Judgment B.N.P.Singh, J. 1. The appellants along with ten others were prosecuted for offences punishable under Section 302/149 and also under Section 147 of the Indian Penal Code. 2. The factual matrix, as transpiring from statement of Triveni Mahamarik (P.W.6) rendered before the police was that on material date of incident, while he along with Dhananjay Mahamarik was returning to House after irrigating lands, fifteen persons emerged from the embankment of canal, holding arms with them who apprehended Dhananjay Mahamarik, fell him on the ground and assaulted with their weapons. Explicit accusations were attributed to appellants (not Suresh Mahamarik) about assaulting Dhananjay dealt with Garasa on his leg. Accusations were also attributed to others for dealting blows on Dhananjay Mahamarik with axe, Khanti and hard blunt substance. It was alleged that seeing the ghastly incident, Triveni Mahamarik rushed to the village, and along with villagers, came to the place of occurrence and noticed Dhananjay Mahamarik growning in pains and with wounds in his legs which were bleeding profusely. He also claimed to have noticed wounds near the temporal region of the injured. The injured, it was alleged also rendered statement about the assailants before the villagers and as state of the injured, was critical, they took him on a cot to reach Bousi Hospital for treatment. However, before he could be given any medical aid, succumbed to the injury sustained by him. Triveni Mahamarik claimed identification of the assailants in the flash light of torch, and on these accusations, first information report on behest of Triveni Mahamarik was drawn up at Bousi Police Station and investigation commenced. During investigation, the investigating officer recorded statement of witnesses, got autopsy held on the body of the deceased, by doctor C.S.Kashyap (P.W.8), visited place of occurrence and on conclusion of investigation, laid chargesheet before the court. The appellants along with ten others on their committal to the court of sessions were put on trial. The prosecution examined altogether eight witnesses and those, examined, include Triveni Mahamarik who happened to be the brother of the deceased and also the person, who set the police in motion. The State also examined host of witnesses including the police officer. 3. The prosecution examined altogether eight witnesses and those, examined, include Triveni Mahamarik who happened to be the brother of the deceased and also the person, who set the police in motion. The State also examined host of witnesses including the police officer. 3. Now adverting to the witnesses placed on the record on behalf of the State, one would find Triveni Mahamarik (P.W.6) reiterating his early version which he rendered before the police, admittedly, with some improvements over his early version, as even though Bindeshwari and Harkhi had not been saddled, in his early version, for exhorting their associates to make assault on the deceased, such improvements were sought to be introduced in the evidence at the trial. Even though such details were wanting in his early version, in his evidence at trial, he made explicit accusation against Narayan Mahamarik for felling the deceased on the ground and the appellants dealing blows with sharp edged weapons on particular part of the person of the deceased. Even though Suresh Mahamarik had not been explicitly saddled with allegation of assaulting the deceased on temporal region of his head in the early version which Triveni Mahamarik rendered before the police, such accusations were attributed to him in his evidence which was adduced at trial. Though Rohin Mahamarik (P.W.2) claimed to have visited the place of occurrence and noticed Dhananjay Mahamarik lying injured with bleeding wounds on his person and also having seen the appellants making good their escape, it would appear from the evidence of the investigating officer that such narrations were consp cuously wanting on the statement which the witnesses rendered under Section 161 of the Code of Criminal Procedure, Though Naresh Maharik would not narrate about any disclosure allegedly having been made by the deceased about the appellants, the witness was emphatic in his assertion that after he rushed to the place of occurrence from the village, he noticed injuries on the knee of the injured. Similar was the case with Pramod Mahamarik (P.W.4). as though he too claimed to have noticed the assailants making good their escape, pursuant to his arrival at the place of occurrence, such narrations were conspicuously wanting before the police. Lakhan Mahamarik (P.W.5) too stated to have rushed to the place of occurrence from the village shortly on receipt of information from Triveni Mahamarik about the appellants having cut the legs of Dhananjay Mahamarik. Lakhan Mahamarik (P.W.5) too stated to have rushed to the place of occurrence from the village shortly on receipt of information from Triveni Mahamarik about the appellants having cut the legs of Dhananjay Mahamarik. He stated to have noticed some injuries on the legs of Dhananjay Mahamarik and also wound on temporal region, who on enquiries being made from him, disclosed complicity of the appellants and ten others. Though he stated to have noticed some persons making good their escape, admittedly, he did not claim their identifications. Mangalik Mahamarik (P.W.7) was tendered by the State and there was nothing material to merit consideration. Shri K. P. Keshri (RW.1) who happened to be the investigating officer of the incident, stated to have recorded statement of the witnesses, secured postmortem report and visited the place of occurrence which was embankement of Triveni Canal, east to village Sarocha. The police officer would state about evidence of blood on the western bandh of Canal. 4. Dr. C. S. Kashayap (P. W. 8) stated to have noticed following antemortem injuries on the dead body of Dhananjay Mahamarik :- (i) One incised wound over right thigh medially size (Mid portion) 6" x 2" bone deep. (ii) One incised would over left knee joint (anteriorily) size 6" x 2" bone deep. (iii) One incised wound over right calf muscle size 4" x 2" bone deep. (iv) One abrasion over left temporal region on head size 2" x 2". (v) One abrasion over left elbow joint size 2½" x 1/½". 5. Injury Nos. 1, 2 & 3, in estimation of the doctor were caused by sharp, cutting weapon may be by Garasa and injury Nos. 4 & 5 were caused by some hard and blunt object such as lathi. The cause of death, in opinion of the doctor, was shock and haemorrhage caused by aforesaid injuries. This is all the evidence that has been adduced on behalf of the State. The trial court on meticulous appreciation of evidences placed on the record while acquitted rest, of the charges, found appellants guilty under Section 304 first part, read with Section 149 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for a term of ten years. The appellants also suffered conviction under Section 148 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of one year. The appellants also suffered conviction under Section 148 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of one year. However, both the sentences were directed to run concurrently. 6. The finding recorded by trial court was sought to be assailed by the learned counsel appearing for the appellants on premises that though death of Dhananjay Mahamarik was admitted in view of finding recorded by the doctor, regard being had to the citus of the injury suffered by Dhananjay Mahamarik, nowhere it was stated by the doctor that the injuries found on the person of the deceased were sufficient in ordinary course of injury to cause death and hence finding of guilt recorded by the trial court under Section 304 Part-I of the Indian Penal Code was not sustainable in law. Contentions were raised that though the witnesses were making parrot like statements about all fifteen number of accused persons making indiscriminate assault on the deceased with some hard blunt object, it is quite incongruous to find that the doctor found only two injuries caused by hard blunt substance. It is urged that even though one witness would exclude the presence of other witness, in his narration made before the court, implicit reliance on them was placed by the trial court and the last argument canvassed at bar was that it was quite unnatural that by the time when the villagers would reach the place of occurrence, the assailants would remain present at the place of occurrence to facilitate their identification by then and in quick succession it is urged that on some (sicsame?) set of evidence while ten persons were acquitted of the charges, the appellants suffered conviction, and in alternate, it is urged that the prosecution was launched against the appellants in the year 1988 and they have suffered the ordeal of protracted litigations about fourteen years and the appellants in any view of the matter should have been found guilty under Section 326 of the Indian Penal Code, taking the prosecution version to be true on their face value. 7. The improvements sought to be introduced by Triveni Mahamarik (P.W.6) over his early version which was rendered before the police has been stated in the preceding paragraphs which need not require repetition. 7. The improvements sought to be introduced by Triveni Mahamarik (P.W.6) over his early version which was rendered before the police has been stated in the preceding paragraphs which need not require repetition. However, the basic feature of the prosecution case about the appellants (not Suresh Mahamarik) assaulting the deceased with some sharp edged weapons on his legs, was coherent in all the two statements which he rendered before the police and also the court. Though part of narrations made by Rohin Mahamarik (P.W.2) about claiming identification of the assailants while they were fleeing, were wanting before the police, the other part of the prosecution case about the deceased allegedly making dying declaration disclosing complicity of the assailant, was in tune with the statement which he rendered before the police. This witness was a signatory of the first information report and also claimed to have put signature on the seizure memo about the collection of blood from the place of occurrence. As has been discussed, only that part of evidence of Naresh Mahamarik (P.W.3) which can be taken into consideration, was about his having noticed injuries on the knee of the injured. In case of Pramod Mahamarik (P.W.4) also, though some part of narrations made by him merits exclusion from consideration, as such narrations were wanting before the police, other part of the prosecution case about the witnesses having noticed bleeding injuries on the person of the deceased and the deceased making declaration disclosing complicity of the appellants before the villagers, was in conformity with the statement which he rendered before the police. This witness would state about Dhananjay Mahamarik stating about Suresh Mahamarik assaulting on his temporal region with a Khanti. However, such statement made before the court was wanting before the police. True it is that the blood allegedly seized from the place of occurrence does not appear to have been sent for chemical examination but for laches on part of the investigating officer the prosecution was not to be a casualty. 8. The deceased and the appellant, it can be gathered from the evidences of the witnesses, come from common ancestor as both the parties are descendants of Ganesh Mahamarik. It would appear from the evidence of Rohin Mahamarik (P.W.2) that the tragic incident happened due to some land dispute persisting between the parties. 8. The deceased and the appellant, it can be gathered from the evidences of the witnesses, come from common ancestor as both the parties are descendants of Ganesh Mahamarik. It would appear from the evidence of Rohin Mahamarik (P.W.2) that the tragic incident happened due to some land dispute persisting between the parties. The land which was recorded in the name of Durga Mahamarik, as is stated by this witness, was being cultivated by them and for that reason. Dhananjay Mahamarik was made a casualty. Litigation and cross-cases between the parties also appear to be admitted facts of the case. The statement made by Rohin Mahamarik about there being darkness at the time of incident cannot be a good ground to assail identification of the assailant, in view of statement of Triveni Mahamarik and other witnesses that they held torches with them which facilitated identification of the assailants. True it is that narrations were made by some witnesses about there being indiscriminate blows with hard blunt substance on the person of the deceased for which only two injuries caused by hard blunt substance were noticed by the doctor who held autopsy over his dead body, the entire prosecution case cannot be discarded, as the witnesses are not explicit as to which of the assailants dealt blows with lathi and it is not unlikely that in their anxiety to make their case strong and believable, they would render such statement, and that apart the appellants do not appear to have been saddled with the allegation of causing assault with hard blunt substance, as explicit evidence against them was for assaulting the deceased with some sharp edged weapons on the legs of the deceased and it is not in dispute that those who were saddled with allegation of causing assault with hard blunt substance, have been acquitted by the trial court. 9. However, certain facts merit consideration. Though omnibus allegation was attributed to Suresh Mahamarik, one of the appellants, about he too be in the company of the assailants, explicit accusations were sought to be introduced by some witnesses at trial, about this appellant assaulting the deceased with Khanti on temporal region of his head. 9. However, certain facts merit consideration. Though omnibus allegation was attributed to Suresh Mahamarik, one of the appellants, about he too be in the company of the assailants, explicit accusations were sought to be introduced by some witnesses at trial, about this appellant assaulting the deceased with Khanti on temporal region of his head. No explicit accusation was ever attributed to Suresh Mahamarik by Rohin Mahamarik (P. W. 2) about assault with Khanti on temporal region of head of the deceased and even though Pramod Mahamarik (P. W. 4) would state about Suresh Mahamarik assaulting the deceased with Khanti, such statement was conspicuously wanting before the police. As total narration made by Lakhan Mahamarik (P. W. 5) was wanting before the police, that has to be excluded from consideration and, in that view of the matter, I do feel that the case of Suresh Mahamarik was distinct from other appellants and, in that view of the matter, he is given benefit of doubt and is acquitted of the charges levelled against him. 10. Though the appellants were found guilty under Section 304 Part-I of the Indian Penal Code, regard being had to the nature of injuries and also the citus of them; they cannot be saddled with knowledge that their act might result in the death of the deceased and, hence, the overt act attributed to the appellants were well-covered under Section 304 Part -II of the Indian Penal Code. The finding of guilt recorded against the appellants (not Suresh Mahamarik) is converted to Section 304 Part-II and sentences imposed on them is reduced to eight years. The finding of guilt recorded by the trial court under Section 148 of the Indian Penal Code and also the sentences imposed on the appellants is also upheld and with this modification appeal succeeds in part.