Judgment Lakshman Uraon, J- The sole appellant Shivdhari Ram has preferred this Criminal Appeal against the judgment and order of conviction and sentence dated 2.8.2002, passed by Sri Kumar Kamal, learned Additional Sessions Judge, Fast Track Court No.1, Bermo at Tenughat, in Sessions Trial No. 74 of 1997, whereby the whereunder, he has convicted the appellant under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. Informant Sohrai Yadav (PW 2) in Fard-beyan (Ext. 6) recorded on 16.9.1995 at 11.35 a.m. at Ardeer Hospital, I.E.L., Gomia, by S.I. Wasi Ahmad, has stated that on 16.9.1995 at 11.00 a.m. he was at Sasbera near Fantus Hotel in his Khatal along with his elder brother Bishundeo Yadav, nephew Birendra Yadav and Diesel Yadav. At the moment from the back side of Sasbera Rajendra Hotel, appellant Shivahari Rai, Shatrughan Rai, Satendra Rai and Jaleshwar Rai, having Lathi, Farsa, reached there and asked Bishundeo Yadav (deceased) as to why in the morning Satendra was assaulted by his son. On this query, Shivhari Rai, Shatrughan Rai, Satendra Rai and Jaleshwar Rai started assaulting with Lathi and Farsa to them. Appellant Shivdhari Rai gave a Farsa blow on the head of Bishundeo Yadav Bishundeo Yadav having sustained bleeding injury fell down. The others, namely, Shatrughan Rai, Satendra Rai and Jaleshwar Rai assaulted the informant and others. When on Hulla the nearby persons assembled, the assailants fled away. Injured Bishundeo Yadav was taken to hospital for treatment. Subsequently he was referred for better treatment from Ardeer Hospital. The injured was brought to Modi Sewa Sadan Nursing Home Ranchi, where he died in the next morning. 3. The learned Additional Sessions Judge, Bermo at Tenughat, framed charges under Section 302/34 of the Indian Penal Code against Shvidhari Rai (appellant) and three others, namely, Shatrughan Rai, Jaleshwar Rai and Satendra Rai. He also recorded the evidence of seven Prosecution Witnesses and two Defence Witnesses. Relying the evidence of PW 2 Sohrai Yadav, who is the informant, supported by PW 3 Gopal Yadav, who claimed to be present at the spot and alleged that this appellant gave Farsa blow on the head of Bishundeo Yadav, who succumbed to his injury on the, next day, and also considering the evidence of PW 4 Kunj Bihari Dubey and the evidence of Dr. AK. AK. Chatopadhya (PW 1), who examined the injured, who subsequently died, and the evidence of Dr. Ram Sewak Sahu (PW 5), who conducted the post-mortem examination on the dead body of deceased Bishundeo Yadav, found the prosecution case reliable and accordingly, convicted this appellant only as he is the sole appellant, who has given Farsa blow on the head of deceased Bishundeo Yadav and convicted him under Section 302/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life, while acquitting the other three accused persons, charged under Section 302/34 of the Indian Penal Code. 4. The appellant has examined two Defence Witnesses. Dr. Badri Vishal Upadhyay (DW 1) has examined the appellant on 16.9.1995 at 1.10 p.m. and found one lacerated wound on the parietal bone, caused by hard and blunt substance and the 2nd defused swelling on the left arm, caused by hard and blunt substance, simple in nature. He has also examined the other co-accused, who faced the trial, namely, Satrughan Rai and Jaleswar Rai, and found injuries on their persons, all simple in nature, caused by hard and blunt substance and issued injury reports (Ext. A series). The defence has taken the plea that they were assaulted by the prosecution party for which they have instituted a case against them, which was not denied by the informant. 5. The genesis of the alleged occurrence, as mentioned in the Fardbeyan (Ext. 6) is that in the morning there was some quarrel in between the son of the informant and the nephew of the appellant, which was pacified by PW 4 Kunj Bihari Dubey, cattle fodder dealer. PW 4 Kunj Bihari Dubey was in his shop at 9.00 a.m. on 16.9.1995. He heard the sound of altercation on the road in front of his shop. He came out and saw Satyendra and Bijendra quarrelling. On his intervention, they went to their respective Khatals. Thus, the genesis of the alleged occurrence has well been proved by the cattle fodder dealer Kunj Bihari Dubey (PW 4). PW 2 Soh rain Yadav is the informant. He was sitting on a cot in his Khatal on 16.9.1995 at about 11.00 a.m. along with his brother Bishundeo Yadav, nephew Birendra Yadav and Diesel Yadav. His Khataf is at Sasbera near Fantus Hotel. PW 2 Soh rain Yadav is the informant. He was sitting on a cot in his Khatal on 16.9.1995 at about 11.00 a.m. along with his brother Bishundeo Yadav, nephew Birendra Yadav and Diesel Yadav. His Khataf is at Sasbera near Fantus Hotel. At that time appellant Shivdhari Rai along with Shatrughan Rai, Satendra Rai and Jaleshwar Rai, armed with Farsa and Lathi, reached there. Appellant had Farsa and the others had Lathis in their hands. PW 3 was near Fantus Hotel in his Khatal along with Bishundeo Yadav, Sohrai Yadav (PW 2), Diesel Yadav, Bijendra Yadav, Wakil Yadav and Ram Bilash Prasad. The Khatals of PW 2 and PW 3 are contiguous. Hence there is no confusion that they were sitting in their Khatals. At that time, he also alleged that appellant, armed with Farsa, and others, namely, Shatrughan Rai, Satendra Rai and Jaleshwar Rai, armed with Lathi, reached there. Both these witnesses i.e. PW 2 and PW 3 have deposed that when the informant Sohrai Yadav (PW 2) was asked as to why in the morning his nephew was assaulted by his son, the appellant gave a Farsa blow on the head of Bishundeo Yadav, who sustained bleeding injury and fell down. The others were assaulted with Lathis by the other co-accused, who were acquitted. Both these witnesses have deposed that the injured Bishundeo Yadav was taken to I.E.L. Hospital for treatment where Fard-beyan of the informant (PW 2) was recorded by the police on which PW 2 signed (Ext. 3). The doctor referred the injured for better treatment, who was taken to Modi Sewa Sadan, Ranchi, where on the next day i.e. Sunday, Bishundeo Yadav died. 6. PW 1 Dr. A.K.Chattopadhya, posted at I.E.L. Hospital, examined Bishundeo Yadav and found deep incised wound, bone deep on his head-4". Bone deep, which was grievous and the condition of the injured was poor, who was unconscious. Hence he issued injury report (Ext. 1) and referred the injured for better medical treatment. PW 5 Dr. Ram Sewak Sahu conducted the post-mortem examination on the dead body of Bishundeo Yadav on 18.9.1995 and found stitched wound T shaped 12 cm. long and another 10 cm. long over left front-parieto temporal region of head, situated vertically. He found underneath a bonny gap 13 cm x 11 cm area on the left fronto parieto temporal bone. Ram Sewak Sahu conducted the post-mortem examination on the dead body of Bishundeo Yadav on 18.9.1995 and found stitched wound T shaped 12 cm. long and another 10 cm. long over left front-parieto temporal region of head, situated vertically. He found underneath a bonny gap 13 cm x 11 cm area on the left fronto parieto temporal bone. There was fresh subdural blood and blood clots on both sides of brain. He found the injuries and the time elapsed since death was 6 to 24 hours. Ext. 4 is the Post-Mortem Report, issued by him. 7. When considered the evidence of PWs 1,2, 3 and 5, I find that there is no doubt regarding cause of death to be the head injury. Hence the death, which was homicidal has also well been prayed by the prosecution. 8. As alleged by the informant (PW 2) and deposed by him and PW 3 Gopal Yadav, the alleged occurrence took place at Sasbera near Fantus Hotel. PW 4 Kunj Bihari Dubey, who is animal fodder dealer, has simply heard some quarrel in front of the Fantus Hotel and saw a number of persons gathered there. PW 2 and PW 3 along with others were sitting in their Khatal at Sasbera near Fantus Hotel where the alleged occurrence took place. PW 6 is not the real I.O., who took charge from one Wasi Ahmad, who investigated the case, whereas on his transfer PW 6 Chunmun Singh, Officer-in-Charge of I.E.L. Police Station, submitted charge sheet. PW 7 Gauri Yadav, a formal witness, has proved the entire case diary (Ext. 5) in the pen and signature of the then Officer Incharge Wasi Ahmad. He has also proved the signature on it (Ext. 5/1 and 6). As the case diary is not a substantial piece of evidence, the evidence of these witnesses i.e. PW 6 and PW 7 need not require any discussion. 9. As the prosecution has proved the genesis of the alleged occurrence, place of occurrence and time of the alleged occurrence, now the only question remain as to whether this appellant is the author to cause injury on the head of Bishundeo Yadav, who succumbed to his injuries on the next day at Modi Sewa Sadar, Ranchi. PW 2 and PW 3 are the eye witnesses. They have deposed without any contradiction that simply there was a quarrel in between Satendra and Birendra. PW 2 and PW 3 are the eye witnesses. They have deposed without any contradiction that simply there was a quarrel in between Satendra and Birendra. The appellants armed with Farsa reached at the Khataf of the informant. When the informant was asked why his son assaulted his nephew, appellant gave Farsa blow on the head of Bishundeo Yadav, who sustained bleeding injury and fell down. He was taken to I.E.L. Hospital, Gomia, where he was examined by PW 1. PW 1 issued injury report and referred him for better treatment but the injured died whose post-mortem examination was conducted by PW 5 Dr. Ram Sewak Sinha. 10. Learned counsel for the appellant assailing the impugned judgment and order of conviction and sentence, submitted that there was Maar-Pit in between the parties as both the parties sustained injuries. DW 1 has examined appellant and other coaccused persons who were acquitted, found injuries on their person and issued Injury Reports (Ext. A series). DW 2 Ram Lakhan Prasad has proved the case, instituted by this appellant against the informant and others in which charge sheet has been submitted and the prosecution party is facing trial regarding the same occurrence in I.E.L. P.S. Case No. 30 of 1995. On these grounds it was submitted that there was no intention of the appellant to kill but after altercation both the parties assaulted each other without knowing that Bishundeo Yadav sustained injury, caused by Farsa alleged to have been inflicted by this appellant, resulting the death of Bishundeo Yadav. The learned counsel for the appellant has also submitted that F.I.R. named witnesses, who are closely related with the informant and who are non else but the nephew Bijendra Yadav and Diesel Yadav, who were sitting along with elder brother of the informant (deceased Bishundeo Yadav), have not been examined to corroborate the evidence of the informant Sohrai Yadav (PW 2). Both PW 2 and PW 3 are interested witnesses. Not a single independent witness of the nearby Khataf has been examined. The I.O. who investigated the case, namely, Wasi Ahmad, has not been examined, which has caused prejudice to the appellant. None of the owners of the Fantus Hotel was examined in this case in front of whose hotel the alleged occurrence took place. Not a single independent witness of the nearby Khataf has been examined. The I.O. who investigated the case, namely, Wasi Ahmad, has not been examined, which has caused prejudice to the appellant. None of the owners of the Fantus Hotel was examined in this case in front of whose hotel the alleged occurrence took place. In course of investigation, PW 3 Gopal Yadav in his statement under Section 161 Cr.P.C. has not stated that this appellant gave a Farsa blow on the head of Bishundeo Yadav. Even if it is found that the appellant caused a Farsa blow on the head of the deceased Bishundeo Yadav i.e. only once without any repetition and that was also given after an altercation when the appellant and his associates also sustained injuries on their persons although simple in nature and in that melee only one Farsa blow was given by this appellant on the vital part of the head without any intention to cause his murder, which attracts Section 304 Part II of the Indian Penal Code and not Section 302 of the Indian Penal Code. In a hot exchange of altercation and in a heated moment without any intention, if only one injury was caused by this appellant, the appellant can be held responsible only to have committed an offence under Section 304 Part II of the Indian Penal Code. On this point he has relied a case, reported in 1983 SC 185 (Hari Ram vs. State of Haryana) and A.I.R. 1999 SC 1428 (K. Ramakrishnan Unnithan vs. State of Kerala). 11. Learned counsel for the appellant has submitted that non-examination of the Material Witness and non-examination of any independent witness, although available, has caused prejudice to the appellant and on this point he has relied a case, reported in 1978 SC 59 (Sir Singh & Ors. vs. State of Uttar Pradesh). In the present case, I find that PW 2 and PW 3, who were present at the place of occurrence and are the eye witnesses having no enmity prior to the alleged date of occurrence with this appellant, have supported the prosecution case without any contradiction. Had the independent witnesses been examined there would have been an addition in the prosecution case. When considered the evidence of both these PW 2 and PW 3 I do not find any reason to discard their evidence, which is reliable one. Had the independent witnesses been examined there would have been an addition in the prosecution case. When considered the evidence of both these PW 2 and PW 3 I do not find any reason to discard their evidence, which is reliable one. Due to non-examination of the I.O. Wasi Ahmad the appellant has not been prejudiced as the place of occurrence, time of occurrence and the manner of the alleged occurrence have well been established by the evidence of PWs 1, 2, 3, 4 and 5. 12. When considered the evidence of PW 2 Sohrai Yadav (informant) and PW 3 Gopal Yadav, who were present at the place of occurrence and are eye witnesses, I find that they have deposed that appellant gave Farsa blow on the head of Bishundeo Yadav only once. Bishundeo Yadav did not die at the spot rather he was shifted to I.E.L. Hospital, Gomia, for treatment. However, after examination of the injured by PW 1 Dr. A.K. Chattopadhyay the injured was referred to Modi Sewa Sadan, Ranchi, where on the next day he died. PW 5 Dr. Ram Sewak Sinha, who conducted the post-mortem examination, has found one stitch wound on the head T shaped. The evidence of PWs 2 and 3 is that there was an altercation and in course of altercation appellant gave one Farsa blow on the head of Bishundeo Yadav. DW 1 has examined appellant and found injuries on his person along with other coaccused, who faced trial, shows that both the parties took part. in assaulting each other. PW 2 informant and PW 3 have admitted that regarding the same occurrence this appellant has instituted a case against the informant and others. Under such circumstances, the question thus remains for consideration as to whether on the materials on record can it be said that the appellants gave the blow on the deceased with an intention of causing murder of the deaceased so as to be convicted under Section 302 of the Indian Penal Code. PW 2 and PW 3 have deposed that when informant asked the appellant as to why his nephew was assaulted by the son of the appellant, the appellant gave Farsa blow on the head of the deceased. Although the prosecution has simply alleged that there was an altercation but the defence witness DW 1 has found injuries on the person of this appellant. Although the prosecution has simply alleged that there was an altercation but the defence witness DW 1 has found injuries on the person of this appellant. More over PW 2 and PW 3 have admitted that they are accused in the counter case, instituted against them by this appellant. 13. When considered all these circumstances resulting the alleged Maar-Pit, I find that the intention of this appellant was not to cause murder as there is not repetition of Farsa blow but he assaulted once with Farsa on the head, which is vital part of the body with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. As such, Section 304 Part II comes into operation, which squarely covers the authorities relied by the learned counsel for the appellant on this point. 14. When considered all these evidence and the circumstances I find that the learned court below has missed in considering this aspect resulting conviction of this appellant under Section 302/34 of the Indian Penal Code and sentencing him thereunder, which can not be sustained in view of the facts of the present case, discussed above, and the authorities relied by the learned counsel for the appellant. At best in a given circumstances, the appellant is responsible to cause such bodily injury, which was likely to cause death without an intention to cause murder of the deceased Bishundeo Yadav. Hence the conviction under Section 302 of the Indian Penal Code can not be sustained, which is set aside and the appellant is acquitted of the charge of conviction under Section 302 of the Indian Penal Code. But I find that there is sufficient material to convict the appellant under Section 304 Part II of the Indian Penal Code and to sentence him thereunder. Considering this fact, the conviction under Section 302 of the Indian Penal Code is altered into Section 304 Part II of the Indian Penal Code and the appellant is sentenced to undergo imprisonment for the period, already undergone by him, as he is in custody since 1995. 15. Considering this fact, the conviction under Section 302 of the Indian Penal Code is altered into Section 304 Part II of the Indian Penal Code and the appellant is sentenced to undergo imprisonment for the period, already undergone by him, as he is in custody since 1995. 15. In the result, this Criminal Appeal is dismissed with the modification and alteration of conviction and sentence from Section 302 to Section 304 Part II of the Indian Penal Code and also set aside the conviction and sentence passed under Section 302 of the Indian Penal Code and convict him for the offence punishable under Section 304 Part II of the Indian Penal Code and sentence him to undergo imprisonment for the period, already undergone. With the aforesaid modification and alteration in conviction and sentence, this appeal is hereby dismissed. As the appellant is in custody, he is ordered to be released forthwith from custody, if not wanted in any other case. S.J. Mukhopadhaya, J.-I agree.