who has figured as PW 8 and who held post-mortem on the deadbody of the deceased on 18-10-1985 at 10.30 p. m. and found bruise which echymosis on the back of the head. 9. Above all, the prosecution case also finds corroboration from the evidence of the Doctor Bharat Manjhi who has figured as PW 8 and who held post-mortem on the deadbody of the deceased on 18-10-1985 at 10.30 p. m. and found bruise which echymosis on the back of the head. Another bruise with echymosis on the right side of the head and third injury was echymosis on the lef side of the head and on dissection it was found fracture of left occipital bond and also there was fracture of right peristal bone and lasty there was fracture of left perietal bone with lacceration on the brain materials with haematoma in the brain cavity and according to Dorctor, all these injuries cause the death of the deceased. So the evidence of the Doctor also indicates that the deceased sustained injuries on ths vital part of the body i. e. on the head some time on 16-10-1985 due to that he died. Furter the evidence of Doctor also indicates that all the three injuries caused on the head resulted in fracture which also gives an impression that force was also used when the blown were given. No doubt, the prosecution case is that two blows of lathi were given to the deceased but Doctor found as many as three injuries, but in my opinion this is not serious contradiction for disbelieving the entire prosecution case because it is quite possible that the witnesses could not have seen the third assault. 10. So the evidence on the record clearly establishes the guilt of the appellant as recorded by the court below.However, it was contended by the learned counsel for the appellant that the occurrence took place all of sudden that tod regarding possession of the disputed land and the disputed land was in possession of the appellant and actually the deceased and others had others had gone there for taking possession and forcible harvesting of the crop. In this connection, it can be said that practically no evidence was adduced on behalf of the defence to show that the P.O. land was in possession of the appellant. In this connection, it can be said that practically no evidence was adduced on behalf of the defence to show that the P.O. land was in possession of the appellant. On the other hand, the informant who has figured as PW 5, PW 2, PW 3 and PW 4 consistently stated that the P.O. land was in possession of Dhana Oraon, the deceased and he had grown the crop and only this much has come from the cross-examination of the witnesses that the appellant was in possession of a piece of Gairmazurwa land which is near the P. O. land. Thus, in any view of the evidence, practically there is nothing on the record to suggest that the appellant was in possession of the P. O. land and the prosecution side was the aggressor. 11. It was also submitted during the course of argument that the defence was prejudiced for non-examination of the I. O. No doubt the I. O. could not be examined in the court below but from the evidence of the witnesses, it can be said that practically no contra diction were taken from the witnesses and the only one contradiction could be taken from the evidence of PW 5. Moreover, nothing was fonnd on the P. O. and the P. O. itself is not in dispute and in that view of the matter, non-examination of the I. O. had not caused any prejudice to the defence. 12. So from the discussions made and also from the evidence this fact is well proved that the guilt of the appellant under Section 304 of the I.P.C. was rightly found by the court below and he was perfectly justified in convicting and sentencing the appellant under Section 304 of the I.P.C. So far the sentence is concerned, the trial Court awarded rigorous imprisonment for ten years and it was contended on behalf of the appellant that the parties are tribal and without any plan this occurrence took all of a sudden and it is quite possible by a tribal appellant that was under a wrong impression about his bona fide claim of land which has not been proved. I feel that the appellant is an old tribal man and this occurrence took place all of a sudden. I feel that the appellant is an old tribal man and this occurrence took place all of a sudden. In this view of the matter, the ends of justice will be met if the appellant is sentenced to undergo R. I. for 5 (five) years under Section 304 of the I.P.C. Accordingly this appeal is dismissed with modification in sentence and the appellant is sentenced to undergo R. I. for five years as indicated above. 13. The learned counsel for the appellant submitted that the appellant is it in custody. So the trial court is directed to send the modified warrant to the Jail Superintendent and the period of detention to be set-off by the period of imprisonment.