JUDGMENT : S. Chandrashekhar, J. 1. Charged for the offence punishable under section 302 I.P.C in Sessions Trial No.519 of 2005, the appellant has been found guilty of culpable homicide amounting to murder and he has been sentenced to undergo R.I for life. In this Criminal Appeal (D.B.) No.852 of 2012, judgment of conviction dated 18.01.2012 and order of sentence dated 19.01.2012 have been challenged on behalf of the appellant-Sudhir Munda through Jharkhand Legal Services Authority. 2. One Etwa Swansi is the informant who gave her fard-beyan on 20.01.2005, on the basis of which Tamar P.S Case No.04/2005 was registered for offences punishable under sections 307/302 I.P.C against the appellant-Sudhir Munda. In Sessions Trial No.519 of 2005, the appellant was prosecuted for the offence punishable under section 302 I.P.C simplicitor. During the sessions trial, the prosecution has examined 6 witnesses; informant-Etwa Swansi as P.W.1, her mother Radhi Devi as P.W.5 and her brother Budhu Swansi as P.W.2. These witnesses have claimed themselves witness to the occurrence. The doctor who conducted the post-mortem examination over the dead body of the deceased-Ram Mohan Swansi has found the following injuries on the dead body: Abrasions: (i) 2 cm x 1 cm on right elbow back. (ii) 1 cm x 1 cm on right knee lateral side. 3. The doctor has found fracture of stermum and by lateral fracture of second to ninth ribs with presence of blood tinged fluit in the thoresic cavities. There was rupture of small intestine and mesentry and presence of pus in abdominal cavity. In opinion of the doctor the aforesaid injuries were caused by hard and blunt substance, however, he has also opined that such injuries may be caused by kicks and fists. 4. The informant-P.W.1 has deposed that on 17.01.2005 her brother was sent by accused-Sudhir Munda to fetch 'pigeon' from the local fair (Mela) and when he returned, the accused-appellant scolded him for delay. The appellant, thereafter tried to take his brother to his house and midway he started assaulting him with fists, whereupon her brother fell-down on the ground. After hearing uproar (hulla) she and her mother went there. The informant has deposed in the court that the appellant assaulted her brother by fists, kicks and leg on his chest and abdomen. The injured was taken home where he was treated by doctor-Chitranjan Pramanik-P.W.3. After hearing uproar (hulla) she and her mother went there. The informant has deposed in the court that the appellant assaulted her brother by fists, kicks and leg on his chest and abdomen. The injured was taken home where he was treated by doctor-Chitranjan Pramanik-P.W.3. The doctor advised for treatment of the injured at Ranchi, however, he was not taken to any hospital and he was administered local medicines at home. Finally, on the third day he succumbed to the injuries and died. The informant gave her ferdbeyan to the police on 20.01.2005. 5. The mother of the deceased (P.W.5) has also supported the prosecution case when she deposed in the Court. She has stated that the appellant after assaulting her son fled away. P.W.2, who also claimed himself an eye witness, has deposed in the Court that when his brother came back after purchasing 'pigeon', appellant-Sudhir Munda called him and started assaulting him with fists, kicks and leg. He has admitted that several other villagers had assembled there, however, none has been examined by the prosecution. Another sister of the deceased namely, Budhani Devi has been examined as P.W.6 and she has also supported the prosecution story of assault by the appellant by fists, kicks and leg on the chest and abdomen of the deceased. During her cross-examination she, however, has admitted that she was not examined by the police during investigation and she has deposed in the Court for the first time. 6. Taking note of the aforesaid evidences led during the sessions trial and the internal injuries found by the doctor, the learned Additional Judicial Commissioner has held that the way, several injuries on the chest ribs have been caused to the deceased-Ram Mohan and rupture of his small intestine, make the serious intention of the accused clear. The learned Additional Judicial Commissioner has held that intention of the accused was to kill the deceased and accordingly, the appellant has been found guilty for the offence punishable under section 302 I.P.C. 7. Having carefully scrutinized the entire prosecution evidence led before the Sessions Court, we find that the learned Additional Judicial Commissioner, Khunti has committed serious error in law in convicting the appellant for the offence punishable under section 302 I.P.C. The deceased died after two days of the incident. Having carefully scrutinized the entire prosecution evidence led before the Sessions Court, we find that the learned Additional Judicial Commissioner, Khunti has committed serious error in law in convicting the appellant for the offence punishable under section 302 I.P.C. The deceased died after two days of the incident. In the meantime, the injuries had aggravated, as the doctor found suppuration (pus) in the abdominal cavity of the deceased. Intention of the accused has to be gathered from the facts and the attending circumstances in the case. Internal injuries caused to the deceased were not known to the doctor-P.W.3, who treated him. The deceased was administered local medicines for two days. Whether death is a result of wrong treatment or it has been caused solely due to injuries caused by the appellant, has not been proved by the prosecution beyond all shadows of reasonable doubt. No doubt, there was fracture of ribs and rupture of small intestine, on the proved facts and circumstances it cannot be inferred that the death has occurred solely due to assault by the appellant on the deceased by fists and leg. We further find that the appellant has suffered serious prejudice, for all the incriminating circumstances were not put to him when he was examined under section 313 Cr.P.C. Only three questions were put to the accused-appellant during his examination under section 313 Cr.P.C: (i) lk{; gS fd jke eksgu Lokalh dh ekjihV dj gR;k dj fn, D;k dguk gS\ There is evidence that you have committed the murder of Ram Mohan Swansi by assaulting him, what you have to say? (ii) MkDVj us tk¡p ij e`rd ds 'kjhj ij e`R;q ds igys dk t[e ik;k gSA The doctor has found antemortem injuries on the body of the deceased. (iii) lQkbZ esa dqN dguk gS\ Whether you have to say anything in your defence? 8. Evidently, examination of the accused-appellant under section 313 Cr.P.C was a mere formality. It was inconsistent with and in breach of the mandate under section 313 Cr.P.C as held by the Supreme Court. Not only that, it appears that the appellant has suffered prejudice when a charge for offence punishable under section 302 I.P.C was framed. It is well settled that the accused must be informed of the charge clearly and in unambiguous terms. The charge framed against the appellant on 30.11.2005 is apparently not clear. Not only that, it appears that the appellant has suffered prejudice when a charge for offence punishable under section 302 I.P.C was framed. It is well settled that the accused must be informed of the charge clearly and in unambiguous terms. The charge framed against the appellant on 30.11.2005 is apparently not clear. There is no alternative charge framed and rather, it has combined clauses Firstly and Thirdly of section 300 I.P.C. 9. After analysing the aforesaid facts and circumstances in the case, we are of the considered opinion that the prosecution has been able to prove that it was the appellant who assaulted the deceased, as a result of which he sustained injuries, however, the prosecution has failed to prove that the deceased, who died two days after the occurrence, has died as a result of the injuries caused by the appellant. In the above facts, judgment of conviction dated 18.01.2012 and order of sentence dated 19.01.2012 in S.T. No.519 of 2005 warrant interference. The appellant is held guilty for the offence punishable under section 326 I.P.C and accordingly, his conviction under section 302 I.P.C is set-aside and he is convicted for the offence under section 326 I.P.C. He is directed to undergo R.I. for 10 years with fine of Rs.5000/-. The order of sentence dated 19.01.2012 is modified to that extent. The appellant, on deposit of fine of Rs.5000/-, is directed to be released from custody forthwith, if not wanted in any other case. The present criminal appeal stands partly allowed, to the above extent.