ORDER : This appeal is directed against the judgment dated 31st March, 2003 and order of sentence dated 01.04.2003 passed by Sri J.K.N. Tiwary, Additional Judicial Commissioner-XI, Ranchi in S.T. No.82 of 1999 convicting the appellants under Section 304 Part II of the Indian Penal Code sentencing them to undergo simple imprisonment for seven years and with a further direction to set off the period already spent in custody. 2. The short fact of the prosecution case is that the informant being a labourer when returned to home at about 8/9 p.m. on 29.08.1988 and found his wife Sukaro Devi cooking food, his daughter Sunita Kumari aged about five years informed him that appellants had assaulted her mother with brick and rod of Eucalyptus causing injury. The wife of the informant was not mentally fit so she did not protested on being assault made to her. She was doing household work even after getting the injury. Further case is that on next day when the informant returned to his home found his wife dead lying on the ground, leading to lodgment of this case. The cause of incidence was that the younger daughter of informant has picked up a Tikuli from the house of Madhu Mahli. The wife and daughter of Madhu Mahli, Kaushalya Devi, Piyaso and Raimuniya have assaulted the wife of informant Sukaro Devi with bricks and Eucalyptus stick and due to the injuries Sukaro Devi died. 3. Learned counsel appearing on behalf of the appellants submitted that the appellant no.2, Piyaso Devi died on 02.10.2006 at R.M.C.H., Ranchi and Certificate of Death vide DR. No.8927 dated 02.10.2006 have been submitted. Officer-In-Charge, Khelgaon, Hotwar, Ranchi has also submitted his report thereon vide No. 9721/16 dated 28.08.2016. He further submitted that due to death of appellant no.2, case of Piyaso Devi may be dropped. Now the appeal remained only against the appellant no.1, Kaushalya Devi. The case of Raimuniya was separated and was sent to the Juvenile Justice Board. He further submitted that the prosecution has examined four witnesses, although nine witnesses were cited in the charge-sheet. The defence has also examined four witnesses on their behalf. Learned counsel for the appellants further submitted that the deceased has no complaint about the quarrel with the appellants for the assault made by them. He further submitted that the prosecution has examined four witnesses, although nine witnesses were cited in the charge-sheet. The defence has also examined four witnesses on their behalf. Learned counsel for the appellants further submitted that the deceased has no complaint about the quarrel with the appellants for the assault made by them. The informant is a hearsay witness and his evidence was based on the statement of his daughter who was aged about five years at the time of occurrence and her age was assessed by the Court as eight years while she was deposing in the Court. The court below has not considered the evidences adduced on behalf of the defence where all the defence witnesses have stated that the deceased was a chronic patient of 'Epilepsy'. The fardbeyan of Pran Mahli, husband of deceased Sukaro Devi also supported the factum of insanity of Sukaro Devi as she did not complain about assault before the informant. He relied upon a decision in the case of Amrit Lakra & Ors. Versus State of Bihar reported in 2002 (3) East Cr. Case 74(Jhr) [: 2002 (3) JLJR 458 ] and submitted that the credibility of the prosecution case is doubtful as there is absence of motive as the deceased has not narrated the incident of assault by the appellant before the informant. He further relied on a decision reported in 2002(1) East Cr C 158 (Pat); Panchu Manjhi Versus State of Bihar and submitted that the doctor has found only one external injury on the left side of forehead with diffused contusion of left frontal skull and the manner of occurrence were not sufficiently proved. The informant is also a hearsay witness as his evidence is based on the statement of minor daughter Sunita (P.W.3). Lastly, he submitted that there was no intention to commit murder and conviction has been held under Section 304 Part II, therefore, as an alternative submission basing on decision reported in 2003(1) East Cr C 250 (Jhr) [: 2003 (1) JLJR 263 ]; Umar Ansari Versus State of Bihar, the period already undergone in custody may be awarded with the modification in sentence. 4. Mr. Kaushal Kumar Mishra, A.P.P. appearing on behalf of State submitted that the intention of assault was in reaction to picking up of ‘Tikuli’ and the death occurred due to head injury. 4. Mr. Kaushal Kumar Mishra, A.P.P. appearing on behalf of State submitted that the intention of assault was in reaction to picking up of ‘Tikuli’ and the death occurred due to head injury. He further submitted that the P.W.3, who is eye witness of this case and daughter of informant has stated that all the three accused persons have assaulted with brick and stick as well as also jumped on the stomach of the deceased. This witness in reply to a question in cross-examination has stated that her mother was not insane. 5. Considering the pleadings of the parties and on perusal of Lower Court Record, it appears that P.W.1-Dr. Tulsi Mahto, Assistant Professor in the Department of Forensic Medicine, RMCH, who had conducted autopsy of the body of the deceased Sukaro Devi aged about 50 years and found ante mortem injury: (i) Lacerated wound ½ X ½ cm into bone deep over the left side of the forehead with diffused contusion of left frontal skull with contusion of brain and presence of subdural blood and blood clot over the left hemisphere of brain. (ii) Rest of the organ are found normal. The stomach was found empty and the uterus is found pregnant, having 30 cm in length, six month pregnancy, urinary bladder was empty. The injuries noted above were ante mortem caused by hard and blunt object. Death was due to head injury. Time elapsed since death 24 to 48 hours from the time of post mortem examination. This post mortem report was marked as Ext.-1. The said injury may be caused by brick and Lathi. The said injury was sufficient enough to cause death of a person. During cross-examination, he replied that he did not find the sign of insanity of said woman. There had been no injury on any part of the body. P.W.2-Vishram Pahan is a formal witness, who got knowledge of occurrence from the minor girl Sunita. He has proved his signature on the inquest report (Ext.-2). P.W.3-Sunita Kumari, daughter of informant Pran Mahli, whose age was assessed by the Court as seven (7) years although she claimed her age on the date of deposition as eight (8) years. She narrated the incident of assault by all the three accused. During cross-examination, she stated that she was not tuitored by her father. She replied that her mother was not insane. She narrated the incident of assault by all the three accused. During cross-examination, she stated that she was not tuitored by her father. She replied that her mother was not insane. She had narrated the incident to her father in the night itself but her mother was not taken before the doctor. Next day the father went as usual to the work place and the mother remained in the house. Later on, she became dead. P.W.4-Pran Mahli, Informant of this case narrated the incident on the basis of the information given by his daughter Sunita. He denied the suggestion that his wife was not mentally fit. She had not stated about the incident of assault. 6. All the four defence witnesses deposed on the line that both families were neighbours and relatives and Sukaro Devi was not mentally fit. She was continuously suffering from Epilepsy and there was no occurrence of assault as stated in the fardbeyan. 7. The trial Court upon consideration of the entire evidence, find the appellant guilty under Section 304 Part II IPC. The prosecution has mainly dependent upon the evidence of child witness and the doctor has found only one injury on the forehead of the deceased but there is absence of corroboration of child witness. The Investigating Officer is also not examined in this case. Therefore, in this situation, the conviction made on the statement of child witness, who was aged about five years at the time of occurrence and without the examination of Investigating Officer, the conviction based on it can not be considered as proved beyond reasonable doubt. Under these circumstances, the appellant deserves to be extended the benefit of doubt. 8. In the result, instant appeal is allowed. The judgment of conviction dated 31st March, 2003 and order of sentence dated 01.04.2003 passed by the learned Additional Judicial Commissioner-XI, Ranchi in Sessions Trial No.82 of 1999 is set aside. The appellant is discharged from the liabilities of her bail bonds.