The alleged stealing of a duck resulted in the death of a person and conviction of these two accused u/s. 302 IPC for life, in addition to the aforesaid conviction, accused No. 2 Bankim Kalita was convicted for 5 years with a fine u/s. 326 IPC. Both the sentence are to run concurrently. 2. The brief facts are as follows : A duck belonging to the family of the informant was missing on 31.3.90 and later on they came to know that duck meat was prepared in the house of the accused and accordingly, the informant alongwith some other persons of the village went to the house of Nazim Kalita and found that the duck meat was prepared there. They tried to have a 'bichar' at village Namghar and that was to be held at about 9.30 p.m. and it was at that point of time, Durgeswar (A1) and Bankim (A2) attacked the father of the informant Tarun Kalita and elder brother Sadit Kalita and brother Jagen Kalita from behind in an unprovoked manner and it is stated that they were injured in such attack and thereafter, they were taken to Rangia Hospital and there the doctor declared the father to be dead and rendered treatment to other injured persons. It is also alleged that when the informant along with another person Prabhat Sarma tried to interfere they were also attacked and they also sustained injuries. On the basis of this information, a case was registered, these two persons were arrested, charge was framed u/s 302/34 IPC and u/s 326 IPC. 3. PW 1 Parameswar Kalita, the informant deposed that having learnt that the duck in question went to the house of accused from Mano Kalita, they went there and found that duck meant was being prepared. On being questioned, they told that it was not duck, but chicken meat which was being prepared. Thereafter, it was decided that this matter should be sorted out at the Namghar. As soon as the people reached the road from the courtyard of the accused persons, accused Durgeswar (al) gave a cut blow on the right thigh of his father and accused Bankim (a2) also stabbed Sadhit and Jogen from behind with a dagger. The father and the elder brother were taken to Rangia Hospital in a pushcart. The father was declared to be dead. The father and the elder brother were taken to Rangia Hospital in a pushcart. The father was declared to be dead. Sadhit and Jogen were kept for the night in the hospital. They went to hospital on foot. Thereafter, the information was lodged. A suggestion was given that one Chandradhar had assaulted Bankim. Another suggestion was given that Sadhit, Parameswar and Jogen had assaulted the father of the accused. 4. PW 2 is Dharya Bala Kalita. She is the wife of the deceased. She almost corroborated with the deposition of PW 1. A suggestion was given to her that cooked meat with the cauldron was removed by her. Another suggestion was given that the utensils and other household articles were broken by them. There was also a suggestion that Bankim and Durgeswar were dragged out by Sadhit and Sarbeswar. Another suggestion was given that these persons carried lathi, spare etc. and wanted to assault the accused persons and Najim. 5. Pw 3 Chandradhar Kalita. His evidence almost is verbatim same and the same suggestion was given to this witness also. 6. PW 4 Biren Ch. Kalita. He did not see the occurrence and he only deposed regarding the inquest which was held and he is a witness to the inquest. 7. PW 5 Baliram Kalita. He is a relation of the deceased. He deposed that he did not see the assault on tarun and Sadhit. 8. PW 6 Padum Kalita @ Deka, the daughter of the deceased. She deposed that at the time of occurrence it was dark and it is not possible to identify and tell definitely as to who gave the blow to the deceased. She also deposed that there was a mutual marpit in between the parties over stealing of the duck. Both the accused persons were injured. She further stated that the police had advised them to drive out the accused persons and to break their houses. She could not say who had injured the accused persons. There was glaring omission inasmuch as she admitted that she did not state before the police that Bankim had stabbed the elder brother Sadhit and Jogen in their backbone with knife. She further denied that she stated before the police that when the villagers had tried to separate the parties, many of them sustained injuries. This omissions were brought into evidence by putting it to the Investigating Officer. 9. She further denied that she stated before the police that when the villagers had tried to separate the parties, many of them sustained injuries. This omissions were brought into evidence by putting it to the Investigating Officer. 9. PW 7 Prabhat Sarma. He deposed that he did not see the assault on Tarun as he himself was stabbed in the left thigh. He further deposed that he did not see with what he was stabbed because of darkness. He also deposed that he did not tell the police that Najim's wife had turned the cauldron containing the meat up side. Even he did not say before the police about Bankim stabbing him. He further deposed that he does not know anything what happened after sustaining stab injury. 10. PW 8 Upen Kalita. His evidence almost corroborated with the other witnesses. But his deposition is not believable because of the fact that first time in the witness box he told that the fact of carrying the torch that was not told by him before the police and he further admitted that it was dark night. He further deposed that holding Bankim's hand Prabhat took him to 'Namghar' saying "I shall finish you off. He admitted that Tarun's wife had brought out the cauldron containing the meat and threw it. 11. PW 9 Gobin Kalita. His deposition is almost same, but he was not a witness to the occurrence. He only heard the cry of Tarun on the road in front of the gate. He deposed that because of darkness, he did not know who had hit Tarun and how he sustained injuries. He could only notice Prabhat, Upen, Chandradhar and others. He could not say the name of other persons and even he did not mention that the accused persons were present at the place of occurrence. 12. PW 10 Dr. Dipak Chandra Das. He conducted the postmortem examination on the body of the deceased Tarun and he found the following injuries : "(1) Stabwound2cmx 1 cmx6cmonthe medial aspect of lower 3rd of right thigh 11 cm from right petella and 28 cm from root of pen is shape elliptical. Lower Margin bevelled upper margin everted inwards on dissection hole medial aspect of right thigh contused and liquid and clotted blood present sharp cut present on the feromal artery. The posterior aspect only remins. Lower Margin bevelled upper margin everted inwards on dissection hole medial aspect of right thigh contused and liquid and clotted blood present sharp cut present on the feromal artery. The posterior aspect only remins. Cut injury of feromal artery is underneath the stab wound. The wound is directing below upwards and backwards. No foregin material adherent to the wound. Margins of the wound are blood stained resistant to water wash. (2) Abrassion of right elbow posterior aspect 2 cm x 1 cm. No legature mark on neck. On dissection healthy. OPINION : Death was due to shock and haemorrhage resulting from the injuries mentioned. The injuries mentioned were antemortem caused by sharp and pointed weapon. Approximate time since death 24-48 hours." His opinion is that the death was due to shock and haemorrhage resulting from the injuries mentioned. As will be seen from the postmortem report there was only one injury i.e. stab injury in the right thigh. Second injury is only abrasion of right elbow posterior. 13. PW 11 Dhiren Sarma. His evidence is not very material, but he deposed that on the date of occurrence it was raining and he found that the cooked meat was scattered in the courtyard of the accused persons. 14. PW 12 is another doctor- Dr. Birendra Nath Dutta. He examined the other injured persons i.e. Jogen and Sadhit. Regarding injured Jogen, on examination, he found the following injuries : "One penetrating wound in the middle of the back over the spinal column. Bleeding present from the site of the wound. Injury to the underlying vital structure is suspended and so that patient has been referred to Guwahati Medical College after giving first aid." Regarding other injured Sadhit Ch. Kalita, he found as follows : "One penetrating wound 4 cm long, 1 cm wide and 4 cm deep on the back. Bleeding present. Paralysis of right lower limb was developed. The injury was caused by pointed object. Ex.5 is my report and Ex.5(l) is my signature." 15. PW13 is another Dr. Hem Chandra Handique, who had examined the injured persons i.e. Sadhit and Jogen in the Guwahati Medical College Hospital and he found the injuries with regard; to injured Sadhit Kalita as follows : "One stab injury on the back of chest with reduced movement of lower limb. Patient had treatment outside C.M.C. clinical condition is deteriorating for spinal cord involvement. Hem Chandra Handique, who had examined the injured persons i.e. Sadhit and Jogen in the Guwahati Medical College Hospital and he found the injuries with regard; to injured Sadhit Kalita as follows : "One stab injury on the back of chest with reduced movement of lower limb. Patient had treatment outside C.M.C. clinical condition is deteriorating for spinal cord involvement. Injury was caused by sharp pointed weapon. Clinically grievous in nature. Wound was recent (within 24 hours). Regarding injured Jogen Kalita, he found as follows: "One linear cut-injury on the lumber spine 5x1x1 cm deep to the spine. He also secured treatment outside GMCH Patient admitted in surgical Unit II. Injury caused by sharp cutting weapon. Recent (24 hours) and clinically grievous in nature." 16. PW 14 Ajay Kumar Dutta, Sub-Inspector of Palasbari P.S. He admitted that Bankim and Nazim were injured, but he did not collect the injury report. He also admitted that he did not see the cooked meat and cooked pot. He admitted that Bankim was injured and as such he was in the hospital and he had fled from the hospital and for the injuries he sustained, he could not be arrested and about 10 persons had sustained injuries. 17. After examining these witnesses, the accused persons were examined u/s 313 Cr.P.C. and the learned Judge by the judgment as indicated above convicted the accused persons. 18. The point for determination as framed by the learned Judge are as follows: "Whether the accused charged in this case did cause death of Tarun Kalita by killing him intentionally with a sharp cutting weapon on the date of occurrence in furtherance of their common intention as alleged by the prosecution. OR Accused Durgeswar Kalita alone caused death of Tarun Kalita by cutting him with sharp cutting weapon intentionally on the date of occurrence as alleged by the prosecution. ii) Whether accused Bankim Kalita did cause grievous hurt to Jogen Kalita and Sadhit Kalita on the date of occurrence by cutting them with sharp cutting weapon as alleged by the prosecution." 19. We have heard Mr. H. Roy, learned counsel for appellants as amicus curie and Mr. G. Choudhury, learned PP. 20. Mr. ii) Whether accused Bankim Kalita did cause grievous hurt to Jogen Kalita and Sadhit Kalita on the date of occurrence by cutting them with sharp cutting weapon as alleged by the prosecution." 19. We have heard Mr. H. Roy, learned counsel for appellants as amicus curie and Mr. G. Choudhury, learned PP. 20. Mr. H. Roy, learned counsel submits that on the basis of the injuries and the evidence it cannot be said that this is a case u/s 302 of IPC, at best it can be a case u/s 304 Pt.H of IPC. He further submits that there was no intention to cause death or it cannot be said that the accused had the knowledge that the injuries caused by them on the person of the deceased would be the cause of death of the deceased. He further submits that from the evidence, one can come to the definite conclusion that there was a marpit between the parties and in that scuffle the accused persons were injured and one Bankim one of the accused persons had to be hospitalised. In this connection, he relies on two decisions : 1. (2000) 9 SCC1 (Camilo Vaz V. State of God), That was a case where the Supreme Court found that there was no intention to cause death. There was group rivalry between two boys of villages. Appellant and others, armed with dandas, bottles and cycle-chains and not with any particular weapon, coming to the house of deceased and his brother belonging to the other village, with the intention to thrash them. The appellant hitting with a danda on the deceased's head, a vital part of the body, with such force that appellant falling down unconscious and later succumbing to his injury. There was no evidence showing that appellant was bent upon killing the deceased. In such a situation the Supreme Court held that the appellant in hitting the deceased did not do it with the knowledge that it was likely to cause the death and the Supreme Court altered the conviction from S.302 IPC to S. 304 Pt.II IPC and sentenced the accused to 7 years imprisonment. 2. In such a situation the Supreme Court held that the appellant in hitting the deceased did not do it with the knowledge that it was likely to cause the death and the Supreme Court altered the conviction from S.302 IPC to S. 304 Pt.II IPC and sentenced the accused to 7 years imprisonment. 2. (2000) 10 SCC 307 (Kunhayippu V. State of Kerala) That was a case where there was a single knife-blow causing death and the accused and deceased were in a friendly mood when one asked for a glass of juice from the other but shortly thereafter while deceased had left the shop of PW 1, accused going behind deceased and inflicting one knife-blow on his abdo­men from the back which resulting in his death. It was held by the Supreme Court that the accused cannot be said to have had the necessary intention of causing murder of the deceased while giving that blow, though ultimately the blow had become fatal and as such, conviction under S. 302 altered to that under S. 304 Pt.II with sen­tence of imprisonment for 5 years. 21. In the facts and circumstances of this present case, we allow the accused persons i.e. Durgeswar Kalita and Bankim Kalita to be released as they have already suffered a lot. They are behind the bar i.e. in case of Durgeswar from 2.4.90 to 18.1.91 and thereafter from 18.2.98 till date, in total almost 4 years 8 months and Bankim, the other accused, was arrested on 10.7.92 and he was released on bail on 2.11.92 and thereafter he has been in Jail since 27.2.98. So he is also behind the bar for a period of more than 4 years. We also find no justification to award separate sentence and conviction u/s. 326 of IPC. Accordingly, the period undergone shall be the period of conviction. The accused persons named above shall be set at liberty, if not wanted in connection with any other case. The sentence and fine as indicated above also shall stand quashed. Send back the records immediately. 22. With the above directions and observations, this appeal is partly allowed.