JUDGMENT : Goswami, J. Criminal Appeal No. 222/2005 is preferred by Md. Khalilur Rahman @ Khalilur Rahman Laskar and Oliur Rahman Laskar @ Oliur Rahman against the judgment and order dated 31.8.2005 passed by the learned Ad hoc Additional Sessions Judge, Sankar Dev Nagar, Hojai in Sessions Case No. 27(N)/2004 convicting them under Section 304 Part-II IPC and sentencing them to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/- each, in default, to undergo rigorous imprisonment for 60 days. 2. Criminal Revision Petition No. 718/2005 is preferred by Md. Shahjahan, the informant of Morajhar Police Station case No. 105/2001, being aggrieved by acquittal of Khalilur Rahman and Oliur Rahman under Section 147/148/447/323/324/302/149 IPC and praying for enhancement of conviction and sentence. 3. Both the Criminal Appeal and the Criminal Revision Petition have been heard together and are being disposed of by this common judgment and order. 4. By an order passed on 6.10.2005 in Misc. Case No. 3251/2005, the operation of the judgment and order dated 31.8.2005 was stayed and the appellants in Criminal Appeal No. 222/2005 were allowed to go on bail of Rs. 30,000/- each with one surety of the like amount to the satisfaction of the Chief Judicial Magistrate, Nagaon. 5. We have heard Mr. B.C. Pathak and Ms J. Phukan, learned counsel for the appellants in Criminal Appeal No. 222/2005 and the opposite parties in Criminal Revision Petition No. 718/2005. We have also heard Mr. A. Ahmed, learned counsel for the petitioner in Criminal Revision Petition No. 718/2005 and Ms S. Jahan, learned Additional Public Prosecutor, Assam in both the cases. 6. An ejahar was lodged by the petitioner of Criminal Revision petition No. 718/2005 on 6.8.2001 before the Officer-in-Charge, Morajhar Police Station informing him that at about 7 A.M., 10 accused persons, namely, (i) Md. Khalilur Rahman, (ii) Oliur Rahman, (iii) Abdul Kader, (iv) Bokhai Mia, (v) Bilaluddin, (vi) Faizul Hoque, (vii) Monai Mia, (viii) Razek Ali, (ix) Musst. Rusna Begum and (x) Taslima Begum had assembled armed with spear, lathi, etc., to take forceful possession of the land in his possession and started ploughing. Having witnessed the same, the informant along with the witnesses named therein protested, whereupon accused persons assaulted Alauddin by piercing his chest with a spear and by means of lathi on the head, thereby causing grievous injuries to him. Having witnessed the same, the informant along with the witnesses named therein protested, whereupon accused persons assaulted Alauddin by piercing his chest with a spear and by means of lathi on the head, thereby causing grievous injuries to him. He was sent to government hospital after informing about the incident in the police station and the injured succumbed to his injuries in the hospital. Based on the said ejahar, Morajhar Police Station Case No. 105/2001 (Ext.6) under Section 147/148/149/447/326/325/302 IPC was registered. 7. After completion of investigation police submitted charge sheet (Ext. 5) against the present appellants, Musst. Taslima Begum, Musst. Rusna Begum and Md. Bokhai Mia @ Taher Ali, along with nine others who were shown as absconders. 8. The learned Magistrate split up the case against the absconding accused persons and committed the case against the other accused persons to the Court of Sessions as the offences were exclusively triable by the Court of Sessions. Accordingly, Sessions Case No. 27(N)/2004 was registered. After hearing the parties, charges under Section 147/148/447/323/324/302/149 IPC were framed. Charges being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 9. During trial, prosecution examined nine witnesses whereas defence adduced no evidence. The statements of the accused persons were recorded under Section 313 Cr.P.C. The learned trial court, on consideration of the evidence on record, acquitted Musst. Taslima, Musst. Rusna and Taher Ali of the offences charged. The trial court also held that the prosecution failed to prove the offences under Section 147/148/447/323/324/302/149 IPC beyond reasonable doubt against the appellants but successfully proved the offence against them under Section 304 Part-II IPC and accordingly sentenced them as already noticed. 10. It is important to note that the informant/petitioner in Criminal Revision Petition had not assailed the acquittal of Taslima, Rusna and Taher Ali. 11. Mr. Pathak has submitted that evidence on record and more particularly, the evidence of PW 6, who is an independent witness, goes to show that the informant side had started assaulting Kadir and his wife and thus, they were the aggressors. He has submitted that prosecution evidence suffers from inconsistencies and contradictions, apart from the fact that the prosecution had suppressed the genesis of the occurrence in as much as, the ejahar, Ext. He has submitted that prosecution evidence suffers from inconsistencies and contradictions, apart from the fact that the prosecution had suppressed the genesis of the occurrence in as much as, the ejahar, Ext. 6, was lodged at 7.30 P.M., falsely implicating 10 persons whereas PW 2 had stated that he had lodged the ejahar at around 8 or 9 A.M. Prosecution also did not explain the injuries sustained by the accused persons which is a serious infirmity and the same goes to show that the case projected by the prosecution is not true. Accordingly, he submits that the appellants are entitled to acquittal. 12. Mr. A. Ahmed has submitted that evidence on record clearly demonstrates that it is the appellants who by their assault had caused the homicidal death of Alauddin and the learned trial court was wholly in error in convicting the appellants only under Section 304 Part-II IPC. He implores that in the facts and circumstances of the case, the appellants are liable to be convicted under Section 302 IPC. He has relied upon judgments rendered in the cases of Shaikh Majid and another vs. State of Maharashtra and others, reported in (2008) 11 SCC 131 , Virsa Singh vs. State of Punjab , reported in AIR 1958 SC 465 , Jai Prakash vs. State (Delhi Administration), reported in (1991) 2 SCC 32 , State of U.P. vs. Dr. Ravindra Prakash Mittal, reported in (1992) 3 SCC 300 , and Surendra Singh Rautela @ Surendra Singh Bengali vs. State of Bihar (now Jharkhand), reported in (2002) 1 SCC 266 . 13. Ms S. Jahan, learned Additional Public Prosecutor has submitted that in view of the state of evidence on record, the impugned judgment of the learned trial court does not call for any interference and therefore, both the appeal and the revision petition are liable to be dismissed. She has emphasized that while there is not an iota of doubt that it was the appellants who had inflicted the fatal injuries on Alauddin, evidence discloses that the informant/revision petitioner and his group had also participated in a free fight involving the parties. 14. In order to appreciate the contentions of the learned counsel for the parties, it will be appropriate to examine the evidence on record. 15. The Investigating Officer of the case was examined as PW 9. 14. In order to appreciate the contentions of the learned counsel for the parties, it will be appropriate to examine the evidence on record. 15. The Investigating Officer of the case was examined as PW 9. He stated that one Rahimuddin informed the police station at around 10 A.M. that Khalilur, Oliur, Kadir, Monai Mia, Bilaluddin and Faizul Hoque formed an unlawful assembly and being armed with deadly weapons assaulted Alauddin, Shahjahan, Nuruddin and Abdul Jabbar. It appears from his evidence that Rahimuddin was also injured and he was sent to hospital for treatment. The GD entry recorded on the basis of the statement of Rahimuddin was proved as Ext. 3. According to him, after making the GD entry, he had gone to the place of occurrence and started investigation. He could not submit charge sheet as he was transferred and the charge sheet was submitted by his successor. In his cross-examination, he stated about a cross case filed in connection with the same occurrence and that Oliur Rahman was the complainant in the said cross case. He proved the certified copy of the ejahar of the said cross case as Ext. Ka. Ext. Kha is the certified copy of the medical report of the injured persons of the cross case and Ext. Ga is the certified copy of the charge sheet in the cross case. 16. PW 1 is the doctor, who was working as the Medical and Health Officer at Nilbagan Public Health Center. On 6.8.2001, he examined injured Abdul Jabbar, Nuruddin, Shahjahan and Rahimuddin at 11 A.M. He had also examined Alauddin at 11 A.M. and because of the critical condition, Alauddin was referred to HAMM Hospital. He found the following injuries on the person of Abdul Jabbar, Nuruddin, Shahjahan, Rahimuddin and Alauddin: “Abdul Jabbar – Punctured wound in the middle of right arm on lateral side (5cm depth x 4 cm length x 3 cm breadth). Nuruddin- Lacerated cut wound (8cm x 3 cm x 3 cm) on the vault of the scalp and occipital region of scalp (5 cm x 3cm x 3 cm) Shahjahan- 1. One small lacerated wet injury on the left side of the chest. 2. Tenderness on both thighs. Rahimuddin- Tender swelling and laceration on the dorsum of both hands. Alauddin- Lacerated wound with depressed fracture on the occipital region of the scalp. One small lacerated wet injury on the left side of the chest. 2. Tenderness on both thighs. Rahimuddin- Tender swelling and laceration on the dorsum of both hands. Alauddin- Lacerated wound with depressed fracture on the occipital region of the scalp. Punctured wound on lower chest (right near midline)” In his cross examination, he stated that all the injured except injured Abdul Jabbar may have sustained injuries found on their persons by falling on hard substance. He also stated that Abdul Jabbar may have sustained such injuries by falling upon sharp edged substance and that injury of Shahjahan and Rahimuddin may be self-inflicted. 17. PW 2 is the informant. He stated that Khalilur as well as Bokhai @ Tahir are his paternal uncles and that accused Oliur is Bokhai’s son. He deposed that the deceased Alauddin was the uterine elder brother of his wife. Rahimuddin, PW 3, is also another elder brother of his wife. Abdul Jabbar, PW 4, is the son of another elder brother of his wife. He further deposed that at around 6 A.M. on the day of the occurrence, Bokhai and Khalilur started ploughing his land, which was gifted to him by his grandfather Badar Ali. He asked them not to plough the land and at that Khalilur came charging at him with a spear. Bokhai and Oliur also came rushing with a bamboo lathi. Rahimuddin, PW 4, who came along asked him what had happened. At that point of time Kadir’s wife Rusna Begum picked up an altercation with his wife Sonjur. While Alauddin had come, accused Khalilur stabbed Alauddin in the chest with a spear and Oliur also struck him on the head with a lathi as a result of which he fell down. Alauddin was again struck by Khalilur and Khalilur’s wife, daughters and sons also assaulted Alauddin. He ran away from the place out of fear and he did not know how Rahimuddin, PW 3, and Abdul Jabbar, PW 4, sustained injuries. He stated that someone had informed police station before he had lodged the ejahar but he did not know who it was. He proved the Deed of Gift (Ext. 1, under objection) executed in his favour by his grandfather and the revenue receipt (Ext. 2, under objection). He stated that in a Section 145 Cr.P.C. proceeding over the land in question, the court order went in his favour. He proved the Deed of Gift (Ext. 1, under objection) executed in his favour by his grandfather and the revenue receipt (Ext. 2, under objection). He stated that in a Section 145 Cr.P.C. proceeding over the land in question, the court order went in his favour. He also deposed that he was on visiting and speaking terms with the accused persons. In his cross-examination, he stated that the disputed land is “tauzi land” in respect of which a dispute was going on between him and the accused Khalilur and Bakhoi for the last 10/12 years. He stated that when he was charged at, he ran away and on reaching the front of his house, he saw that Khalilur stabbed Alauddin when he had come out from the latrine. The latrine is situated at a distance of about 10/12 ft. away from his house in the north-west side. The land is about 10/15 nals away from Khalilur’s house and 30/35 nals away from his house. House of Alauddin and Rahimuddin is half km away from his house and he did not know when Rahimuddin, PW 3, had come to the place of occurrence. Alauddin was a push-cart driver and as he sometimes does, on the date of occurrence also he had come to his house to relieve himself. Kadir is a son of Bokhai and his house is 5 nals away from his house. He admitted that he was an accused in a case where it is alleged that he along with others had assaulted Oliur, Khalilur, Khudeja and others. PW 9 had, however, proved that Shahjahan did not tell him that Bokhai had also charged towards him. 18. PW 3 Rahimuddin stated that the deceased Alauddin was his brother. He stated that he was plucking seedlings at a place some 10 nals away from the place where the incident took place. He stated that he heard a commotion and came to know that accused Khalilur, Oliur and Faizul were chasing his elder sister’s husband, PW 2, towards his house. They were followed by Bokhai, Rezzak, Helal, Rusna, Khudeja and others. He went to PW 2’s house and asked him what had happened. At that time Alauddin, who was elder to him, came out from Shahjahan’s latrine when accused Khalilur stabbed him in his chest with a spear and Oliur struck Alauddin in the head with a lathi. They were followed by Bokhai, Rezzak, Helal, Rusna, Khudeja and others. He went to PW 2’s house and asked him what had happened. At that time Alauddin, who was elder to him, came out from Shahjahan’s latrine when accused Khalilur stabbed him in his chest with a spear and Oliur struck Alauddin in the head with a lathi. After Alauddin had fallen down, Faizul had struck him with an iron rod. In his attempt to save him, he sustained injuries in the dorsal of his left hand as Kadir cut him with a dagger. He then went to Morajhar Police Station on a cycle and lodged a verbal report. In his cross-examination, he stated that the police station is about 2 km away from the place of occurrence and from the place of occurrence his house would be less than 1 km. He had not seen Khalilur and others ploughing the land as view to the plot of land had been blocked by houses of other people. He stated that the incident of assault took place in front of Shahjahan’s house. He admitted that he had not seen Shahjahan being chased. He also stated that he was an accused in connection with a case instituted on the basis of the same incident. PW 9 had, however, contradicted PW 3 by stating that PW 3 did not tell him that he was plucking paddy seedlings. 19. PW 4 had stated that the complainant, i.e. PW 2, was his paternal aunt’s husband. He stated that when he was on his way to harvest paddy, he saw Khalilur, Oliur and Bilal collecting lathi, dao and spear. He went to see what was happening. He also saw Alauddin on his way to the road from Shahjahan’s house after defecating when Khalilur assaulted him with a spear in the chest and Oliur with a lathi on the head. Faizul hit him on the back with a rod. When he tried to save Alauddin, Khalilur pierced his right hand with the spear and as blood rushed out, he became senseless. In his cross-examination he stated that deceased Alauddin had no land related dispute with the accused persons. 20. PW 5 is the doctor who conducted post-mortem examination on deceased Alauddin. He found the following injuries: “1. When he tried to save Alauddin, Khalilur pierced his right hand with the spear and as blood rushed out, he became senseless. In his cross-examination he stated that deceased Alauddin had no land related dispute with the accused persons. 20. PW 5 is the doctor who conducted post-mortem examination on deceased Alauddin. He found the following injuries: “1. One stab wound over the right side of the chest at the level of the 4th and 5th ribs measuring 3” x 3” whole depth of the chest. 2. One lacerated wound over the left palm size 1” x 1” x skin deep and muscle deep with bleeding. Thorax is full of liquid blood as a result of piercing of the lung.” In his cross-examination he stated that if the patient would have been immediately operated upon he might have been alive and that the injury on lung was corresponding to injury No. 1. 21. PW 6 stated that he is the owner of a grocery shop and he saw PW 2, PW 3 and Datol assaulting Kadir and his wife and when such assault was going on, father of Kadir, i.e., Bokhai Mia came to the scene and hearing hulla, people from different directions came to the place of occurrence. With the gathering of people the assault had stopped. He stated that both the parties were involved in fighting but he did not see who assaulted whom and by what weapon. The quarreling was occasioned by land dispute and after the quarrel was over he saw Alauddin lying nearby a tank with injuries on his chest and back. 22. The deposition of PW 6 was followed by the words (DECLARED HOSTILE) and the same was struck-off without any initials. There is no reference in the judgment that PW 6 was declared hostile. The learned counsel for the parties had submitted that PW 6 was not a hostile witness. 23. In his cross-examination, PW 6 stated that the place of occurrence, which is 15 nals away from the grocery shop, was clearly visible and because of heavy rain on the previous night, there was about 1 and ½ ft. water at the place of occurrence. The place of occurrence was on the road which was constructed by accused Khalilur. He heard hulla made by the wife of Kadir which prompted him to come out of his shop. water at the place of occurrence. The place of occurrence was on the road which was constructed by accused Khalilur. He heard hulla made by the wife of Kadir which prompted him to come out of his shop. The hulla was raised after assault of Kadir and his wife by Jobai, Nuruddin, Rahimuddin, Shahjahan and Alauddin. Khalilur, whose house is about 15 nals away, and his other family members had come to the place of occurrence to rescue Kadir and his wife from Alauddin (deceased), Nuruddin, Jabai, Rahimuddin and Shahjahan. There was a group clash between the parties armed with different weapons and both the parties sustained injuries. Alauddin assaulted Oliur on his neck and after that both the parties were engaged in a group clash. 24. PW 7 Abdul Salem stated that deceased Alauddin was his nephew and at the time of incident he was in the market which is half a furlong away from the place of occurrence. On his arrival he saw Khalilur stabbing his nephew in his chest with a spear and Oliur assaulting Alauddin in the head with a lathi. In his cross-examination he stated that the incident was over in 5/10 minutes. He found Alauddin lying in the water with his face down and with the help of Abdul Mannan, Samsul, Nuruddin and others he took Alauddin to Abdul Mannan’s pharmacy. Bandage was applied and medicine was administered. Alauddin was not speaking at that time. It was 9 A.M. by the time Alauddin was taken away from the place of occurrence. 25. PW 8 Amiruddin deposed that he was in his shop situated near the place of occurrence which was just behind the house of Kadir. After hearing hulla of the wife of Kadir, he went to their house and saw Rahimuddin (PW 3) and another fighting with Kadir and his wife. He saw both Alauddin and Oliur engaged in fighting in water and saw lathi in the hand of Alauddin and dagger in the hand of Shahjahan. He saw Alauddin going to assault Oliur but due to water logging he slipped and fell on the ground. At that stage, this witness was declared hostile. 26. Although PW 5 stated that he had found two injuries on Alauddin, PW 1 had categorically stated that there was lacerated wound and depressed fracture on the occipital region of the scalp. He saw Alauddin going to assault Oliur but due to water logging he slipped and fell on the ground. At that stage, this witness was declared hostile. 26. Although PW 5 stated that he had found two injuries on Alauddin, PW 1 had categorically stated that there was lacerated wound and depressed fracture on the occipital region of the scalp. Such injury was also noticed at the time of preparation of the inquest report as it was mentioned therein that there was swelling on the back side of the head parallel to right eye and ear. 27. According to evidence of PW 2 two incidents had taken place: one at the time when he was chased away by Khalilur, Bokhai and Oliur with spear and lathi when he had gone to stop the appellants and Bokhai from ploughing his land and the other, the fatal assault on Alauddin in front of his house. PW 3 came to learn about such incident of chasing and he had admitted that he had not seen Shahjahan being chased. Except for the evidence of PW 2, there is no other evidence on record to demonstrate that the appellants as well as Bokhai had started ploughing his land and that on protest being made by PW 2, they had chased him. 28. The prosecution had also not brought on record the judgment of the court whereby possession of the land was supposedly declared in favour of Shahjahan. Materials on record, however, demonstrate that there was a simmering dispute in between the parties for about 10/12 years relating to a plot of land. Shahjahan (PW 2) claims the land on the basis of a gift deed, which is not registered, from his grandfather, who happens to be the father of Khalilur and Bakhoi. It also came out clearly from the evidence on record that the land belonged to Government. There is no co-relation of Ext. 1 and Ext. 2 and in any case, the disputed land being a government land, there could not have been payment of any land revenue which is payable only when the land is either an annual patta land or a periodical patta land. It appears that both the parties, despite the land being government land, are staking claim over that plot of land, at least for the purpose of agricultural activities. 29. It appears that both the parties, despite the land being government land, are staking claim over that plot of land, at least for the purpose of agricultural activities. 29. It appears from the evidence of PW 9 that PW 3 had informed him verbally about the occurrence based on which he made the GD entry, Ext. 3. A perusal of the GD, entry Ext. 3, shows that Rahimuddin, in an injured condition, had stated that at about 7.00 A.M., Md. Khalil, Md. Oliur Rahman, Abdul Kadir, Bokhai Mia, Md. Bilal Uddin and Md. Faizul Haque, by forming an unlawful assembly, armed with lathi, spear, etc., had attempted to take forcible possession of the land under their possession and in the process had assaulted him, Shahjahan, Nuruddin and Abdul Jabbar and had pierced Alauddin with a spear causing grievous injury and that he was in critical condition. PW 9 had stated that after making the GD entry, he had started investigation by going to the place of occurrence and by examining the witnesses. In that view of the matter, Ext. 6 is hit by the provision of Section 162 Cr.P.C. PW 2 had stated that he had lodged an ejahar at 8 or 9 A.M. However, PW 9 makes no reference about this ejahar. PW 2 did not state that he had gone to police station to lodge the ejahar but mentioned that he had handed over the ejahar to Mr. Dutta, apparently referring to PW 9, whose name is Ashok Dutta. It appears that the said ejahar was handed over at the place of occurrence after PW 9 had reached the place of occurrence after recording GD entry, Ext. 3. Non-mentioning by PW 9 of the ejahar handed over to him by PW 2 will not make any difference as the same was also given after GD entry was already recorded. It is to be noticed that in the GD entry, no specific overt act was attributed to any of the accused persons. 30. 3. Non-mentioning by PW 9 of the ejahar handed over to him by PW 2 will not make any difference as the same was also given after GD entry was already recorded. It is to be noticed that in the GD entry, no specific overt act was attributed to any of the accused persons. 30. In Sucha Singh vs. State of Punjab, reported in (2003) 7 SCC 643 , it was stated by the Apex Court as follows: “Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar the prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries on the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh v. State of Bihar it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of the prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature.” 31. PW 6, who is an independent witness, had stated that Shahjahan, Rahimuddin and one Datol assaulted Kadir and his wife. It is more so when the injuries are simple or superficial in nature.” 31. PW 6, who is an independent witness, had stated that Shahjahan, Rahimuddin and one Datol assaulted Kadir and his wife. None of the other witnesses have referred to Datol and it is also not known whether Datol is also known by any other name. In view of the hulla raised, the appellants, Alauddin and others came there. Alauddin assaulted Oliur and a group clash ensued. Ext. Ka is a copy of the ejahar lodged by Md. Oliur Rhaman at 8 P.M., of 6.8.2001 in which PW 2 and others were shown as accused persons in respect of an occurrence that took place at about 7 A.M., because of a land dispute. It was stated that grievous injuries were caused as a result of which three persons were undergoing treatment. In the list of injured, name of Khalilur Rahman also figures apart from the complainant himself. Ext. Kha, Medical Report shows that the injured was examined at 1 P.M., on 6.8.2001 on being escorted by police personnel and all injuries were simple. This would go to show that Ext. Ka, ejahar, came to be lodged subsequent to onset of investigation. Khalilur was examined at 7.30 P.M., and the age of the wound, which was a simple lacerated wound caused by a blunt object, was more or less 24 hours. Ext. C is the charge sheet in the ejahar lodged by Oliur Rahman under Section 147/148/149/447/448/324/323 IPC. Non-explanation of injuries assumes importance when the projection given by the defence competes in probability with the prosecution version. But when the evidence is clear and reliable, mere fact that the injuries were not explained by the prosecution cannot be a basis for throwing over board the prosecution case. The evidence of PW 6 goes to show that Kadir and his wife, namely, Rusna Begum had been assaulted. His evidence does not show that any weapons or instruments were used at the time of the assault. It is already noticed that they had suffered only simple injuries and thereafter, the appellants and others had converged on the road and a free fight had ensued. 32. Evidence of PW 2, 4 and 7 go to show that Khalilur had assaulted Alauddin with a spear and Oliur had assaulted him by means of a lathi on his head. It is already noticed that they had suffered only simple injuries and thereafter, the appellants and others had converged on the road and a free fight had ensued. 32. Evidence of PW 2, 4 and 7 go to show that Khalilur had assaulted Alauddin with a spear and Oliur had assaulted him by means of a lathi on his head. PW 1 had noticed a depressed fracture on the occipital region of the scalp of Alauddin. The learned trial court held that the appellants had not assaulted the deceased with the intention to kill him because if that was the intention, there would have been more injuries on the person of the deceased. Learned trial court also noted that there was no attempt to kill the other members of the family and thus concluded that it would be reasonable to infer that the accused had the knowledge that injury caused by them may have caused his death though they may not have intended to commit murder. 33. It is also relevant to note that evidence of PW 5 makes it clear that if the injured was operated upon immediately, he may have been alive. Evidence of PW 7 indicates that Alauddin was shifted from the place of occurrence around 9 A.M., after about two hours of the incident that had occurred at 7 A.M., and thereafter also he was kept in the Pharmacy of one Abdul Mannan for about 15/20 minutes and then only he was taken to the hospital wherein he was examined by doctor at around 11 A.M. The above sequence of events demonstrates that there was avoidable delay in shifting the injured to the hospital. If prompt medical attention would have been rendered, may be, as opined by PW 5, Alauddin may have survived. 34. In Shaikh Majid (supra), the Apex Court has stated that whenever a single blow is given, as a matter of preposition, it cannot be laid down that the same would not attract Section 302 IPC. In the aforesaid case, one blow was given by a small knife in the course of a sudden quarrel and the Apex Court had altered the conviction to one under Section 304 Part-I IPC from Section 302 IPC. 35. In the aforesaid case, one blow was given by a small knife in the course of a sudden quarrel and the Apex Court had altered the conviction to one under Section 304 Part-I IPC from Section 302 IPC. 35. In Virsa Singh (supra), the Apex Court had held that where there was no evidence or explanation about how the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestine came out of the wound and that digested food oozed out from the cut in three places, it will be perverse to conclude that he did not intend to inflict the injury that he did. Similar view was taken in Jai Prakash (supra) when stab injury was inflicted with a kirpan with a force sufficient to penetrate the heart. The aforesaid cases cited by Mr. Ahmed are distinguishable on facts as emerged in the instant case. 36. We have also considered the other two cases cited by Mr. Ahmed. Dr. Ravindra Prakash Mittal (supra) lays the proposition that mere delay in disposal of the appeal cannot afford a ground for non-interference in appeal. Surendra Singh Rautela (supra) lays down the proposition that the High Court, suo-motu in exercise of revisional jurisdiction can enhance the sentence awarded by the trial court and the same is not affected merely because the power has been provided under Section 377 Cr.P.C. for enhancement of sentence and no such appeal had been preferred. Being alive to the above propositions of law, we have examined the materials on record in detail, more so, as we are also considering an appeal against conviction. 37. On an evaluation of the evidence on record, we are of the considered opinion that in the facts and circumstances of the case, the learned trial court was correct and justified in convicting the accused appellants under Section 304 Part-II IPC. 38. In that view of the matter, the appeal fails and accordingly, the same is dismissed. The plea raised in the revision petition for conviction of the accused appellants under Section 302 IPC also, accordingly, fails. 38. In that view of the matter, the appeal fails and accordingly, the same is dismissed. The plea raised in the revision petition for conviction of the accused appellants under Section 302 IPC also, accordingly, fails. We, in the facts and circumstances of the case, are also not inclined to impose a sentence for imprisonment for a longer period than that had been awarded by the learned trial court as we are of the opinion that sentence imposed by the learned trial court will meet the ends of justice. Consequently, the appeal and the revision petition are dismissed. 39. The appellants shall surrender before the learned trial court to serve out their sentence. 40. Registry will send back the records.