Judgment Anil Kumar Singh, J. 1. This appeal has been directed against the order of conviction and sentence dated 19th October, 1993 passed by the Judicial Commissioner, Ranchi, in Sections Trial No. 52 of 1991 whereby whereunder the appellant, namely, Kalia Oraon has been convicted under Sec. 304, Part II of the Indian Final Code and has been sentenced to undergo rigorous imprisonment for a period of ten years. 2. The material facts of the case are as follow: The parents of the informant used to live in Tuko Khunti Tola, whereas, the informant used to live with his brother Kishun Oraon at Amba Toli. On 15.4.1990 at about 10 a.m., the informants father Joseph Oraon (the deceased) came to the house of the informant and told him that the appellant Kalia Oraon and his wife Charia Orain had assaulted his wife at village Dangrichippi. So, the informant along with his parents went to village Dangrichippi and sat near "Akhra". The informant asked his father to call Kalia Oraon and accordingly, his father went to call Kalia Oraon so that the dispute may be decided in a Panchayati. It is alleged that an altercation took place between Kelia Oraon and the deceased father of the informant near the house of Kelia Oraon one Panchu Oraon separated and asked them to go away from his house but the appellant Kelia Oraon, his wife Cheria Orain, Medaya Oraon and his wife Budhni Orain assaulted the informants father with Dhelphorwa and Lathi, as a result of which, the informants father fell down injured. Thereafter, the informant and his mother went to the place of assault and tried to pacify the quarrel. But, the accused Budhni assaulted the informant with Dhelphorwa on his head followed by Charis Orain who hurled brick-bat upon him causing injury on the head of the informant. It is alleged that accused Budhi Orain assaulted the informants mother with Dhelphorwa causing injury on her head, as a result of assault, the informants father died after some time. The alleged occurrence was witnessed by Dhuchula Oraon, Fagua Oraon and others. It is alleged that accused Budhi Orain assaulted the informants mother with Dhelphorwa causing injury on her head, as a result of assault, the informants father died after some time. The alleged occurrence was witnessed by Dhuchula Oraon, Fagua Oraon and others. The motive for the alleged occurrence as disclosed in the fardbeyan of the informant is that a quarrel had taken place between the informants mother and the accused Kelia Oraon and Charia Orain regarding collection of Mahua, on account of which, Kelia Oraon and his wife Cheria Orain assaulted the informants mother on the same day at 10 a.m. and the deceased had gone to the house of the accused for Panchayati but the accused-persons committed his murder. 3. It appears that the Trial Judge framed charges against all the four accused under Secs. 302/34, 323 and 337/34 of the Indian Penal Code but acquitted accused Madiya Oraon, Chetia Orain and Budhni Orain of the charge under Sections 302/34 of the Indian Penal Code and held them guilty under Secs. 323, 337/34 of the Indian Penal Code and sentenced them to the period already undergone by them in course of trial. The appellant was, however, not convicted under Sections 323 and 337/34 of the Indian Penal Code. 4. In order to prove the charges, the prosecution examined altogether six witnesses in the case out of which P.W. 3 Dr. Ajit Kumar Choudhary is the Medical Officer who held post-mortem examination on the dead body of the deceased and proved the post-mortem report (Ext. 1). P.W. 4 Poto Oraon is a witness on the inquest report as also the seizure-list which was prepared by the Investigating Officer for seizing the blood-stained earth from the place of occurrence. P.W. 5 Kishun Oraon was tendered for cross-examination and P.W. 6 Jagannath Ram is a formal witness who has proved formal First Information Report (Ext. 2). The inquest report and the seizure-list have been marked as Exts. 4, 5 and 5/1 respectively. The Investigating Officer of the case has not been examined by the prosecution and no plausible explanation has been given for his non-examination. 5. The whole prosecution story rests on the evidence of P.W. 1 Chandi Orain who is the wife of the deceased and P.W. 2 Timbu Oraon who is the informant of this case and P.W. 3 Dr. The Investigating Officer of the case has not been examined by the prosecution and no plausible explanation has been given for his non-examination. 5. The whole prosecution story rests on the evidence of P.W. 1 Chandi Orain who is the wife of the deceased and P.W. 2 Timbu Oraon who is the informant of this case and P.W. 3 Dr. Ajit Kumar Choudhary who conducted the postmortem examination on the dead body of the deceased. 6. P.W. 1 Chandu Orain has made a general statement to the effect that her husband was assaulted by all the four accused with Dhelphorwa, as a result of which, he sustained injury on his head. She also stated that the accused-persons wanted to take away Mahua collected by her which she objected, so they assaulted her. Obviously, she means about the assault which had taken place in the morning hours. She further deposed that her husband died at the place of occurrence. She was also examined of her injuries by the Doctor along with her son, but there is no medical evidence on the record to support her version that she along with her son were medical examined. In her cross-examination, she has admitted that her husband went to the house of Panchu and brought out accused Cheria and held Panchayati and thereafter, Panchu asked them to go away from his house and all the accused went to their house. She again states that no Panchayati could take place because her husband was killed which shows that even after the death of her husband, an attempt was made to hold Panchayati which could not be held. P.W. 1 has clearly stated that she along with her son set near Akhara which is a common place for the Adivasis to celebrate festival. She further stated that her son Kishun went to call Choukidarwho came at 1 P.M. but no body was present there. 7. P.W. 2 (Timbu Oraon) has also admitted the fact that he along with his mother remained at the Akhara which is situated at a distance of 100 yards from the house of Panchu where the alleged occurrence is said to have taken place. It would, therefore, appear that P.Ws. 7. P.W. 2 (Timbu Oraon) has also admitted the fact that he along with his mother remained at the Akhara which is situated at a distance of 100 yards from the house of Panchu where the alleged occurrence is said to have taken place. It would, therefore, appear that P.Ws. 1 and 2 had not seen the alleged assault because they were sitting near the Akhara when the alleged assault took place near the house of Panchu situated at a distance of 100 yards from the Akhara. P.W. 1 has also admitted that her husband was coming towards Akhara and he fell down on a stone fixed in the ground near the house of Naru and sustained bleeding injuries. Her evidence, therefore, goes to show that the deceased had sustained bleeding injuries on account of fall on stone. 8. P.W. 3 is Dr. A.K. Choudhary who conducted the post-mortem examination on the dead body of the deceased and found the following injuries on the dead body of the deceased: (i) Abrasion 1/2 cm. x 1/2 cm. x 1/cm. over the left fore head. (ii) Abrasion 1 cm. x 1/2 cm. near left eye. (iii) Abrasion 2 cm. x 2 cm. over left knee, (iv) Abrasion 1 cm. x 1/2 cm. over right knee. (v) Lacerated wound 5 cm. x 2 cm. x bone deep on the left occipital region of head coupled with crack facture of left perital bone. In this opinion, the death was caused due to head injury i.e., injury No. (v). The other injuries were simple in nature. 9 The learned defence Counsel submitted that the injuries found by the Doctor would go to show that the first four injuries were triffling in nature which may be caused by fall on hard surface and the death of the deceased was actually caused due to head injuries sustained by him i.e., injury No. (v) which was not caused as a result of assault by the accused-persons and, as a matter of fact, the said injury on the head was caused to the deceased when he was returning from the house of Panchu to Akhara where P.Ws. 1 and 2 were sitting, which fact had been admitted by P.Ws. 1 and 2 were sitting, which fact had been admitted by P.Ws. 1 in clear terms, inasmuch as, P.W. 1 has stated that when her husband was returning to Akhara, he fell down on a fixed stone near the house of Panchu and sustained bleeding injuries. So, in all probability, the injury No. (v) was caused to the deceased as a result of fall on a place of stone ; since the other injuries found by the doctor do not suggest that there will be any bleeding from those injuries. The submissions of the earned Counsel appearing for the appellant looks quite convincing and carry force in it. 10. P.W. 2 Timbu Oraon (the informant) has also admitted that he along with his mother sat near the Akhara and his father Joseph went to the house of Panchu for Panchayati and the accused-persons assaulted him when his father came out of the house of Panchu. As such, it would appear that P.W. 2 had also not witnessed the occurrence of assault since he was sitting at Akhara when the assault took place and admittedly, the Akhara was situated at distance of 100 yards. The statement made by P.W. 2 that Cheria had assaulted his father with a piece of stone on his head does not look probable. It appears from his evidence that he has made a general statement to the effect that the accused-persons assaulted with Dhelphorwa and a piece of stone and he has not specifically stated that on which part of the body, the appellant or the other accused assaulted with Dhelphorwa or a piece of stone. In his fardbeyan, it has not been alleged by P.W. 2 that Cheria had assaulted his father with a piece of stone on his head. He has clearly stated that he had not gone to the house of Panchu and that is why he stated that his father had not assaulted Cheria at the house of Panchu nor he had dragged her out from the house of Panchu. P.W. 2 has stated that he met Madiya near the Akhara but neither quarrel had taken place with him nor he assaulted him and he has maintained to say that he along with his mother remained at the Akhare. P.W. 2 has stated that he met Madiya near the Akhara but neither quarrel had taken place with him nor he assaulted him and he has maintained to say that he along with his mother remained at the Akhare. Therefore, it appears from the evidence of P.W. 2 that he had actually not seen the alleged occurrence and that is why, he has made a vague statement to the effect that the accused-persons had assaulted his father with Dhelphorwa and a piece of stone, although in the fardbeyan (Ext. 3), it is alleged that the female accused were armed with lathi. 11. It has been admitted by P.W. 1 that there are 40 to 50 houses near the place of occurrence but no body came out from their house when the assault was going on near the house of Panchu. This circumstance also indicates that the prosecution version is not probable or correct because the alleged occurrence took place in the day hours and if there were 40 to 50 houses near the place of occurrence, the people of those houses must have come out to witness the occurrence and it is highly improbable that no body would come out from the house to witness the occurrence. It, therefore, goes to show that since no such occurrence as alleged in the fardbeyan took place that is why the people residing in the nearby houses did not come out of their houses. It has also been admitted by P.W. 2 that three persons had assembled near the place of occurrence and the informant has given the names of all the witnesses who witnessed the occurrence, but no body has come forward to support the prosecution story regarding the alleged assault of the deceased. 12. The most important witness in this case was Panchu in whose presence the quarrel and the alleged assault took place but the prosecution did not examine him which shows that the prosecution version is highly doubtful. 13. I find that PWs. 1 and 7 are the highly interested witness being the informant and his mother and their statement on the point of alleged assault has not been corroborated by any independent witness including those who had witnessed the alleged assault. That apart, there are contradictory version in the statement of P. Ws. 13. I find that PWs. 1 and 7 are the highly interested witness being the informant and his mother and their statement on the point of alleged assault has not been corroborated by any independent witness including those who had witnessed the alleged assault. That apart, there are contradictory version in the statement of P. Ws. 1 and 2 on the point of manner of assault and it is evident from their evidence that they were not present when the alleged assault took place near the house of Panchu. The possibility that the deceased died as a result of the injuries sustained by him on account of fall on a piece of stone in front of the house of Naru which caused head injury to him coupled with fracture can also not be ruled out. That apart, the Investigating Officer of the case was the most important witness to prove the place of occurrence has also not been examined by the prosecution without any explanation and his non-explanation also renders the prosecution version doubtful. 14. It appears that on the same set of evidence, the learned Trial Judge acquitted the other three accused of the charges under Secs. 302/34 of the Indian Penal Code and convicted them under Secs. 323 and 337/34 of the Indian Penal Cod but the accused-appellant was convicted under Sec. 304 Part II of the Indian Penal Code which appears manifestly wrong and illegal. 15. Considering all the facts and circumstances of the case and the materials brought on record, I am of the view that the prosecution had not proved the charges against the appellant beyond all reasonable doubts and the learned Court below was not justified in convicting the appellant under Sec. 304, Part II of the Indian Penal Code. As such, the order of conviction and sentence recorded by the trial Court against the appellant are hereby set aside. Consequently, the appellant is held not guilty and acquitted of the charges levelled against him. 16. In the result, therefore, this appeal is allowed and the order of conviction and sentence recorded by the trial Court are hereby set aside and the appellant is acquitted of the charge. The appellant is on bail. He is discharged from the liabilities of the bail-bond. Appeal allowed.