JUDGMENT R.R. Prasad, J. 1. All the four appellants, namely, Bechan Manjhi, Brinda Mandal, Bhero Rana and Anil Manjhi were put on trial to face charges under Sections 302, 376(2)(g)/511 read with Section 34 of the Indian Penal Code on the allegations that they first made attempt to commit rape upon Pratima Kumari the deceased and then committed murder of her in furtherance of their common intention. However, the trial court found the appellants guilty under Sections 376(2)(g)/511 of the Indian Penal Code and also under Section 304 part I read with Section 34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years on each count and the sentences were ordered to be run concurrently. 2. The case of the prosecution is that on 11.3.1999 at about 2 P.M. Sukhi Devi, the informant (P.W.3) was having meal along with her daughters, namely, Jermani Devi, Rabina Devi and Pratima Kumari, aged about 13 years. Pratima Kumari finished her meal first and then went away. When she did not return home, Sukhi Devi set out in search of her along with her daughters and in course of search, when they came about one kilometer away they saw Pratima Kumari lying on the ground unconsciously at a lonely place and they also saw blood coming out from near both her eyes and when Sukhi Devi sprinkled water over her face, she started screaming and weeping, as a result of which several villagers assembled over there and they also noticed under pant of Pratima Kumari lying over there and also saw a piece of plough stained with blood. Thereafter, Sukhi Devi with the help of villagers brought her daughter home where Pratima Kumari died. It was suspected by the informant that some body must have attempted to commit rape upon her and when they failed in their attempt, they committed murder by assaulting with a piece of plough. Thereafter Sukhi Devi (P.W.3) gave her Fardbeyan (Ext.3) at her village which was recorded by one B.D. Mishra, the then Sub-Inspector of Police of Ramgarh Police Station on 11.3.1999 at about 8.30 P.M. On the basis of said Fardbeyan, a case was registered and the matter was taken for investigation by the said B.D. Mishra (P.W.11). On the same day he prepared production-cum-seizure list (Ext. On the same day he prepared production-cum-seizure list (Ext. 5) when underpant of the deceased as well as said piece of plough was produced before him and on the next day, i.e, 12.3.1999 he made inquest on the dead body of the deceased (Pratima Kumari) and prepared Inquest Report (Ext.6). I hereafter dead body was sent for post mortem examination. Dr. Sitaram Sah, (P.W.10) Civil Assistant Surgeon, Sadar Hospital, Dumka did autopsy on the dead body of the deceased and found the following anti mortem injuries. Whole of the scalp including forehead and upper eye lids were found swollen and bluish. In dissection - muscle and subcutaneous tissues of scalp and forehead were found ecchymosed. On further dissection parietal and temporal bones of both sides were found fractured. No other injury either external or internal was found present on the body including on the private parts. Doctor issued post mortem examination report (Ext.2) with an opinion that death occurred due to shock and haemorrhage on account of injury mentioned above which was sufficient to cause death in ordinary course of nature. 3. It is also the case of the prosecution that when Parmeshwar Manjhi (P.W.6), who at the relevant time was surpanch of the village came to know that the appellants have committed crime, he as well as Hari Prasad Manjhi (P.W.7) the then Pradhan of the village convened a meeting on 17.3.1999 which was attended by Shingsheshwari Manjhi (P.W.9), Nishi Kant Mandal (not examined), Chitlal Rana (not examined), Bengali Manjhi (not examined), Ghanshyam Mandal (not examined), Maheshwary Devi (P.W.8) and the accused persons were called in a Panchayati, who came and confessed their guilt before them in specific terms that while they were returning after taking bath they saw Pratima Kumari going towards a drain (nala) after easing herself for washing and then they finding her alone caught hold of Pratima Kumari but she started raising alarm which make them enraged and, therefore, they slapped her and in the meantime, the appellant Anil Manjhi assaulted with a piece of plough on the head of Pratima Kumari, as a result of which blood started coming out and then they fled away. The confession made by appellants was reduced to writing by Nishikant Mandal (not examined) and each of the appellants either put his signature or LTI. The confession made by appellants was reduced to writing by Nishikant Mandal (not examined) and each of the appellants either put his signature or LTI. P.Ws.6, 7 as well as other persons, namely, Maheshwary Devi (P.W.8), Singsheshwari Manjhi (P.W.9) and other persons who had participated in the panchayati also put signature on the said written confession made by the appellants. The confession made by the appellants which was reduced in writing has been adduced in evidence as Ext.1. The said document had been handed over to the Investigating Officer at the police station. 4. After completion of investigation police submitted charge sheet against the appellants and, accordingly, cognizance of the offence was taken and in due course, when the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. 5. In course of trial, the prosecution examined as many as 11 witnesses. Of them Sukhi Devi, Mother of the deceased has been examined as P.W.3 whereas Parmeshwar Manjhi, Surpanch and Hari Prasad Manjhi, Pradhan of the village were examined as P.Ws.6 and 7 respectively. P.W.8 Makeshwary Devi and. P.W.9 Shingheshwari Manjhi, who had put their signatures on the written confession made by appellants in a Panchayati have been declared hostile as according to them, their signatures were taken at the police station. B.D. Mishra, Investigating Officer has been examined as P.W.11 Rest of the witnesses, i.e, Fulchand Mandal P.W.1, Upendra Mandal P.W.2, Karia Mandal, P.W.4 have been declared hostile. 6. After closure of the prosecution case the appellants were questioned under Section 313 of the Code of Criminal Procedure about the incriminating evidences appearing against them to which they denied. 7. The appellants also examined three defence witnesses in support of their case and according to them, the appellants have been taken to the police station and that they have not made any confession. 8. The trial court having placed implicit reliance upon the testimonies of P.Ws. 6 and 7 as well as extra judicial confession made by appellants under Ext.1 did find the appellants guilty for an offence under Section 376/511 of the Indian Penal Code and also under Section 304 part I read with Section 34 of the Indian Penal Code and accordingly convicted and sentenced them as aforesaid. 9. 6 and 7 as well as extra judicial confession made by appellants under Ext.1 did find the appellants guilty for an offence under Section 376/511 of the Indian Penal Code and also under Section 304 part I read with Section 34 of the Indian Penal Code and accordingly convicted and sentenced them as aforesaid. 9. Being aggrieved with the judgment of conviction and order of sentence, the appellants have preferred this appeal. 10. Learned Counsel appearing for the appellants submits that this is a case where the court below only on the basis of extra judicial confession made by the appellants recorded the order of conviction and sentence, though extra judicial confession does not appear to have been made voluntarily as the same appears to have been recorded at the instance of the police and that too in presence of the police semblance of which gets from the testimony of P.W.7 who has stated that it was Darogajee who had asked the villagers to hold panchayati and to bring and submit the paper before him. Further assertion of the defence gets buttressed from the evidence of P.W.6. According to him, the appellants made confession which was reduced in writing and then it was brought to the police station where the appellants were present in the police station and this fact further finds support from the evidence of P.Ws.8 and 9 though they have been declared hostile, but according to them, they were asked to put signature on the alleged extra judicial confession recorded in writing at the police station and, therefore, extra judicial confession becomes a suspicious document and in that event the court below should not have relied upon it but the trial court by putting implicit reliance on the said Ext.1 has certainly committed illegality and accordingly, the order of conviction and sentence is fit to be set aside. 11. Learned Counsel appearing for the appellants further submits that according to evidence of P.W.6 he came to know about the occurrence on 12.3.1999 itself then there was no reason on his part to hold the said information and not to give said information to the police and then comes forward with a version that the appellants confessed their guilt on 17.3.1999 which also appears to be suspicious. 12. Heard learned Counsel appearing for the State. 13. 12. Heard learned Counsel appearing for the State. 13. Having heard learned Counsel for the parties and on perusal of the record I do find that entire case is based on extra judicial confession said to have been made by appellants before P.Ws.6 and 7 and other witnesses which was reduced in writing (Ext.1) by Nishikant Mandal. According to P.W.6 Parmeshwar Manjhi, the Surpanch and P.W.7 Hari Prasad Manjhi, village Pradhan, a panchayati was convened when they came to know about the culpability of the appellants which was attended by so many persons including P.Ws.8 and 9 who did not support the case of the prosecution. In the said panchayati all the appellants confessed before them that when they were returning after taking bath they saw Pratima Kumar (the deceased) going towards a drain (nala) after easing herself for washing then they finding her in loneliness caught hold of her but she started raising alarm which enraged them and therefore they slapped her and in the meantime. Anil Munjhi (appellant) gave a blow by piece of plough on her head causing bleeding injury and then they fled away. Nothing seems to have been elicited either from P.W.6 or P.W.7 that they or any other person who had attended the panchayati put any kind of pressure, duress or threat upon the appellants to make confession as has been recorded in Ext.1. However, it has been argued by referring evidence of P.W.7 that the said confession has been recorded at the instance of police. Of course I do find from the evidence of P.W.7 that the police had asked the villagers to hold panchayati but that never means that the police had asked the villagers to make the appellants to confess their guilt. Moreover, no suggestion to this effect has given either to P.W.6 or P.W.7 or even to the Investigating Officer. Therefore, simply because police asked the villagers to hold panchayati it cannot be taken that extra judicial confession made before the witnesses by the appellants becomes suspicious document. Moreover, no suggestion to this effect has given either to P.W.6 or P.W.7 or even to the Investigating Officer. Therefore, simply because police asked the villagers to hold panchayati it cannot be taken that extra judicial confession made before the witnesses by the appellants becomes suspicious document. Moreover as has been pointed out by learned Counsel that P.W.6 came to know about the culpability of the appellants on 12.3.1999 then in that event it appears to be quite reasonable on the part of P.Ws.6 and 7 to hold panchayati and to call the appellants, so that they may put forth their explanations for removing the suspicion which the villagers might have been carrying on account of the fact that the appellants were absconding from the village since the date of occurrence. So far other submission regarding confession being recorded at the police station is concerned that is only to be noticed for its rejection. It has been stated by P.Ws.6 and7 that the panchayati was convened where appellants were called who candidly confessed about their act committed. However, credibility of these witnesses are being challenged on the ground that when as per evidence of P.W.6 and the appellants made confession before them it was reduced in writing and then they proceeded to police station for handing over it to the police but at the same time P.W.6 in the cross-examination discloses that appellants were present in the police station from before. This statement of P.W.6 regarding presence of the accused persons at the police station before he and other witnesses reached over there after recording confession does not belies the factum of confession made by the appellants at the panchayati. From the reading of the testimonies of P.Ws.6 and 7 it appears to me that after the confession was made it was recorded by Nishikant Mandal (Dalpati) and some time may have been consumed in getting the signature of persons who had attended the panchayati, but in the meantime accused persons might have been taken to the police station by other persons than P.Ws.6 and 7 which fact somewhat gets confirmed from the testimony of defence witness No. 3 who has disclosed that Dalpati and Chaukidar had come to call the accused persons. This fact also demolishes the case of the defence that extra judicial confession was recorded at the police station. This fact also demolishes the case of the defence that extra judicial confession was recorded at the police station. Thus, it is evidently clear that extra judicial confession made before P.W.s 6 and 7 reduced in writing is free from suspicious circumstances. - Moreover, the witnesses from whose mouth factum of extra judicial confession has come does not appear to be biased and not even remotely inimical to accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to accused. The words spoken to by the appellants as recorded under Ext.1 are clear unambiguous and unmistakably conveyed that the appellants are preparators of the crime and nothing seems to have been omitted by P.Ws.6 and 7 which may mitigate against it. Thus the testimonies of P.Ws.6 and 7 regarding accused making extra judicial confession reduced in writing under Ext.1 are quite trustworthy. 14. Now the question arises as to what offences did the appellants committed if the entire confession nude by the appellants are taken to be true. I have already noticed that as per the confession made by the appellants when they saw Pratima Kumari in loneliness caught hold of her with ill motive to which deceased started raising alarm and then they slapped her and in the meantime under pant of the deceased came down. This confession never suggest that there was some action on the part of the appellants showing that they were just going to have sexual connection with the deceased. It may be mentioned that in order to constitute rape even the slightest penetration is sufficient for constituting an offence under Section 376 of the Indian Penal code. In the instant case according to confession made by the accused, no attempt whatsoever was made by them to commit rape. Therefore, conviction recorded under Section 376/511 is wholly illegal and unsustainable but in view of the fact that the appellants with an ill motive did catch hold of the deceased sufficiently constitute an offence under Section 354 of the Indian Penal Code. Consequently even in absence of specific charge there would be no difficulty, keeping in view the provision made under Section 222 of the Code of Criminal Procedure, to record the conviction under Section 354 of the Indian Penal Code against the appellants. Consequently even in absence of specific charge there would be no difficulty, keeping in view the provision made under Section 222 of the Code of Criminal Procedure, to record the conviction under Section 354 of the Indian Penal Code against the appellants. Further I do find that appellants were convicted under Section 304 part I read with Section 34 of the Indian Penal Code. It be remembered that part I of Section 304 applies where the accused causes bodily injury with intention to cause death or with intention to cause such bodily injury as is likely to cause death, but in the fact of the present case when the confession made by the appellants as recorded under Ext.1 is taken into consideration, there does not appear to have had any intention on the part of the appellants of causing death of the deceased as according to appellants when they caught hold of the deceased on finding her alone, they with ill motive caught hold of her but she started raising alarm which make them enraged and they assaulted with fist and slap and one of the appellants Anil Manjhi gave blow on the head of the deceased with plough resulting into her dearth. It gives sufficient indication that when the deceased started raising alarm the appellants possibly to make the deceased to be silent assaulted with slap and then one of them gave blow with plough. This fact never goes to show that appellants had had any intention to cause bodily injury for causing death rather appellants did assault with a view that the deceased may not raise alarm. In that event it appears that death was caused on account of hitting on the head through plough by one of the appellants with knowledge that it is likely to cause death. Therefore case falls under Section 304 Part II of the Indian Penal Code and not under Section 304 Part I of the Indian Penal Code. Hence, order of conviction and sentence under Section 304 Part I is bad and illegal. Therefore case falls under Section 304 Part II of the Indian Penal Code and not under Section 304 Part I of the Indian Penal Code. Hence, order of conviction and sentence under Section 304 Part I is bad and illegal. It be noticed that it is a case of the prosecution that only one of the appellants, namely, Anil Manjhi hit on the head with a plough resulting into her death but in the facts and circumstances there would be applicability of Section 34 of the Indian Penal Code even the case falls under Section 304 part II of the Indian Penal Code as all the appellants were sharing common intention to a criminal act, i.e, act of beating. Thus all the appellants are guilty for the offence under Section 304 Part II read with Section 34 of the Indian Penal Code. 15. Having come to the conclusion that appellants are guilty for an offence under Section 304 Part II read with Section 34 of the Indian Penal Code and Section 354 of the Indian Penal Code and regard being had to the facts and circumstances ends of justice would be met if each of the appellants are sentenced to undergo rigorous imprisonment for two years under Section 354 of the Indian Penal Code and five years under Section 304 part II read with Section 34 of the Indian Penal Code. Accordingly, each of them are sentenced; both the sentences shall run concurrently. 16. With the aforesaid modification in the order of conviction and sentence, this appeal is allowed in part.