JUDGMENT : A.S. Naidu, J. - The two Appellants have preferred in Criminal Appeal against the order of the learned Sessions Judge, Keonjhar in Sessions Trial No. 7 of 1990 convicting them of the charges under Sections 148/302/149 Indian Penal Code sentencing them to undergo rigorous imprisonment for life u/s 302/149 Indian Penal Code and undergo rigorous imprisonment for three years u/s 148 Indian Penal Code, both the sentences being directed to run concurrently. 2. Bereft of unnecessary details, the short facts of the case are that on 31-7-1989 the informant P.W. 1 returned from Cuttack to his village at about 2 p.m. and finding his daughter-in-law suffering from fever, took her to hospital. His son Silu Nag had gone out along with some others. At about 8 p.m. that day while returning from the hospital, P.W. 1 heard some groaning sound from the bushes adjacent to his house. He went near the bush and found his son Silu Nag lying in injured condition. Silu Nag asked for water. On being asked, Silu Nag told PW. 1 that some persons assaulted him without naming them. Thereafter the informant and one Lalu Patra shifted Silu Nag to his house. At the house while preparation was being made to shift the injured to hospital, he succumbed. On the basis of information given at the Bolani Outpost orally and the A.S.I. of the said Outpost transcribed the same in writing and registered Barbil PS. Case No. 72 of 1989 u/s 302/34 Indian Penal Code and investigation was taken up by police. During investigation police examined the informant and the wife of the deceased, prepared the inquest report and dead body challan and sent the dead body for post-mortem examination. Two lathis, a full pant and some Amari sticks suspected to have contained bloodstains were seized from the spot and the two Appellants and one Manga were arrested. Two other accused persons, namely, Matu alias Bahadula Mahakud and Matka Munda, could not be apprehended. After completion of investigation charge-sheet was submitted under Sections 147/148/149/341/302 Indian Penal Code against the accused persons showing Matu alias Bahadula Mahakud and Matka Munda as absconders. Defence took the place of complete denial of the occurrence. 3. Two other accused persons, namely, Matu alias Bahadula Mahakud and Matka Munda, could not be apprehended. After completion of investigation charge-sheet was submitted under Sections 147/148/149/341/302 Indian Penal Code against the accused persons showing Matu alias Bahadula Mahakud and Matka Munda as absconders. Defence took the place of complete denial of the occurrence. 3. To substantiate its case, prosecution examined as many as nine witnesses, of whom P.W. 1 was the informant, P.W. 2 was the medical officer who had conducted the post-mortem over the dead body, P.W. 3 was a witness to seizure of blood-stained clothes and lathis, PW. 4 was an independent witness who had helped the informant in shifting the injured from the spot to the house, P.W. 5 was a witness to seizure of two lathis, wearing apparels and Amari sticks, P.w. 6 was an eye-witness to the occurrence, P.W. 7 was another eye-witness to the occurrence, P.W. 8 was the son of the deceased and PW. 9 was the investigating officer in the case. 4. After discussing the evidence, the trial Court came to the conclusion that the death of Silu Nag was homicidal in nature and the Appellants in furtherance of their common object had committed riot being armed with lathis and had assaulted the deceased to death intentionally. On the basis of such conclusion the trial Court held the Appellants guilty under Sections 148/302/149 Indian Penal Code and after convicting them there under sentenced them as stated above. The trial Court however held that accused Manga Oram, in absence of any clear and positive evidence, could not b held guilty of the charges framed against him and acquitted him. 5. Learned Counsel for the Appellants forcefully submitted that there was absolutely no intention of the Appellants to commit the murder of the deceased and the learned Court below acted illegally and with material irregularity in holding the Appellants guilty. According to him, the judgment of the trial Court was based more on surmises and conjectures than the actual evidence on record. Drawing out attention to the evidence of the doctor P W. 2, Learned Counsel for the Appellants submitted that though fifteen injuries were found on the dead body, not a single one was fatal. Most of the injuries were abrasions or bruises. There was no fracture of any bone. Drawing out attention to the evidence of the doctor P W. 2, Learned Counsel for the Appellants submitted that though fifteen injuries were found on the dead body, not a single one was fatal. Most of the injuries were abrasions or bruises. There was no fracture of any bone. According to the Learned Counsel for the Appellants, the doctor P.W. 2 had admitted that in the post-mortem report he had not opined as to the cause of death of the deceased. According to the Learned Counsel for the Appellants, in absence of any opinion as to the cause of death, it cannot be concluded that the death was homicidal in nature. 6. At the other hand, Learned Counsel for the State forcefully repudiated the submission advanced by the Learned Counsel for the Appellants and submitted that the Court below had properly appreciated the evidence on record, both oral and documentary, and the findings were based on substantive materials. According to him, the Appellants along with others with a common intention had assaulted the deceased to death and have been rightly found guilty and sentenced and it is a fit case where the order of conviction and sentence should not be interfered with. 7. After hearing the Learned Counsel for the parties, being the final Court of facts we once again went through the evidence on record. P.W. 1 was the father of the deceased. He had absolutely no direct knowledge with regard to the occurrence. He had admitted that his son did not at all name any of the assailants. He only told that some persons had assaulted him and had made his condition like that. His evidence is of no assistance to the posecution. P.W. 2, the doctor, has stated that he had found the following external injuries on the dead body. (i) Multiple bruises were present on the right side of the face maxillary prominence of the size 1" x x". (ii) Abrasion situated below the right nipple %" x %" x skin deep. (iii) Abrasion situated on the right thigh 4" xx" x skin deep. (iv) Abrasion on the right lower abdomen 2%" x % x skin deep. (v) Bruise situated on the right knee x x x". (vi) Lacerated wounds of two numbers situated one above and one below the molecule. It is of W' x %" x x". (iii) Abrasion situated on the right thigh 4" xx" x skin deep. (iv) Abrasion on the right lower abdomen 2%" x % x skin deep. (v) Bruise situated on the right knee x x x". (vi) Lacerated wounds of two numbers situated one above and one below the molecule. It is of W' x %" x x". (vii) Lacerated wound %" x %" x x" on the right hand over the middle finger on the dorsal side of the middle phalanx. (viii) Lacerated wound %" x %" x x" situated on the fold of index and thumb on the palm. (ix) Bruises 3 in number, %" x W' on the right forearm in the middle. (x) Lacerated wound situated on the left hand palmer aspect of the size 1" x %" x x". (xi) Bruise %" x %" on the tip of left middle finger. (xii) Four bruises x" x x" on the left iliac crest. (xiii) Four bruises x" x x" below the left knee joint. (xiv) Abrasion 2" x W' x x on the back side of the left knee, and (xv) Abrasion 4" x 4" x x" on the left glutial region 3" below the waist. 8. In para-3 of his deposition the doctor has categorically admitted that he could not opine as to the cause of death of the deceased in the postmortem report. But then in Court he deposed that all the above injuries would be collectively sufficient to cause the death of the deceased in ordinary course of nature. But this statement appears to be after-thought specially in view of the fact that the reason for the death was not mentioned in the post-mortem report. In cross-examination P.W. 2 has admitted that on dissection he did not find any internal injury on the dead body. P.Ws. 3 and 5 were stated to be the seizure witnesses. P.W. 4 in para-2 of his deposition has clearly stated that he found Silu lying flat on the ground and he had not seen any injury on his person. This witness had been declared hostile by the prosecution. P.W. 6 in his deposition has stated that there was a quarrel with regard to selling of I.D. liquor and the deceased had assaulted one of the accused, namely, Gamha (Appellant No. 1) and had gone away. He has admitted that he had not seen any assault on the deceased. This witness had been declared hostile by the prosecution. P.W. 6 in his deposition has stated that there was a quarrel with regard to selling of I.D. liquor and the deceased had assaulted one of the accused, namely, Gamha (Appellant No. 1) and had gone away. He has admitted that he had not seen any assault on the deceased. P.W. 7 though nomenclatures as an eye-witness did not support the prosecution case and has also been declared hostile by the prosecution. P.W. 8, son of the deceased, was the only witness who has stated that he had seen the Appellants and Ors. assaulting the deceased, his father. In his cross-examination he has admitted that his brothers were present in the house at the time of occurrence, but he did not call any of them. P.W. 9 was the investigating officer in the case. 9. A scrutiny of the entire evidence leads to the conclusion that there is evidence with regard to assault on the deceased by the Appellants. But then the doctor's evidence so far as the injuries sustained by the deceased would clearly reveal that none of the injuries was on vital organs of the body. Most of the injuries were abrasions or bruises. Added to that, the doctor had clearly admitted that in the post-mortem report he could not give any opinion regarding the cause of death which leads us to find that the prosecution case cannot be believed in to. All the injuries were caused by lathi, which was a common weapon. 10. After going through the evidence of the doctor PW. 2 and other witnesses, we are satisfied that the Appellants had no intention to kill the deceased and as such we have no hesitation to set aside the conviction of the Appellants u/s 302 Indian Penal Code and the sentence passed there under. But then in view of the fact that several injuries were found on the body of the deceased like abrasions and bruises and there is evidence to show that the said injuries were inflicted by the Appellants, we hold the Appellants guilty u/s 325/149 Indian Penal Code. 11. Accordingly, we set aside the conviction of the Appellants under Sections 148/302/149 Indian Penal Code and the sentences passed there under and instead, we convict the Appellants u/s 325/149 Indian Penal Code. 11. Accordingly, we set aside the conviction of the Appellants under Sections 148/302/149 Indian Penal Code and the sentences passed there under and instead, we convict the Appellants u/s 325/149 Indian Penal Code. It is submitted that the Appellants are in custody for more than three years. According to us, the said period of imprisonment already undergone by the Appellants would be the adequate sentence of imprisonment for their conviction u/s 325/149 Indian Penal Code and we sentence accordingly. The Appellants are directed to be set liberty forthwith if their detention in custody is not required in connection with any other case. 12. The Criminal Appeal is disposed of.