JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. B.M. Choudhury, learned Counsel for the Appellants and also heard Mr. K.A. Mazumdar, learned P.P., Assam. 2. Keeping in view the injuries inflicted on the dead body of Mustin Patwa (hereinafter referred to as 'the deceased') by the four Appellants namely, Jona Bareh (for short 'A-1'), Plisting Sympli (for short, 'A-2'), Wili Suchiang (since dead) and Wantap Mukim (for short 'A-3') as found by PW-10, Dr. K.K. Chakraborty who in his evidence categorically opined that all the injuries being injuries No. 1-6 were simple injuries and the fatal injury i.e. Injury No. 6, might be caused by a hard substance or can be caused by boulder or blunt object, the question that needs to be decided in the criminal appeal herein is as to whether the conviction of all those Appellants awarded under Sections 302/34, IPC was justified. 3. It was alleged in the FIR lodged by PW-1 Merenal Shadap with the Barkhola Police Station on 10.8.1998 that while on 9.8.1998 around 7 p.m. he along with his younger sister's husband Jastin Patwat, the deceased, were coming from Bandarkhal to Durgacherra Punji boarding a truck (AS 11-5700), having reached near Debinala Punji, the accused Wili Suchiang (since deceased) and A-1 detained the deceased and the A-2 and A-3 respectively detained the informant PW-1, Merenal Shadap inside the truck and started questioning them in connection with a former suit of landed property. They also started beating them right and left and after a scuffle they threw them beside the road from the truck. Both Wili Suchiang (since deceased) and A-1 jumped on the deceased and killed him thereby. Meanwhile, he managed to escape from the grab of A-2 and A-3. As a result of such assault, PW-1 sustained injury below his left eye. Thereafter, he went to Durgacherra Punji and gave the information there. When the people from Punji went to the place of occurrence, they found the deceased lying dead. It was mentioned in the FIR that Appellants/accused persons were coming in the said truck from Bandarkhal. 4. As a result of such assault, PW-1 sustained injury below his left eye. Thereafter, he went to Durgacherra Punji and gave the information there. When the people from Punji went to the place of occurrence, they found the deceased lying dead. It was mentioned in the FIR that Appellants/accused persons were coming in the said truck from Bandarkhal. 4. During the course of trial, amongst 11 witnesses projected by the prosecution, PW-1 Merenal Shadap and PW-8 Mona Munda were examined as eye-witnesses and the Court, upon hearing the learned Counsel for the parties and on appreciation of the materials available on record, was of the view that all these Appellants were involved in killing of the deceased and accordingly, convicted under Section 302, IPC read with Section 34, IPC and sentenced each of them to undergo imprisonment for life (for short 'RI') and to pay a fine of Rs.2,000/- each, in default, to undergo RI for another six months each. 5. The doctor PW-10 found the following injuries on the dead body of the deceased: Injuries: (1) Lacerated injury on the right side from the upper portion medical side to the right leg up to ankle medially where muscle exposed and margins irregular. (2) Lacerated injury right ear 2 x 1 cm x whole thickness. (3) Contusion right side of face 6 x 4 cm. (4) Abrasion right elbow in back 2 x 1 cm. (5) Contusion left forearm upper half 3 x 2 cm. (6) Lacerated injury in back of head in occipital are 3 x 1 cm x scalp deep. In his opinion, the doctor PW-10 stated as under: Injury No. 6 can be caused by assault with boulder being a blunt object and such assault may cause injury in the brain as described in the post mortem report. However, in cross, he emphatically testified as under: Injury Nos. 1 to 6 are simple injuries and injury No. 6 may be caused by fall on a hard substance. 6. Coming to the testimony of eyewitnesses PW-1 and PW-8, it is seen that PW-1, being the injured in the said incident at the hands of the Appellants and eye-witness categorically stated that A-1 gave a boulder blow on the deceased and accordingly, he sustained bleeding injury. 6. Coming to the testimony of eyewitnesses PW-1 and PW-8, it is seen that PW-1, being the injured in the said incident at the hands of the Appellants and eye-witness categorically stated that A-1 gave a boulder blow on the deceased and accordingly, he sustained bleeding injury. On the other hand, PW-8 whom the prosecution claimed to be an another eye-witness, depicting a different story deposed in his evidence that on the day of occurrence he was working as handyman of the truck. The truck was driven by one Bidhan Ch. Deb. When they reached Bandar khal forest check post, the truck was being checked by the forest personnel. When the vehicle was moving, four persons got on board of the truck who were all the Khasi people. Two of them sat inside the cabin and another two on the body. After about 15-20 minutes, 2 Khasi people who sat inside the cabin got out of the cabin and occupied the body of the truck along with other two Khasi people. The two persons who sat inside the cabin were known to him. After sometime there was a hue and cry on the body of the truck. This witness admitted that there were two other persons on the body, one was the deceased and the name of the other wag not known to him. After sometime the people on the body of the truck signalled for stopping the vehicle. The vehicle was stopped by the driver. Then one from the body of the truck came down and entered the cabin and asked them to drive the vehicle as fast as possible. Thereafter, A-1 asked them to stop the vehicle again and tried to search out the person who took shelter inside the cabin. The Khasi people on the body of the truck got down from the truck and fled away. In cross this witness disclosed that at that time the people were drunk and the vehicle was fully loaded with boulders. All these people were sitting on the boulders. After proceeding some way, some of the passengers gave a signal to stop the vehicle. When the vehicle was stopped all the passengers got down from the vehicle. But they did not see Jastin. The Khasi people on board searched for the deceased but he was not available. All these people were sitting on the boulders. After proceeding some way, some of the passengers gave a signal to stop the vehicle. When the vehicle was stopped all the passengers got down from the vehicle. But they did not see Jastin. The Khasi people on board searched for the deceased but he was not available. On the following day while they were going back they did not see the dead body, as it was lying in the gorge. At the same time PW-5 Ratanial Nunia, an independent witness, a labour of the truck, deposed that while they were travelling on the board of the truck loaded with boulders at the relevant time, the same was stopped at Bandarkhal to enable them to take tea. PW-8 was also with them. After taking tea, they again started for Bijoypur and at that time 2 Khasi people boarded on the truck and sat inside the body, another 3 Khasi persons boarded on the truck on the way. One sat in the cabin and two in the body. The persons who sat in the cabin came out and went to the body of the truck. At the time, they heard hulla and the driver stopped it. Out of the aforesaid five persons, one of them came out to the driver and requested him to save him. The driver then kept him concealed beneath his legs. Thereafter, A-1 and A-3 searched the whereabout of the other Khasi who concealed beneath the legs of the driver. The driver told them that there was no Khasi persons inside the truck. After departure of the two persons the driver started the vehicle and while the truck reached Durgacherra the other Khasi who concealed in the cabin alighted from the truck. On the following day he came to know that one Khasi person was murdered. 7. Having carefully gone through the entire testimony of all the witnesses, we do not find any convincing or clinching materials to rope in the Appellants for the offence of committing murder of the deceased except PW-1 who while deposing in cross-examination said that it was the A-1 who gave a boulder blow on the deceased and those injuries, being injury No. 6, as opined by the doctor, might have caused death. Nonetheless, this injury also said to be simple injury as per doctor's evidence. 8. Nonetheless, this injury also said to be simple injury as per doctor's evidence. 8. That being the position, we do not find any relevant materials from the evidence of those witnesses to inspire confidence pertaining to involvement of A-2 and A-3 except A-1. According to us, A-2 and A-3 are entitled to get the benefit of doubt. 9. Insofar as the evidence of PW-1 is concerned, no other witnesses did name him in the involvement of the crime to attract his conviction under Section 302, IPC. The testimony of the eye-witnesses PW-1 and PW-8, in our firm opinion, is not cogent, truthful and trustworthy. Even the evidence of other remaining witnesses, namely PW-2, PW-3, PW-4, PW-5, PW-6 and PW-7 is not indicative of having any sufficient materials to implicate A-1 in the offence charged. 10. That being so, we are of the considered view that the conviction of A-1 under Section 302, IPC cannot be sustained. At best, it may be a case under Section 304 Part II, IPC. However, it was pointed out that there was no such intention or knowledge that such injury) would likely to cause death to the deceased on being inflicted by A-1. From the close scrutiny of the evidence, it appears that there was a scuffle amongst those passengers who were travelling in the truck loaded with boulders. Keeping in view of the facts and circumstances of the case in its totality, accordingly, we set aside the conviction of the Appellant, A-1 under Section 302, IPC and instead convict A-1 under Section 304 Part II, IPC. 11. At this stage, Mr. B.M. Choudhury, learned Counsel for the Appellant has submitted that by this time A-1 has served out the sentence for more than 5 years 11 months and as such A-1 may be sentenced to the period already undergone. 12. After perusal of the record and also upon hearing the learned Counsel for the Appellant, we find enough force in the submission of Mr. Choudhury and accordingly, we are of the view that ends of justice would be satisfied, if the A-1 is sentenced to the period already undergone. It is ordered accordingly. 13. A-2 and A-3 are also acquitted by giving them benefit of doubt. The other Appellant Wili Suchiang is reported to be already dead. 14. Choudhury and accordingly, we are of the view that ends of justice would be satisfied, if the A-1 is sentenced to the period already undergone. It is ordered accordingly. 13. A-2 and A-3 are also acquitted by giving them benefit of doubt. The other Appellant Wili Suchiang is reported to be already dead. 14. All these Appellants A-1, A-2 and A-3 be released forthwith, if they are not required in any other case. 15. In the result, appeal stands partly allowed to the extent of modification of conviction and sentence as already indicated above. 16. Send down the LCR forthwith. Appeal allowed.