JUDGEMENT B.N.P. SINGH, J.:- Though prosecution was launched against appellant and two others, appellant alone was put on trial, who on conclusion of trial suffered conviction under Section 304 and also under Section 307 of the Indian Penal Code, and while for the first count, he was sentenced to suffer rigorous imprisonment for a term of ten years and to pay fine of Rs. 500/-, for the second count, he was sentenced to suffer rigorous imprisonment for a term of seven years and also to pay fine of Rs. 500/- and in default of payment of fines, to suffer rigorous imprisonment for three months. The sentences, however, were directed to run concurrently. 2. The salient features of the prosecution case run in a narrow compass which can be recapitulated with brevity. The fardbeyan happens to be that of Deo Narayan Singh, the deceased, and it was alleged therein that on 20th March, 1999 while he along with Munna Singh, P.W.5, was going to supervise the field, he noticed some children plucking fruits from the field, and though others managed good their escape, son of the appellant was apprehended, who was reprimanded by him. The deceased alleged that shortly thereafter the appellant came in company of Bharat Pandit and Jamuna Pandit and took him to task for assaulting his son and also abused him. Further prosecution case is that while Bharat Pandit and Jamuna Pandit caught hold of him, Ganesh Pandit, the appellant, dealt two successive blows with knife on his back and when his son Ramesh Kumar Singh came for his rescue, he too was assaulted by them and also by the appellant, who dealt blows with knife on him also. Both the injured dropped on the ground pursuant to which they were taken to doctor for treatment. After fardbeyan of Deo Narayan Singh was recorded by the Police Officer, first information report was drawn up and investigation commenced. In course of collection of evidence during investigation, the Police recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, got Ramesh Kumar Singh clinically examined by the doctor, and in course of treatment after Deo Narayan Singh succumbed to the injuries, got autopsy held over the dead body of the deceased, visited place of occurrence and on receipt of autopsy report, having concluded investigation, laid charge-sheet before the Court below. In the eventual trial that followed, the State examined altogether 10 witnesses including son of the deceased and also two doctors. 3. The defence of the appellant had been that of plea of innocence and he ascribed his false implication. The Trial Court, however, on consideration of evidences that were led at trial, though did not record verdict of guilt under, Section 302 of the Indian Penal Code, finding appellant guilty under Sections 304 and 307 of the Indian Penal Code, sentenced him in the manner stated above. 4. Though lot of witnesses were examined at trial, some of them had turned volte face to the State and they happen to be Binod Chaudhary, P.W.1, Kapil Manjhi, P.W.2, Umesh Prasad, P.W.3, and Ajit Kumar, P.W.4. 5. Dr. Raj Kishore Singh, P.W.10, who firstly examined Deo Narayan Singh, noticed following injuries on his person: (i) clean sharp cut wound on right side of lower back 2" x 1" x bone "deep. (ii) clean sharp cut wound on left side of upper back 1/2" x 1/4" x skin deep. 6. In estimation of the doctor, the injuries were caused by sharp pointed weapon and while injury no.1 was grievous in nature, injury no.2 was simple in nature. Since condition of the injured was deteriorating on advice, the injured was taken to P.M.C.H. The doctor on the same day stated to have examined Ramesh Kumar Singh also and on his person too. doctor noticed a clean cut wound on right lower back 3" x 3/4" x muscle deep. Other injury was also clean cut wound on left upper back 1/2" x 1/6" skin deep. Both injuries, in estimation of the doctor, was caused by sharp pointed weapon, and while injury no.2 was considered to be simple in nature, in case of injury no.1 opinion was kept reserved for X-ray. 7. The finding of Dr. Ashok Kumar Yadav who held autopsy over the dead body of deceased Deo Narayan Singh on 30th March, 1999 can also be noticed. The doctor states to have noticed 1" long recently healed stitched wound 1" left to the mid vertebral line on the back of chest over left shoulder. Other injury was found on right side of back. These two injuries were considered by the doctor to be grievous in nature and dangerous to life. 8. The doctor states to have noticed 1" long recently healed stitched wound 1" left to the mid vertebral line on the back of chest over left shoulder. Other injury was found on right side of back. These two injuries were considered by the doctor to be grievous in nature and dangerous to life. 8. I may first notice evidence of Ramesh Kumar Singh, P.W.7, who apart from being ocular witness to assault on the deceased father also happens to be the injured witness and he states that on 20th March, 1999 when he visited field, on alarms, he noticed that Bharat Pandit and Jamuna Pandit had caught his father pursuant to which appellant Ganesh Pandit stabbed him on the back, and when he went for rescue of his father, Bharat Pandit assaulted him with hard and blunt substance. As for stabbing, this witness says that the appellant dealt sharp edged weapon on his back also. Narration in similar terms and veins were made also by Munna Singh, P.W.5, and Arun Kumar Singh, P.W.6 about appellant having dealt successive blows with knife on the deceased, after Jamuna Pandit and Bharat Pandit had caught hold of him. Though volumes of questions were put to the witnesses to discredit them, I find that the credibility of witnesses could not be impaired. As for probability of appearance of these witnesses at the material time of incident, presence of Munna Singh, P.W.5 cannot be questioned as his presence was suggested in the fardbeyan itself, as it was alleged that when deceased had gone to supervise field in the company of Munna Singh, he too sustained injuries on his person. As for Arun Kumar Singh, P.W.6, he too had gone to supervise the field when he witnessed assault on the deceased and also his son. The presence of Ramesh Kumar Singh P.W.7, cannot possibly be disputed, he being stamped witness, as he too sustained injuries on his person in his bid to rescue his father, while he was being assaulted by the appellant. The State also examined Bhola Prasad Singh, P.W.8, who happens to be the Investigating Officer who stated to have recorded fardbeyan of the deceased, visited place of occurrence took step for apprehension of accused and on conclusion of investigation, laid charge-sheet before the Court. 9. The State also examined Bhola Prasad Singh, P.W.8, who happens to be the Investigating Officer who stated to have recorded fardbeyan of the deceased, visited place of occurrence took step for apprehension of accused and on conclusion of investigation, laid charge-sheet before the Court. 9. Good deal of argument was advanced on he half of the appellant that regard being had to the finding recorded by the doctor and also nature of injuries shown to have suffered by the deceased, the case of the appellant did not squarely fell within the mischief of Section 304 of the Indian Penal Code, as if narrations made by the deceased in the fardbeyan, and also witnesses at trial were given due consideration, appellant allegedly dealt blows on the deceased in the heat of passion at spur of moment. Rightly, it is stated on behalf of the State that this aspect of matter has been taken into consideration by Court below while recording conviction under Section 304 of the Indian Penal Code. Though it is also sought to be urged on behalf of the State that regard being had to the nature of accusations attributed to the appellant, the case fell within the mischief of Section 302 of the Indian Penal Code but as finding of the Trial Court has not been challenged by the State, no comment tan possibly be made on this score. In view of ocular testimony of witnesses including that of one who happens to be injured, and also the positive finding recorded by the 'doctor, homicidal death of the deceased was not open to question, and that apart, if testimony of witnesses were given due consideration, appellant alone is suggested to be author of injury noticed on the person of the deceased, and in this view of the matter, I find that the finding recorded by Court below under Section 304 of the Indian Penal Code could not be disturbed. 10. 10. However, so far finding of Court below under Section 307 of the Indian Penal Code was concerned, and also sentence imposed against the appellant, regard being had to the submissions canvassed and also the quality of evidence on record, I find that the injured Ramesh Kumar Singh had suffered two injuries on his person : One of which was found simple by the doctor, who clinically examined him, and as for other injury, there is no finding as to whether it was simple or grievous, as after opinion was kept reserved, no further finding of the doctor had been placed on the record, and that apart, there has been no evidence which suggested some intervening circumstances, due to which the appellant could not translate the design into his action, and as such accusation about assault on the son of the deceased, did not squarely fall within the mischief of Section 307 of the Indian Penal Code. In that view of the matter, finding recorded by Court below under Section 307 of the Indian Penal Code is converted under Section 324 of the Indian Penal Code. Other findings, however, remain undisturbed. For conviction under Section 324 of the Indian Penal Code, the appellant is sentence to suffer rigorous imprisonment for two years. 11. In the result, the appeal is dismissed with aforesaid modifications.