JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. Appellant is aggrieved by the Judgment of conviction dated 20.5.1993 and Order of sentence dated 22.05.1993, (dates wrongly mentioned in the impugned Judgment as 20.6.1993 and 22.6.1993 respectively), passed by the learned 6th Additional Judicial Commissioner, Ranchi, in S.T. No. 19 of 1990, whereby, the sole appellant has found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, appellant has been sentenced to undergo R.I. for life for the said offence. 3. The FIR was lodged by the informant Etwari Mundain, who is the wife of the deceased Bagha Munda, on 08.3.1988 at Murhu Police Station, stating therein that on the previous day, i.e., on 07.03.1988 at about 7 PM, she and her husband Bagha Munda were returning home after working as labour and when they reached near their home, his neighbour Boda Munda waylaid them, abusing in filthy language, and he assaulted her husband by a piece of wood on his head, due to which, her husband fell down. When she tried to save her husband, she was also assaulted by the same piece of wood by the accused, whereupon, she fled away towards her house. Her son Sukhram was present nearby, who came to the place of occurrence upon hearing the noise and brought his injured father to the house, who died in the house at about 9 PM. It is stated in the FIR, that there was enmity between the parties due to a tamarind tree, due to which the offence had been committed by the accused. On the basis of the FIR, Murhu P.S. Case No. 05 of 88, corresponding to G.R. No. 79 of 88 was instituted for the offence under Section 302 of the Indian Penal Code, against the accused Boda Munda and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading guilty and claiming to be tried, he was put to trial. 5. In course of trial, the prosecution has examined seven witnesses in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading guilty and claiming to be tried, he was put to trial. 5. In course of trial, the prosecution has examined seven witnesses in the case. The I.O. and the Doctor have been examined in the case and the post-mortem report has been proved by a formal witness PW-4 Banwari Lal Jaiswal, who is a retired Bench Clerk, stating that the Doctor conducting the post-mortem examination, had died in an accident. The FIR and the inquest report have been proved by another formal witness PW-7 Thakur Murmu, who is a constable. PW-6 Megho Nayak was only tendered by the prosecution. 6. PW-1 Etwari Mundain is the informant of the case and she is the sole eyewitness to the occurrence. She has stated that the occurrence had taken place about four years ago. She was returning back along with her husband after working as a labour and when they reached near their house, the accused Boda abused her husband in filthy language and assaulted him by a piece of wood on his head, due to which, her husband fell down. She tried to intervene, but the accused assaulted her also, whereupon, she raised alarm and called her son. The accused thereafter fled away. Her son Sukhram reached the place of occurrence. She informed him about the occurrence and brought the injured husband to the house, where he died. She has stated that there was enmity due to tamarind tree between the accused and the deceased. On the next day, she went to the Police Station and lodged the FIR, on which, she had put her thumb impression. The police came to the place of occurrence and had taken away the dead body for the post-mortem examination. She has identified the accused in the Court. There is nothing of much importance in her cross-examination, but it has been taken in her cross-examination that the accused had also repeated the assault on her husband. She has denied the suggestion of giving false evidence. 7. PW-2 Sukhram Munda is the son of the informant and the deceased. He has also stated that after hearing the noise, he went to the place of occurrence and found his father fallen, who was alive. She has denied the suggestion of giving false evidence. 7. PW-2 Sukhram Munda is the son of the informant and the deceased. He has also stated that after hearing the noise, he went to the place of occurrence and found his father fallen, who was alive. He brought his father to the house, but his father died. His mother informed him that the accused Boda Munda had assaulted her husband. Thereafter, he informed the Dalpati Ratan Munda and Chaukidar Sanika and Meghu, and went to the Police Station along with his mother on the next day. He has identified the accused in the Court. Admittedly, this witness is the eyewitness to the occurrence and there is nothing of much importance in his cross-examination. 8. PW-3 Ratan Munda, who is Dalpati and PW-5 Sanika Gorait, who is the Chaukidar, have stated that they were informed about the occurrence, whereupon, they went to the place of occurrence and saw the dead body. 9. On the basis of the evidence on record, the Trial Court below has convicted and sentenced the appellant as aforesaid. 10. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, in as much as, the I.O. and the Doctor conducting the post-mortem examination have been examined in the case. It is further submitted that according to the FIR, there was only one assault on the deceased and that too was only by the piece of wood, as such, it cannot be said that the accused was having any intention to cause the death of the deceased. It has been submitted that there is no allegation of repetition of blow in the FIR and even in the evidence of PW-1 informant Etwari Mundain, though in her cross-examination, she has stated that the blow was repeated. Learned counsel submitted that the enmity is admitted in the case and, as such, false implication of the accused cannot be ruled out and there is no other eyewitness to the occurrence, except PW-1. Learned counsel accordingly, submitted that it is a fit case, in which, the accused appellant ought to have been given the benefits of doubt. 11. Learned counsel submitted that the enmity is admitted in the case and, as such, false implication of the accused cannot be ruled out and there is no other eyewitness to the occurrence, except PW-1. Learned counsel accordingly, submitted that it is a fit case, in which, the accused appellant ought to have been given the benefits of doubt. 11. Learned counsel for the State on the other hand has opposed the prayer and has submitted that the case is fully supported by the informant, who is the only eyewitness to the occurrence. She has specifically stated that it was this accused, who had assaulted the deceased by a piece of wood and when she tried to save her husband, she was also assaulted. The Doctor, who had conducted the post-mortem examination, could be examined in the Court, due to his untimely death in accident, as such, the post-mortem report was proved by a formal witness. The FIR and the inquest report have also been proved by a formal witness. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment passed by the Trial Court below. 12. Having heard learned counsels for both the sides and upon going through record, we find that the Doctor conducting the post-mortem examination has been examined in the case and the post-mortem report has been formally proved by a formal witness PW-4 Banwari Lal Jaiswal. The inquest report of the dead body was also proved by a formal witness PW-7 Thakur Murmu, who is a constable. The informant PW-1 is the only eyewitness to the occurrence and she has stated that it was the accused, who had assaulted the deceased by a piece of wood. She has stated either in the FIR or in her examination-in-chief that there was repetition of blow on her husband. The FIR and her evidence show that the accused had given only one blow with the wooden piece on the head of the deceased, which appears to have proved fatal. In view of the fact that assault was made by a wooden piece and only one assault was made, we are of the considered view that it cannot be presumed that the accused was having intention to cause the death of the deceased. 13. In view of the fact that assault was made by a wooden piece and only one assault was made, we are of the considered view that it cannot be presumed that the accused was having intention to cause the death of the deceased. 13. In that view of the matter, we are of the considered view that the conviction of the appellant for the offence under Section 302 of the Indian Penal Code cannot be sustained in the eyes of law, rather it is fit case for conviction of the appellant for the offence under Section 304 Part II of the Indian Penal Code. We accordingly, find the appellant Boda Munda @ Sukhram Munda guilty for the offence under Section 304 Part II of the Indian Penal Code and convict him for the same. 14. In view of the aforementioned discussions, the impugned Judgment of conviction dated 20.5.1993 passed by the learned 6th Additional Judicial Commissioner, Ranchi, in S.T. No. 19 of 1990, is hereby, modified to the extent that the appellant Boda Munda @ Sukhram Munda is found guilty and convicted for the offence under Section 304 Part II of the Indian Penal Code. The order of sentence dated 22.5.1993 is also accordingly, modified and the appellant is sentenced to undergo R.I. for seven years for the offence under Section 304 Part II of the Indian Penal Code. 15. The appellant Boda Munda @ Sukhram Munda is on bail and his bail is accordingly, canceled. He is directed to surrender in the Court below forthwith for serving out the sentence passed by the Trial Court below. The Trial Court below is also directed to issue the process forthwith, compelling the surrender/production of the appellant for serving out the sentence. 16. This appeal is accordingly, dismissed with modification in the impugned Judgment of conviction and Order of sentence as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.