Judgment R.N.Sahay, J. 1. Out of the two appellants, appellant No. 2 Ram Bilas Singh died on 24-10-1987. Death Certificate given by the Registrar, Birth and Death, has been filed as Annexure-1. This appeal, so far as this appellant is concerned, has abated. 2. The appellants were convicted under Secs. 302/34 of the Indian Penal Code and sentenced to life imprisonment. Appellant No. 1 Bhim Singh has been further convicted under Sec. 379 of the Indian Penal Code and sentenced to two years imprisonment. Learned trial Judge acquitted two accused-persons, namely, Arjun Singh and Deep Narain Singh. 3. The case of the prosecution was that on 18-4-1979 family of the informant Sushil Kumar Singh purchased 1 acre and odd land by registered sale-deed but the registration receipt was not obtained because the consideration amount had not been paid. On 19-4-1979 at about 6.30 a.m., the informant Sushil Kumar Singh along with his brother Bipin Bihari Singh left their village to hand over the consideration money to Ganesh Singh, The two brothers first went to Kailash Singh who was mediator in the deal. On the way they reached the house of deceased appellant Ram Bilas Singh, Ram Bilas Singh stopped them. Appellate Bhim Singh came with a Lohbanda and assaulted the deceased Bipin Bihari Singh with lathi and Lohbanda on the orders of Ram Bilas Singh. Bipin Bihari Singh fell down. Bhim Singh took out Rs. 9,500.00 from his pocket at the instance of Ram Bilas Singh. The accused-persons gave lathi and Lohbanda blow on the head of the deceased Bipin Bihari Singh. This all happened in presence of Dudheshwar Singh (P.W. 1), Naresh Singh (P.W. 2) and other witnesses. The informant along with his injured brother Bipin Bihari Singh, Nagesh Singh, Chandradeo Singh and Dudheshwar Singh went to the Police Station from where the S.I. of Police sent the injured to Nawhatta State Dispensary. The case was originally registered under Secs. 379 and 323 of the Indian Penal Code. The injured died subsequently and the charge-sheet was submitted under Secs. 302/34 of the Indian Penal Code. 4. The informant in his evidence repeated the version of the occurrence given by him in his fardbeyan. The injured on the advice of the Medical Officer of Nawhatta State Dispensary was taken to Sasaram Hospital. Nagesh Singh and Chandradeo Singh started for Sasaram Hospital with the injured. 302/34 of the Indian Penal Code. 4. The informant in his evidence repeated the version of the occurrence given by him in his fardbeyan. The injured on the advice of the Medical Officer of Nawhatta State Dispensary was taken to Sasaram Hospital. Nagesh Singh and Chandradeo Singh started for Sasaram Hospital with the injured. The informant left for his house to arrange money. He returned to Dehri-On-Sone where he learnt that his injured brother was taken to Dalmianagar Hospital. He went there and found his brother dead. 5. Dudheshwar Singh (P.W. 1) was going to his Khalihan and saw an altercation going on between Ram Bilas Singh and the deceased Bipin Bihari Singh. He also saw Bhim Singh assaulting the deceased with Lohbanda on his head. Bhim Singh took out money from the pocket of the deceased which was wrapped in a white handkerchief. 6. Naresh Singh (P.W. 2) was returning to his house from his Khalihan at the time of occurrence. He had seen the informant and the deceased going on. He saw Bhim Singh assaulting the deceased with Lohbanda. 7. Ganesh Singh (P.W. 6) was examined on the point that he had not received consideration money. 8. Bipin Bihari Singh was first examined on 19-4-1979 by Dr. Shashi Kant Sinha (P.W. 7), Medical Officer, Nawhatta State Dispensary at 8.10 a.m. He found the injured unconscious. Lacerated wounds were found on the left and right parietal eminence of the skull. Post-Mortem examination was done by Dr. Ganesh Prasad (P.W. 4), Civil Assistant Surgeon, Sadar Hospital, Sasaram. He found both parietal bones fractured. Death was due to shock and haemorrhage due to aforesaid ante-mortem injuries. 9. Investigating Officer of this case was not examined. Learned trial Judge on consideration of the evidence found the case against the accused-persons proved beyond all reasonable doubts. Learned trial Judge has placed full reliance on the evidence of Naresh Singh (P.W. 2) despite some minor contradictions noticed in his evidence. 10. Learned Counsel for the appellants submitted that on the same evidence two accused-persons have been acquitted hence the evidence against the appellants was also doubtful. It is, further, submitted that non-examination of the Investigating Officer has caused serious prejudice to the appellants in their defence. It is submitted that the manner of occurrence has not been proved and the genesis of the occurrence is imaginary. It is, further, submitted that non-examination of the Investigating Officer has caused serious prejudice to the appellants in their defence. It is submitted that the manner of occurrence has not been proved and the genesis of the occurrence is imaginary. It is submitted that the deceased appellant No. 2 Ram Bilas Singh was aged about 90 years, hence, it cannot be believed that he took any active part in the occurrence. Since this appellant is dead, this contention need not be examined. 11. It is true that examination of the Investigating Officer was desirable, but it is well settled that for mere non-examination of the Investigating Officer, the evidence of the eye-witnesses cannot be rejected. This was a simple case. The place of occurrence is established. There were several witnesses who had seen the appellant Bhim Singh assaulting the deceased. There is no reason to differ with the finding of the trial Court. 12. The question remains to be considered is whether appellant Bhim Singh has been rightly convicted under Secs. 302/34 of the Indian Penal Code. Two injuries on the parietal part of the skull was found on the deceased. The injuries had been caused by hard and blunt substance. Considering the facts and circumstances of the case, appellant Bhim Singh ought to have been convicted under Part-I of Sec. 304 of the Indian Penal Code and not under Sections 302/34 of the Indian Penal Code. The conviction of this appellant under Section 379 of the Indian Penal Code is proper. The occurrence happened almost 20 years ago. In my opinion, sentence of seven years imprisonment under Part-I of Section 304 of the Indian Penal Code would be adequate, 13. In the result, the conviction of appellant No. 1 Bhim Singh under Sections 302/34, Indian Penal Code is set aside and he is convicted under Sec. 304 Part-I of the Indian Penal Code and sentenced to seven years imprisonment. His conviction and sentence under Sec. 379 of the Indian Penal Code is maintained. The appellant Bhim Singh is directed to surrender before the trial Court to serve out the remaining period of sentence. If the appellant does not surrender, the trial Court shall take immediate steps for his arrest. 14. Ashish N. Trivedi, J. I agree.