JUDGMENT : I.A. Ansari, J. Heard Mr. P.K. Jaipuriyar, learned counsel for the appellant, and Mr. S.C. Mishra, learned Additional Public Prosecutor for the State. Considering the fact that this appellant, namely, Bhagwat Mahto, has already undergone a period of three years’ detention in custody, we, in the peculiar facts and circumstances of the present case, have taken the appeal, with the consent of the learned counsel for the parties appearing before us, for hearing. The appeal is, accordingly, heard. The sole appellant, Bhagwat Mahto, has preferred this appeal against the judgment of conviction, dated 04.06.2013, and order of sentence, dated 07.06.2013, passed, in S.T. No. 14 of 1988, arising out of Barari P.S. Case No. 34 of 1986, by learned Adhoc Additional Sessions Judge, Katihar, whereby the appellant has been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs. 10,000/- and, in default of payment of fine, to undergo R.I. for one year. 2. The prosecution’s case, in short, as made out on the basis of fardbeyan of the informant, Fudan Mahto, son of Ram Balak Mahto, of Village Harinkol Siswa Ghat, P.S. Barari, recorded by Shri N.K. Singh, Officer-in-Charge, Barari P.S., on 25.03.1986, at 0930 hrs, at Barari Hospital, is as follows:- (i) The informant stated that the deceased, Mahendra Mahto, is his cousin and there existed a long drawn land dispute with his brother, Bhagwat Mahto, with respect to which a criminal case was instituted by the former. The father of Mahendra Mahto and Bhagwat Mahto died 2-3 years back and their mother, Samudari Devi, is living in the house of parents’-in-law of her daughter for the last two months. The wife of Mahendra Mahto is also living at her parents’ house. Mahendra Mahto, too, had come from the house of his parents’-in-law 2-3 days back to arrange money. On previous day, i.e. 24.03.1986, at about 12 Noon, Mahendra Mahto told his brother, Bhagwat Mahto, and his nephew, Angad Mahto, that he needed money for treatment of his wife and, hence, he wanted to sell bamboos and some grass to which his brother and nephew objected and this led to a brawl. On previous day, i.e. 24.03.1986, at about 12 Noon, Mahendra Mahto told his brother, Bhagwat Mahto, and his nephew, Angad Mahto, that he needed money for treatment of his wife and, hence, he wanted to sell bamboos and some grass to which his brother and nephew objected and this led to a brawl. While altercations were taking place at the door of the informant, accused Bhagat Mahto gave one blow by lathi on the leg of Mahendra Mahto and, as a result thereof, Mahendra Mahto fell down. Thereupon, Angad Mahto struck one lathi blow on Mahendra Mahto’s head, which ruptured and blood started oozing. The wife of Bhagwat Mahto, namely, Muneshwari Devi, also came there and struck Mahendra Mahto by means of a sickle, which severed the left little finger of Mahendra Mahto. (ii) Apart from the informant, the incident was witnessed by the informant’s brother, Uma Kant Mahto, his mother, Makeshwari Devi, Upendra Mahto, Genalal Mahto, Baleshwar Mahto and others. The three accused, soon thereafter, fled to their house. With the help of the villagers, Mahendra Mahto was brought, on a cot, to the Gujara Primary Health Centre. Having been given some medical aid at the said Primary Health Centre, injured Mahendra mahto was referred to Barari Hospital, where he died, at 2 A.M., on 24/25.3.1986. (iii) On the basis of fardbeyan of Fudan Mahto, Barari P.S. Case No. 34 of 86 was instituted under Section 302 read with Section 34 of the Indian Penal Code. 3. After investigation, police submitted charge sheet, on 17.01.1987, under Section 302 read with Section 34 of the Indian Penal Code. Charges against accused Bhagwat Mahto and Muneshwari Devi were framed under Section 302 read with Section 34 of the Indian Penal Code to which they pleaded not guilty. 4. It is relevant to mention herein that accused Angad Mahto, who was alleged to have given fatal blow by lathi on the head of the said deceased, died on 15.06.2005. The trial of Muneshwari Devi was separated as she failed to appear in the learned trial Court due to her illness. 5. The prosecution examined altogether five witnesses in support of its case. P.W. 1, Upendra Mahto, is, primarily, an inquest witness. P.W. 2, Uma Kant Mahto, is a neighbour, who, eventually, did not turn up for cross-examination. P.W. 3, Fudan Mahto, is the informant of the case, P.W. 4 is Dr. 5. The prosecution examined altogether five witnesses in support of its case. P.W. 1, Upendra Mahto, is, primarily, an inquest witness. P.W. 2, Uma Kant Mahto, is a neighbour, who, eventually, did not turn up for cross-examination. P.W. 3, Fudan Mahto, is the informant of the case, P.W. 4 is Dr. Gaya Prasad Diwakar, who had conducted post mortem examination on the dead body of Mahendra Mahto, and P.W. 5 is Sekhar Singh, a formal witness. 6. In the statement recorded under Section 313 Cr.P.C., the accused pleaded innocence and denied the allegations levelled against him. Out of five witnesses, P.W. 2 and P.W. 3 claimed to be eye witness. 7. P.W. 1, Upendra Mahto, in his Examination-in-Chief, stated that Mahendra Mahto died about 10 years back. Initially, he stated that Mahendra Mahto died at the door of Fudan Mahto; but, later on, he stated that Mahendra Mahto died at the hospital. He is a witness to Inquest Report, which has been exhibited as Ext. 1. In his Cross-Examination, he has stated that he did not know the contents of the paper on which he had signed, but he had put his signature as Darogaji (i.e. police officer) had asked him to do so. 8. P.W.2, Uma Kant Mahto, supported the prosecution’s case in Examination-in-Chief; but he did not turn for Cross-Examination. As such, his evidence, given in Examination-in-Chief, cannot be used or have any legal value against the appellant. 9. P.W.3, Fudan Mahto, the informant, in his deposition, supported the prosecution’s case as disclosed in the F.I.R. He stated, in his Examination-in-Chief, that on hearing hulla, he went to his door, he saw Mahendra Mahto and Bhagwat Mahto being involved in heated exchange, Bhagwat Mahto gave a lathi blow on the leg of Mahendra Mahto and, thereafter, Angad Mahto, son of Bhagwat Mahto, came out with lathi and struck a blow on the head of Mahendra Mahto and Muneshwari Devi, wife of Bhagwat Mahto, also struck Mahendra Mahto by a sickle, which cut the little finger of left hand of deceased Mahendra Mahto. He further stated that there was long drawn land dispute between Mahendra Mahto and Bhagwat Mahto with respect to which a criminal case was instituted by Mahendra Mahto against Bhagwat Mahto in the year 1984. He further stated that there was long drawn land dispute between Mahendra Mahto and Bhagwat Mahto with respect to which a criminal case was instituted by Mahendra Mahto against Bhagwat Mahto in the year 1984. He stated that deceased Mahendra Mahto wanted to sell bamboos and grass in order to collect money for the treatment of his wife, which was the immediate cause of the fight between the two brothers. He admitted, in his evidence, that he was a witness for the deceased against the appellant. 10. P.W. 4 is Dr. Gaya Prasad Diwakar, who conducted post mortem of dead body of Mahendra Mahto and has proved the post mortem report, as Ext. X. 11. P.W. 5 (Sekhar Singh) is a formal witness and he has identified the signature of Shri N.K. Singh, the then Officer-in-Charge, Barari P.S., on First Information Report, which has been marked as Ext.2. 12. We find that out of three accused put on trial, Angad Mahto, the son of appellant, who is alleged to have given fatal blow on the head of the said deceased, died in the year 2005. The other accused, Muneshwari Devi, who is said to be responsible for cutting little finger of the deceased, is not before us as her trial has been separated. The sole appellant before us is Bhagwat Mahto. 13. The case of the appellant is that even assuming the prosecution’s case to be true, no case, under Section 302 of Indian Penal Code, can be said to have been made out against him. He further submits that even as per the prosecution’s case, the allegation against him is of having given a lathi blow on the leg of the deceased, because of which the deceased fell down and that the further allegation is against his son that his son, Angad Mahto (since deceased), was the one, who had given lathi blow on the head of the deceased causing the head to rupture and became the cause of death. There is no allegation that the appellant repeated the blow or instigated others to assault the deceased. There was no pre-meditation from before and the incident took place at the spur of moment. He submits that it is the deceased, who started brawl with the appellant. He submits that the occurrence took place in some other manner and this appellant has been implicated on account of land dispute. 14. There was no pre-meditation from before and the incident took place at the spur of moment. He submits that it is the deceased, who started brawl with the appellant. He submits that the occurrence took place in some other manner and this appellant has been implicated on account of land dispute. 14. On the other hand, counsel for the State supports the prosecution’s case. 15. In the instant case, we find that altogether five witnesses were examined and, out of them, P.W.1 and P.W. 5 are formal witnesses. P.W. 1 has proved his signature on Inquest Report at behest of Darogaji, which he stated to have been given without reading the paper. P.W. 5 is a formal witness and proved the signature of Shri N.K. Singh, the then Officer-in-Charge, Barari P.S., who recorded First Information Report. P.W. 2 did not turn up for cross-examination. Since the appellant received no opportunity to cross-examine P.W. 2, his evidence cannot be used against the appellant. 16. On perusal of materials on record, we find that the informant is the only eye witness to the occurrence. The evidence of the informant, at the maximum, is that the appellant gave lathi blow on the leg of the deceased. There is no statement of the informant that the appellant either instigated others to assault the deceased or he repeated the blow, though the deceased, on account of sustaining blow on his leg, had fallen on the ground and nothing prevented the appellant from making further assault, had he any such intention. Further-more, there is no evidence on record that the appellant, in a planned manner, or with pre-meditated mind, had killed the said deceased. This apart, it is clear that it was the deceased, who had come to the appellant asking him to sell bamboos and grass as he needed money for the treatment of his wife, which led to altercations. All these facts would show that there was no premeditation and the incident occurred at the spur of the moment. Even as per P.W. 3, (the informant), two accused came only later on and assaulted the said deceased. The very fact that the appellant gave ONE lathi blow and that too, on the leg of the deceased, which was not repeated nor did he instigate others to assault the said deceased. Even as per P.W. 3, (the informant), two accused came only later on and assaulted the said deceased. The very fact that the appellant gave ONE lathi blow and that too, on the leg of the deceased, which was not repeated nor did he instigate others to assault the said deceased. We also find from the post mortem report that the injury, sustained by the said deceased on his leg, was simple in nature. 17. We find that there is no adequate evidence, which could warrant conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code. The appellant has already suffered the mental agony for a long period as the occurrence is of 1986 and has remained in custody for more than one year, which would be sufficient to cover the guilt under Section 323 of the Indian Penal Code even if charge was framed under Section 323 of the Indian Penal Code against the appellant. 18. In such circumstances, it is difficult to hold the appellant guilty of a charge under Section 302 read with Section 34 of the Indian Penal Code. However, the appellant stands proved guilty of offence under Section 323 of the Indian Penal Code. 19. In the result, the appeal is allowed and the impugned judgment of conviction and the sentence passed by the learned Adhoc Additional Sessions Judge IV, Katihar in S.T. No. 14/1988, arising out of Barari P.S. Case No. 34 of 1986, is set aside. The appellant is convicted under Section 323 of the Indian Penal Code and sentence to suffer imprisonment for the period already undergone. 20. It is, therefore, directed that the appellant be released, forthwith, if not wanted in any other case. 21. The office would send back the Lower Court Records with a copy of this judgment and order.