JUDGMENT AND ORDER : Ajit Singh, J. Appellants – (i) Budheswar Orang @ Ram and (ii) Pradip Orang alias Choto have been convicted under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,500/- each or in default, further simple imprisonment of one month each. 2. The victim of the incident was Sonaton Patra, aged 28 years. 3. According to the prosecution case, on 5.11.2010, around 10 p.m., both the appellants along with co-accused Mandai @ Mohindra Orang caused injuries to Sonaton with their fist blows. The incident took place on the playground of Ajgar Line of Dessoi Tea Estate. The appellants as well as Sonaton were small employees in the Tea Garden. Lakhi Patra (PW-6), wife of Sonaton, informed about the incident to Donadon Patra (PW-1) who is brother of Sonaton. He immediately rushed to the place of occurrence. At that time, Sonaton was unable to speak. Since Sonaton was an employee in the Tea Garden, he was immediately taken to Garden Hospital, where he was admitted around 10.30 a.m. On 6.11.2010, Sonaton was shifted to Jorhat Medical College & Hospital. He however died on 7.11.2010. Donadon then made the ejahar at Deberapara Police Outpost falling within the jurisdiction of Police Station Mariani. 4. Dr. Gautam Hazarika (PW-7) conducted the post mortem examination on the dead body of Sonaton and found the following injuries:- (i) lacerated injury over chin about 1” x ¼” (ii) laceration over anaryin of lower lip about ¼”x ¼” (iii) Abrasion over right side of forehead about 2”x1” (iv) Abrasion over lumber region right about 1”x ½” (v) Abrasion present over right side of forehead about 2” x 1” (vi) Abrasion over occipital region about 2” x ½” (vii) Fracture of right frontal bone about 2 ½” long The doctor, in his post mortem examination report exhibit 2, opined that Sonaton died due to head injury, which was ante mortem in nature. 5. Lakhi Patra (PW-6) claimed to have seen the incident, whereas Donadon Patra (PW-1) and Ugrasen Patra (PW-2) stated that on their asking, Sonaton disclosed that appellants and Mandai @ Mahindra had assaulted him. 6. Sub-Inspector Prateem Gogoi (PW-8) after investigation filed the charge sheet against the appellants for their trial under Section 302 read with 34 of the Indian Penal Code. 6. Sub-Inspector Prateem Gogoi (PW-8) after investigation filed the charge sheet against the appellants for their trial under Section 302 read with 34 of the Indian Penal Code. Since Mandai @ Mahindra was found to be juvenile in conflict with law, he was proceeded separately. 7. During trial, the appellants took the plea of false implication. In their defence, the appellants submitted that on the night of incident, they found Sonaton lying near the shop of Kedar Mundi (PW-4) and on his request while they were shifting Sonaton towards his shop, Sonaton gave two blows to them with a dao which they somehow managed to escape and then left him there. 8. The trial court believed the prosecution story instead of defence plea of the appellants and convicted and sentenced them as aforesaid. 9. Lakhi Patra in her evidence has testified that she saw the appellants beating Sonaton and when she rushed to the place of occurrence, they ran away. Lakhi says that she then informed Donadon, who carried Sonaton to the hospital. Donadon and Ugrasen have testified that after sustaining injuries, Sonaton was initially unable to speak, but later in the hospital, on their asking, he disclosed that appellants had beat him. The evidence of these witnesses also stands corroborated by the post mortem examination report exhibit 2 prepared by Dr. Gautam Hazarika. 10. In view of the evidence of witnesses, namely, (i) Donadon Patra (PW-1), Ugrasen Patra (PW-2) and Lakhi Patra (PW-6), learned counsel for the appellants has not assailed the prosecution story, which is well-founded and fully proved. Accordingly, we confirm the findings of the trial court that appellants were the perpetrators of the crime. 11. Learned counsel for the appellants has, however, argued that even accepting the prosecution case in totality, it cannot be said that appellants had the intention to murder Sonaton and as such, the offence will not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. 12. Donadon is brother of Sonaton. He has admitted in his cross examination that earlier Sonaton had cut his stomach with a dao after quarreling with his wife. Lakhi Patra has not stated in her evidence that appellants had caused injuries to Sonaton with any weapon. We find sufficient force in this submission. 12. Donadon is brother of Sonaton. He has admitted in his cross examination that earlier Sonaton had cut his stomach with a dao after quarreling with his wife. Lakhi Patra has not stated in her evidence that appellants had caused injuries to Sonaton with any weapon. Kedar Mundi (PW-4) has deposed that he saw the appellants standing near Sonaton, who was in an injured condition, and on his asking, they carried Sonaton towards hospital road. Sonaton unfortunately died after two days in the hospital. No weapon was used in beating him. For these reasons, we are unable to believe that appellants had any intention to cause the death of Sonaton. It can, however, be safely held that they had the knowledge that by causing injuries to Sonaton with fist blows, the latter would die. 13. Consequently, we set aside the conviction of the appellants under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to them including the fine of Rs.1,500/- and instead, convict them under Section 304 Part II of the Indian Penal Code and award a sentence of 5 years rigorous imprisonment. The sentence of fine is however affirmed. The appellants are in jail and they be released on their undergoing jail sentence awarded by us. 14. With the above modification, the appeal is partly allowed.