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2017 DIGILAW 1383 (JHR)

Ashok Dubey v. State of Jharkhand

2017-08-08

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Ananda Sen, J. 1. Heard learned Sr. counsel for the appellants and the learned Addl. P.P. for the State. 2. The appellants have preferred this appeal against the Judgment of conviction dated 21.06.2006 and Order of sentence dated 23.06.2006, passed by the 1st Additional Session Judge, Chatra, in Session Trial No. 608 of 1993, by which the appellants have been convicted for committing offence under sections 307/149 and 302/149 of the Indian Penal code. Further appellant Ashok Dubey and Jashwant Kumar Dubey have been found guilty for the charge under section 148 of the Indian Penal Code and accused Himansu Kumar Dubey and Ajay Kumar Dubey have also been found guilty for the under section 147 of the Indian Penal Code. After the said conviction, they have been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each for the charge under section 302/149 of the Indian Penal Code and in default of payment of fine they were further sentenced to undergo R.I. For six months. The convict Ashok Kumar Dubey and Jashwant Kumar have been further sentenced to undergo R.I. For 2 years each for the charge under section 148 of the Indian Penal Code and the convict Himansu Kumar Dubey and Ajay Kumar Dubey have been further sentenced to undergo R.I. for one year each for the charge under section 147 of the Indian Penal Code. No separate sentence was passed under section 307/149 of the Indian Penal Code. It was directed that the sentences to be run concurrently. 3. The prosecution case is based on the fardbeyan of the informant Rajesh Kumar Dubey (P.W.3), who stated that on 29.06.1992 at about 8.00 A.M. he was sowing maize seeds in the land situated towards the west of his house when his father Alakh Narayan Dubey (deceased) went to call labourer in the village. The informant heard alarm of his father and came running there and he saw accused Raghuwar Dubey (dead during the trial) armed with Lathi, Jashwant Kumar Dubey and Ashok Kumar Dubey armed with Farsa (sharp cutting weapon) and Himansu Kumar Dubey armed with sword and Ajay Kumar Dubey armed with dagger and Lathi, were abusing his father. The informant protested and tried to restrain the accused persons, where upon Raghuwar Dubey ordered the other accused persons to kill the father of the informant. The informant protested and tried to restrain the accused persons, where upon Raghuwar Dubey ordered the other accused persons to kill the father of the informant. On receipt of such command, Ashok Kumar Dubey and Jashwant Kumar Dubey assaulted his father by Farsa on his head resulting in cut injury. Ajay Kumar Dubey and Raghuwar Dubey assaulted his father by Lathi on his back, which also caused injuries. The informant stated that he along with his brother, Dinesh Kumar Dubey, wanted to save his father, but the accused persons also assaulted them by Farsa. When alarm was raised, the villagers, namely, Dhaman Singh, Rajdeo Singh, Chandrabasu Dubey and others reached at the place of occurrence and saved them from further assault. The informant took his father to Chatra Hospital, where his father and brother were treated and his father is still in unconscious state. 4. On the basis of the aforesaid Fardbeyan Chatra P.S. Case No. 113 of 1992, under sections 147, 148, 149, 323, 324, 307 of the Indian Penal Code was registered against the accused persons, in which Raghuwar Kumar Dubey and Sudhansu Kumar Dubey were also shown as accused, but they died during the trial. 5. In course of treatment, Alakh Narayan Dubey died in R.M.C.H., Ranchi, thus, on the prayer of the investigating officer section 302 of the Indian Penal code was added. 6. The Police investigated the case and after competition of investigation filed charge sheet under section 147, 148,149, 323, 307 and 302 of the Indian Penal Code. Cognizance was taken of the aforesaid offence and thereafter since the case was exclusively triable by the Court of Session, the same was committed to the Court of Session for trial. 7. Learned trial Court framed charges against the accused persons and as they pleaded 'not guilty' to the charges, they were put on trial. 8. Altogether eight witnesses were examined on behalf of the prosecution. In quest report, postmortem report, F.I.R. including several signatures were exhibited by the prosecution. 9. After closure of the prosecution witnesses, the statements of the accused were recorded under section 313 of the Code of Criminal Procedure. 10. The defence has also adduced one witness. 11. 8. Altogether eight witnesses were examined on behalf of the prosecution. In quest report, postmortem report, F.I.R. including several signatures were exhibited by the prosecution. 9. After closure of the prosecution witnesses, the statements of the accused were recorded under section 313 of the Code of Criminal Procedure. 10. The defence has also adduced one witness. 11. After hearing the arguments advanced on behalf of the accused persons and State and after going through the records of the case, the trial Court convicted the appellants and sentenced them for committing offence under sections 307/149 and 302/149 of the Indian Penal Code. Further appellant Ashok Dubey and Jaswant Kumar Dubey have been found guilty for the charge under section 148 of the Indian Penal Code and accused Himansu Kumr Dubey and Ajay Kumar Dubey have also been found guilty under section 147 of the Indian Penal Code. Aggrieved by the said judgment of conviction and order of sentence, these appellants have preferred this appeal before this Hon'ble Court. 12. The learned Sr. Counsel Mr. P.C. Tripathy, appearing on behalf of the appellants submitted that on the facts of the case and on the evidence, which has been gathered in this case, the appellants could not have been convicted for the offence under sections 302/149 of the Indian Penal Code. He submits that the deposition of P.W.3 categorically suggests that there was no intention on the part of any of the appellants to commit murder of the deceased. He further submits that injury report and the inquest report also suggests that no case under section 302 of the Indian Penal Code is made out against the appellants. It is further submitted that P.W.3, the informant of the case is not a reliable witness as it is evident from the statements that his statement is not consistent. It has been further argued that as per the statement of the informant he was also injured in the occurrence, but there is nothing on record to suggest that he was at all injured. Further from the evidence of P.W. 2 it would be evident that the informant reached the place of occurrence after the alleged assault, thus, the entire evidence of P.W.3 on the point that he was an eye witness, gets demolished. Further from the evidence of P.W. 2 it would be evident that the informant reached the place of occurrence after the alleged assault, thus, the entire evidence of P.W.3 on the point that he was an eye witness, gets demolished. It is submitted that there was admitted land dispute between the parties, as such, there is a chance of false implication of the appellants at the instance of the informant. He submits that though the witnesses have stated that several villagers assembled at the place of occurrence, but none of the independent witness has been examined. It is lastly submitted that on the facts of the case and the evidence recorded, the appellants are liable to be acquitted. 13. The learned Addl. P.P. submits that there is sufficient evidence on record to convict the appellants under section 302 of the Indian Penal Code. It is submitted that admittedly the appellants formed an unlawful assembly and they were armed with deadly sharp cutting weapons, which suggests that there was an intention on the part of these appellants to commit murder of the deceased. He submits that after order was given by Raghuwar Dubey, the assault was carried out, which also suggests the intention of the appellants to commit murder of the deceased. It is submitted that small contradictions cannot be a ground for acquitting the appellants of the charges under section 302 of the Indian Penal Code. It is submitted that the evidence of the witnesses are consistent which clearly suggests the involvement of the appellants in committing murder of the deceased. On this basis it is submitted that the appellants have been rightly convicted and sentenced for committing offence under sections 307/149 and 302/149 of the Indian Penal Code. Further appellant Ashok Dubey and Jaswant Kumar Dubey have been found guilty for the charge under section 148 of the Indian Penal Code and accused Himansu Kumar Dubey and Ajay Kumar Dubey have also been found guilty for the under section 147 of the Indian Penal Code. 14. As mentioned here in above, to prove the case of the prosecution, the prosecution has examined eight witnesses. P.W.1 is Dhaman Singh @ Ghanshyam Singh, who stated that the occurrence is of the year 1992 and at that time he was ploughing his field. He states that he heard scream and saw Ashok Dubey and Jaswant Dubey assaulting Alakh Narayan Dubey with lathi. P.W.1 is Dhaman Singh @ Ghanshyam Singh, who stated that the occurrence is of the year 1992 and at that time he was ploughing his field. He states that he heard scream and saw Ashok Dubey and Jaswant Dubey assaulting Alakh Narayan Dubey with lathi. He stated that Farsa (sharp cutting weapon) was attached with the stick, but the assault was made from other side i.e. from back portion and not by the sharp side. He also stated that Sudhansu Dubey and Ajay Dubey also assaulted by Lathi. He also stated that when sons of Alakh Narayan Dubey, namely, Rajesh Dubey and Dinesh Dubey came to save their father, they were also assaulted. Rajesh Dubey was assaulted by lathi as a result of which blood started oozing out from his body. Alakh Narayan Dubey became unconscious. He was taken to the Hospital from where he was referred to Ranchi. After two days dead body of Alakh Narayan Dubey was brought in the village. In paragraph no. 14 he stated that the informant Rajesh Dubey and accused are agnates and there is no dispute between them in respect of partition of the lands. He stated that Jashwant Dubey is in Army. He stated that after the assault, villagers reached at the place of occurrence. He stated that he had given his statement before the Police. Nothing more could be extracted from him in his cross-examination by the defence. 15. P.W. 2 is Rajdeo Singh, who stated that the occurrence is of the year 1992 and he was present at the place of occurrence. He stated that Alakh Narayan Dubey,Ashok Dubey,Himansu Dubey were going together towards village. He stated that he was also with them. He deposed that Ashok Kumar Dubey then assaulted Alakh Narayan Dubey with Lathi. He stated that Himansu Dubey also assaulted with Lathi, as a result of which he fell down and he became unconscious. He stated that accused Ajay Dubey, Jashwant Dubey and Sudhansu Dubey were also there. They were armed with Lathi. He stated that sons of Alakh Narayan Dubey, namely, Rajesh Kumar Dubey and Dinesh Dubey came to the place of occurrence. The accused also assaulted Rajesh on his head, as a result of which he sustained injury on the back of his head and blood started oozing out. They were armed with Lathi. He stated that sons of Alakh Narayan Dubey, namely, Rajesh Kumar Dubey and Dinesh Dubey came to the place of occurrence. The accused also assaulted Rajesh on his head, as a result of which he sustained injury on the back of his head and blood started oozing out. He further stated that he also received injury on his left leg as he tried to save the informant. He stated that Dinesh was also injured due to the assault made upon him by Jashwant. Alakh Narayan Dubey was taken to Chatra Hospital and this witness came to learn that he was then referred to Ranchi. He stated that on the next day, the dead body of Alakh Narayan Dubey was brought in the village. He stated that Alakh Narayan Dubey, Ashok Dubey and Himansu Dubey were all going together towards the village. He states that Rajesh Kumar Dubey and Dinesh Dubey came after 15 minutes of the occurrence and at that point of time Alakh Narayan Dubey was alive. He could not see, who assaulted Rajesh and Dinesh, but he saw that the blood was oozing out from their bodies. 16. P.W.3 Rajesh Kumar Dubey is the informant. He stated that occurrence had taken place on 29.06.1992. He stated that his father went in search of labourer in the village and he was sowing maize seeds in his field when suddenly he heard scream of his father and he rushed to the place of occurrence. He saw Raghuwar Dubey armed with lathi, Jaswant Dubey armed with Farsa, Ashok Dubey armed with Farsa, Himansu Dubey having lathi in his hand and a sword was tied in his waist, Ajay Kumar Dubey armed with Lathi and Sudhansu Kumar Dubey armed with lathi attached with spear. All of them surrounded his father and were abusing him. When the informant confronted the accused persons, then Raghuwar Dubey ordered to kill him. On hearing such order Ashok Dubey assaulted with Farsa and thereafter again assault was made with back side of Farsa. When his father fell down on the ground,Himansu Dubey assaulted him by Lathi on his head and Ajay Dubey and Sudhansu Dubey started assaulting with lathi on Alakh Narayan Dubey.He stated that the accused persons also chased the informant and his brother. When his father fell down on the ground,Himansu Dubey assaulted him by Lathi on his head and Ajay Dubey and Sudhansu Dubey started assaulting with lathi on Alakh Narayan Dubey.He stated that the accused persons also chased the informant and his brother. Ashok Kumar Dubey struck with Farsa on the head of the informant as a result of which he sustained injury on the back side of the head. He stated that in the meantime many villagers assembled there and thereafter the accused persons fled away to their house. His father was taken to Chatra Hospital, where the statement of the informant was recorded. For better treatment the injured was referred to R.M.C.H. Ranchi. The father of the informant was in unconscious state. Ultimately on 30.06.1992 at about mid night he expired. After postmortem, the dead body was brought in the village, where it was cremated. He stated that on 09.07.1992 a letter allegedly written by M.C.C. was received, where in it was written that if any one gives evidence in this case, they will be murdered. He stated that Jashwant Dubey is in military and he lodged a case against the informant and they were restraining the informant from giving evidence. He stated that he was also threatened and was attacked by firearms earlier, but in the said occurrence his brother-in-law (Sala) died of firearm injury. He stated that both the accused Ashok Dubey and Himansu Kumar Dubey are in custody in connection with Chatra P.S. Case No. 178 of 2003. He stated that he is regularly getting threats from the accused persons. He identified the signature on the Fardbeyan, which was marked as Ext.1. He stated that there was a Panchayati in relation to partition and because of such land dispute, his father was murdered. He admitted that the accused and the deceased are agnates and there was a dispute going on between them in relation to partition of land since one year. He says that he is not aware about the extent of the land which his father had sold, but can say about the lands, which remained unsold. He further stated that through Himansu was carrying sword, but he assaulted with Lathi (stick) on the head. He stated that from the back side of Farsa his father was assaulted. He stated that he had also sustained injury. He further stated that through Himansu was carrying sword, but he assaulted with Lathi (stick) on the head. He stated that from the back side of Farsa his father was assaulted. He stated that he had also sustained injury. He was treated in Chatra Hospital and he was not admitted there. He stated that there is only one injury on his person. He stated that his father was treated in Chatra Hospital and thereafter he was taken to Ranchi. His father was unconscious state. He described the place of occurrence also. 17. P.W.4 is Chandra Basu Dubey has stated that on the date of occurrence he was ploughing his field when he heard some hue and cry in the village. He reached there and saw Raghuwar Dubey, Jashwant Dubey, Ashok Dubey, Himansu Dubey, Sudhansu Dubey, Ajay Dubey were surrounding Alakh Narayan Dubey.Raghuwar Dubey was telling to kill Alakh Narayan Dubey. Ashok Dubey with back side of Farsa assaulted Alakh Narayan Dubey on his head. Again Jashwant Dubey from the back side of the Farsa assaulted Alakh Narayan Dubey with intention to kill, these persons assaulted him. Himansu Dubey was having a sword and a Lathi but he assaulted with Lathi. Sudhansu Dubey was having spear, but he assaulted with Lathi, Rajesh Dubey wanted to save his father, but he was also assaulted by Raghuwar Dubey, Jashwant Dubey and Ajay Dubey, then he took shelter in the house of Rajesh Dhaman Singh. The injured Alakh Narayan Dubey was taken to Chatra Hospital, from where he was referred to Ranchi. He stated that on the next day the dead body was brought in the village. He also stated that there was a land dispute between the parties. He stated that brother of Ashok Dubey is threatening him not to give evidence. It is stated that the accused also came to murder Rajesh Dubey, but due to mistake they committed murder of Suresh Kumar Dubey,for which a separate case has been lodged. He stated that Rajesh Kumar Dubey is his nephew. He stated that he resides separately but the courtyard is same. He stated that the accused persons are his agnates. He stated that there is no dispute in relation to the partition of the land. He stated that there was an oral partition amongst the parties. He stated that Rajesh Kumar Dubey is his nephew. He stated that he resides separately but the courtyard is same. He stated that the accused persons are his agnates. He stated that there is no dispute in relation to the partition of the land. He stated that there was an oral partition amongst the parties. He stated that his land in which he was residing is about 200-250 yards from the place of occurrence. He stated that Ashok Dubey assaulted once with back side of Farsa. He stated that Himansu Dubey, Ajay Dubey and Sudhansu Dubey assaulted with lathi on several occasions. He stated that Alakh Narayan Dubey received head injuries. He stated that he was not assaulted. He stated that with the wooden stick of the spear Alakh Narayan Dubey was assaulted. Rajesh was also assaulted. Alakh Narayan Dubey was treated at Chatra Hospital and thereafter he was taken to Ranchi. He stated that on the next day the dead body was brought in the village. He gives the relationship between the parties with him. 18. P.W.5 is Dinesh Kumar Dubey, who has stated that Raghuwar Dubey, Jaswant Dubey and Ajay Dubey were abusing his father when he reached at the door of Dhaman Singh@ Ghanshyam Singh,in the meantime Raghuwar Dubey directed the accused persons to kill them. Then Ashok Dubey and Jaswant Dubey assaulted his father with back side of Farsa as a result of which he received injury and fell down. Ajay Dubey, Sudhansu Dubey, Himansu Dubey also assaulted him with Lathi. This witness tried to save his father, but Ajay Dubey and Sudhansu Dubey assaulted him with Lathi on his leg and back. Rajesh Dubey was also assaulted by Jashwant Dubey and Ashok Dubey. His father was taken to the house in unconscious state and from where he was taken to Kanha Chati and then he was taken to Chatra Hospital. For better treatment he was further taken to Ranchi, where he died. His father are five brothers, all brothers are separate in mess also, but every one was connected to each other. He could not say what was the extent of land in the share of each of the family. He gave the description of place of occurrence. For better treatment he was further taken to Ranchi, where he died. His father are five brothers, all brothers are separate in mess also, but every one was connected to each other. He could not say what was the extent of land in the share of each of the family. He gave the description of place of occurrence. He deposed that Jashwant Dubey gave one or two lalthi blows on the head of his father and Ajay and Sudhansu gave one-two lathi blows to his father. He stated that there were marks of injury on the body of his father. He stated that blood was also oozing out from the body of his father. He stated Jashwant Dubey is in Army since long. He stated that the injured was taken to Kanha Chati where from Dr. Bikram Babu came and referred the injured to higher centre. The status of the victim was serious. He denied the suggestion that levy was being demanded by M.C.C. 19. P.W. Dr. Nityanand Mandal, who examined Alakh Narayan Dubey. He found the following stiched wound: (I) Stiched wound over scalp in A.P. directed margin lacerated after removal of stitch wound was 5”x 1/4” into scalp deep, red in colour. (II) Lacerated wound 6”x1/4” scalp deep read in colour. A.P. directed over mid of vertex. Both above wound was 1 ½ distance apart. He also found the patient was deeply unconscious and features were suggestive of had injuries. He stated that the weapon used was hard and blunt object and suggested that it can be by the opposite side of Farsa. In cross-examination he stated that wounds, which were stiched were there from before his examination. He stated that he only examined Alakh Narayan Dubey and he has not examined any of his family members nor there is any report of such examination. 20. P.W.7 is Indradeo Singh, who was the Investigating Officer of the case. He exhibited the Fardbeyan as Ext.5 and the endorsement on the fardbeyan is marked as Ext.5/1. Formal F.I.R. was marked as Ext.6. He recorded the restatement of the informant and inspected the place of occurrence. He gives boundary of the place of occurrence. He stated that deceased died in R.M.C.H., Ranchi. He stated that he submitted charge sheet under sections 147, 148,149, 323, 324, 307 and 302 of the Indian Penal code. Formal F.I.R. was marked as Ext.6. He recorded the restatement of the informant and inspected the place of occurrence. He gives boundary of the place of occurrence. He stated that deceased died in R.M.C.H., Ranchi. He stated that he submitted charge sheet under sections 147, 148,149, 323, 324, 307 and 302 of the Indian Penal code. He stated that he had not seized the blood stained earth. He stated that he could not find any weapon in the house of accused persons. He stated that the occurrence had occurred due to land dispute. He stated that Chandrabasu Dubey did not tell him that Himansu was carrying sword. 21. P.W.8 is Dr. Renu Bala, who conducted the postmortem upon the dead body of the deceased. He stated that head of the deceased was bandaged. He found the following wounds: (1) Stiched wound-7x1 c.m. On the right frontal and parietal region of head, situated vertically (lacerated). (2) Lacerated wound not stiched 9x1 c.m. On the left fronal region of head situated vertically. (3) Internal Injury- (i) There was contrusion of frontal parietal and temporal region of scalp. (ii) Crack fracture of right frontal and temporal bone measuring 11 c.m. with separation of coronal sature on the right side. (iii) Crack fracture of left frontal bone measuring 8 c.m. And 2 2/2 c.m. In continuation of both sides. (4) Crack fracture of left temporal and parietal bone measuring 9 c.m. (5) There was intra and subjunal bleeding on both sides of brain but more on left side. (6) There was laceration of left frontal lobe of the brain and presence of blood clot 30 gm in the area of left temporal region. As per the opinion of this Doctor the cause of death was head injury. It was opined that all the above injuries were ante-morten caused by hard and blunt substance. 22. Defence has also adduced one witness, namely, Awadhesh Upadhyay, who stated that there was land dispute amongst the brothers and he tried to deposed that M.C.C. (banned organization) had role in the occurrence. 23. From the aforesaid evidence adduced by the prosecution, it is to be seen whether the prosecution has been able to prove the charge leveled against the appellants or not? 24. From the evidence of P.Ws.1, 2, 3, 4 and 5 it is quite clear that there was assault on the deceased. 23. From the aforesaid evidence adduced by the prosecution, it is to be seen whether the prosecution has been able to prove the charge leveled against the appellants or not? 24. From the evidence of P.Ws.1, 2, 3, 4 and 5 it is quite clear that there was assault on the deceased. P.W.3 says that he was in his field when he heard scream of his father. He reached at the place of occurrence and saw the assault. P.W.1 on the other hand says that he was along with deceased when the occurrence has taken place. He also stated that the accused persons and the deceased together were going towards the village when the occurrence had taken place. He says that P.W.3, who is the informant, reached at the place of occurrence after some time. P.W. (informant ) says that he was assaulted by the appellants when he tried to save his father. Similar is the statement of P.W.5,the brother of the informant. There is consistent evidence that Ashok Dubey and Jaswant Dubey from the back side of the Farsa assaulted the deceased. Thus, on the point of assault there is consistent evidence and the same cannot be discarded. From the evidence it cannot be said that there was no assault on the deceased. Counsel for the appellants tried to argue on the point that allegation is omnibus in nature and there is no specific role attributed against any of the accused. This argument cannot be accepted as these witnesses have clearly stated about the role played by each of the accused. It is also the prosecution case that the deceased was taken to Chatra Hospital and thereafter he was referred to Ranchi, where he died. The defence tried to convince this Court that the occurrence has taken place at the instance and by the M.C.C. Group, but there is no such evidence to substantiate their claim, rather it has come in evidence that there was some dispute amongst the parties in respect of partitioning of the land. All the witnesses clearly stated that the parties are related to each other, being agnates. Thus, there is no dispute that the appellants have assaulted the deceased. 25. Doctor (P.W.6) who has firstly checked the deceased when he was alive and was in unconscious state, he stated that there was stiched wound from before. All the witnesses clearly stated that the parties are related to each other, being agnates. Thus, there is no dispute that the appellants have assaulted the deceased. 25. Doctor (P.W.6) who has firstly checked the deceased when he was alive and was in unconscious state, he stated that there was stiched wound from before. This means before coming to this witness the injured was treated somewhere else. This witness says that there was injury on the head of the deceased. Doctor(P.W.8), who has conducted the postmortem and proved the report also states that deceased died due to assault on the head. Thus, from the aforesaid facts and the evidence adduced by the prosecution, it is clear that the deceased died because of the head injury. 26. So far the assault on P.W.3 and P.W.5 are concerned, there is only oral evidence, though these witnesses have stated that they were also assaulted, but there is not a single chit of paper to show that they were also treated for the injuries sustained by them because of the assault. These witnesses have stated that they have gone to the Doctor but no evidence has been produced P.W.6 specifically stated that he only examined the deceased, but he has not examined any family members. Thus, from this fact it is difficult to say whether these P.W.3 and P.W.5 were assaulted with intention of committing murder. The nature of injuries and its extent has not been proved by the prosecution, so far as these P.W.3 and P.W.5 are concerned. This is a latch on the part of the prosecution. 27. Now on the aforesaid background, it is to be seen as to whether there was an intention of the appellants to commit murder of the deceased? 28. All the witnesses have specifically and categorically stated that the deceased was assaulted with lathi and by back portion of Farsa and spear (Bhala). Farsa and Bhala are admittedly sharp cutting weapons. Witnesses also stated that Himansu Dubey was carrying sword with him,but he did not assault the deceased with sword, rather he assaulted him with Lathi. Thus, it is admitted that no one assaulted the deceased with sharp cutting weapon, even though they possessed the same. Post-mortem report also suggests that all the injuries are by means of hard and blunt substance. Thus, it is admitted that no one assaulted the deceased with sharp cutting weapon, even though they possessed the same. Post-mortem report also suggests that all the injuries are by means of hard and blunt substance. The assault was indiscriminately made resulting in death of the deceased, but the fact remains that the assault was not made by sharp cutting weapons, rather by Lathi or by back side of the Farsa even though sharp cutting weapon could have been used by the appellants. 29. It is pertinent to refer the judgment of Hon'ble Supreme Court in the case of Selvam Versus State of Tamil Nadu represented by Inspector of Police report in (2012) 10 Supreme Court Cases 402. In that case also assault was made by the accused but not by sharp side of the weapon, but by blunt side and also by stick. The Hon'ble Supreme Court in the said case relying upon a case of the State of Punjab V. Tejinder Singh, reported in 1995 Supp.(3) SCC 515, has held that the trial Court was not correct in the facts to convict the appellant under section 302 of the I.P.C., rather the conviction should have been under section 304 Part-1 of the I.P.C. Similar is the case decided by the Hon'ble Supreme Court in the case of Ram Asrey Versus State of Uttar Pradesh, reported in 2003 Supp. (4) Supreme Court Cases 218, wherein after considering the nature of injuries and the manner of assault, the Hon'ble Supreme Court has held that conviction under section 302 of the I.P.C. is not justified, rather conviction should be under section 304 Part-1 of the I.P.C. 30. In the case in hand, as discussed earlier, I find that though there were sharp cutting weapons in the hands of the accused persons, but they did not assault the deceased with sharp cutting weapons, rather they assaulted the deceased with the opposite side and also by means of Lathi. From these admitted facts, it can be inferred that assailants had no intention to cause death. Now applying the decisions of the Hon'ble Supreme Court it can be held that the conviction of the appellants on the facts of the case under section 302 of the I.P.C. is bad and is liable to be set aside. 31. From these admitted facts, it can be inferred that assailants had no intention to cause death. Now applying the decisions of the Hon'ble Supreme Court it can be held that the conviction of the appellants on the facts of the case under section 302 of the I.P.C. is bad and is liable to be set aside. 31. Thus, the conviction of the appellants under section 302 of the Indian Penal Code is set aside but the appellants are liable to be convicted under section 204(Part-1) of the Indian Penal Code. Accordingly, the conviction of the appellants(1) Ashok Dubey, (2) Ajay Kumar Dubey, (3) Jashwant Dubey and (4) Himansu Dubey for committing offence under section 302 of the Indian Penal Code as well as their sentence to undergo rigorous imprisonment for life is set aside and the appellants are convicted under section 304(Part-1) of the Indian Penal Code and they are sentenced to undergo R.I. for 10 years along with fine of Rs. 10,000/- (Ten thousand) each. 32. Appellant no.1, Ashok Dubey and appellant no.3, Jshwant Dubey are already in custody for more than 10 (ten) years. Thus, they should be immediately released from the custody, if not wanted in any another case. So far appellant no.2, Ajay Dubey and appellant no.4 Himansu Dubey are concerned, they are on bail and have not completed 10 years of custody. Thus, the bail bonds of appellant no.2, Ajay Dubey and appellant no.4, Himansu Dubey are cancelled and they are directed to surrender before the trial Court within three weeks from today to serve the rest of the sentence. The trial Court to issue process compelling their surrender/production for serving out the sentence. 33. The appeal is, thus, allowed in part to the extent indicated above and judgment of conviction dated 21.06.2006 and Order of Sentence dated 23.06.2006, passed by the 1st Additional Session Judge, Chatra, in Session Trial No. 608 of 1993 is modified accordingly. 34. Let the lower Court records along with a copy of this judgment be sent to the trial court forthwith.