NAVANITI PRASAD SINGH, J.:–The sole appellant has preferred this appeal from the judgment of conviction dated 17.08.1991 and order of sentence dated 19.08.1991 passed by the 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 304 of 1985, by which he has been convicted under Section 302 of the Indian Penal Code (for short `I.P.C.’) and sentenced to undergo imprisonment for life for committing the murder of deceased Bachelal Jaiswal. 2. When the appeal was taken up for final hearing, Shri Tarkeshwar Prasad Verma, learned counsel, through whom appeal had been filed, stated at the Bar that the appeal was filed through the office of Shri Suraj Narayan Sinha, Sr. Advocate, whose office has reported that the client has already taken away the entire brief and papers almost 20 years back. However, as the appeal was filed through him, he has assisted the Court. We have heard learned counsel for the appellant, and learned A.P.P. for the State and also perused the records. 3. The prosecution case is based upon the fardbeyan of one Ram Narain Singh (P.W.2), which was recorded at Bose Hospital, Dehri-on-sone at about 5.40 pm on 16.06.1984. Ram Narain Singh (P.W.2) alleges that at about 3.30 pm on the same day i.e. 16.06.1984 when he, the deceased and others were sitting, the appellant Ramdeo Singh Yadav came on a cycle and stopped there and started having heated discussion with the deceased Bachelal Jaiswal over some money matter. Within minutes discussion got out of hand and the appellant picked up a wooden log measuring about 6’x6”x2” and struck Bachelal Jaiswal on the front of his face and nose, as a result of which the latter fell down and then he struck him again on his chest and ran away. Finding Bachelal Jaiswal unconscious, informant and others i.e. Bijay Kumar Kashyap (P.W.3), and Mahadeo Sharma (P.W.5), put him on a rickshaw and carried him to Bose Hospital, where he was under the treatment and was unconscious. Upon this fardbeyan being recorded, which was written by Anirudh Rai (P.W.11), a formal case was registered under sections 325/307 of the I.P.C. By 7.30 pm on the same day, Bachelal Jaiswal died in the Hospital. Police having been informed next morning, inquest having been prepared, the dead body was sent for post-mortem examination. Upon this fardbeyan being recorded, which was written by Anirudh Rai (P.W.11), a formal case was registered under sections 325/307 of the I.P.C. By 7.30 pm on the same day, Bachelal Jaiswal died in the Hospital. Police having been informed next morning, inquest having been prepared, the dead body was sent for post-mortem examination. Post-mortem report having been received and investigation having been completed, charge-sheet was submitted under section 302 of the I.P.C. and the appellant was sent up for trial. Cognizance having been taken, trial was committed to the court of session. Charge having been framed and the appellant having pleaded not guilty, he was tried, convicted and sentenced as stated above. Hence, this appeal. 4. In order to establish its case, the prosecution has examined eleven witnesses and exhibited eleven documents, which include signature of P.W. 2 Ram Narain Singh (informant) on the fardbeyan, F.I.R., inquest report, post-mortem report, Hospital O.D. slip and treatment chart. Let it be noted that though the fardbeyan has not been formally marked as exhibit, but it has been affirmed and corroborated by the informant. P.W. 2 Ram Narain Singh in his deposition has proved his signature on the fardbeyan as well and its scribe P.W. 11 Aniruidh Rai has also accepted having written the same and signed the same. Thus, for all practical purposes, fardbeyan is a part of valid evidence. 5. Ram Narain Singh (P.W.2) is the informant. Bijay Kumar Kashyap (P.W.3) is a neighbour and his name is mentioned in the F.I.R. as a witness. P.W.4 is Wakil Singh, who is a seizure list witness in respect of seizure of the wooden log, which was allegedly used by the appellant to hit the deceased. P.W. 5 Mahadeo Sharma is again mentioned as an eye witness in the F.I.R. being a neighbour, but he has been declared hostile. P.W. 6 is Dr. Naresh Prasad Rai, who conducted the post-mortem examination and submitted the post-mortem report. P.W. 7 is Dr. Sunil Kumar Bose, who runs the Bose Hospital. He has been examined with regard to admission of the deceased for treatment and to prove the treatment chart etc. P.W. 8 is Shyama Devi, the widow of the deceased. She is not a witness named in the F.I.R. and as such she has been examined as a formal witness. P.W. 1 Krishna Prasad Jaiswal is brother-in-law of the deceased. He has been examined with regard to admission of the deceased for treatment and to prove the treatment chart etc. P.W. 8 is Shyama Devi, the widow of the deceased. She is not a witness named in the F.I.R. and as such she has been examined as a formal witness. P.W. 1 Krishna Prasad Jaiswal is brother-in-law of the deceased. He is also not a witness to the first information report. P.W. 9 Ram Narain Mahto is the Malkhana Incharge, where wooden log is supposed to have been deposited. He is a formal witness otherwise. P.W. 10 is Raj Kumar Singh. He is the Sub-Inspector of Police, who submitted the charge-sheet after concluding the investigation. P.W. 11 Anirudh Rai is the Investigating Officer and the person, who recorded the fardbeyan. 6. Prosecution case starts with the fardbeyan, in which P.W.2 has stated that he, the deceased and the appellant were living in a room side by side near G.T. Road. On the fateful day, the appellant came on a cycle, stopped in front of the room of the deceased and the appellant and the deceased entered into heated argument with regard to payment of some money. The argument went out of hand and suddenly the appellant took up a wooden log lying there measuring 6’x6”x2” and struck the deceased in front of his face and nose. The deceased fell down. The appellant then struck him on the chest and ran away. It was stated that the dispute was probably because of the appellant had borrowed some money from deceased and the deceased was demanding return thereof. P.W. 2 has been examined in court. He supports the fact that he had given the fardbeyan, which is correct. He further states that he and others i.e. P.w. 3 Bijay Kumar Kashyap and P.W.5 Mahadeo Sharma then carried the deceased, who was unconscious, to the Hospital of Dr. Bose, where upon being informed, the Police had come and recorded his statement, which is the fardbeyan. Thereafter, at about 7.30 pm on the same day, the deceased Bachelal Jaiswal died. He states that when the fardbeyan was recorded and the case was registered, the Police came and seized the wooden log as well. In his cross-examination, he has admitted that all the three i.e. the appellant, the deceased and the informant were living in neighboring rooms as tenants. He states that when the fardbeyan was recorded and the case was registered, the Police came and seized the wooden log as well. In his cross-examination, he has admitted that all the three i.e. the appellant, the deceased and the informant were living in neighboring rooms as tenants. They were in the business of hiring of trucks. In his cross-examination, he states that appellant Ramdeo Singh Yadav was there from before. He also admits that there was heated discussion between the appellant Ramdeo Singh Yadav and the deceased for five minutes, whereafter, the former struck the latter. He states that when the deceased fell down unconscious after being struck on his face and chest, he had bled through his nose. He then admits that lot of people assembled seeing the incident and he had told about the incident to Krishna Prasad Jaiswal (P.W.1), the brother-in-law of the deceased later. He denies any relationship with the deceased. He denies specific suggestion that the deceased actually met with an accident having been struck by a truck. 7. We would then consider the evidence of other two so-called eye witnesses. The first one is P.W. 3 Bijay Kumar Kashyap, who is said to be a neighbour and appears to be a mere chance witness. He states that he lives in the admitted neighborhood and sells eatable on his Thela. He goes in the morning and comes back late in the evening. On that day, he was not far of the site selling Chana, when he saw the appellant having come and assaulted the deceased, who fell unconscious. The deceased was then taken to the Hospital, where he later died. He admits in his cross-examination that there is a Hospital of Dr. R. D. Singh, which is hardly 70-80 yards from the place of occurrence. In paragraph 18 of his cross-examination, he admits that the treatment was done at the Hospital of Dr. Bose, but denies having knowledge about any injury report or treatment chart prepared there. This is of some significance; inasmuch as both injury report and the treatment chart have been brought in evidence. 8. We then have P.W. 5 Mahadeo Sharma, whose name is again mentioned in the F.I.R. itself as an eye witness, but he is declared hostile because before the Court he states that he had not seen anything and, thus, does not support the prosecution case. 8. We then have P.W. 5 Mahadeo Sharma, whose name is again mentioned in the F.I.R. itself as an eye witness, but he is declared hostile because before the Court he states that he had not seen anything and, thus, does not support the prosecution case. These are the three witnesses to the occurrence. 9. Now, we may as well discuss the evidence of P.W. 1 Krishna Prasad Jaiswal, who is brother-in-law of the deceased. He states that he helps his brother-in-law (the deceased) in running his truck business. He had gone with the truck of the deceased taking consignment of coal on his behalf to Jonpur in Uttar Pradesh and when he returned in the evening he was told that the deceased had died. He was told about the incident. He is a witness to the inquest. He admits that the informant is the guarantor for facilitating the purchase of truck by the deceased and that Bijay Kumar Kashyap (P.W.3) is the Khalasi (helper in the truck) of the deceased. 10. P.W. 4 is Wakil Singh. He has merely been brought to testify the fact of seizure of wooden log and as such he is a seizure list witness. He has not seen the occurrence. 11. P.W.8 is Shyama Devi, the widow of the deceased. She states that while she was at home she was informed that her husband had been injured and had been taken to Bose Hospital. By the time she reached there, her husband had died. 12. We then come to P.W. 7 Dr. Sunil Kumar Bose, in whose Hospital the victim had been taken for treatment. He states that the moment Bachelal Jaiswal was brought to his Hospital in unconscious state; he sent written information to the Police. Police came and took the statement of P.W. 2 Ram Narain Singh, who is the informant and who brought Bachelal Jaiswal to the Hospital. Bachelal Jaiswal was unconscious. At about 7.30 pm in the evening Bachelal Jaiswal died and an information to that effect was also sent to the Police. He has proved the Hospital O.D. slip and the treatment chart. When his attention is drawn to the treatment chart, he admits that it is clearly written therein that there is no external injury. This is of some importance. 13. When we come to the evidence of the next witness i.e. Dr. He has proved the Hospital O.D. slip and the treatment chart. When his attention is drawn to the treatment chart, he admits that it is clearly written therein that there is no external injury. This is of some importance. 13. When we come to the evidence of the next witness i.e. Dr. Naresh Prasad Rai, who conducted the post-mortem examination the very next day. In the post-mortem report, he notices five injuries. Injury no.1 is bruise on the forehead. Injury no.2 is laceration of brain tissue and scull fracture at the back of the head. Injuries no. 3, 4 and 5 are bruises on the chest. This is a total contradiction to the injury report and the evidence of P.W.7 Dr. Sunil Kumar Bose, who has clearly noted that he had found no external injury. Injury no.2 i.e. the laceration of brain tissue and scull fracture, which is at the back of the head, is not even noticed by Dr. Bose anywhere and in the opinion of this witness, who conducted the post-mortem examination, that injury is the cause of death. That injury led to laceration of brain tissue causing death of the deceased. This Doctor i.e. P.W. 6 Dr. Naresh Prasad Rai was cross-examined with regard to injury at the back of the head and he admitted that it could be caused by impact of vehicle as well. All other injuries were simple in nature. 14. We then have the evidence of three Police officers i.e. P.Ws. 9, 10 and 11. P.W.9 Ram Narain Mahto was the Malkhana Incharge. He has been brought up to explain non-production of wooden log, which has lost in the Malkhana. P.W. 11 is Anirudh Rai, who had recorded the fardbeyan of the informant and conducted the investigation. Then on being transferred, he handed over charge to P.W. 10 Raj Kumar Singh, who concluded the investigation and submitted charge-sheet. P.W.11 Anirudh Rai has given his finding with regard to the place of occurrence, seizure of wooden log, inquest report and recording of statements of witnesses. 15. Learned counsel for the appellant submits that the evidence of prosecution witnesses, who are supposed to have been at the scene of the crime, supported the fardbeyan that the appellant struck the deceased with a wooden log suddenly after heated discussion. 15. Learned counsel for the appellant submits that the evidence of prosecution witnesses, who are supposed to have been at the scene of the crime, supported the fardbeyan that the appellant struck the deceased with a wooden log suddenly after heated discussion. Then it is consistent, starting from the fardbeyan itself that he was struck on the face and after he fell down then on the chest. There is no allegation at any point of time by any witness, much less suggestion that the appellant had struck the deceased on the back of his head causing laceration of brain tissue and scull fracture. How that injury came about has not been explained. Suggestion was made both to the informant as well as to the Doctor, who conducted post-mortem examination, that the said injury was possible by collusion with a vehicle (truck accident). P.W. 2 denies, whereas, P.W. 6 Dr. Naresh Prasad Rai accepts the suggestion that it is possible. 16. Learned counsel for the appellant then submits that if that be so, then clearly a doubt is created on the prosecution version. Whether the story set up by the prosecution is true/correct or not? He then submits that even if one accepts the story set up by the prosecution, then the appellant has caused only simple injuries on the face and the chest of the deceased. That is the expert opinion of the Doctor (P.W.6). The injury at the back of the head i.e. fracture of scull and laceration of brain tissue is not attributable to him. At best the deceased might have fallen and hurt himself in the process, but surely that injury, which is fatal injury, was not caused directly by the appellant. If this is so then we see that firstly the appellant is not directly responsible for causing the injury that led to the death of the deceased and secondly the injuries caused by the appellant being only simple in nature, it has to be held that the appellant had no intention to kill because those bruises and scratches on the frontal portion of the head or on the chest were not injuries, which caused the death of a person in ordinary course of life. He, thus, submits that there being no intention to kill, the appellant could not have been convicted under section 302 of the I.P.C. 17. He, thus, submits that there being no intention to kill, the appellant could not have been convicted under section 302 of the I.P.C. 17. Learned A.P.P. submits that there is no dispute that the appellant had struck the deceased, as a consequence whereof the deceased was fatally injured and died. Thus, the appellant was solely responsible for the death of the ideceased and, therefore, he has been rightly convicted under section 302 of the I.P.C. 18. Having considered the matter, in our view, the contention as raised by learned counsel for the appellant is correct. From the facts noticed above, it cannot be said that injury no.2 i.e. laceration of brain tissue and scull fracture at the back of the head was an injury caused by the appellant. That is not the prosecution case. It could only be an injury caused as a consequence of fall. Thus, it cannot be said that the appellant was responsible for the injuries caused, which injuries could led to the death of the deceased in ordinary course of life. Secondly the appellant is only alleged to have struck the deceased on his face and chest resulting in bruises, both of which have been shown to be simple injuries. If this be so, then there cannot be any intention to kill and if intention of the appellant to kill the deceased is missing, then surely the appellant cannot be held guilty of murder. It is surely not culpable homicide amounting to murder, but it is a culpable homicide nevertheless. It would be an offence under section 304, Part-II of the I.P.C. Death was never intended. There was some heated discussion and on the spur of the moment the appellant picked up a wooden log lying there and struck on the face of the deceased. The striking caused only simple injuries, but the fall caused an aggravated injury leading to the death. That was never intended by the appellant. Thus, clearly it was a culpable homicide, not amounting to murder and clearly attracts an offence punishable under section 304, Part-II of the I.P.C.. We, accordingly alter the charge and the conviction of the appellant from section 302 to section 304, Part-II of the I.P.C. 19. That was never intended by the appellant. Thus, clearly it was a culpable homicide, not amounting to murder and clearly attracts an offence punishable under section 304, Part-II of the I.P.C.. We, accordingly alter the charge and the conviction of the appellant from section 302 to section 304, Part-II of the I.P.C. 19. Now coming to the question of sentence, learned counsel for the appellant submits that the incident is about 30 years old and by now the appellant would be about 70 years old. No purpose whatsoever would be served by sending him to jail much less useful purpose. Having given our anxious considerations, we feel persuaded to agree with the learned counsel for the appellant in the facts and circumstances of the case that the ends of justice would now be met by holding that though the appellant is guilty under section 304, Part-II of the I.P.C., but the sentence would be the period already undergone by him. The appellant shall be discharged from the liability of the bail bonds. 20. In the result, this appeal is, thus, dismissed with the aforesaid modification in the conviction and sentence. ?