JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellants, Mr. Shankar Lal Agarwal assisted by Mrs. Asha Kumari, Advocate and learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor. 2. The instant Criminal appeal has been preferred against the judgment of conviction dated 19.02.2004 and order of sentence dated 20.02.2004, passed by learned Additional Sessions Judge, Fast Track Court No.-V, Jamshedpur, East Singhbhum, in Sessions Trial No. 131 of 2003, whereby, these appellants have been convicted for the offence committed and punishable under Sections 304 part II of the Indian Penal Code and Pedu Gope has also been convicted for the offence committed and punishable under Section 323 of the Indian Penal Code. The learned trial Court has acquitted Suru Gope from the charge framed against him. The learned trial Court has awarded Rigorous Imprisonment for seven years with a fine of Rs. 2,000/- each and in default in payment of fine to further undergo simple imprisonment for three months to all the convicts. Pedu Gope has further been awarded Rigorous Imprisonment for six months for the offence committed and punishable under Section 323 of the Indian Penal Code. Both the sentences of Pedu Gope are directed to run concurrently. 3. The prosecution case, is based upon the written report submitted by informant, Bindaban Gope (P.W.1) recorded by Officer-In-Charge, Govindpur, Jamshedpur Police Station on 26.06.1995, wherein, the informant has stated that, on 22.06.1995, Thursday, the informant Bindaban Gope(P.W.1), a resident of Loabasa under Govindpur Police Station, District-East Singhbhum, had gone to village-Dabha, P.S. Balrampur, District Purulia(West Bengal), with his entire family members and at that time, he handed over his one cock and one hen to his uncle, Chuna Gope, being his neighbour, to took after it. On 24.06.1995, Saturday at 3.00 P.M., he returned with his entire family members from his village and thereafter, he inquired from his uncle about his cock and hen, who told him that he has released it for pasturing. In the meantime, his another uncle Gobind Gope told him that he ate a cock and hen was not traced out despite intensive search. On the following day i.e. 25.06.1995 at 7.00P.M. a Panchayati was called upon for cock and hen. In the panchayat, the villagers were coming. In the meantime, his another uncle Gobind Gope told him that he ate a cock and hen was not traced out despite intensive search. On the following day i.e. 25.06.1995 at 7.00P.M. a Panchayati was called upon for cock and hen. In the panchayat, the villagers were coming. Accused Pedu Gope having a hockey stick in his hand, Pagla Gope having a wooden piece in his hand and Kumhara Gope having a lathi in his hand came there and Pedu Gope inflicted a hockey stick blow on the left temple of uncle of informant, Chuna Gope and another blow on the head of father-inlaw of the informant, Indra Gope(P.W.3) causing bleeding injury on the temple of Chuna Gope and bleeding injury on the head of Indra Gope. Chuna Gope was further assaulted by Pagla Gope with wooden piece and Kumhara Gope with lathi on his body. In the meantime, persons assembled in Panchayati tried to hold them but they fled away. Accused, Suru Gope was abusing along with them. 4. On the basis of the written report of the informant, the Police has registered First Information Report bearing Telco(Govindpur) P. S. Case No. 119 of 1995, dated 26.06.1995, under Sections 341/323/325/506/34 of the Indian Penal Code against the four accused persons namely, Pedu Gope @ Peru Gope, Pagla Gope, Kumhara Gope and Suru Gope. 5. After completion of the investigation, the police has submitted charge sheet vide no.148 of 1995 dated 30.08.1995, under Sections 304/34 of the Indian Penal Code against the above named accused persons. 6. The cognizance of the offence has been taken vide order dated 14.09.1995 and the case has been committed to the Court of Sessions vide order dated 21.03.1996. 7. The learned trial Court has framed charge against all the accused/appellants on 02.07.1996 under Section 302 of the Indian Penal Code, subsequently, vide order dated 21.10.2003 Section 34 of the Indian Penal Code has been added and Pedu Gope @ Peru Gope has also been charged under Section 323 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether thirteen prosecution witnesses and also exhibited a number of documentary evidence up to exhibit-10 series. 8. The prosecution, in order to prove its case, has examined altogether thirteen prosecution witnesses and also exhibited a number of documentary evidence up to exhibit-10 series. Bindaban Gope, informant of the case, has been examined as P.W.1, Madhusudan Gope, seizure witness, has been examined as P.W.2, Indra Gope, father-in-law of the informant and injured witness, has been examined as P.W.3, Ras Bihari Mahto has been examined as P.W.4, Charan Gope has been examined as P.W.5, Chhotu Gope has been examined as P.W.6, Jagu Mahto has been examined as P.W.7, Arjun Mahto has been examined as P.W.8, Gangadhar Gope has been examined as P.W.9, Sidhnath Singh, Investigating Officer of the case, has been examined as P.W.10. Dr. Akhilesh Kumar Choudhary, who has conducted the postmortem of the dead body of Chuna Gope, has been examined as P.W.11, Samant Kumar Das, constable, has been examined as P.W.12 and Dr. Krishna Kumar Lal, Medical Officer, who has examined the injured, Chuna Gope and Indra Gope, has been examined as P.W.13. Written report has been proved and marked as Exhibit-1, signature of the informant (P.W.1) on the seizure list has been proved and marked as Exhibit-2, Signature of the informant(P.W.1) on the inquest report has been proved and marked as Exhibit-2/1, forwarding issued by Sidhnath Singh(P.W.10) on the written report has been proved and marked as Exhibit-3, endorsement of Officer-In-Charge on the written report has been proved and marked as Exhibit-3/1, formal First Information Report has been proved and marked as Exhibit-4, Seizure list of blood stained soil has been proved and marked as Exhibit-5, two Police requisition for medical treatment have been proved and marked as Exhibit-6 and 6/1, inquest report has been proved and marked as Exhibit-7, postmortem report has been proved and marked as Exhibit-8, Para 39 to 102 of the case diary has been proved and marked as Exhibit-9(wrongly exhibited), injury report of Chuna Gope has been proved and marked as Exhibit-10 and injury report of Indra Gope has been proved and marked as Exhibit-10/a. 9. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C., 1973 on 18.09.2003, to which the accused persons have pleaded that they are innocent and have been falsely implicated in this case. 10. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C., 1973 on 18.09.2003, to which the accused persons have pleaded that they are innocent and have been falsely implicated in this case. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellants before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Mr. Shankar Lal Agarwal assisted by Mrs. Asha Kumari, Advocate. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has submitted, that furtherance of common intention is lacking in the present case, as learned trial Court has acquitted the co-accused, Suru Gope from the charge framed against him. Learned counsel for the appellants has further submitted, that for a petty matter, panchayati was convened by the informant, Bindaban Gope(P.W.1), as he has handed over his one cock and one hen to Chuna Gope, his uncle, but both of them were not returned to him, as one of the cock was eaten by Govind Gope, another uncle, but one hen was missing for which panchayati was convened. It is alleged that, Peru Gope @ Pedu Gope with hockey stick, Pagla Gope with wooden piece and Kumhara Gope with lathi came and assaulted, Chuna Gope, uncle of the informant and Indra Gope, Father-inlaw of the informant, but no reason has been assigned why these appellants have assaulted, Chuna Gope and Indra Gope. Learned counsel for the appellants has further submitted, that from the evidence brought on record, no motive has been assigned for commission of such offence nor from the evidence, it is apparent that, these appellants were appearing on behalf of the informant or other persons for assaulting, Chuna Gope and Indra Gope. Learned counsel for the appellants has further submitted, that from the evidence brought on record, no motive has been assigned for commission of such offence nor from the evidence, it is apparent that, these appellants were appearing on behalf of the informant or other persons for assaulting, Chuna Gope and Indra Gope. Learned counsel for the appellants has further submitted, that though a large number of persons have been named in the First Information Report as eye witness to the occurrence, but Ras Bihari Mahato(P.W.4) has categorically stated in paragraph-4 that, he has not seen the occurrence. Charan Gope(P.W.5) has not supported the prosecution case, Chhotu Gope(P.W.6) and Jagu Mahto(P.W.7) have been declared hostile by the prosecution. Arjun Mahto(P.W.8) has categorically stated that, he has not seen the occurrence and Gangadhar Gope(P.W.9) has also been declared hostile by the prosecution as such, entire prosecution case revolved around, the evidence of informant, Bindaban Gope(P.W.1), Indra Gope(P.W.3), father-in-law of the informant and injured eye witness. Madhusudan Gope(P.W.2) being a formal witness has only proved the seizure of blood stained soil, which has been marked as Exhibit-X for identification. Learned counsel for the appellants has further submitted, that even the evidence of Bindaban Gope, P.W.1 and Indra Gope, P.W.3 are not in consonance with each other rather Indra Gope(P.W.3) has supported half of the prosecution case only. Learned counsel for the appellants has further submitted, that Sidhnath Singh, Investigating Officer of the case has been examined as P.W.10 and Dr. Akhilesh Kumar Choudhary(Medical Officer) has been examined as P.W.11, who has conducted the postmortem of the deceased, Chuna Gope and has proved the same as Exhibit-8. Somant Kumar Das is a constable, who has been examined as P.W.12 and has proved the paragraph 39 to 102 of the case diary, which has been wrongly marked as exhibit-9. Learned counsel for the appellants has further submitted, that Dr. Krishan Kumar Lal (P.W.13), who has initially examined the victim, Chuna Gope and Indra Gope have issued injury reports, which have been proved and marked as Exhibit-10 and 10/a, but from perusal of same, the injuries were found to be simple in nature and the doctor has not referred the patient for higher center for further Medical examination. Krishan Kumar Lal (P.W.13), who has initially examined the victim, Chuna Gope and Indra Gope have issued injury reports, which have been proved and marked as Exhibit-10 and 10/a, but from perusal of same, the injuries were found to be simple in nature and the doctor has not referred the patient for higher center for further Medical examination. Learned counsel for the appellants has further submitted, that as per the evidence of P.W.1, Bindaban Gope, the injured was brought to village and after two days he succumbed to injuries. Learned counsel for the appellants has further submitted, that appellants can not be convicted under Section 304 part II of the Indian Penal Code, at best it is a case under Section 323 of the Indian Penal Code as the injured, Chuna Gope died subsequently because of lack of proper treatment. His injury was not so grievous, that in ordinary course death would have occurred nor the same has been stated by Dr. Akhilesh Kumar Choudhary, P.W.11 nor by Dr, Krishan Kumar Lal, who has been examined as P.W.13. Learned counsel for the appellants has thus submitted, that the appellants may be acquitted from the charge under Section 304 part II of the Indian Penal Code as the occurrence is of the year 1995 and they have faced the rigor of trial for approximately 23 years. 12. Heard, learned counsel for the State, Mrs. Laxmi Murmu, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of materials available on record. Learned counsel for the State has submitted, that initially the charge was framed under Section 302 of the Indian Penal Code and subsequently Section 34 of the Indian Penal Code has been added. The learned trial Court has not found any motive behind the death of the injured, Chuna Gope and as such, the learned trial court has rightly convicted the appellants under Section 304 part II of the Indian Penal Code and Pedu Gope @ Peru Gope has also been convicted under Section 323 of the Indian Penal Code. The learned trial Court has not found any motive behind the death of the injured, Chuna Gope and as such, the learned trial court has rightly convicted the appellants under Section 304 part II of the Indian Penal Code and Pedu Gope @ Peru Gope has also been convicted under Section 323 of the Indian Penal Code. Learned counsel for the State has further submitted, that Investigating Officer has also been examined in this case and doctor who has initially examined the injured, has proved the injury reports, which have been marked as Exhibit-10 and 10/a and the postmortem report has been proved by Dr. Akhilesh Kumar Choudhary(P.W.ll) as exhibit-8, which shows that the deceased died because of head injury. Learned counsel for the State has thus submitted, that the impugned judgment of conviction and order of sentence is well founded on the basis of materials available on record and the same does not warrant any interference by this Hon''ble Court. 13. Heard, learned counsel for the appellants, Mr. Shankar Lal Agarwal assisted by Mrs. Asha Kumari, Advocate and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and perused the materials available on record, i.e First Information Report, framing of charge, evidence of thirteen prosecution witnesses, ten prosecution exhibits and the statement of the accused/appellants recorded under Section 313 Cr.P.C., 1973 as well as the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Except Bindaban Gope(P.W.1) and Indra Gope(P.W.3), none of the witnesses named in the First Information Report has supported the prosecution case. Indra Gope(P.W.3), father-in-law of the informant, has supported half of the prosecution case only, as this witness, has categorically stated in para-1 of his examination-in-chief, that he saw Pedu Gope @ Peru Gope with hockey stick, who has assaulted on his head causing bleeding injury. Pedu Gope @ Peru Gope was alone at the time of assault and he has not seen the accused assaulting, Chuna Gope as he became unconscious, meaning thereby, the initial assault was made upon this witness, which is contrary to the First Information Report lodged by Bindaban Gope(P.W.1). Pedu Gope @ Peru Gope was alone at the time of assault and he has not seen the accused assaulting, Chuna Gope as he became unconscious, meaning thereby, the initial assault was made upon this witness, which is contrary to the First Information Report lodged by Bindaban Gope(P.W.1). As per the First Information Report, the informant has alleged that, Pedu Gope @ Peru Gope has assaulted, Chuna Gope, his uncle by means of hockey stick on the left temporal region and thereafter, on the body of Indra Gope causing bleeding injury. This Court has minutely examined, the medical requisitions, which have been proved and marked as Exhibit-6 and 6/1 by the Investigating Officer, Sidhnath Singh(P.W.10). Chuna Gope has sustained bleeding injury on the left temporal region and the entire body. Indra Gope has sustained bleeding injury on head. From perusal of the injury report of Chuna Gope, proved by Dr. Krishan Kumar Lal (Medical Officer,P.W.13) as exhibit-10 shows that Chuna Gope has sustained following injury:- The postmortem report of the deceased, Chuna Gope shows:- (A) Abrasion: (i) over back of right elbow 3 c.m. X 3 c.m. (ii) Multiple abrasion over the lateral aspect of right thigh. Spread over an area of 10 c.m. X10 c.m. (B) Lacerated wound: (i) over left temporal scalp 1 c.m. X 1.5 c.m. X skin deep. (C) Internal injuries: (i) sub-cutaneous and muscular layer underneath the skin over left temporal parietal and occipital area of scalp, contused. Left temporal bone fractured. Extra dural blood clots over left temporal area of brain. More marked over left half with contusion of brain, opinion-death is due to head injury. But doctor has not mentioned in the postmortem report or stated during his examination as P.W.11, that in ordinary course such injuries are sufficient to cause death. Under the aforesaid circumstances, this Court is of the opinion that, prosecution has not been able to prove the case beyond all reasonable doubt under Section 304 part II of the Indian Penal Code against the appellants. As per the prosecution case, the victim after sustaining injury was treated by the doctor and on very next day he has returned from the Hospital and remained in the village for two days and subsequently died. The injury reports as exhibit-10 and 10/a, the doctor has opined about the injury to be simple in nature. As per the prosecution case, the victim after sustaining injury was treated by the doctor and on very next day he has returned from the Hospital and remained in the village for two days and subsequently died. The injury reports as exhibit-10 and 10/a, the doctor has opined about the injury to be simple in nature. In the postmortem report as Exhibit-8, doctor has found more injuries than what has been mentioned in exhibit-10, the injury report of Chuna Gope. Under the aforesaid circumstances, the appellants are acquitted from conviction under Section 304 part II of the Indian Penal Code and their conviction is hereby upheld under Section 323 of the Indian Penal Code. The sentence is accordingly modified to the period already undergone by the appellants. 14. In the result, the Criminal appeal preferred by the appellants are partly allowed with modification in conviction and sentence. 15. The appellants, who are on bail, their bail bonds are cancelled. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.