JUDGMENT : Deepak Roshan, J. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 08.12.1994, passed in Sessions Trial No.99 of 1992, whereby the appellant no.1 -Gunwa Manjhi @ Guna Ram Manjhi has been found guilty for murder of Raso Manjhiyan and appellant no.2 -Jiblal Manjhi has been found guilty for committing murder in furtherance of common intention and thereby found guilty under Section 302/34 IPC. 2. The appellant No.1 has been convicted under Section 302 IPC and the appellant No.2 has been convicted under Section 302/34 IPC and both were sentenced to undergo R.I for life. They have also been ordered to pay fine of Rs.2,000/-and in default to undergo S.I for one year. 3. By an order dated 25.02.1999 the appellant no.1-Gunwa Manjhi @ Guna Ram Manjhi was released on bail, whereas appellant no.2-Jiblal Manjhi was granted bail by this Court vide order dated 14.02.1995. 4. The case of prosecution in brief is that in the intervening night of 16th and 17th of October, 1991 at about 12:30 a.m. the informant-Jhode Manjhi (P.W.2) was sleeping with his wife-Raso Manjhiyan in Dhaba of his house. He heard screams of his wife, who was sleeping beside him. The informant saw that Chhotka Manjhi (since dead), Gunwa Manjhi @ Guna Ram Manjhi and Jiblal Manjhi, both sons of Chhotka Manjhi were dragging his wife and his wife was struggling to free herself from their clutches. The informant raised alarm and attempted to save his wife, but in the meantime Chhotka Manjhi and Jiblal Manjhi threw his wife on the ground in the Varamdah (Oshara). Gunwa Manjhi @ Guna Ram Manjhi who was armed with ‘Farsa’ inflicted a ‘Farsa’ blow on the neck of his wife, as a result of which about half of her neck was severed and the ‘Farsa’ remained stuck in the neck. Further case of the prosecution is that when the informant went near his wife, Jiblal Manjhi and Chhotka Manjhi caught him while Gunwa Manjhi @ Guna Ram Manjhi was trying to take out ‘Farsa’ from the neck of his wife. It is further alleged that by this time both the daughters of the informant came out of their room and started raising Hulla, whereafter all the three accused persons ran away towards their house. It is further alleged that by this time both the daughters of the informant came out of their room and started raising Hulla, whereafter all the three accused persons ran away towards their house. After sometime, the informant's nephew-Suraj Lal Manjhi (P.W.3) and Sanichar Manjhi (P.W.1), son of the informant, came there and tried to take out ‘Farsa’ from the neck of Raso Manjhiyan. It has been further alleged that on Hulla, many neighbors came there and saw the appellants fleeing away. By that time, the informant’s wife-Raso Manjhiyan was already dead. The prosecution has imputed the motive for the occurrence as land dispute on the bari land towards north of the house of the informant, on which the accused persons were staking their claim and they also used to call the deceased ‘Dayin’(witch). 5. On the basis of Fardbeyan recorded at 8:15 a.m. on 17.10.1991 at Gomia Police Station, a First Information Report being Gomia P.S. Case No.112/91 was registered under Section 302/34 IPC. The police after investigation submitted the charge-sheet under Sections 302/34 IPC. Charges were framed under section 302/34 of IPC against Gunwa Manjhi @ Guna Ram Manjhi, Jiblal Manjhi and Chhotka Manjhi @ Chhotna Manjhi, to which they pleaded not guilty and claimed trial. 6. The accused Chhotka Manjhi @ Chhotna Manjhi died during course of trial. 7. The defence of the appellants was that they are innocent and have been falsely implicated in this case. 8. In this case, altogether 9 witnesses have been examined. P.W.1-Sanichar Manjhi is son of the deceased who reached the place of occurrence after the incident. P.W.2-Jhode Manjhi is the informant and husband of the deceased and P.W.3-Suraj Lal Manjhi is nephew of the informant who also reached there after the actual occurrence. P.W.4-Shiv Charan Mahto and P.W.5-Mohan Kumar are inquest report witnesses. P.W.6-Md. Mobin is a formal witness and clerk of the advocate who has proved formal FIR. Sugiya Kumari-PW-7 the minor daughter of the informant is tendered for cross-examination. P.W.8 -Maini Manjhaine is another daughter of the informant and P.W.9-Anwar Khan is the investigating officer of the case. Exhibit-2 is the inquest report; Exhibit-1 is signature on the inquest report. Exhibit-3 is the formal FIR and Exhibit4 is the fardbeyan. Case diary has been marked as Exhibit-5. 9. P.W.1 is son of the informant. P.W.8 -Maini Manjhaine is another daughter of the informant and P.W.9-Anwar Khan is the investigating officer of the case. Exhibit-2 is the inquest report; Exhibit-1 is signature on the inquest report. Exhibit-3 is the formal FIR and Exhibit4 is the fardbeyan. Case diary has been marked as Exhibit-5. 9. P.W.1 is son of the informant. He is hearsay witness and his house was situated at about 1 km from the place of occurrence. He has stated that on hearing alarm of his father, he proceeded towards his house accompanied by his cousin -Suraj Lal, who met him on the way. He has further deposed that he saw that the accused persons were leaving the house of the informant and when he reached the place of occurrence, he noticed that his mother was lying dead and his sisters were weeping. He saw the ‘Farsa’ struck in the neck of his mother. He has deposed that there was a land dispute between the accused persons and they had a grudge against his mother. 10. P.W.2-Jhode Manjhi is the informant and eye witness of the occurrence. He has deposed that he was sleeping with his wife in Dhaba and there was no door in the Dhaba. His two daughters – Maini Manjhaine and Sugiya Kumari – were also sleeping in the house. According to him, appellant no.1 and appellant no.2 dragged his wife in the Courtyard (Angan), and their father -Chhotka Manjhi @ Chhotna Manjhi accompanied them. His wife was assaulted by Guna Ram -appellant no.1 with ‘Farsa’. He has further deposed that a lantern was lit in the Dhaba and he found the ‘Farsa’ stuck in the neck of his wife. According to him, when he raised alarm his son Sanichar Manjhi came with torch and thereafter his son and nephew left for the Police Station. He has further deposed that few months before also the accused persons had assaulted him. In his cross-examination, he has stated that the accused persons are his agnates/gotias. He has, however, stated that a single Farsa blow was inflicted on the neck of his wife. 11. P.W.3-Suraj Lal Manjhi is nephew of the informant. He is a hearsay witness who has been declared hostile. P.W.4-Shiv Charan Mahto, the inquest report witness, has also been declared hostile. P.W.5-Mohan Kumar has stated that inquest report was prepared by the sub-Inspector of Police in his presence. 11. P.W.3-Suraj Lal Manjhi is nephew of the informant. He is a hearsay witness who has been declared hostile. P.W.4-Shiv Charan Mahto, the inquest report witness, has also been declared hostile. P.W.5-Mohan Kumar has stated that inquest report was prepared by the sub-Inspector of Police in his presence. P.W.6 is a formal witness and the advocate’s clerk. He has proved the FIR which has been marked as Exhibit-3. P.W.7-Sugia Kumari is daughter of the informant. She was 10 years old at the time of occurrence and she was tendered for cross-examination. 12. P.W.8-Maini Manjhaine, daughter of the informant, has stated that she was sleeping with her younger sister - Sugia Kumari inside the room and her parents were sleeping in the Dhaba. A lantern (‘Laltain’) was also burning there. She woke up on alarm of her father and when she came out, she saw that the appellant no.1 was assaulting her mother with the ‘Farsa’. She has further stated that the appellant no.2 and his father had caught hold of her mother and she attempted to rescue her mother but was overpowered by other two accused persons. 13. P.W.9-Anwar Khan is the Investigating Officer of this Case. On the date of occurrence he was posted at Gomia Police Station. He has stated that “Farsa” was stucked in the neck of the deceased which was removed by the doctor. 14. On the basis of evidences laid before him, the learned trial court has held in paragraph-16 of the judgment under challenge as under: It has from the evidence, circumstances, probabilities and materials on the record, been crystal clear that it was Gunwa Manjhi @ Guna Ram Manjhi who gave single Farsa blow on the neck of deceased Raso Mani Manjhiyan as a result of which she died and such commission of murder was facilitated by other two accused persons namely, Chhotka Manjhi @ Chhota Manjhi and Jiblal Manjhi who over powered the husband, Children and also threatened his family members. So, under such circumstances, examination of doctor and non-production of Farsa are not vital to disbelieve the prosecution story. So, prosecution has successfully discharged its onus in establishing the guilt of accused persons facing trial. 15. It is pertinent to state here that the doctor has not been examined in this case. So, under such circumstances, examination of doctor and non-production of Farsa are not vital to disbelieve the prosecution story. So, prosecution has successfully discharged its onus in establishing the guilt of accused persons facing trial. 15. It is pertinent to state here that the doctor has not been examined in this case. However, the post-mortem report reveals that the deceased had a cut injury over the back of neck from skin to the spinal cord and on dissection, the neck was chopped from back to the spinal cord and vessels were also injured with cutting of vertical bones. The cause of death was due to injury of bones, vessels and spinal cord. 16. The learned Amicus has contended that : (i) the informant is not a reliable witness, (ii) identification of the appellants is highly doubtful, and (iii) non-examination of the doctor and failure of the prosecution to produce the crime weapon would prove fatal for the prosecution's case. Alternative argument by the learned Amicus is that on the basis of the evidences led against the appellants during the trial, at best, the appellant no.1 can be convicted and sentenced under section 304 Part-II IPC. The learned Amicus has further contended that the prosecution story of participation of the appellant no. 2 is unbelievable and, therefore, he is entitled for acquittal. 17. As against the above, Mr. Ravi Prakash, the learned APP has contended that it has come on record that the farsa with which Raso Manjhiyan was assaulted by the appellant no. 1 was removed by the doctor and there is no cross-examination by the defence on this point and, therefore, non-production of farsa during the trial would not cause any prejudice to the appellants. 18. The prosecution has projected the informant as an eye-witness. He was sleeping with his wife in the dhaba and his two daughters were also sleeping there when the appellants have entered the dhaba. He has identified the appellant no.1 in the lantern light. His elder daughter has also deposed that she has seen the appellant no. 1 assaulting her mother. We find that presence of the appellant no. 1 at the place of incident and assault by him upon Raso Manjhiyan have been established by the prosecution. Accordingly, we hold that participation of the appellant no. 1 in the occurrence stands proved from the prosecution's evidence led during the trial. 19. 1 assaulting her mother. We find that presence of the appellant no. 1 at the place of incident and assault by him upon Raso Manjhiyan have been established by the prosecution. Accordingly, we hold that participation of the appellant no. 1 in the occurrence stands proved from the prosecution's evidence led during the trial. 19. In so far as complicity of the appellant no. 2 in the crime is concerned, we find that allegation of the informant that the appellant no. 2, the father of the appellant no. 1, caught hold of him, in view of the old age of the appellant no. 2 is doubtful. The informant has not alleged that the appellant no. 2 was holding any weapon. It is also not the prosecution's case that appellant no. 2 has touched the body of the deceased. No other overt act has been imputed by the prosecution to the appellant no. 2. In view of the above state of evidence, we are inclined to grant benefit of doubt to the appellant no. 2 and, accordingly, conviction of the appellant no. 2 under section 302/34 IPC is set-aside. 20. The appellant no. 2 is acquitted of the charge under section 302/34 IPC framed against him. 21. While examining the legality of the conviction of the appellant no. 1 under section 302 IPC, we notice that it is the prosecution's own case that he struck one farsa blow on the neck of Raso Manjhiyan. In the postmortem examination, the doctor has found a cut injury over the back of the neck of the deceased. There is no allegation of repeated blow on Raso Manjhiyan by the appellant no. 1. It was a dark night and the source of identification is said to be lantern. The appellant no. 1 is an uneducated person who in the dark night in all probability could not have aimed at the neck, that is, a vital part of the body for assaulting Raso Manjhiyan. In “Emperor Vs. Mt. Dhirajia” reported in AIR (27) 1940 All. 486, it has been held thus; “According to the scheme of the I.P.C., ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. In “Emperor Vs. Mt. Dhirajia” reported in AIR (27) 1940 All. 486, it has been held thus; “According to the scheme of the I.P.C., ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300 I.P.C., is designated ‘murder’ or whether it falls within that residue of cases which are covered by Section 304 and are designated ‘culpable homicide not amounting to murder’. ‘Intention’ is one thing and ‘knowledge’ a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, the capacity to form an intention must have been unseated too. But knowledge stands upon a different footing. Some degree of knowledge must, be attributed to every sane person. The degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person” 22. True, it is not a rule of universal application that whenever a single blow is given to the deceased application of section 302 IPC is ruled out, but then, the prosecution must prove such facts which would bring the case of the accused under any of the four clauses of Section 300 I.P.C. In the above facts, we hold that the appellant no. 1 did not possess the requisite intention to cause death of Raso Manjhiyan. 23. In the above facts, having examined the records of Sessions Trial No.99 of 1992, we hold that conviction of appellant no. 1 namely, Guna Ram Manjhi under section 302 is liable to be converted under section 304 Part-II IPC and he is sentenced to undergo R.I for Seven years. 24. As a result, Cr. Appeal (D.B.) No.10 of 1995 is partly allowed. 25. The appellant no.1-Guna Ram Manjhi and appellant no.2-Jiblal Manjhi are discharged of liability of the bail-bonds furnished by them. 26. We appreciate the efforts of Mr. 24. As a result, Cr. Appeal (D.B.) No.10 of 1995 is partly allowed. 25. The appellant no.1-Guna Ram Manjhi and appellant no.2-Jiblal Manjhi are discharged of liability of the bail-bonds furnished by them. 26. We appreciate the efforts of Mr. Arpan Mishra, the learned Amicus who has meticulously prepared list of dates and detailed notes on the prosecution evidence and ably assisted the Court arguing this criminal appeal on behalf of the appellants. 27. The assistance rendered by Mr. Ravi Prakash, the learned A.P.P. is also appreciated. 28. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills(s). He shall be paid Rs.5500/-for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 29. Let the lower-court records be transmitted to the court concerned, forthwith. 30. Let a copy of the order be transmitted to the court concerned through ‘FAX’.