JUDGMENT : RAKESH KUMAR, J. The sole appellant was convicted on 16-04-2013 for commission of offence under Sections 302 and 392 of the Indian Penal Code, 1860 (for short ‘I.P.C.’) and by order of sentence dated 18-04-2013, he has been directed to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and to pay a fine of Rs. 5,000/- (five thousand). In default of payment of fine, he has been directed to further undergo imprisonment for one year. Under Section 392 of the I.P.C., he has been sentenced to undergo rigorous imprisonment for five years and fine of Rs. 2,000/- (two thousand) and in default, he has been directed to further undergo imprisonment for six months. The appellant was convicted and sentenced in Sessions Trial No. 277 of 2011 {arising out of Siswan (Chainpur O.P.) P.S. Case No. 23 of 2011} by Sri Janardan Tripathi, learned Adhoc Additional District & Sessions Judge – V, Siwan (hereinafter referred to as the ‘Trial Judge’). 2. Short fact of the case is that on 19-02-2011 in Sadar Hospital, Siwan at 2:30 AM, Sri Ashish Kumar Mishra, Probationer Sub-Inspector recorded fardbeyan of one Bacha Sah (deceased). In the fardbeyan, Bacha Sah disclosed that on 18-02-2011 at about 7:30 PM, after closing his shop of rice and wheat, he was returning home with sale proceed. On way, opposite the campus of Shyamdeo Babu ( ';kenso ckcw ds gkrk ds lkeus ) he was stopped by one Rama Singh of village Chhota Nawada, who was having criminal antecedent and recently he had come out from the jail. The informant disclosed that Rama Singh was carrying a hockey stick in his hand and by the hockey stick, he assaulted him and thereafter, after snatching 10-15 thousand rupees from him, he fled away. The informant, due to serious injury, fell down. Villagers informed his sons, thereafter, he was carried by them to hospital. The said fardbeyan was read over to him and thereafter, the informant put his L.T.I., which was identified by his two sons namely Sanjeet Kumar Sah (P.W.2) and Sonu Kumar Sah (not examined). 3. After recording fardbeyan, on 19-02-2011 at 18.30 hrs. (6:30 PM), a formal F.I.R., vide Siswan (Chainpur O.P.) P.S. Case No. 23 of 2011, was registered for offence under Sections 341, 323, 307, 379 of the I.P.C. against the sole appellant. 3. After recording fardbeyan, on 19-02-2011 at 18.30 hrs. (6:30 PM), a formal F.I.R., vide Siswan (Chainpur O.P.) P.S. Case No. 23 of 2011, was registered for offence under Sections 341, 323, 307, 379 of the I.P.C. against the sole appellant. Subsequently, after death of the informant, which occurred on 27-02-2011, by the order of the court dated 25-03-2011, Section 302 of the I.P.C. was added in the F.I.R. During investigation, the accusation was found true and thereafter, on 21-05-2011 chargesheet was submitted against the sole appellant and thereafter, on 24-05-2011, the learned Magistrate took cognizance of the offence. After completion of all formalities under Section 207 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), on 04-06-2011, the case was committed to the court of sessions. After the case being committed, it was numbered as Sessions Trial No. 277 of 2011. In the case, on 27-07-2011, charge under Sections 341, 392 & 302 of the I.P.C. was framed and to establish its case from the prosecution side, altogether seven witnesses were examined. Out of seven prosecution witnesses: P.W.5 Aditi Devi and P.W.6 Maya Devi were examined as eye-witnesses. P.W.2 Sanjeet Kumar Sah, son of the deceased and P.W.4 Ramjee Sah, brother of the deceased were examined, as if, deceased after receiving injury had disclosed as to how he received injury and his sale proceed was looted by the appellant. P.W.1 Dr. Rameshwar Kumar, who had examined the injury of the deceased, has proved the injury report. P.W.3 Ashish Kumar Mishra, who at the relevant time was posted as Probationer Sub- Inspector in the Siwan police, had recorded fardbeyan of the injured, who subsequently died. P.W.7 Subhash Ram has conducted investigation and he had submitted chargesheet after getting approval of the superior officer. 4. After examination of the prosecution witnesses, evidences and circumstances collected during trial were explained to the appellant and on 08-03-2013, statement of the accused under Section 313 of the Cr.P.C. was recorded. In statement recorded under Section 313 of the Cr.P.C., the appellant claimed to be innocent. 5. Sri Ajay Kumar Thakur, learned counsel assisted by Sri Vijay Kumar Singh, learned counsel for the appellant, submits that considering the fact that only one injury was found on the head of the deceased, certainly it was not a case of the prosecution that appellant had given repeated blow on deceased. 5. Sri Ajay Kumar Thakur, learned counsel assisted by Sri Vijay Kumar Singh, learned counsel for the appellant, submits that considering the fact that only one injury was found on the head of the deceased, certainly it was not a case of the prosecution that appellant had given repeated blow on deceased. He submits that in the case, alleged blow was given on 18-02-2011 in the evening at 7:30 PM, however; while the informant was being treated, he succumbed to injury on 27-02-2011. He submits that in this case, evidence of P.W.5 and P.W.6 may not be relied upon, considering the fact that right from the very beginning, the P.W.2 in his evidence has stated that after the occurrence he arrived at the place of occurrence and he alongwith his brother and others had carried the injured to the hospital, but those so called eye-witnesses were not at all mentioned in the evidence of P.W.2. Similarly, P.W.4, who was the brother of the deceased, has also not whispered regarding the presence of P.W.5 and 6. It has been argued that it appears that after the occurrence, subsequently, two persons were introduced, as if, they had seen the occurrence. It has also been argued that during the trial, the doctor, who conducted post-mortem examination on the dead body of the deceased, had not come forward to depose nor post-mortem examination report was legally exhibited, but in the case, post-mortem examination report was got exhibited by the investigating officer i.e. P.W.7, however; in cross-examination, specifically a question was asked to him as to whether the investigating officer had ever worked with the doctor, who conducted post-mortem or he was conversant with the writing or signature of the doctor, the investigating officer/P.W.7 has categorically said that he had never worked with the doctor, who conducted post-mortem nor he was conversant with the writing or signature of the doctor. Accordingly, it has been argued that in absence of postmortem examination report, even the cause of death, has not been established by the prosecution. Accordingly, it has been argued that in absence of postmortem examination report, even the cause of death, has not been established by the prosecution. Alternatively, after placing entire evidence, Sri Thakur, learned counsel for the appellant has argued that in view of evidence on record, it was not a case under Section 302 of the I.P.C. It has been argued that even if entire evidence is treated as true, hardly it was a case under Section 304 part II of the I.P.C., however; Sri Thakur has not disputed regarding the finding in respect of Section 392 of the I.P.C. He submits that under Section 392 of the I.P.C., after conviction, the appellant was directed to undergo rigorous imprisonment for five years and appellant has already remained in custody for more than seven years. 6. Sri Ajay Mishra, learned Addl. Public Prosecutor has argued that the case has proceeded on the basis of disclosure/dying declaration of the informant, who subsequently died. He submits that the fardbeyan in the case is the fardbeyan of the deceased and since after fardbeyan, the injured died, the said fardbeyan has been considered as ‘Dying Declaration’ and thereafter, the learned Trial Judge has rightly passed the judgment of conviction and sentence. He has further argued that besides fardbeyan i.e. Ext. 3, evidence of P.W.2 is also admissible, since P.W.2 Sanjeet Kumar Sah (son of the deceased) has categorically deposed that while after getting information regarding assault on his father he went to the place of occurrence and he was informed by his father regarding involvement of the appellant. He submits that the evidence of P.W.2 was itself sufficient for passing order of conviction and sentence. He has also argued that P.W.4 Ramjee Sah, brother of the deceased, has stated in the similar manner like P.W.2 and he too has stated that Bacha Sah (deceased), after getting injury, was fully conscious and he had categorically stated regarding assault given by the appellant as well as looting of his cash i.e. sale proceed. However, learned Addl. Public Prosecutor has not placed much reliance on the evidence of P.W.5 and 6, who were introduced as eyewitnesses. 7. Besides hearing learned counsel for the parties, we have also examined entire evidence i.e. oral and documentary evidence. Before proceeding, it would be necessary to examine as to what P.W.2 Sanjeet Kumar Sah has deposed during his evidence. 8. Public Prosecutor has not placed much reliance on the evidence of P.W.5 and 6, who were introduced as eyewitnesses. 7. Besides hearing learned counsel for the parties, we have also examined entire evidence i.e. oral and documentary evidence. Before proceeding, it would be necessary to examine as to what P.W.2 Sanjeet Kumar Sah has deposed during his evidence. 8. In his evidence, the P.W.2 has stated that on the date of occurrence his father was returning from Golawapar Chainpur from his shop. He was also in the shop. His shop was dealing with rice and wheat. His father was returning after collecting entire sale proceed. At about 7:00 PM, this witness received information that currency notes of his father were looted and thereafter, he returned and he noticed near the campus of Shyamdeo Babu that his father was lying in injured condition. He stated that he had noticed injury on the head of his father. His father talked with him and his father disclosed that the appellant had assaulted him and after assault, he had snatched rupees ten to fifteen thousand from him. His father had informed that he was assaulted by the appellant by hockey stick. At the place of occurrence, other family members thereafter also assembled. The occurrence had taken place at about 10-15 steps away from his house. His brother, mother and sister and others had carried his injured father to Siswan Govt. Hospital, where for some time his father was treated by doctor and thereafter, he was referred to Siwan. Then, they reached Siwan Sadar Hospital at about 9:00 PM, where in Sadar Hospital Siwan, Darogaji arrived and recorded fardbeyan of his father. The fardbeyan was recorded in hospital. After recording fardbeyan, the police obtained his mark on the fardbeyan and thereafter, P.W.2 put his signature on the fardbeyan. In Siwan, he was treated for some time and thereafter, he was referred to Patna by the doctor. Thereafter, his father was carried to Patna. He clarified that fardbeyan of his father was recorded while he was fully conscious. His father was admitted in P.M.C.H., Patna and in P.M.C.H. after a week during treatment his father died. In P.M.C.H., police officer of Pirbahor Police Station had arrived and inquest report of the dead body was prepared, on which, this witness had put his signature and his signature was marked as Ext. 2. His father was admitted in P.M.C.H., Patna and in P.M.C.H. after a week during treatment his father died. In P.M.C.H., police officer of Pirbahor Police Station had arrived and inquest report of the dead body was prepared, on which, this witness had put his signature and his signature was marked as Ext. 2. He further clarified that post-mortem was done in Patna itself and thereafter, the dead body was carried to the village, where he was cremated. In paragraph 4 of his cross-examination, the P.W.2 has reiterated that his father was not in a condition to move. His father was not unconscious nor he ever remained unconscious. After getting injury he was in a state of speaking. Of course, this witness was cross-examined by defence, but nothing could be extracted to create any doubt on his evidence. 9. P.W.3 Ashish Kumar Mishra, who had recorded fardbeyan of the deceased, has proved the fardbeyan, which was marked as Ext. 3 and he also proved injury memo, which was marked as Ext. 4. He has categorically stated that while he was in police station he got O.D. slip from the hospital and thereafter, he proceeded to Sadar Hospital, where he recorded fardbeyan in Sadar Hospital. In paragraph 2 of his cross-examination, he had clarified that at the time of recording fardbeyan, the injured was completely conscious. This witness was also cross-examined, but nothing could be extracted to create doubt on his evidence. 10. P.W.4 Ramjee Sah was the brother of the deceased and he too has stated like P.W.2 Sanjeet Kumar Sah. He too was cross-examined, but no relevant questions were asked. However, this witness had proved signature of P.W.2 as well as another son of deceased namely Sonu (not examined) on the fardbeyan, which was marked as Ext. 5 and Ext. 5/1 respectively. 11. So far as evidence of P.W.5 Aditi Devi and P.W.6 Maya Devi is concerned, on examining their evidences, we are of the considered opinion that not much reliance can be placed on their evidence, since none of the family members of the deceased, even injured, had stated regarding their presence. 12. The investigating officer/P.W.7 Subhash Ram has proved formal F.I.R., which was marked as Ext. 12. The investigating officer/P.W.7 Subhash Ram has proved formal F.I.R., which was marked as Ext. 6 and he also proved post-mortem examination report, which was conducted on the dead body of the deceased, but in his cross-examination, since he had categorically deposed that he was not conversant with the writing and signature of the doctor, who conducted post-mortem examination nor he had ever worked with him, there is no reason to place much reliance on such fact, but fact remains that due to injury, which was caused by the appellant, the injured subsequently died. 13. P.W.1 Dr. Rameshwar Kumar had examined the injured in the Sadar Hospital and he has proved the injury report, which was marked as Ext. 1. In any event, this fact is not in dispute that the deceased subsequently died due to injury caused on his head. Accordingly, since the case had been initiated on the basis of fardbeyan of the informant, who subsequently died, the said fardbeyan may not be ignored. 14. Moreover, the fact disclosed in the fardbeyan has also been corroborated by P.W.2 Sanjeet Kumar Sah and P.W.4 Ramjee Sah and as such, involvement of the appellant in the occurrence may not be ruled out. However, the Court is in agreement with the submission of Sri Ajay Kumar Thakur, learned counsel for the appellant that since there was no allegation of repeated assault, it can not be inferred that injury, given by the appellant on the person of the deceased, was with intention to kill. In sum and substance, it is evident that while committing offence under Section 392 of the I.P.C., only one assault was given by the appellant and as such, it was a case under Section 304 part II of the I.P.C., since the intention to kill itself was lacking. Moreover, it has not been disputed by learned counsel for the appellant that the appellant was not involved for commission of offence under Section 302 of the I.P.C. and in the said transaction, assault was given by him. In the case, only one injury was found on the head of the deceased. Of course, the doctor (P.W.1) had not given a definite finding since the injury, which he had examined, had already stitched. 15. In the case, only one injury was found on the head of the deceased. Of course, the doctor (P.W.1) had not given a definite finding since the injury, which he had examined, had already stitched. 15. In view of facts and circumstances, we are of the opinion that judgment of conviction and sentence of the appellant under Section 302 of the Indian Penal Code may not sustain, rather it can be altered to provision under Section 304 part II of the Indian Penal Code. So far as conviction and sentence under Section 392 of the Indian Penal Code is concerned, there is no reason to interfere with. The appellant has already remained in custody for more than 7 years. Meaning thereby that he has already served the sentence under Section 392 of the Indian Penal Code and as such, conviction and sentence under Section 392 of the Indian Penal Code is affirmed. 16. So far as conviction and sentence under Section 302 of the Indian Penal Code is concerned, same is altered from Section 302 I.P.C. to Section 304 part II of the Indian Penal Code. 17. Accordingly, the judgment of conviction dated 16.04.2013 and order of sentence dated 18.04.2013 passed by Sri Janardan Tripathi, learned Adhoc Additional District & Sessions Judge - Vth, Siwan in Sessions Trial No. 277 of 2011 {arising out of Siswan (Chainpur O.P.) P.S. Case No. 23 of 2011} is modified to the extent of altering Section 302 with Section 304 part II of the Indian Penal Code. Accordingly, the purpose would be served if the sentence of the appellant is reduced to the period already undergone. 18. Accordingly, the appeal is partly allowed with altering conviction from Section 302 of I.P.C. to Section 304 part II of the I.P.C. and period of sentence is reduced to the period already undergone. 19. Let the appellant namely Rama Singh be released from custody forthwith, if not required in any other case.