JUDGMENT Per D.N. Patel, J.-This appeal has been preferred against the judgment and order of conviction and sentence dated 17th September, 2004 and 18th September, 2004 respectively, passed by Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 142 of 2003, whereby, the appellant, namely, Tibra @ Tibroo Marandi, has been convicted for the offence punishable under Sections, 302/34 and 460/34 of the Indian Penal Code and sentenced to undergo life imprisonment for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code and further to undergo rigorous imprisonment for ten years for the offence punishable under Section 460 to be read with Section 34 of the Indian Penal Code. Both the sentences have been ordered to run concurrently. 2. The case of prosecution is that injured Ram Marandi had given fardbeyan in the Borio Government Hospital before Police Officer of Borio Police Station in the district of Sahibganj on 17th April, 2002 that on 16th April, 2002 at about 12:00 O'clock at the midnight, when he was sleeping at his house after taking dinner, this appellant along with other two accused, whose names have been given in the fardbeyan, came after consuming liquor and this appellant having bamboo stick in his hand, gave one blow at the stomach of the informant-Ram Marandi, and thereafter, he was brought to the hospital by his son Kundan Marandi, where he expired during the night of 17th April, 2002, and that is how his fardbeyan is also treated as dying declaration and thereafter, statements of several witnesses were recorded and charge-sheet was filed against this appellant, and on the basis of the evidences of PWs-1 to 9 and also, on the basis of other documentary evidences on record, the learned trial court has convicted this appellant for the offence of committing murder of the deceased and sentenced him to undergo life imprisonment for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code as well as rigorous imprisonment for ten years for the offence punishable u/s 460 to be read with Section 34 of the Indian Penal Code. 3. It is submitted by learned counsel for the appellant that the learned trial court has not properly appreciated the evidences on record. There are major omissions and contradictions in the depositions of the witnesses. 3. It is submitted by learned counsel for the appellant that the learned trial court has not properly appreciated the evidences on record. There are major omissions and contradictions in the depositions of the witnesses. In fact, the eye witnesses are close relatives of the deceased and there are inconsistencies even in their depositions. The prosecution has not come out with a consistent story. Apart from this aspect of the matter, this appellant has remained in jail for approximately 12 years and 10 days as on today and, therefore, if this offence is punishable u/s 304 Part-II of IPC, then the purpose of filing of this appeal will be served, because there is no pre-planned and well-designed action on the part of this appellant. Moreover, looking to the medical evidences of PW7, the Doctor, there is only one injury in the abdomen of the deceased which has resulted into his death. Had there been any mens rea on the part of this appellant, there would have been many more injuries. Even otherwise also, as per the fardbeyan given by the deceased himself, this appellant along with other co-accused came after consuming liquor. Looking to this aspect of the matter, as an alternative, it is argued by the counsel for the appellant that this appellant may be punished for the offence punishable under Section 304 Part-II of Indian Penal Code. 4. We have heard learned A.P.P., appearing on behalf of the State, who has submitted that no error has been committed by the trial court in appreciating the evidences on record. There are as many as four eye witnesses to the occurrence i.e. PW-1, PW-2, PW-3 & PW-4. The medical evidence given by Dr. Jawahar Khan (PW-7) is corroborative of the depositions, given by the eye witnesses. Moreover, the Fardbeyan, which was given by the injured, who has expired on the same day, has been treated as dying declaration and as per this dying declaration, the appellant, has inflicted injuries upon the body of the deceased and hence, this appeal may not be entertained, as no error has been committed by the trial court. Moreover, the Fardbeyan, which was given by the injured, who has expired on the same day, has been treated as dying declaration and as per this dying declaration, the appellant, has inflicted injuries upon the body of the deceased and hence, this appeal may not be entertained, as no error has been committed by the trial court. Similarly, learned trial court has also not committed any error while convicting this appellant for the offence punishable under Section 460 to be read with 34 I.P.C. and sentencing him to undergo rigorous imprisonment for ten years, as he along with others had entered into the house of the deceased during night hours between 16th and 17th April, 2002 and therefore, this appeal may not be entertained by this court. 5. Having heard counsel for both sides and looking to the evidences on record, this criminal appeal is partly allowed on the following facts and reasons:- (i) The whole incident has taken place during night hours between 16th/17th April, 2002. The injured was taken to Borio Government Hospital where his fardbeyan was recorded by the police officer of Borio Police Station. We find it very strange that this fardbeyan has been proved by a clerk of the Advocates. We fail to understand why in the State of Jharkhand novice methods are adopted by the trial courts even now a day. The clerks of the Advocates are regularly examined as prosecution witnesses, in gross violation of the provisions of Indian Evidence Act, 1872. This novice method ought to have been stopped by the Judges of the trial courts, by the A.P.P.s of the trial courts and by the investigating officers of the cases forthwith. Clerks of the Advocates cannot be examined as witnesses to prove fardbeyan or seizure list. The provisions of the Indian Evidence Act are more observed in breach than in compliance. We have already given several directions in earlier decisions by the Division Bench of this Court and those judgments have also been circulated because in the State of Jharkhand there are repeated errors committed by the Judges, by the A.P.Ps. and by the Investigating Officers. The provisions of the Indian Evidence Act are more observed in breach than in compliance. We have already given several directions in earlier decisions by the Division Bench of this Court and those judgments have also been circulated because in the State of Jharkhand there are repeated errors committed by the Judges, by the A.P.Ps. and by the Investigating Officers. This practice must have been stopped much earlier because clerks of the Advocates can never be cited as witnesses in the charge-sheet because nobody knows who is the Advocate to be engaged and more particularly, when the clerks of the Advocates have no knowledge about the documents at all. (ii) Looking to the evidences given by P.Ws. 1, 2, 3 and 4, it appears that the whole incident has taken place at the residence of the deceased, as per the fardbeyan given by the deceased himself on 17th April, 2002 that on previous night i.e. on 16th April, 2002, this appellant along with two others came there and this appellant, who was having a bamboo stick in his hand, gave one blow to the stomach of the victim who was, thereafter, brought to the Borio Government Hospital, Sahibganj where his fardbeyan was recorded by the police officer of Borio Police Station. It has also been stated by the victim in his fardbeyan that this appellant had consumed liquor and in that condition one blow was given to him (Ram Marandi). After giving fardbeyan on 17th April, 2002, Ram Marandi expired during the night hours between 17th/8th April, 2002. All these witnesses have narrated the role played by this appellant. (iii) Looking to the deposition given by P.W. 5 (Dr. Ram Bachan Choudhary), who had treated the victim (later on died) at Borio Hospital, Sahibganj, he has narrated in his deposition that he had examined the injured and there was one injury which was simple in nature and capable of being caused by hard and blunt substance. After examination by this P.W. 5 (Dr. Ram Bachan Chaudhary), the injured expired and thereafter post mortem of the deceased was carried out. (iv) The post mortem of the body of the deceased was carried out by PW-7 (Dr. Jawahar Khan). After examination by this P.W. 5 (Dr. Ram Bachan Chaudhary), the injured expired and thereafter post mortem of the deceased was carried out. (iv) The post mortem of the body of the deceased was carried out by PW-7 (Dr. Jawahar Khan). This witness has carried out post mortem of the body of the deceased on 19th April, 2002 at Civil Hospital, Sahibganj at about 9:30 a.m. Looking to his deposition and the post mortem report, it appears that following are the injuries found on the person of the deceased, as quoted from the post mortem report- "Incised wound 1" X ½" X hollow viscus over left flank of abdomen On dissection 1. Head & neck-intact. 2. Thorax-intact, heart-intact & empty. Lungs-intact & pale 3. Abdomen-Descending column- punctured. Periotal cavity-full of blood & clots. Stomach-empty. Opinion: 1. Time passed since death- Within 48 hours. 2. Cause of death-Shock & haemorrhage. 3. Weapon used-Sharp cutting". In view of the aforesaid evidence given by Dr. Khan PW-7 and looking to the post mortem report (Exhibit-3), it appears that there is only one injury sustained by the deceased at the hands of this appellant. (v) Thus, looking to the totality of evidences on record, it appears that this is not a preplanned well-designed action of murder. Moreover, weapon alleged to have been used by this appellant is not of a special type, but, it was a simple bamboo stick. Moreover, the deceased had sustained only one injury, as per medical evidence given by PW-7. PW-5 is also a doctor who has initially treated the victim, when he was admitted to Borio Hospital at Sahibganj and looking to the deposition given by PW-5, nature of injury was simple and it was capable of being caused by a hard and blunt substance. Thus, this is a culpable homicide not amounting to murder. This aspect of the matter has not been properly appreciated by the trial court. (vi) It has been held by Hon'ble Supreme Court in the case of Mangesh vs. State of Maharashtra reported in (2011) 2 SCC 123 [ : 2011 (2) JLJR (SC) 89] in Paragraph Nos. 12, 13, 14 and 15 as under:- "12. It is evident from the medical report that the appellant has not given the knife-blow with full force. Otherwise, the depth of Injury 1 would have been more than just "cavity-deep". 12, 13, 14 and 15 as under:- "12. It is evident from the medical report that the appellant has not given the knife-blow with full force. Otherwise, the depth of Injury 1 would have been more than just "cavity-deep". The fact that the appellant stabbed the deceased twice in the thigh and only once in the chest is indicative of a lack of intention to cause death. Had the appellant intended to kill the deceased, it is unlikely that he would flee from the scene without having inflicted more injuries on the deceased. 13. The judgment cited by the learned counsel for the State, Pulicherla Nagaraju vs. State of A.P.1, is quite distinguishable from the present case as in that case the knife-blow that caused death was given with full force and the single injury was found to be 12 cm deep. Even in that case the law has been laid down as under: (SCC p. 458, para 29) "29. ... The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in tile course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased' was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. " This Court has reiterated the same view in Sridhar Bhuyan vs. State of Orissa2 and Gali Venkataiah vs. State of A.P3. 14. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. " This Court has reiterated the same view in Sridhar Bhuyan vs. State of Orissa2 and Gali Venkataiah vs. State of A.P3. 14. It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity. Therefore, it is a clear-cut case of loss of self-control and in the heat of passion, the appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation. 15. The appellant did not cause all the injuries on the vital parts of the body. Nor the appellant caused the fatal Injury 1 with full force, otherwise the said injury could have been very deep. On examining the weapon, Dr. Amit Kumar (PW-1) opined that Injuries 1, 2 and 3 could be caused by the handle of the knife. Death of Prashant (deceased) was not instantaneous, rather he died on the third day of the incident. The appellant has not taken any undue advantage or acted in a cruel or in an unusual manner. Undoubtedly, Injury 1 had been caused on the vital part of the body of the deceased but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him while determining the nature of the offence." In view of the aforesaid decision, we, hereby, quash and set aside the judgment of conviction and order of sentence passed by Additional Sessions Judge, Fast Track Court in Sessions Case No. 142 of 2003 and held this appellant guilty for the offence punishable under Section 304 Part-II of Indian Penal Code, and therefore, we sentence him to undergo rigorous imprisonment for ten years. (vii) It has been held by Hon'ble Supreme Court in the case of Laxmichand @ Balbutiya vs. State of Maharashtra reported in (2011)2 SCC page 128 paragraph Nos. 17, 18 and 19 thereof read as under:- "17. (vii) It has been held by Hon'ble Supreme Court in the case of Laxmichand @ Balbutiya vs. State of Maharashtra reported in (2011)2 SCC page 128 paragraph Nos. 17, 18 and 19 thereof read as under:- "17. Coming to the argument that instead of convicting the accused for culpable homicide amounting to murder, his case would fall in the category of culpable homicide not amounting to murder as even according to the prosecution one blow alone was caused by the accused that too in a quarrel, we have already pointed out and it is clear from the evidence of PWs-3 and 4 eyewitnesses that prior to the incident, there was a quarrel between the accused and the deceased inside the house of the accused and the deceased consumed liquor and was adamant not to leave the house of the accused which necessitated the accused to drag him out of his house and inasmuch as the deceased still refused to accede to the request of the accused, he inflicted a blow on the head with the spade. As pointed out by the appellant-accused, he had no preplan or intention to kill the deceased and his main worry was to get the deceased out of his house, who had consumed excessive liquor. 18. Considering all these aspects, particularly, the conduct of the deceased in not leaving the house of the accused, he dragged him out of his house, put him on the road and assaulted him with a spade, we are of the view that the accused has no intention to kill the deceased. It is true that the blow given by the accused on the deceased was at the vital part because of which he was unconscious for seven days and ultimately succumbed to his injuries. However, as discussed earlier, the accused had no intention to commit the offence. 19. Considering all the materials and reasons, we feel that the commission of offence attributed to the appellant-accused would come under Section 304 Part-II of the Penal Code. Taking note of the fact that the incident had occurred in the year 1986 and the accused had no intention to kill the deceased but due to the reasons and circumstances stated above, we feel that the ends of justice would be met by awarding sentence of rigorous imprisonment for five years. Taking note of the fact that the incident had occurred in the year 1986 and the accused had no intention to kill the deceased but due to the reasons and circumstances stated above, we feel that the ends of justice would be met by awarding sentence of rigorous imprisonment for five years. The accused is entitled to have the benefit of deduction of the period already undergone." In view of the aforesaid decision also, in the facts of the present case, there is only one blow given to the deceased by this appellant and as this is not a preplanned well designed murder and also taking into consideration the weapon used by this appellant and also the medical evidences given by P.W. 5 and P.W. 7, it appears that this appellant has committed an offence punishable under Section 304 Part-II of the Indian Penal Code and not an offence punishable under Section 302 I.P.C., i.e. offence of murder. Hence, we, hereby, set aside the conviction as well as quantum of sentence under Section 302 of the Indian Penal Code and the same is replaced as an offence under Section 304 Part-II of the Indian Penal Code and. we, hereby, punish this appellant to undergo rigorous imprisonment for ten years. 6. It is submitted by Additional Public Prosecutor upon written instructions from the Superintendent of Jail, Dumka that as on 24th April, 2014 this appellant has remain8d in jail for 12 years and 2 days and therefore, this appellant will be released forthwith from the judicial custody, if not wanted in any other case/cases. 7. In the facts and circumstances discussed above, this criminal appeal is partly allowed to the extent that the impugned judgment of conviction passed by learned Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 142 of 2003, T.R. No. 87 of 2004, under Section 302 I.P.C. is altered and modified and the appellant is found guilty for the offence under Section 304 Part-II of the Indian Penal Code. However, the conviction under Section 460 I.P.C. is affirmed. Both the sentences will run concurrently. The order dated 18th September, 2004, sentencing the appellant to undergo R.I. for life is modified and accordingly the appellant, namely Tibra @ Tibroo Marandi is sentenced to undergo R.I. for a period of ten years under Section 304 Part-II and Section 460 of IPC. However, the conviction under Section 460 I.P.C. is affirmed. Both the sentences will run concurrently. The order dated 18th September, 2004, sentencing the appellant to undergo R.I. for life is modified and accordingly the appellant, namely Tibra @ Tibroo Marandi is sentenced to undergo R.I. for a period of ten years under Section 304 Part-II and Section 460 of IPC. In the result, the appellant, is directed to be released forthwith, if not wanted in any other easel cases, in view of the fact that he has already remained in judicial custody for a period of 12 years and 2 days as on 24th April, 2014 as per the letter dated 24th April, 2014 of the Superintendent, Central Jail, Dumka. This appeal is partly allowed and conviction and sentence is modified to the aforesaid extent.