Judgment R.R. Prasad, J. This appeal is directed against the judgment of conviction and order of sentence dated 30th January, 2004, passed by the 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial Nos. 34 of 2000/47 of 2003, whereby and whereunder the Court having found the appellant Ritbaran Manjhi @ Libra Manjhi @ Libra guilty of committing murder of Dineshwar Manjhi, convicted him for the offence punishable under Section 302 IPC and sentenced him to undergo R.I for life. 2. The case of the prosecution, as has been made out in the fardbeyan is that on 24/08/1999 Dineshwar Manjhi (deceased) father of the informant, Shivnandan Manjhi (P.W.9) was sleeping on the outer portion of the house whereas the informant was sleeping inside the house. In the early morning at about 4 O'clock when the deceased felt that some cattle has entered into his field situated near the house and were grazing maize crops, he woke up and drove them out. In that course, his father took the cattle towards the house of this appellant as the cattle belong to him. Meanwhile, the appellant gave a 'Tangi' blow on his father. When his father shouted, the informant P.W.9 as well as his mother Etwari Devi (PW6), came out of the house and found Dineshwar Manjhi badly injured. There the deceased disclosed PW9 as well as PW6 that the appellant has assaulted him with 'Tangi' when he had taken the cattle to his house. They brought Dineshwar Manjhi (deceased) to their house where he succumbed to his injuries. Thereupon, the informant (PW9) informed to the Officer-in-Charge of Petarwar Police Station, who, when came to the house of the informant, recorded the fardbeyan of the informant and took up the investigation. During investigation, the Investigating Officer (not examined by the prosecution) did hold inquest on the dead body of the deceased and prepared an inquest report. Thereupon, he sent the dead body for postmortem examination, which was conducted by Dr. R.P. Singh (not examined), who, on holding autopsy, did find the following antemortem injury on the person of the deceased:- “One incised wound about 2” x½” x 2” on the lower portion of the right side of his neck. The carotid artery (veins) were found incised. No other injury either external or internal was found.” The Doctor issued Post Mortem examination report, which has been proved by PW10 as Ext. 3. The carotid artery (veins) were found incised. No other injury either external or internal was found.” The Doctor issued Post Mortem examination report, which has been proved by PW10 as Ext. 3. According to postmortem report, the death was caused on account of shock and hemorrhage as a result of the said injury caused by sharp cutting weapon. Meanwhile, the I.O. recorded the statements of the witnesses and also seized the 'Tangi', used in the crime. 3. After completion of the investigation, charge sheet was submitted upon which cognizance of the offence was taken against the appellant. When the case was committed to the Court of Sessions, the appellant was put on trial, during which the prosecution examined as many as 10 witnesses. Of them PW1 Rikhilal Manjhi and PW2 Mahadeo Manjhi, claimed themselves to be the eyewitnesses, did testify that when on hearing hulla they came out of their house, they saw the appellant assaulting the deceased with Tangi. PW3 Raj Mohan Hembram, PW4 Khirodhar Soren as well as PW5 Suresh Kumar Marandi, are the hearsay witnesses, who derived their knowledge about the deceased being assaulted by this appellant from the informant Shivnandan Manjhi (PW9). PW6 Etwari Devi the widow of the deceased also claimed herself to be the eyewitness, wherein she did testify that when she came out of her house at early morning alongwith her husband (deceased), they found the cattle belonging to this appellant, grazing their maize crop. Her husband drove them out of the field and called upon the appellant, who came and assaulted the deceased with Tangi. She raised alarm and then her son Shivnandan Manjhi (PW9) came, who took his father inside the house where he succumbed to his injury. PW7 Narsingh Manjhi as well as PW8 Bishu Manjhi are the hearsay witnesses, but they claimed to have derived knowledge that the deceased was assaulted by this appellant by none other than the deceased himself. 4. PW9 Shivnandan Manjhi the informant, has testified that when in the early morning his father (deceased) and mother (PW6) came outside the house for easing themselves, they found some cattle belonging to this appellant grazing maize crop. His father drove them out. While his father was returning back, the appellant came with 'Tangi' and assaulted his father with Tangi. Thereupon, his mother raised alarm. His father drove them out. While his father was returning back, the appellant came with 'Tangi' and assaulted his father with Tangi. Thereupon, his mother raised alarm. On hearing such alarm, he came out of the house and found his father in injured condition. On being asked, his father disclosed that it was the appellant, who had assaulted him. Thereupon, he brought his father to his house but after half an hour his father died. Thus, it appears that the informant never happens to be the eyewitness to the occurrence, rather he derived knowledge of the occurrence from his father. 5. After closure of the prosecution case, the appellant when was questioned under Section 313 Cr.P.C. about the incriminating evidence appearing against him, he denied. Thereupon, the Court, after putting reliance on the testimonies of the witnesses, claimed to be the eyewitnesses and other witnesses, found the appellant guilty for committing murder of the deceased and, thereby, recorded the order of conviction and sentence as aforesaid, which is under challenge. 6. Mr. P.K. Pathak, learned counsel appearing for the appellant submits that the statements made in the fardbeyan by the informant amply indicate that none was the eyewitness to the occurrence. Even PW6, the widow of the deceased was not an eyewitness though she as well as PWs1 and 2 claimed themselves to be the eyewitnesses. In this regard, it was submitted that it was the specific case of the prosecution as had been made in the fardbeyan that when the alarm was raised by the deceased on being assaulted by the appellant, the widow of the deceased Etwari Devi (PW6) and son of the deceased Shivnandan Manjhi (PW9) came out of the house and then found Dineshwar Manjhi injured. There at that point of time none of the persons were present and, therefore, the informant in his fardbeyan has not mentioned the names of any of the witnesses though during trial PWs1 and claimed themselves to have seen the occurrence but their testimonies, in view of the facts stated above, cannot be accepted and, therefore, the trial court should not have relied upon the testimonies of PWs1 and 2. Similar is the case with PW6, who has claimed herself to have come out of the house with the deceased at early morning but for the same reason, as has been stated above, she cannot be taken to be an eyewitness and, therefore, she never appears to be a trustworthy witness. Further, it was submitted that so far PWs3, 4, and 5, who claimed to have derive knowledge from the informant and also the other witnesses PWs7 and 8, who claimed to have derived the knowledge from the deceased himself, are hearsay witnesses and, therefore, no reliance can be put on their testimonies. Thus, it is evident that no reliable witnesses are there to prove the case of the prosecution and, thereby, the trial court should have acquitted the appellant. 7. Alternatively, it was submitted that even if any reliance is made over the testimony of any of the witnesses, it cannot be the case of culpable homicide as the appellant cannot be said to have had any intention to commit murder, which would be evident from the fact that only one injury has been inflicted upon the deceased and that admittedly, the appellant was never inimical to the deceased and, thereby, it cannot be a case of culpable homicide, rather at best it can be said to be case of culpable homicide not amounting to murder. Further, it was submitted that the case of the prosecution also fails on account of the fact that the Investigation Officer has not been examined in this case and, thereby, great prejudice has been caused to the appellant. 8. As against this, Mr. Anand Kr. Pandey, learned counsel appearing for the State submits that apart from PW6 widow of the deceased, PWs1 & 2 have also claimed to have seen the appellant assaulting the deceased and there has been no reason to discard their testimonies as nothing appears to be there in the cross-examination so as to discard their testimonies and, thereby, the trial court has not committed any illegality in convicting the appellant for the offence punishable under Section 302 IPC when the injury caused by the appellant was found sufficient to cause death and, thereby, judgment of conviction and order of sentence never warrants to be interfered with. 9. 9. Having heard learned counsel appearing for the parties and on perusal of the records, we do find that the case, which was initially made out by the prosecution in the fardbeyan is that the deceased when woke up in the early morning at about 04.00 a.m. on 24/08/1999, he came out of the house for easing himself. There he found some cattle belonging to this appellant graziing maize crops. He drove out them towards the house of the appellant. In that course, the appellant came and gave 'Tangi' blow on the neck of the deceased. Thereupon, the deceased raised alarm and on hearing the said alarm PW6, widow of the deceased and PW9 son of the deceased came out of the house and found Dineshwar Manjhi in injured condition. On being asked, the deceased disclosed that it was the appellant who had assaulted him with Tangi. In the fardbeyan names of none of the witnesses does not find mentioned. However, PWs1 & 2, during trial, claimed to have seen the appellant assaulting the deceased with Tangi. Had those witnesses PWs1 & 2 been present at the time of occurrence at the place of occurrence, their names should have certainly be there in the fardbeyan. It is quite doubtful that they would have been present at the place of occurrence and would have seen the appellant assaulting the deceased and, thereby, the testimonies of PWs1 & 2 are never appear to be trustworthy. So far PWs3, 4 and 5 are concerned, they, according to their evidences, derived their knowledge from PW9, but PW9 in his evidence has never testified that he had disclosed the factum of appellant being assaulted the deceased to them and, thereby, the evidences of PWs3, and have got no evidenciary value. 10. Coming further, it be stated that PW6 in her evidence has claimed to be the eyewitness but again we are reiterating, keeping in view the statements made in the fardbeyan, that she could not be an eyewitness as according to the statement made in the fardbeyan, she had reached to the place of occurrence alongwith PW9 when then heard alarm being raised by the deceased on being assaulted by the appellant. Under the circumstances, the testimony of PW6 that she saw the appellant assaulting the deceased is not worth reliable. 11. Under the circumstances, the testimony of PW6 that she saw the appellant assaulting the deceased is not worth reliable. 11. Now, coming to the evidence of PW9, he has testified that when he came out of the house after hearing hulla, he found his father in injured condition, who, on being asked disclosed him that it was the appellant who had assaulted him. Thereupon, he brought his father to his house and after half an hour, his father succumbed to his injury. During that course while he was in house probably PWs7 & 8 came there and they were told by the deceased that it was the appellant, who had assaulted him. Nothing has been elicited either from PWs7, 8 or 9 so as to make any dent over their testimonies that it was the deceased who had disclosed to them that it was the appellant who had assaulted the deceased and, thereby, we do not find any reason not to believe that part of the testimonies of PWs7, and 9. Further, we do find that the evidence of PW3 is also there to the effect that the appellant after the occurrence had hided himself into a well and from where he was taken out and was produced before the police. This conduct of the appellant admissible under Section of the Evidence Act, indicates towards the guilt which can be taken to be incriminating against the appellant. 12. Further, it be recorded that the Investigating Officer in this case, though has not been examined but non-examination of the Investigating Officer in the facts and circumstances does not affect the case adversely as nothing was placed before us to establish that prejudice was caused to the appellant on account of non-examination of the Investigating Officer. 13. Under the circumstances, we do find that the prosecution has been able to establish its case that it was the appellant, who had assaulted the deceased as result of which he died. Now the question does arise as to whether the appellant is guilty for committing the offence of culpable homicide or culpable homicide not amounting to murder? 14. Admittedly, only one injury has been inflicted upon the deceased. It is never the case that on account of intervening situation the appellant was prevented from repeating the blows, but the injury inflicted was sufficient to cause death. 14. Admittedly, only one injury has been inflicted upon the deceased. It is never the case that on account of intervening situation the appellant was prevented from repeating the blows, but the injury inflicted was sufficient to cause death. Still, it is to be considered as to whether other circumstances are there to find out as to whether the appellant had had intention to commit murder. 15. Before proceeding further in this regard, we may refer to decision rendered in the case of “Virsa Singh versus State of Punjab ( AIR 1958 SC 465 )”, wherein it has been observed that the prosecution must pr4ovfe the following facts before it can bring a case under Section 300, “thirdly”. First, it must establish quite objectively, that bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the inquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. 16. Their Lordships explained it further in the manner which is being given herein under:- “The question is not whether the prisoner intended to inflict serious injury or trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict on injury of particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” emphasis supplied 17. Thus, from the passage quoted above, it does appear that once it is proved that injury caused was sufficient to cause death, it will be presumed that the intention was there unless the evidence or the circumstances warrant an opposite conclusion. Coming to the fact of the case, we may reiterate that admittedly only one injury was inflicted and that injury also does not seems to be inflicted over the head a very vital part of the body and that there was no enmity in between the parties, which is evident from the evidence of PW2, who has testified that the deceased had had no enmity with the appellant. 18. Accordingly, we do find that there was no intention on the part of the appellant to commit the murder of the deceased. Consequently, the conviction recorded under Section 302 of the Indian Penal Code and the sentence imposed, is hereby set aside. However, instead of that we convict the appellant under Section 304 Part-II of the Indian Penal Code and sentence him to rigorous imprisonment for the period already undergone by him. Accordingly, the appellant, named above, is directed to be released forthwith if not wanted in any other case. 19. With this modification in the judgment of conviction and order of sentence, this appeal is partly allowed to the extent indicated hereinabove.