Judgment P.K.Sarkar, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated 30.3.1989 of the 7th Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 222 of 1986 (G.R. Case No. 376 of 1985) whereby and where under the learned Court below convicted the two accused appellants under Sec. 302 of the Indian Penal Code and sentenced them to undergo R.I. for life. 2. Originally five accused persons were facing trial out of whom 3 accused persons, namely, Ram Khelawan Vishwakarma, Raj Kumari Devi and Pradip Kumar Vishwakarma were found not quilty and were acquitted. 3. The prosecution case in brief, is that the statement of Nand Kumar Vishwakarma of village Soh, police station Garhwa was recorded by Officer Incharge, Garhwa, police station, wherein he had stated that on 22.6.1985 at 10 A.M. while he was cleaning his house, accused Sheo Nath Vishwakarma came at his door and asked him to came out of the house. It is further alleged that when the informant Nand Kumar Vishwakarma came out from his house then accused Sheo Nath Vishwakarma gave a Bashula blow and his wife Ram Keshiya Devi also assaulted the informant with Tangi. It is further alleged that both the aforesaid accused appellants assaulted the deceased due to dispute over share of properties, as result of the aforesaid assault Nand Kumar Vishwakarma fell down on the ground then both the accused appellants went away. It is further said that the villagers assembled and saw the occurrence. Thereafter, the village Chaukidar and the aunt of the informant took him to Garhwa police station where his statement was recorded and F.I.R. was drawn up, on the basis of the aforesaid statement and the police started investigation of the case. Subsequently, the informant died. The police got the postmortem examination conducted and also after competing the investigation submitted charge sheet against two accused appellants alongwith 3 others. Cognizance of the case was taken and all the five accused persons were committed to the court of Sessions. In the Sessions Court only two accused appellants were found quilty under Sec. 302 of the Indian Penal Code and rests of the 3 accused persons against whom charge under Section 302/34 of the Indian Penal Code was framed, were acquitted as mentioned above. 4. The prosecution has examined 10 witnesses in this case. In the Sessions Court only two accused appellants were found quilty under Sec. 302 of the Indian Penal Code and rests of the 3 accused persons against whom charge under Section 302/34 of the Indian Penal Code was framed, were acquitted as mentioned above. 4. The prosecution has examined 10 witnesses in this case. It ill not be out of place to mention here that since the death of the ***nformant, who is deceased in this case, occurred immediately after the occurrence, the case was recorded on the basis of his statement and thus, the informant could not be examined by the prosecution as regards the statement of the informant (deceased), therefore, the only available document is the statement, which has been recorded as an F.I.R.. I shall discuss the value of the statement of the informant at a later stage. 5. Out of the 10 witnesses examined in this case. P.W. 2, Ramjatan Vishwakarma, P.W. 3, Ram Kishun Vishwakarma, P.W. 7 Ram Sewak Mahto have claimed to be the eye witnesses of the occurrence in the F.I.R. (Ext. 1). Ramjatan Bishwakarma (P.W. 2) and Ram Kishun Bishwakarma (P.W. 3) have been mentioned as the persons, who saw the occurrence. From the statement of P.W. 2 it appears that he has stated that he heard hulla and went to the house of Nand Kumar Vishwakarma Budhan and found that Sheo Nath Vishwakarma and his son Pradip Vishwakarma and his wife Keshiya Devi were assaulting him (Nand Kumar Vishwakarma) with Tangi and Basula. He further stated that after that he saw that as a result of assault Budhan fell down on the ground. This witness protested but the accused persons did not listen. He further said that he informed the Chukidar and on his coming he took the injured (Budhan) to Thana and then hospital. He further stated that Budhan died in the hospital after 2 or 3 days. 6. P.W. 3, Ram Kishun Vishwakarma has also corroborated the occurrence and the F.I.R. inasmuch as he has also stated that on hearing hulla (alarm) he came out and saw that Sheo Nath Vishwakarma, his wife and others going out from their house. He went inside and saw Budhan Nand kumar Vishwakarma lying on the ground. He also found injuries and blooding on his body. He, thereafter, informed the mother and father of Budhan. After 8 days Budhan died in the hospital. He went inside and saw Budhan Nand kumar Vishwakarma lying on the ground. He also found injuries and blooding on his body. He, thereafter, informed the mother and father of Budhan. After 8 days Budhan died in the hospital. 7. P.W. 7, Ram Sewak Mahto has also corroborated the aforesaid two witnesses, namely, P.W. 2 and P.W. 3 and has stated that three years before at about 10 A.M. he was grazing his cow and buffalo on the southern side of the house of the deceased Budhan and when he heard hulla he went to the place of occurrence then he saw Sheo Nath Vishwakarma, his wife, his son Pradip, Ram Khelawan Mistri and wife of Ram Khelawan Mistri. Sheo Nath was having a Bashuli in his hand and his wife having a Tangi in her hand, Pradip was having a lathi and rests of the accused persons were having lathi. All these persons were assaulting Nand Kumar Vishwakarma. Seeing him and others, they left the place. He further stated that Nand Kumar died due to those injuries. 8. P.W. 8 Ali Hasan Sheikh is Chaukidar. He has also stated that three years before he was Chaukidar of Soh Village. That day he was informed by Panchu Mistri that Nand Kumar Mistri and Sheo Nath Vishwakarm etc. were quarelling. He went to the house of Nand Kumar Mistri and found him lying in injured condition then he took him to the police station where statement of Nand Kumar Vishwakarma was recorded and thereafter, he was taken to hospital. Nand Kumar Mistri died. 9. From the evidence of the aforesaid 4 witnesses there for, it appears that they have fully corroborated each other and their statements are also consistent to the prosecution case. P.W. 1 is Ishwar Chand Prasad, the police officer who appears to have investigated the case partly. He has stated that on 22.6.1985 he was posted at Garhwa police station as Assistant S.I.. On that day Nand Kumar Vishwakarma came to the police station in injured condition and gave his statement which was recorded and read over to him and finding it as correct he gave his L.T.I. He has also proved Ext. 1 i.e the F.I.R. written by him. On that day Nand Kumar Vishwakarma came to the police station in injured condition and gave his statement which was recorded and read over to him and finding it as correct he gave his L.T.I. He has also proved Ext. 1 i.e the F.I.R. written by him. He has further stated that he was entrusted with the investigation which he could do partly and, thereafter, he handed over the charge of investigation to A.S.I. Keshari Prasad, who submitted charge sheet in this case. He has also proved Ext. 2 and 2/1 i.e. two letters written by him whereby he forwarded the accused Sheo Nath Vishwakarma and Ram Khelawan Vishwakarma. He has also proved Ext. 3 i.e. letter which he wrote for the amendment in the charge as Nand Kumar Vishwakarma died in the hospital. 10. P.W. 9 was tendered by the prosecution. P.W. 4 Maheshwar Sharma has only proved the postmortem report marked as Ext. 4 and the inquest report marked as Ext. 5. P.W. 6 Shafique Khan has proved the endorcement and the signature of S.I. K.P. Ram on the F.I.R. marked as Ext. 1/1. P.W. 10 Ram Lakhan Pandey has/proved page 1 to 19 of the case diary written by S.I. Ishwar Chand Prasad. 11. Thus from the aforesaid evidence it will appear that P.Ws. 4,6 and 10 are the formal witness and P.W. 9 has been tendered. 12. P.W. 5 is Dr. Chuni Lal Prasad, who conducted the postmortem examination on the dead body of the deceased Nand Kumar Vishwakarma son of Rameshwar Vishwakarma of village Soh, police station Garhwa. He has stated that he found the following antimortem injuries on the dead body of the deceased: I. Stiched and partially healed incised wound fore head right side size 2"x 1/2"x underlying bone has been cut. II. Stiched and healed incised wound fore head left side 1/2" x 1/4" x bone deep. III. Healed incised of skin of tibia X "1/4 "x1/4" right leg. IV. Healed incised wound skin of tibia below the injury No. 3 of 1-1/2" x 1/2" and fracture of tibia. V. Lacerated wound big toe healed right feet. VI. Incised wound already healed middle left side tibia 1" x 1/*** and fracture of fibula. VII. Healed scratched left big toe. VIII. Healed scratch left elbow joint back. IX. Incised wound left leg just above the lateral maleolus already healled. V. Lacerated wound big toe healed right feet. VI. Incised wound already healed middle left side tibia 1" x 1/*** and fracture of fibula. VII. Healed scratched left big toe. VIII. Healed scratch left elbow joint back. IX. Incised wound left leg just above the lateral maleolus already healled. X. Blackish bruise calf left leg 3" x 2". XI. Incised wound right lower hand already healled 1" x1" XII. Fracture left lower hand lateral. XIII. Fracture of lower inciser tooth. P.W. 5 has further stated that in his opinion death has been caused by Pulmenary fat embolism developed due to fractured injuries. He has proved the carbon copy of post mortem report as Ext. 4 Ext. 5 to the inquest report, prepared by the officer-in-charge. 13 Thus from the evidence of the Doctor it will appear that he conducted postmortem examination on the dead body of the deceased and found as many as 13 injuries of different nature including incised wound, lacerated wound and fracture. The evidence of Doctor, therefore, shows that the injured was mercilessly beaten and subsequently died. 14. Mr. Kashyap, learned Counsel appearing for the accused appellants has submitted that the main feature of the case is that none of the parents of the deceased or brother or any family, members of the deceased has been examined in this case. He has further submitted that the F.I.R. was not properly recorded by the I.O.. There is no signature of any witness on the F.I.R.. Moreover the main I.O.. Who conducted the investigation has not been examined. It is further submitted that from the evidence of Doctor (P.W. 5) it will appear that the death was caused due to the fate embolism developed due to fractured injuries. Thus it will appear that the cause of death was not those injuries but the manner in which the treatment was made or in other words due to negligance in the treatment the death occurred. The Doctor has also stated in his opinion that the deceased had already undergone treatment by medical expert but in absence of the injuries report he could not give the exact age of injuries of the deceased. The Doctor has also stated in his opinion that the deceased had already undergone treatment by medical expert but in absence of the injuries report he could not give the exact age of injuries of the deceased. Moreover the specialised instruments were not available in the hospital and, as such, the treatment was not properly done and on the basis of the aforesaid facts, the learned Counsel appearing for the appellants submits that neither there is any cogent evidence regarding the offence against the accused appellants nor there is any direct evidence of the offence of murder in this case. From perusal of the F.I.R. Ext. 1, it is clearly apparent that the deceased has described the occurrence fully whereby he has alleged that the accused Appellant Sheo Nath Vishwakarma came to his house and called him to come out while he was taking bath. He was armed with Basula and his wife was armed with Tangi and both of them assaulted him as a result he received grievous injuries. Since the informant died, he could not be produced by the prosecution for his examination thus, this statement of the deceased can be treated as dying declaration and is an important piece of evidence so far as the occurrence is concerned. The aforesaid dying declaration also finds support from the statement of P.W. 2, P.W. 3 and P.W. 7. The submissions of Mr. Kashyap that there is no signature of any witness on the F.I.R. and hence much reliance cannot be placed upon the aforesaid statement, does not appear to be very convincing. The F.I.R. which has become a very important piece of document due to the subsequent death of the informant, cannot be disbelieved totally only because there is no signature of the witness on the same. Thus the evidence of these witnesses coupled with the F.I.R. Ext. 1, and the evidence of the Doctor, there is no doubt of the fact that these two accused-appellants assaulted the informant (deceased) with Basula and Tangi and subsequently the informant died in the hospital. Similarly from the evidence of P.W. 2 and P.W. 3 itself it appears that they went to give information to the brother and parents of the deceased. This means that then no person was present there. Thus the non-examination of these witnesses by in the circumstance of the case does not appear to be fatal. 15. Similarly from the evidence of P.W. 2 and P.W. 3 itself it appears that they went to give information to the brother and parents of the deceased. This means that then no person was present there. Thus the non-examination of these witnesses by in the circumstance of the case does not appear to be fatal. 15. The injuries on the body of the informant (deceased) clearly show that he was brutally assaulted by these two accused appellants. However, it is clear that the death had not immediately occurred and the informant was in a position to give statement before the police and, therefore, it cannot be presumed that he was in senseless condition. The occurrence happened as per the F.I.R. on 22.6.1985 at 10 A.M. So after nine days of the occurrence the post mortem examination was conducted by the Doctor on 1.7.1985. The Doctor is of the opinion that the death was caused within 20 hours form the time of autopsy. The doctor has also clearly stated that in his opinion the death was caused due to fate embolism developed due to the fracture injuries. In his cross-examination the Doctor has also stated that in absence of the injuries report he cannot give the exact age of injuries of the dead body. The Dr. has also stated that X-ray plant was not available in sub-divisional Hospital Garhwa at that time. Moreover, he also did not find any injury on chest, abdomen and back of the dead body. The fate embolism has got no direct impact with injuries but it has got indirect impact of injuries which takes the effect on the lung. The submissions of the learned Counsel appearing for the accused-appellants that the death was not direct result of the injuries, has substance. There was also no injury on the chest, abdomen or back of the dead body. These facts show that there was no motive for committing murder and the elements essential to constitute the offence of murder, therefore, are lacking from the facts on record. However, there are sufficient evidence to hold that the accused appellants are guilty of the offence of committing grievous, hurt to the deceased and at that time they were armed with Basuli and Tangi respectively, which are sharp cutting weapons and thus, they have committed an offence under Sec. 326 of the Indian Penal Code. 16. However, there are sufficient evidence to hold that the accused appellants are guilty of the offence of committing grievous, hurt to the deceased and at that time they were armed with Basuli and Tangi respectively, which are sharp cutting weapons and thus, they have committed an offence under Sec. 326 of the Indian Penal Code. 16. The defence has examined two D.Ws. in this case; D.W. 1 Nathu Ram Mahulia and D.W. 2 Shyama Charan Tiwary, who have been examined on the point of ali-bi of the accused appellants Ram Khelawan Vishwakarma and Sheo Nath Vishwakarma respectively. Accuseed Ram Khelawan Vishwakarma has been acquitted by the learned court below and thus, the evidence of D.W. 1 if not of much importance. Now D.W. 2 Shyama Charan Tiwary is the Headmaster of Middle School, Soh, police station Garhwa. He has proved the entry of serial No. 67 of the year 1977 of admission register as Ext. C. He has also proved further the signature of Sheo Nath Vishwakarma in Col. No. 12 as Ext. C/1. Ext. A is the certified copy of the F.I.R. lodged on Garhwa P.S. on 18.6.1978 at 10 P.M. by the complainant Sheo Nath Vishwakarma against Rajendra Pandey and others. 17. It appears from the judgment of the Lower Court that he did not place much reliance on the aforesaid documents on the ground that there are direct eye-witnesses on the point of assault by Sheo Nath Vishwakarma. On perusal of the record, it appears that the occurrence happened in the village Soh at about 10 A.M., the alleged School, for which the admission register has been filed (Ext. C) is also situated in village Soh. It appears that Pradip Vishwakarma was being admitted on that date in that school in which Sheo Nath Vishwakarma also signed as guardian ( Ext. C/1). Since the school is situated in the same village, this admission register does not appear to be of much importance rather after the occurrence just in order to create a plea of ali-bi the accused appellant Sheo Nath Vishwakarma might have taken his son to the school for admission. It is not clear from the evidence of the Head-master (D.W. 2) as to when the admission took place. If the same was done in the second hour then there is nothing contrary to the occurrence. It is not clear from the evidence of the Head-master (D.W. 2) as to when the admission took place. If the same was done in the second hour then there is nothing contrary to the occurrence. Thus, this paper helps accused appellant Sheo Nath Vishwakarma very little. The accused appellant Sheo Nath Vishwakarma also did not say anything in his statement under Sec. 313 Cr. P.C. about this plea of ali-bi. This also corroborates the suspicion that this is an after thought and the accused also produced it at a belated stage i.e. at the stage of defence evidence. 18. These facts compiled with the circumstancial evidence and that the prosecution has been able to prove and establish the fact beyond all shadow of reasonable doubt that both the two accused-appellants assaulted the informant Nand Kumar Vishwakarma on the date and time of occurrence with Basula and Tangi respectively and caused injuries including some grievous injuries on the vital parts of the body. Subsequently the informant died in the hospital after a week. However, the prosecution has failed to establish the fact beyond all shadow of reasonable doubt that the said death was caused with intention to commit murder of the deceased as the death is not due to the direct impact of those injuries, on the other hands the death was caused due to fate embolism developed due to the fracture injuries. This leads me to conclude that the prosecution has failed to establish the charge under Sec. 302 I.P.C. against both the accused appellants beyond all shadow of reasonable doubt. On the other hand, it appears that both the accused persons have committed an offence under Sec. 326, IPC. As such, the finding of the learned Court below does not require much interference and modified only to that extent and confirmed accordingly. The conviction and sentence passed against both the accused appellants under Section 302, IPC is hereby set aside and both the accused-appellants are convicted under Sec. 326 of the I.P.C. and each of them is sentenced to under go R.I. for six years. 19. With these modifications in the conviction and sentence awarded by the learned Lower Court, this appeal is dismissed. 19. With these modifications in the conviction and sentence awarded by the learned Lower Court, this appeal is dismissed. It appears that both the appellants are on bail, their bail bonds are cancelled and they are directed to surrender before the Lower Court forthwith, failing which the leaned Trial Court shall take necessary steps against them for their apprehension, so that they can serve out their sentence.