NAVANITI PRASAD SINGH, J.:–The two appeals arise from the judgment of conviction and sentence dated 16.05.1991 passed by the Additional Sessions Judge VII, Purnea in Sessions Trial No 103 of 1986/236 of 1984 by which the 12 appellants in Criminal Appeal No 188 of 1991 have been sentenced to life imprisonment for an offence under Sections 302/149, 147 of Indian Penal Code (IPC) whereas the sole appellant in Criminal Appeal No 223 of 1991 has been sentenced to life imprisonment for an offence under Sections 302 and 148 of IPC. 2. At the very outset, we may note that this appeal is of the year, 1991 in relation to an incident that took place in 1983. It has been on the list for some time and it had been called out several times but no one appeared in support of the appeal. We, accordingly, asked Mr Amish Kumar to assist us as amicus curiae. State had no objection. We, accordingly, heard the parties at length. 3. Having gone through the entire evidence what we find is that this entire sordid episode is the outcome of dispute between the family of a boy and the family of the daughter-in-law. The conflict being sparked by an alleged dispute between mother-in-law and daughter-in-law with the uncle-in-law dying as a consequence of the fatal singular assault by the uncle of the girl. 4. The prosecution case starts with the Fardbayan of PW 9 Sheikh Khabiruddin given on 12.04.1983 at about 2.30 am after the death of his son Arshad Ali. As per the Fardbayan, the basic allegation is that his son Arshad Ali was asked to intervene and settle the mother-in-law – daughter-in-law dispute as between his sister Bibi Asma and her daughter-in-law Habanur. Initially, he refused but then in the evening, he decided to go to the house of his brother-in-law Hazrat Ali, the husband of Bibi Asma. It is alleged that appellant Sheikh Ismail, who happens to be the uncle (Chacha) of Habanur (DW 3) alongwith other appellants variously armed with farsa, lathi, came and dragged Arshad Ali, the deceased out of the house and started mercilessly beating him. Sheikh Ismail, the uncle of the girl is said to have given a farsa blow on the head of Arshad Ali who dropped dead but his body was then abused by the rest of the appellants. Sheikh Ismail, the uncle of the girl is said to have given a farsa blow on the head of Arshad Ali who dropped dead but his body was then abused by the rest of the appellants. Upon the commotion so created, several villagers also assembled and the accused persons managed to escape. The informant (PW 9) is the father of Arshad Ali, the deceased and maternal grand-father-in-law of the girl Habanur. 5. In order to establish the prosecution case, the prosecution has examined 12 witnesses. PW 1 Dr Sallauddin Ahmad is the doctor who conducted the post mortem examination and according to him, the deceased died of fracture of skull which was caused by a hard and blunt substance which could be the backside of farsa. PWs 2, 3, 4 and 5 are named in the first information report (FIR) as witnesses to the occurrence. They are Sk Abu Bakar Ali, Sonaruddin, Maneshi Rishideo and Sk Ismail. They have all supported the prosecution case and their evidence is consistent though with very minor and insignificant variations. They have remained unshaken in their cross-examination. We will deal with suggestions as made to them at an appropriate stage. PW 6 is Sheikh Hanif who is the grandson of the informant Sheikh Khabiruddin (PW 9) and also happens to be the husband of Habanur. PW 7 Hazrat Ali is the brother-in-law of the deceased whereas PW 8 Bibi Asma is the sister of the deceased and mother of Sheikh Hanif (PW 6) and mother-in-law of the girl Habanur. PW 9 is Sheikh Khabiruddin, the informant, the maternal grandfather of Sheikh Hanif (PW 6) and maternal grandfather-in-law of Habanur. PWs 10, 11 and 12 are formal witnesses who proved the documents that is the Fardbayan, the formal FIR and paragraph 7 of the case diary. The latter was necessitated because the Investigating Officer (IO) could not have been traced for deposing in the Court and paragraph 7 of the case diary contains the inquest report, as prepared. 6. Contrary to the case as set up by the prosecution, from the suggestions given to the prosecution witnesses, the defence is that the marriage between Sheikh Hanif (PW 6) and Habanur (DW 3) had gone into rough weather. Habanur (DW 3) had left her matrimonial home and had returned to her paternal house. This was in the same village. 6. Contrary to the case as set up by the prosecution, from the suggestions given to the prosecution witnesses, the defence is that the marriage between Sheikh Hanif (PW 6) and Habanur (DW 3) had gone into rough weather. Habanur (DW 3) had left her matrimonial home and had returned to her paternal house. This was in the same village. On the fateful day, Sheikh Hanif (PW 6) with other relations including the deceased who was the uncle (Chacha) of Sheikh Hanif barged into the maternal house of Habanur and tried to forcibly take her away and it is in that process that a door frame of one of the bed rooms fell on the deceased as a consequence whereof the deceased died. There is yet another suggestion that there was a quarrel in the family of the deceased amongst various members and it is in that that the deceased was mistakenly struck by a farsa and he died. 7. The defence has examined four witnesses. DW 1 is Md Hashinuddin who is an Advocate who drafted the complaint that was filed as a counter case to the present case. We may note that we are unaware of the fate of that complaint case. DW 2 is Dr Md Siddique who prepared the injury report in regard to injury upon appellant Sheikh Ismail. This was done to prove an alleged bhala injury on Sheikh Ismail, the appellant who is said to have given the fatal assault on the deceased. Then we have the most interesting witness that is DW 3 Habanur who is the centre of the entire controversy. She is the wife of Sheikh Hanif (PW 6) and in her deposition, she gives the story that she was not living with her husband because of mistreatment. She had run out of the house and on the fateful day, her husband with other relations had come and was forcibly trying to take her back. This was resisted by her relations in which scuffle took place and the door frame fell on her maternal uncle-in-law, the deceased and he died. DW 4 is Sheikh Muzaffar who is an independent witness who supports the story set up by DW 3. 8. From the evidences as discussed above in brief, there is no dispute about one thing. The death of Arshad Ali was not natural but was clearly homicide. DW 4 is Sheikh Muzaffar who is an independent witness who supports the story set up by DW 3. 8. From the evidences as discussed above in brief, there is no dispute about one thing. The death of Arshad Ali was not natural but was clearly homicide. The prosecution claims he was assaulted by farsa whereas the defence claims that he died as a consequence of scuffle resulting in falling of door frame. The first thing to be noticed is where was the dead body found? The case of the prosecution is that the accused persons came to the house of the daughter of the informant, that is the house of son-in-law of the informant Hazrat Ali (PW 7) where the deceased was beaten up and died. If the defence version is to be believed then this is not possible as the deceased ought to have died in the house of Habanur or in the house of her father Jalil Uddin but that is not the case. The inquest clearly shows that the body was found at the Darwaza of PW 7 Hazrat Ali, the son-in-law of the informant and husband of Bibi Asma, the mother-in-law of Habanur. This falsifies the defence but merely because the defence is false cannot lead to conviction because the prosecution has to succeed on its own evidence. 9. Thus seen, it cannot be disputed that body of Arshad Ali, the deceased was found in the house of Hazrat Ali, the son-in-law of the informant. This is consistent with the deposition of the informant as well as the Fardbayan where he states that the deceased had gone to his sister’s house to mediate in the dispute between her and her daughter-in-law DW 3 Habanur. The place of occurrence is, thus, fixed. 10. It is in light of this that we have now to see whether prosecution has been able to establish the case of the appellants coming and assaulting the deceased and whether the case of assault by farsa as against appellant Sheikh Ismail is established beyond reasonable doubt. 11. As noticed, PWs 2, 3, 4 and 5 are all witnesses named in the FIR. They have clearly deposed that the appellants came, dragged out the deceased from the house and assaulted him. They are again consistent in that it is Sheikh Ismail who then gave a farsa blow. 11. As noticed, PWs 2, 3, 4 and 5 are all witnesses named in the FIR. They have clearly deposed that the appellants came, dragged out the deceased from the house and assaulted him. They are again consistent in that it is Sheikh Ismail who then gave a farsa blow. This is consistent with the Fardbayan and is also supported by other witnesses including PW 6 Sheikh Hanif who is the son of PW 7 Hazrat Ali. Thus to us, it appears that the prosecution has been successful in establishing its case in this regard. 12. At this juncture, we may also note one important fact. In the Fardbayan, the informant (PW 9) has stated that Sheikh Ismail had used a farsa and had given a singular blow to the deceased on the head. The doctor (PW 1), who conducted the post mortem examination, does not rule out that the injury caused on the skull, which resulted in the death, could be caused by the backside or blunt side of farsa. In the deposition before the Court, the prosecution witnesses have clearly stated that Sheikh Ismail used the backside of the farsa, which is the blunt side, to hit the deceased on the head and a singular blow was given. It was not repeated. This becomes pertinent when we come to the offence with which Sheikh Ismail can be charged because the rest are charged with the aid of Section 149 of IPC. 13. Mr Amish Kumar, learned Amicus Curiae argues and rightly so that both the parties are relatives. Admittedly, there was a dispute between the mother-in-law and the daughter-in-law. Unfortunately, instead of letting the dispute be settled by them or resolved in the house, other family members joined unwittingly. It could never have been the intention of anyone to kill a family member because obviously that would have broken all relationship and all chances of any reconciliation or settlement. It was only a pent up anger which went out of hands. However, conviction of the appellants in relation to Criminal Appeal No 188 of 1991 with aid of Section 149, IPC cannot, thus, be questioned but the question is can Sheikh Ismail be charged under Section 302 of IPC. It was only a pent up anger which went out of hands. However, conviction of the appellants in relation to Criminal Appeal No 188 of 1991 with aid of Section 149, IPC cannot, thus, be questioned but the question is can Sheikh Ismail be charged under Section 302 of IPC. Having considered the entire evidence including the evidence of the prosecution itself that even though Sheikh Ismail had a farsa in his hands and could have used it effectively by striking the deceased with the sharp edge, he chose not to do so. As per prosecution evidence he used the blunt side only. He did not repeat the blow. Therefore, it cannot be held beyond reasonable doubt that he had intended to cause death of the deceased though unwittingly it is his blow that caused the death. That is the most important distinguishing factor when we come to the nature of offence committed by Sheikh Ismail. It is no doubt a culpable homicide as contemplated under Section 299 of IPC but it would not be culpable homicide amounting to murder punishable under Section 302 of IPC for it would squarely fall under Section 304 Part II of IPC being culpable homicide not amounting murder. We feel that the trial Court did not consider this distinction at all. We also feel that the trial Courts do not understand the distinction between Section 34 of IPC and Section 149, IPC. We say so because initially the FIR was registered under Sections 302/34 of IPC. 14. Briefly, for the sake of clarity, we will say that there is a fundamental distinction between Section 34 of IPC and Section 149 of IPC and that being Section 34, IPC predicates common intention. It predicates that the group of people, who are charged under Section 34 of IPC, had a common intention to do an act that is to kill whereas Section 149, IPC predicates a common object of an unlawful assembly that is a group of persons. The object may not be to kill but still if any member of the unlawful assembly, in pursuance to the said common object, kills someone which, as noted above, may not be the object then vicariously the members of the unlawful assembly become liable. Thus, the common object under Section 149, IPC is not necessarily the offence for which they are all vicariously charged. 15. Thus, the common object under Section 149, IPC is not necessarily the offence for which they are all vicariously charged. 15. We then come to culpable homicide amounting to murder or not amounting to murder. We find that the trial Courts in this State are unable to distinguish between the two. The general approach is that if a person is assaulted and he dies, he can only be charged under Section 302 of IPC because as a consequence of assault, the person dies. That unfortunately is neither the scheme nor the law. Section 299 of IPC defines a culpable homicide which, in plain and simple language, means a punishable killing. We then come to Section 300, IPC which clearly predicates that where a person is killed with a prior intention to kill, it becomes a culpable homicide amounting to murder but that Section itself gives out various exceptions where culpable homicide may still not be murder. Those exceptions have to be kept in mind because once those exceptions can be pleaded then for the purposes of punishment for culpable homicide not amounting to murder, the provision is Section 304 of IPC and not Section 302 of IPC is attracted which is a punishing Section where it is culpable homicide amounting to murder. The ultimate distinction would be the quantum of punishment. If it is found that it is culpable homicide amounting to murder falling within the substantive provision of Section 300 of IPC, the punishment would be under Section 302 of IPC either death or life imprisonment with no other discretion to the Court but if even though death has been caused, it is culpable homicide not amounting to murder, falling within the exceptions as provided in Section 300 of IPC, the punishment would be with reference to Section 304 of IPC. If it falls within Part I or the first part thereof, the punishment could extend to life imprisonment but if it falls within Part II that is the second part of Section 304, the punishment would be maximum ten years. From this, a word of caution is due. It does not mean that if a person is found guilty of an offence under Section 304 Part I then he has to be given punishment above ten years to life. He still can be given a punishment less than ten years or less than life. From this, a word of caution is due. It does not mean that if a person is found guilty of an offence under Section 304 Part I then he has to be given punishment above ten years to life. He still can be given a punishment less than ten years or less than life. The only discretion is the discretion of the Court. The Court has discretion to give life sentence as a punishment also or, in other words, punishment extending up to life imprisonment. In neither of the two situations, either with reference to Section 304 Part I or 304 Part II is there, a minimum punishment prescribed. That quantum of punishment would be based upon the relevant circumstances and the judicial discretion of the Court. 16. In the present case, we are firmly of the view that the facts do not justify conviction under Section 302, IPC for attracting Section 302 IPC, the intention to kill which is prior to the act has to be there. The evidence is consistent that first the deceased was dragged out of the house, beaten up and then Sheikh Ismail gave one singular blow from the back side, that is the blunt side, of the farsa on the head. The blow was neither repeated nor was the sharp side of farsa used. In our view, this clearly shows that there was no intention to kill though unfortunately or unwittingly, the injury was such that the person died instantaneously. In the facts and circumstances, the conviction under Section 302 of IPC cannot be sustained but while doing so, acquittal also cannot be recorded for the charge can be deemed to be altered to Section 304, IPC without prejudice to the appellants in any manner (refer to the case of Willie (William) Slaney Vs. State of Madhya Pradesh, AIR 1956 Supreme Court 116). As there was no intention to kill, it would fall within the second part of Section 304, IPC which is the distinguishing feature between the first part and the second part of Section 304, IPC. Thus, we alter the conviction of appellant Sheikh Ismail in Criminal Appeal No 223 of 1991 from Section 302, IPC to Section 304 Part II, IPC,. 17. Now coming to the other 12 appellants of Cr Appeal No 188 of 1991. Thus, we alter the conviction of appellant Sheikh Ismail in Criminal Appeal No 223 of 1991 from Section 302, IPC to Section 304 Part II, IPC,. 17. Now coming to the other 12 appellants of Cr Appeal No 188 of 1991. It cannot be disputed that all of them had come with a common object of humiliating and beating up any one who was interfering and causing trouble for DW 3 that is Habanur. Thus, common object being there, they cannot escape liability under Section 149, IPC and as Sheikh Ismail is found guilty by this Court for an offence under Section 304 Part II, all of them become vicariously liable thereunder as well. Thus, these twelve appellants are found guilty of offence under Section 304 Part II/149, IPC and the convictions stand altered accordingly. 18. Now coming to the aspect of punishment. From the evidence of DW 3 Habanur, who was the centre point of the entire controversy, the daughter-in-law, it is clear that after this sordid incident, she and her husband PW 6 Sheikh Hanif have parted. She is now married and settled in a different family. The parties have suffered enough. The informant (PW 9) had also undergone custody in the counter case. The appellants remained in custody and were also imprisoned in the present case. The incident is over 30 years old. 19. In these special facts and circumstances, the sentences are reduced to the period undergone. All the appellants are, accordingly, discharged of their liabilities of bail bonds. 20. The appeals are dismissed with modification in sentence. 21. Before parting, we would like to record our appreciation to the assistance given by Shri Amish Kumar who has appeared as amicus curiae in this case. ?