Judgment B.N.P.Singh, J. 1. Though the appellants were sent for trial for offences punishable under Sec. 302/34 of the Indian Penal Code on charges of committing murder of Hari Manjhi in furtherance of their common intention, they suffered conviction under Sec. 304, Part II read with Sec. 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for five years. 2. Shorn of details, the prosecution case as emerging from fardbeyan of Chaiti Devi PW 4 was that in the evening of 13th August, 1985 during a feast, that was being observed at the residence of deceased Baijnath Manjhi, a panchaiti was convened for induction of the appellants in the community which was strongly resisted by Sheo Manjhi. Altercation took place between appellants and the deceased Hari Manjhi, when appellants sharply reached to the suggestions made by the deceased to come under the common roof. If was alleged that shortly thereafter, Sheo Manjhi, Mahadeo Manjhi and Chanchal Manjhi caught hold of the deceased persuant to which Mahadeo Manjhi dealt a severe blow with wooden substance (Mussal) on his head. It was alleged that the deceased, also suffered injury on his arms, and shortly dropped to the ground. Though injured was carried to Sultanganj Hospital but as his condition continued to be critical, he was carried to Bhagalpur Hospital where he eventually succumbed to the injuries and with these narrations in the fardbeyan, Chaiti Devi set the police in motion and investigation commenced. During pendency of the investigation, the Investigating Officer recorded statements of the witnesses, sent dead-body for mortuary and on receipt of post-mortem report, laid charge-sheet against the appellants and they went fro trial under Sec. 302/34 of the Indian Penal Code. In the eventual trial, prosecution examined altogether 8 witnesses including the witnesses claiming to be ocular, the Investigating Officer and also the doctor who held autopsy by over the dead-body of the deceased. 3. The doctor who held autopsy over the dead-body of the deceased noticed bruises on top of skull, diffused swelling over right temporal and parietal region and also diffused swelling over arms. These injuries found on the person of the deceased, in the opinion of the doctor, were ante-mortem caused by hard and blunt substance and were possible by sanath which is a blunt object used for dehusking paddy. These injuries found on the person of the deceased, in the opinion of the doctor, were ante-mortem caused by hard and blunt substance and were possible by sanath which is a blunt object used for dehusking paddy. The death in the opinion of the doctor was due to head injuries which were sufficient in ordinary course of nature to cause death. Non-adverting to the evidences of other witnesses one would come across the evidence of Md. Sakur PW 8 who was a formal witness and there was nothing material to merit consideration. Bhagwat Manjhi PW 1 and Adhik Lai Manjhi PW 2 who were braought by the prosecution in the witness box, turned valte fare to the prosecution. Sukhdeo Manjhi PW 3 though claimed to be ocular witness to the incident giving account of the incident, since he did not to be an ocular witness before the police, his evidence has to be excluded from consideration. The evidence of Chaiti Devi PW 4 was reiteration of her early version which she rendered before the police on some part of the prosecution allegation, as though, she did not make explicit narration before the police in her early version about Sheo Manjhi and Chanchal Manjhi too assaulting the deceased, such, embellishment were sought to be introduced in her statement which she rendered in the Court. 4. Hasuki Manjhi PW 5 was narrating before the Court that while they had assembled on the occasion of feast. Mahadeo Manjhi dealt sanath blow on the head of Hari Manjhi. He would narrate also about Sheo Manjhi and Chanchal Manjhi assaulting Hari Manjhi with wooden substance. Arun Kumar Singh PW 6 happens to be the Investigating Officer of the case who is stated to have recorded statement of witnesses and got injury of the deceased examined by the doctor and laid charge-sheet before the Court. The trial Court on appreciation of the evidences placed on the record, while negativing the contentions raised on behalf of the prosecution about fastening guilt against appellants under Section 302/34 of the Indian Penal Code, rendered verdict of guilt, finding the appellants guilty under Sec. 304, Part II read with Sec. 34 of the Indian Penal Code and convicted them in the manner stated above. 5. The criticism levelled by the defence to assail propriety of the finding recorded by the trial Court was based primarily on two counts. 5. The criticism levelled by the defence to assail propriety of the finding recorded by the trial Court was based primarily on two counts. Firstly, it is sought to be urged that though in the early version of the prosecution which emerges from the fardbeyan. Chaiti Devi PW 4. Sheo Manjhi and Chanchal Manjhi were not suggested to be the assailants, distorted versions of the prosecution were sought to be introduced in the statement of the witnesses to make them equally answerable as that of Mahadeo Manjhi for executing killing of Hari Manjhi. Learned Counsel would urge that though Chaiti Devi PW 4 would claim to be the ocular witness to the indecent, she admitted in positive terms in her cross-examination that she reached at the place of occurrence after her husband dropped to the ground, and in quick succession it is sought to be urged that if the statement of Chaiti Devi PW 4 is taken to be true on its face value, that will excluded her to be an ocular witness. The next limb of argument pressed into service on behalf of the appellants was that the prosecution was also guilty of introducing distorted version with regard to the place of occurrence for which there was no consistent evidence of the witnesses, as while same witnesses were narrating that it was the darwaza of late Baijnath Manjhi, where feast was arranged. Some were stating before the Court that it was near a Mahua tree, and lastly it is urged that as the prosecution opted to examine only those witnesses who were interested in the cause of the prosecution entirely to the execlusion of independent witnesses, the prosecution case as been rendered unworthy of credence. 6. From the evidence or the witnesses including that of doctor recorded by the trial Court it is not in dispute that Hari Manjhi met with homicidal death. As has been urged on behalf of the appellants, some improvements were made by the witnesses in their statements which they rendered before the Court about complicity of Sheo Manjhi and Chanchal Manjhi who too were suggested to be the assailants, notwithstanding no such attributions were made in the early version of the prosecution but rightly only maker of fardbeyan would be contradicted if there are such embellishment and not other witnesses. Though the prosecution is left with the evidence of PW 4 and PW 5 alone, on execlusion of evidence or other witnesses who have not been considered to be ocular, I fail to find myself persuaded with reasonings assigned by the trial Court about there being variation in the evidence of Chaiti Devi in contrast to her fardbeyan which she rendered before the police. She being shocked, on her husband having received fatal injury, may not be in a position to make minute observation about the part assigned to other appellants. Likewise, the criticism brought by learned Counsel for the defence about her exclusion from being ocular witnesses, this fact cannot be lost night of that she was feeding cattle at her darwaza which is to the east of her courtyard and assault took place near Mahua tree, east to her house. Though the might have witnessed the incident it was not unlikely that she reached there after her husband dropped to the ground and once this logic is accepted that would not render her to be a hearsay witness. 7. The evidences placed on the record including that of Chaiti Devi PW 4 would unerringedly suggest that the house of the deceased is in close vicinity of the house of Chaiti Devi. Sheo, Dwarika and also Mahua tree which are adjacent to each other and in this view of the matter the prosecution cannot be blamed to have introduced distorted version, about the place of occurrence. Though Baski Manjhi PW 5 would state with regard to the seizure of blood stained search from the place of occurrence by the Investigating Officer, the answer of the latter was in negative term but for the laches on the part of the Investigating Officer, the prosecution cannot be a casualty. Baski Manjhi PW 5 was not suggested to be a partisan witness and I see no good reason to discard his good evidence which were in conformity with the version of the prosecution. The finding recorded by the doctor as about presence of corresponding injury on the person of the deceased has lent complete assurance to the prosecution case. The evidences too suggest that though Mahadeo Manjhi only was the author of the injuries, the other two appellants came together and left the site of occurrence together shortly after the deceased dropped on the ground of receipt of injuries sustained by him. The evidences too suggest that though Mahadeo Manjhi only was the author of the injuries, the other two appellants came together and left the site of occurrence together shortly after the deceased dropped on the ground of receipt of injuries sustained by him. The incident took place admittedly on a sudden in the heat of passion and on the spur of moment. The trial Court was perfectly right in assessment of the situation that the weapon used by the assailants was hard and blunt with which blow was given on the deceased. The intention of the assailant was ostensibely not to kill the deceased or to cause such fatal injury as was likely to case death, though they can be attributed with the knowledge that by their act, they were likely to cause death, and I accordingly find that the finding of the trial Court convicting the appellants under Sec. 304, Part II of the Indian Penal Code was based on meticulous appreciation of evidence which did not call for interference. The sentence too imposed on them was neither excessive nor harsh which warrant interference. There being no merit, the appeal is dismissed. The trial Court shall take all coercive steps for apprehension of the appellants to remand them to custody. 8. As on the direction of the Court Mrs. Nirmal Kumari, Advocate appeared as amicus curiae in this case to assist, she will be paid her fee by the Patna High Court Legal Services Committee.