Judgment N.N.Singh, J. 1. Sole appellant Devi Yadav has preferred this appeal against the judgment of conviction and sentence passed by 9th Additional Sessions Judge, Munger, in Sessions Case No. 275 of 1976 on 10.2.1986 by which this appellant was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. The appellant was, however, acquitted of charge under Section 324 of the Indian Penal Code. One co- accused, Niru Gope, had died during the pendency of the trial. 2. The prosecution case in brief is that on 7.4.1975 at about 7.00 a.m. while Rajo Yadav was going for harvesting his ripe barley crop; this appellant, Devi Gope, along with Niru Gope chased him and Niru Gope assaulted with lathi and this appellant hit him on his head by a tangi as a result of which he sustained bleeding injury and fell unconscious. Further case of the prosecution is that informant, Darshan Yadav, the father of Rajo Yadav, reached there, who was also assaulted by this appellant, by a tangi blow on his leg. After the occurrence Rajo Yadav and Darshan Yadav were brought to Sono State Dispensary where they were given first aid and Rajo Yadav was sent to Jamui Hospital for treatment. P.W. 7, Darshan Yadav lodged first information report in Sono Police Station at 10.00 a.m. on 7.4.1975, was registered under Sections 342 and 324 of the Indian Penal Code and subsequently after the death of Rajo Yadav in the hospital after 14 days Section 302 of the Indian Penal Code was also added. The police after due investigation submitted charge-sheet against this appellant and Niru Gope and after taking cognizance and commitment this appellant was put on trial and was convicted as aforesaid. The other accused Niru Gope had since died. 3. The defence, as gathered from suggestion put to P.Ws. and the statement of the appellant under Section 313 of the Criminal Procedure Code, appeared to be that the appellant was falsely implicated in this case as a counter blast of a case filed by Niru Yadav alleging assault by the informant and deceased and that in that course Rajo Yadav and the informant were assaulted by the villagers. 4. and the statement of the appellant under Section 313 of the Criminal Procedure Code, appeared to be that the appellant was falsely implicated in this case as a counter blast of a case filed by Niru Yadav alleging assault by the informant and deceased and that in that course Rajo Yadav and the informant were assaulted by the villagers. 4. Prosecution examined altogether 10 witnesses in support of its case out of whom P.W. 3, Banshi Yadav, was tendered for cross-examination and P.W. 8, Rama Ashish Paswan, is a formal witness, who proved the writing of page Nos. 3 to 5 of the case diary as Exhibit 1. P.W. 2, Baso Yadav, P.W. 4, Masudan Yadav, P.W. 5, Muneshwar Yadav and P.W. 6, Tulo Yadav, were declared hostile by the prosecution and their attention was drawn towards their statements made before the investigating officer. P.W. 1, Amrit Yadav, brother of the deceased, and P.W. 7, Darshan Yadav, the informant, claimed to be eye-witnesses of the occurrence and P.W. 9 is Dr. Dhanjay Rai, who held post-mortem examination on the dead body of Rajo Yadav and proved the post-mortem report (Exhibit 2). P.W. 8 is the investigating officer, Assistant Sub- Inspector of Police, Ram Ashish Paswan. No defence witness was examined. 5. P.W. 9, Dr. Dhanjay Rai, stated that on 20.4.1975 at about 4p.m. he held post-mortem examination on the dead body of Rajo Yadav and found the following ante-mortem injuries on his person : "(1) One party healed infected wound on the left peritaleminence size 4" x 1/2" x brain deep. On dissection, there was fracture of the perital bone 2" in length in which gray matter of the brain was outside the wound. (2) One healed wound on the left side of the back, size 2-1/4 x 1/4". 6. The doctor further opined that on 7.4.1975 at 2.35 p.m. the patient was admitted in an unconscious state and that he was referred from Sono State Dispensary. He opined that the death in his opinion was due to the injury brain noted as injury No. 1 caused by sharp weapon and the time lapsed since death was 24 hours. He proved the post-mortem report which was marked as Exhibit 2. In cross-examination he stated that injury No. 1 could have healed up possibly, if not infected and that the patient died due to injuries and the infection both. He proved the post-mortem report which was marked as Exhibit 2. In cross-examination he stated that injury No. 1 could have healed up possibly, if not infected and that the patient died due to injuries and the infection both. The inquest report (Exhibit 3) prepared by the investigating officer supported the evidence of P.W. 9. From this it is established that Rajo Yadav had sustained tangi injury on his head, resulting in his death subsequently in the hospital due to that head injury and also due to infection of the injury. 7. P.W. 7, the informant, stated that on alarm raised by Baso Yadav, he rushed there and saw that this appellant gave a tangi blow at the head of Rajo Yadav and that Niru gave a lathi blow on the back of Rajo Yadav as a result of which he fell unconscious and that Devi gave a tangi blow on the left leg of this witness. P.W. 7, demonstrated scar mark on his leg. He further stated that Rajo was taken to Sono where he lodged first information report and then Rajo was taken to Jamui hospital, where after ten days he died. 8. Mrs. Renuka Sharma, appearing for this appellant, put stress on the point that in paragraph 6 of the cross-examination this witness (P.W. 7) had stated that he had seen Rajo in lying position. In view of consistent evidence of this witness and injury sustained by him on his leg it cannot be said that he was not present at the time of occurrence. It was suggested to P.W. 7 that he and his son Rajo assaulted Devi and Niru and in that course Rajo and this witness sustained injury to which P.W. 7 denied. It impliedly goes to suggest that injury on Rajo and this witness were admitted by the defence. Moreover, nothing was brought on record regarding his counter case filed by the appellant which, according to P.W7. 7, ended in acquittal at appellate stage. P.W. 1 is Amrit Yadav, the son of the informant, who supported the evidence of P.W. 7 that on hearing alarm raised by Baso Yadav (declared hostile) they rushed near the house of Baso Yadav and saw Niru assaulting Rajo with lathi and this appellant assaulting with tangi on his head. 7, ended in acquittal at appellate stage. P.W. 1 is Amrit Yadav, the son of the informant, who supported the evidence of P.W. 7 that on hearing alarm raised by Baso Yadav (declared hostile) they rushed near the house of Baso Yadav and saw Niru assaulting Rajo with lathi and this appellant assaulting with tangi on his head. His attention was drawn towards his contradictory statement made before police that he had stated before police that Devi had given tangi blow on leg of Rajo Yadav. P.W. 10 Dipti Narain Singh, stated in paragraph 8 of cross-examination that he could not say as that part of diary is not legible to him. More over, there is no injury on leg of the deceased at least this much is established that this appellant had tangi in his hand and that he inflicted tangi injury on Rajo Yadav and since only one tangi blow was found on the head of the deceased, it must be attributed to this appellant. 9. In appreciating the evidence of these two witnesses, P.Ws. 1 and 7, though they were brother and father of the deceased, their credibility cannot be doubted as both have fared well in cross-examination and nothing has come out in their cross- examination to impeach their testimony P.W. 7 was injured also and, hence, his presence at the place of occurrence cannot be doubted. The evidence of these two witnesses were closely scrutinised as they were related witnesses and I have no hesitation in holding that their evidence is consistent with one another so far as place of occurrence, manner of assault, weapon of assault used by the appellant was concerned and their evidence was unconformity with the case made out in first information report and the medical evidence of P.W. 9 and postmortem report (Exhibit 2). 10. Mrs. Renuka Sharma, learned advocate for the appellant, further submitted that no case under Section 302 of the Indian Penal Code is made out as from the evidence and the injury it would not appear that deceased was assaulted with intention to commit murder. That apart death in this case took place after 14 days of the occurrence in the hospital. Admittedly, Rajo Yadav died after 14 days in the hospital. P.W. 9, the doctor, has mentioned in his evidence that Rajo died of the injury as well as due to infection. 11. That apart death in this case took place after 14 days of the occurrence in the hospital. Admittedly, Rajo Yadav died after 14 days in the hospital. P.W. 9, the doctor, has mentioned in his evidence that Rajo died of the injury as well as due to infection. 11. Thus, having regard to the facts, noted above, particularly this being a case of single blow, Mrs. Sharma appears quite justified that appellant had no intention to cause death. Thus, I find and hold that at best a case under Section 304, Part II of the Indian Penal Code is made out against the appellant Devi Yadav. Accordingly, his conviction is altered to Section 304, Part II of the Indian Penal Code from Section 302 of the Indian Penal Code. Considering the long pendency of this case for last 22 years during which the sword of criminal trial or conviction was hanging on the head of the appellant, I find that a sentence of rigorous imprisonment for five years would meat the ends of justice. 12. In the result, this appeal is dismissed with aforesaid alteration in section of conviction and modification in sentence. The bail bond of the appellant is cancelled and he is directed to surrender in the Court below forthwith. The trial Court is also directed to take steps for his arrest to serve out his sentence.