Judgment : ( 1 ) SOLE appellant Ganesh bajpai stands convicted for the offence punishable under section 304-Part II of the Indian Penal Code and sentenced to serve rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default thereof to further undergo rigorous imprisonment for two months, by the 3rd Additional Sessions judge, Deoghar in Sessions Case No. 203 of 1997. ( 2 ) BRIEF facts leading to this appeal are that in the afternoon of 7-9-1997, informant mahgu Poddar was tending she-goats near purnadih village when the appellant arrived there and abusing him why he was tending the cattle of Chaitanya Manjh. Further stated, the appellant started assaulting him with lathi in his hand on which the deceased panchu Rai of village Jitjore objected. Thereafter the appellant started assaulting panchu Rai and dragged him towards the field. Many of the persons working in the field chased the appellant on which he fled away leaving deceased Panchu Rai in injured condition. When the deceased was being treated, he breathed his last. Therefore, a case under Section 302 of the Indian Penal code was registered against the appellant vide Jasidih Police Station Case No. 104 of 1997. ( 3 ) THE police investigated the case, sent the dead body for post-mortem examination and finally submitted charge-sheet against the appellant. The case of the appellant was committed to the Court of Sessions for trial where the charge was framed against him on 17-4-1998. The appellant pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses found and held him guilty under Section 304 Part-II of the Indian Penal Code and sentenced him to serve rigorous imprisonment for five years. ( 4 ) THE present appeal has been preferred on the grounds that the learned trial Court has failed to consider the facts that there was no eyewitness of the occurrence. It is also asserted that the post-mortem report does not show any injury sufficient to cause death in ordinary course of nature. It is also submitted that probable witnesses have not been examined by the prosecution and on the basis of interested witnesses, conviction was made. ( 5 ) MR. It is also asserted that the post-mortem report does not show any injury sufficient to cause death in ordinary course of nature. It is also submitted that probable witnesses have not been examined by the prosecution and on the basis of interested witnesses, conviction was made. ( 5 ) MR. Sumeshwar Roy, learned Amicus curiae, appearing on behalf of the appellant has pointed out that there are material contradictions in the statements of P. W. 5 and P. W. 6 going to the very basis of the conviction. It was also pointed out that even if the informant is believed, the intention was just to cause simple hurt upon the deceased. Therefore, the appellant having remained in custody for more than two years deserves to be acquitted of the charge. ( 6 ) LEARNED A. P. P. for the State opposed these contentions and submitted that the conviction of the appellant was based upon valid evidence and the sentence was lenient. ( 7 ) I have gone through the materials on record to consider the submissions made on behalf of the appellant. The first information report was lodged on the fardbeyan of p. W. 5, which according to fardbeyan as recorded at 21. 30 hours on 7-9-1997, the incident was reported to have occurred at 17. 30 hours, same evening. However, the inquest report appears to have been prepared and dead body sent for post-mortem examination to Sadar Hospital and post-mortem conducted on 8-9-1997. The prosecution has examined altogether seven witnesses including doctor. P. W. 1 Thikari Mahto, P. W. 3 Hira Nand Bajpai and P. W. 4 Vijay Bajpai have been declared hostile, as they did not support the prosecution case. P. W. 2 mansoor Alam, asserted that he saw the appellant assaulting the deceased with the handle of axe. He admitted in cross-examination that he was resident of another village and he could see the occurrence from a distance of half kilometer. P. W. 5. the informant, asserted that he was assaulted by the appellant and when deceased objected, the appellant hold the deceased with his towel and dragged him towards village Purnadih. He asserted that when he went to police station to lodge the first information report, he saw the dead body of Panchu Ra. The said chaitanya Panda has not been examined by the prosecution though he is a witness on the fardbeyan. He asserted that when he went to police station to lodge the first information report, he saw the dead body of Panchu Ra. The said chaitanya Panda has not been examined by the prosecution though he is a witness on the fardbeyan. He has admitted in cross-examination that as soon as he could rescue himself he left for the house of his employer Chaitanya Panda situated in village purnadih from where he was brought to police station. According to him, Bangali Rai, gango Pandit and Ketakaha Mandal stated before him that the appellant has assaulted the deceased. Therefore, he does not claim to be eyewitness of the actual olfence causing death of Panchu Rai by the appellant. P. W. 6 is Ketkaha Mandal, who asserted that when he was going with rice on his bicycle, the daughter-in-law of the deceased informed him that the appellant was assaulting her father-in-law. He saw the occurrence and then left. This witness has admitted in cross-examination that he has been in jail for fifteen days for alleged theft of electric wire. According to him. when he requested the appellant to leave the deceased he left and went away but he did not raise any alarm nor informed anyone of the village regarding the incident. P. W. 7 is Dr. Ratan kumar, who found swelling and fracture of humerus with fracture of radius bone and one lacerated wound on scalp as well as swelling of scrotum with hametona on both sides. He has further opined that death has occurred within 48. 00 hours from the time of postmortem examination. ( 8 ) HAVING gone through the materials on record, I find that there is no eyewitness of the occurrence except that the appellant started assaulting the deceased with the handle of axe. The injuries found on the dead body vide Ext. 2 and proved by P. W. 7 does not show that such injuries may be caused with the handle of axe, fracture of humerus and radius bone etc. The other injuries found on the dead body are also not consistent with the ocular evidence that the deceased was being assaulted by the handle of axe on the portion. The post-mortem report further mentions that the death may have occurred within 48 00 hours. The other injuries found on the dead body are also not consistent with the ocular evidence that the deceased was being assaulted by the handle of axe on the portion. The post-mortem report further mentions that the death may have occurred within 48 00 hours. As the post-mortem examination was held in the afternoon of 8-9-1997 the death might have caused anytime from the afternoon of 6-9-1997 to morning of 7-9-1997. This also is not supported by prosecution version. The lodging of the first information report by the injured in the night at about 9. 30 P. M. further is not explained particularly in the facts that other witnesses, P. W. 6, have also seen the occurrence and brought the deceased for his treatment. There is no evidence on record where the deceased was brought for his treatment prior to his dead body being brought in the police station. ( 9 ) HAVING considered the facts and circumstances stated above, I find and hold that the prosecution has not been able to prove beyond reasonable doubts that deceased panchu Rai died due to assault made by this appellant in the manner alleged in the evening of 7-9-1997. Accordingly, I find that the present appeal has got merit and deserves to be allowed ( 10 ) IN the result, the present appeal is allowed and the judgment of the trial Court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and he is discharged from the liability of his bail bond. Appeal allowed. --- *** --- .