JUDGMENT M. M. DAS, J. — Being aggrieved by the judgment and order dated 21.1.1997 passed in S.T. Case No.145 of 1996 by the learned Sessions Judge, Balasore-Bhadrak, Balasore convicting the appel¬lant, namely, Sanatan Sahani under Sections 302/34 IPC read with Section 120-B I.P.C. and sentencing him to undergo R.I. for life, he has preferred the present appeal. 2. The prosecution case, as alleged, is that the appellant along with four others made a plan to commit murder of Narahari Panda out of vengeance due to long standing litigations between them. On 22.12.1995 at about 7.00 P.M. when the deceased Narahari was returning from Balasore town to his house along with P.W.1, Prasanta Kumar Panda, near a place, called ‘Sunahat junction’, all the charge-sheeted accused persons, five in number, namely, appellant Sanatan Sahani, Rajendra @ Kalia Sahani, Ratikanta Panda, Ganesh Chandra Rout and Kailash Chandra Sahani surrounded the deceased. The accused-Kailash Chandra Sahani and Ganesh Chandra Rout (since acquitted) caught hold of both the hands of the deceased and the appellant Sanatan dealt a blow on the head of the deceased by means of an iron rod. On protest by the P.W.1, he was also threatened by the accused persons who chased him to a certain distance and out of fear, he left the place. P.W.1 there¬after informed the co-villagers, some of whom arrived at the place of occurrence. The deceased was removed to the District Headquarters Hospital, Balasore. During the same night, the doctor finding the deceased to be in a serious condition, re¬ferred him to S.C.B. Medical College and Hospital, Cuttack. While in the S.C.B. Medical College and Hospital, Cuttack, the deceased succumbed to the injuries on 29.12.1995. On a report being lodged by P.W.6, namely, Ajay Kumar Panda in the Town Police Station, Balasore, though a case was registered, but the same was trans¬ferred on the question of jurisdiction, to the O.I.C., Chandipur Police Station. It appears that the Circle Inspector of Police, Balasore Sadar conducted the investigation. There was a public agitation due to laches in the investigation for which the Super¬intendent of Police, Balasore made over the investigation to the Crime Branch, Cuttack and P.W.12 conducted the investigation de novo. On finding prima facie case, he filed a charge-sheet against the five accused persons. 3. There was a public agitation due to laches in the investigation for which the Super¬intendent of Police, Balasore made over the investigation to the Crime Branch, Cuttack and P.W.12 conducted the investigation de novo. On finding prima facie case, he filed a charge-sheet against the five accused persons. 3. It appears from the records that the accused Sanatan, Ganesh and Kailash were serving as Police Constables on the date and time of occurrence at Balasore Town. 4. During the trial, all the accused persons denied their involvement in the alleged crime. The above named three accused persons also took a plea of alibi stating that they were on patrolling duty near Cinema Hall Chhak in Balasore Town on the date and time of occurrence. After conclusion of the trial, the trial Court by the impugned judgment acquitted the other four accused persons but convicted the appellant for the offence under Section 302 I.P.C. and sentenced him to undergo R.I. for life. 5. P.W. 1 being the most important witness cited by the prosecution, we would like to discuss, at the out set, his state¬ment given in Court. P.W.1 has stated that he along with the deceased Narahari, Ramesh (P.W.2) and Ajay (P.W.6) proceeded towards their house from Motiganj Bazar, Balasore. The deceased and the P.W.1 were coming in their respective cycles whereas P.Ws. 2 and 6 were coming on one cycle. On the way, P.Ws. 2 and 6 stopped for taking betel, but P.W.1 and the deceased continued to proceed towards their house. When they reached the place of occurrence, a group of persons suddenly came to the road and confronted them. P.W.1 identified the accused persons in Court to be those persons who surrounded them. The accused Kailash and Ganesh (since acquitted) caught hold of the hands of the deceased and the appellant Sanatan being armed with an iron rod assaulted the deceased on the right side of his head. P.W.1 further stated that he having resisted the accused persons they threatened to assault by him and out of fear, he fled away towards the village. He informed the matter to various persons, namely, Goura¬hari Panda and Achyuta Dalei (not examined). P.W.1 further stated that he having resisted the accused persons they threatened to assault by him and out of fear, he fled away towards the village. He informed the matter to various persons, namely, Goura¬hari Panda and Achyuta Dalei (not examined). He has further stated that he along with Rama Dalei (P.W.7) and some others who have not been examined as witnesses came back to the spot of occurrence and not finding the deceased there, on enquiry from some persons could know that the deceased has been removed to the hospital. Thereafter, he went to the hospital and found the de¬ceased not to be in his full sense. Subsequently, the deceased was removed to the S.C.B. Medical College and Hospital, Cuttack. 6. Admittedly, there is no other eye witness to the occur¬rence. But, however, the evidence of other independent witnesses examined on behalf of the prosecution corroborates the statements of P.W. 1 in material particulars except, of course, with regard to the allegation of assault by the appellant Sanatan on the head of the deceased by means of an iron rod. Admittedly, some of the witnesses are post occurrence witnesses. The statement of P.W.6 who was accompanying the deceased till he stopped on the way along with P.W.2 for taking betel, discloses that from a distance they saw some persons surrounding and assaulting one person and on coming to the spot, they found the deceased lying there with bleeding injuries. 7. Mr. B. Panda, learned counsel for the appellant submit¬ted that the other accused persons who were allegedly assaulting the deceased having been acquitted, the substratum of the prose¬cution case has not been proved beyond reasonable doubt and for that reason, the accused-appellant cannot be solely made liable for the offence under Section 302 I.P.C. He strenuously urged that in view of material contradictions in the statements of the informant (P.W.6), the Sub-Inspector of Police (P.W.8) and in view of the statement of P.W.1 that he does not know who lodged the information before the police, the lodging of the F.I.R. is doubtful. 8. In our view, this itself will not materially affect the prosecution case. However, from the cogent evidence adduced by the prosecution, it can be concluded that the appellant was the assailant. 9. 8. In our view, this itself will not materially affect the prosecution case. However, from the cogent evidence adduced by the prosecution, it can be concluded that the appellant was the assailant. 9. The doctor, P.W.4 who conducted the post-mortem on the body of the deceased has opined in Court as follows : “4(i) The external and internal injuries were ante mortem in nature and possibly could have been caused by hard and blunt force impact. (ii) The head injuries as described were fatal in ordinary course of nature to cause death. (iii) Death was due to cranio-cerebral injuries resulting from hard and blunt force touma to the head. (iv) The time since death was about within 4/6 hours from the time of P.M. examination. However, the exact time of death was at 9.40 A.M. of 29.12.95 as mentioned in the bed-head ticket of the deceased vide registration No.6030 dt.23.12.95. (v) The sample blood of the deceased was preserved and handed over to the police for needful. 5. This is my report marked Ext.4. 6. External injuries No.(vi) and (viii) might be possible by assault by means of iron rod. External Injury No.(viii) was the operated wound and injury No. (ix) could have been caused by assault by lathi or iron rod. The internal injuries corresponding external injury No.(viii) could have been caused by assault by hard and blunt object.” 10. From the above, it appears that after the deceased was admitted in the S.C.B. Medical College and Hospital, Cuttack, a surgery was conducted on the head of the deceased. 11. Admittedly, the occurrence took place on 22.12.1995 and the deceased after undergoing the surgery at S.C.B. Medical College and Hospital, Cuttack succumbed to the injuries on 29.12.1995, i.e., after about 7 days. Though the external in¬juries found by the doctor on the body of the deceased are nine in number and the corresponding internal injuries were found, out of which, injury Nos. (viii) and (ix) were two injuries on the head of the deceased but on dissection, the doctor found eight injuries. The ocular evidence as given by P.W.1 clearly shows that the accused-appellant dealt a single blow on the head of the deceased. 11. (viii) and (ix) were two injuries on the head of the deceased but on dissection, the doctor found eight injuries. The ocular evidence as given by P.W.1 clearly shows that the accused-appellant dealt a single blow on the head of the deceased. 11. Keeping the nature of assault alleged to have been given by the accused-appellant and the medical evidence as found by the doctor (P.W.4) coupled with the fact that the deceased died after seven days of the occurrence after having undergone a brain surgery in the interregnum at S.C.B. Medical College & Hospital, Cuttack, in our considered view, the accused-appellant is not liable to be convicted under Section 302 I.P.C. But the prosecution has succeeded in proving the case against the ac¬cused-appellant-Sanatan Sahani for commission of offence under Section 304 Part-I, I.P.C. 12. It appears that the accused-appellant-Sanatan was arrested on 23.12.1995 and since then, he is in jail custody for about 10 years. 13. In view of the above, the order of conviction dated 21.1.1997 passed under Section 302, I.P.C. against the accused-appellant-Sanatan Sahani is set aside and the appellant stands convict¬ed under Section 304 Part-I, I.P.C. Consequently, the sentence imposed on the accused-appellant is reduced to the period under¬gone by him. The appellant-Sanatan Sahani be set at liberty forthwith if his presence is not required in connection with any other case. The Criminal Appeal is partly allowed. S. B. ROY, C.J. I agree. Crl. Appeal partly allowed.