Judgment : ( 2 ) P. W. 1, Somo Oraion, is the wife of the deceased, Etwa Oraon, P. W. 3, Chainu oraon and P. W. 4, Jagdeo Oraon are the sons of the deceased. P. W. 2, Tetri Oraion is the wife of P. W. 3, Chainu Oraon and hence the daughter-in law of P. W. 1 and the deceased. They were residing in the village-Murgu kyotoli. The villagers were suspecting that the deceased was practising witchcraft. They questioned him but the deceased denied the said allegation. At 2. 30 p. m. on the fateful day, namely on 30-3-1997 the deceased was asked to appear before a Panchaiti. The deceased etwa Oraon, accused Nos. 1 to 6 and other villagers were present at the Panchaiti. When questioned by the villagers, the deceased denied that he is practising witchcraft. An altercation took place between the parties and at that time Dinesh Gope (A3)assaulted the deceased with Bhujali on the head and other parts. A1, A3, A5 and,a6 beat arid fisted him. The occurrence was witnessed by P. W. 1 to P. W. 4. A fardbeyan (Ext. 4) was given at 9. 00 p,m. on the same day by P. W. 1 to P. W. 10. A crime was registered and investigation was taken up and later after the death of Etwa Oraon the crime was altered to one under Section 3,02 I. P. C p. W. , 10, conducted inquest over the dead body and requested the medical officer to conduct autospy. ( 3 ) ON receipt of the requisition P. W. 8, dr. Ajit Kumar Choudhary, attached to r. M. C. H. Ranchi, conducted autospy and found the following injuries. Abrasion :-1) 8 x c. m over front of chest lower part; 2) 10 x cm. over right flank of chest, 3) 2 x 2 cm pver top of right shoulder, 4) 3 x 1 cm over left scapular region. 5) 4 x cm on the forehead. Abrasion :-1) 8 x c. m over front of chest lower part; 2) 10 x cm. over right flank of chest, 3) 2 x 2 cm pver top of right shoulder, 4) 3 x 1 cm over left scapular region. 5) 4 x cm on the forehead. Incised (Stitched) wound:-1) 5 x cm x soft tissue over lower part, of neck left side, 2) 4 x cm x soft tissue over left chin, 3) 8 x cm x soft tissue over left cheek, 4) 4 x cm x. soft tissue over right occipital region, 5) 3 x cm k bone deep over left side of forehead with chipping of the frontal bone, 6) 5 x cm x bone deep over right occipital region of headstitched wound::-30 cm over left fronto parieto tempro occipital region of head. There is a bony gap of 20 c. m. x 6 c. m. over left fronto parieto tempro occipital bone. There was contusion of whole scalp with left temporal musclet. I1) There is a crack fracture extending frorm the posterior end of the cut fracture running backward joining to the bony gap. 2) There, is presence of subdural blood+blood. clot on both smears of brain. ,he issued (Ext. 3) the postmortem certificate with his opinion that death is on account of head injuries suffered by the deceased and that the said injuries are sufficient in the ordinary course of nature to cause his death. ( 4 ) AFTER the completion of the investigation, the final report was filed and all the accused, denied their complicity, when questioned under Section 313 Cr. P. C, but no witness was examined on their side. ( 5 ) THE learned counsel appearing for the appellant submits that even if the entire facts are taken to be true the act committed by Dinesh Gope, A3, will not attract the penal provision of Section 302 I. P. C. since, even according to the prosecution, the occurrence took place during an altercation at the Panchaiti to which place the deceased was summoned for being questioned by the villagers. It is his further submission that a1, A2, A3, A4, A5, and A6 ought not to have been convicted under Section 302 read with section 34 I. P. C. , as there is nothing to suggest that the above accused shared the common Intention of A3, Dinesh Gope and hence they are entitled for acquittal. On the above contention we have heard Mr. Shekhar sinha, learned counsel appearing for the state. ( 6 ) THE doctor who conducted autospy and the certificate (Ext. 3) issued by him conclusively prove that deceased Etwa oraon died on account of homicidal violence. The prosecution before the trial Court examined 4 witness as P. W. 1 to P. W. 4 to prove that the third accused Dinesh Gope inflicted injuries on the deceased with bhujali and that A1, A2, A5 and A6 beat and fisted him. We have perused the evidence of P. W. 1 to P. W. 4 and their evidence shows that the villagers suspected the deceased to be practising witchcraft and when questioned, the deceased refuted the allegation. According to the witness, a panchaiti was convened on 30-3-1997 and the deceased was summoned to the Panchaiti at 2. 30 p. m. According to the witnesses at the Panchaiti when the deceased was questioned about his conduct of practising witchcraft, he denied, leading to an altercation between the parties. The evidence further shows that during the altercation dinesh Gope beat the deceased with Bhujali and the other accused slapped and fisted him. On going through the evidence, we find no reason to reject the evidence of eyewitnesses. We therefore, accept and hold that the deceased was inflicted with fatal injuries by A2, Dinesh Gope. ( 7 ) THE question, that is to be decided by us, is the nature of the offence committed by A3, and whether Al, A2, A4, A5 and A6 sought the common intention of A3. The facts, extracted above, clearly show that the deceased wass summoned to the Panchaiti, and at the Panchaiti an altercation took place between the parties during which the deceased was inflicted with injuries by A3 with a Bhujali. It, therefore, shows that there was no premeditation on the part of A3 to cause the death of deceased, Etwa Oraon and that he was inflicted with the injuries during an altercation. It, therefore, shows that there was no premeditation on the part of A3 to cause the death of deceased, Etwa Oraon and that he was inflicted with the injuries during an altercation. In the above circumstances we are of the view that the conviction of Dinesh Gope under Section 302 read with Section 34 I. P. C. cannot be maintained and hence we set aside his conviction under the said Section. He is now found guilty under Section 304 Part-I. I. P. C. since the facts show that the deceased was attacked by Dinesh Gope during an altercation at the Panchaiti. On being found guilty under Section 304 (1) I. P. C. we sentence him to undergo 7 years rigorous imprisonment. As regard Al, A2, A4, A5 and a6 we find that even according to the prosecution they have only slapped and fisted the deceased but fatal injuries were not inflicted by any of them and the occurrence had taken place in a Panchaiti and during an altercation, the third accused dinesh Gope inflicted the injury on the deceased without any premeditation. We, therefore, find it difficult to sustain the conviction of Al, Madhusudan @ Masudan gope, A2, Sita Gope, A4, Sochan Oraon, a5, Biriya Oraon and A6, Munna Oraon under section 302 I. P. C. We accordingly set aside their conviction and sentence. In the result the third accused, Dinesh Gope is found guilty under Section 304 Part-I I. P. C. for which he is sentenced to 7 years rigorous imprisonment and others are acquitted of the charges. ( 8 ) IT is reported that A3, Dinesh Gope is in jail; if so and if he has served the sentence of 7 years the same will be given set off. Order accordingly. --- *** --- .