JUDGEMENT : Shree Chandrashekhar, J. The sole appellant has faced the trial on the charge under sections 302, 307, 325 and 448 of the Indian Penal Code. He has been convicted on all four counts but sentenced only for the offence under section 302 IPC to R.I for life and fine of Rs. 5,000/- and under section 307 IPC to R.I for seven years. 2. On the basis of the fardbeyan of Nandlal Gagrai which was recorded on 13.05.2007 at 11:30 a.m, Manjhgaon P.S. Case No. 18 of 2007 was registered against the appellant under sections 302, 307, 323, 325 and 448 IPC. During the trial, the prosecution has examined 15 witnesses; the informant is P.W.8. 3. The prosecution witnesses – P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 ad P.W.7 – have turned hostile and P.W.11 and P.W.12 are the hear-say witnesses. 4. The informant-P.W.8, his mother-P.W.13, sister-P.W.14 and sister-in-law-P.W.15 have been projected by the prosecution as the eye-witnesses. 5. The cause for the occurrence is said to be a dispute in respect of a path-way adjacent to the house of the informant. The informant who is the son of Dashrathi Gagrai, the deceased, has stated in his fardbeyan that in the intervening night of 12/13.05.2007 the appellant appeared with a wooden stick, broke open the door of his house and dragged his father near the dunghill and assaulted him with the stick. In the occurrence, the appellant has assaulted his mother, sister and sister-in-law also who were present in the house at that time. Next day an information was given to the police and on the basis of his fardbeyan, a First Information Report was lodged. The investigating officer has prepared the inquest report and requisition for the injury report of P.W.13, P.W.14 and P.W.15. During the trial, the prosecution has tendered in evidence the postmortem examination report and the material exhibits, such as, blood-stained soil and blood-stained danda. 6. In his examination-in-chief, the informant has stated that at about the mid-night of 12.05.2007 the appellant holding a danda forcibly broke open the door and entered his house and started assaulting his father, mother and sister. He further says that the appellant dragged his father near a dunghill and mercilessly assaulted him due to which he died on the spot. In his examination-in-chief, the informant has stated that at about the mid-night of 12.05.2007 the appellant holding a danda forcibly broke open the door and entered his house and started assaulting his father, mother and sister. He further says that the appellant dragged his father near a dunghill and mercilessly assaulted him due to which he died on the spot. His mother, namely, Srimati Gagrai who has been examined as P.W.13 has also narrated a similar story of the incident which has happened in the night of 12.05.2007. She has spoken about the assault on her husband by danda and assault to her, her daughter and her daughter-in-law by the appellant. She says that due to assault upon her by the appellant she became unconscious and fell on the ground. Her daughter, namely, Km. Jasmati Gagrai-P.W.14 is an injured witness. Her daughter-in-law, namely, Smt. Jaymati Gagrai is also an injured witness. They were present in the house at the time when the incident has occurred. They have also narrated a similar story as has been described by the informant and his mother. The presence of these witnesses in their house in the night is natural. In fact, there is no serious challenge by the defence on their presence at the place of occurrence in the intervening night of 12/13.05.2007. These witnesses have remained unshaken during their cross-examination and the learned Sessions Judge has found their testimony reliable and trustworthy. 7. Dr. Sudama Prasad-P.W.9, who has conducted postmortem examination on 13.05.2007, has found the following injuries on Dashrathi Gagrai: “External injuries: (i) right ear cut between middle area, (ii) lacerated wound of right eyebrow 1”x4”, deep bone, (iii) lacerated wound over hydrocel ½” x ½” ; blood clots and multiple bruise were present on the whole body. On internal examination found head and neck maninses lacerated, fracture of frontal bone of right side. Thoarax left side of chest empty while right full of blood.” 8. According to the doctor, the injuries on Dashrathi Gagrai were antemortem in nature and caused within 36 hours of the examination. 9. Dr. Sheolal Kunkel-P.W.10 has examined Srimati Gagrai and observed the following injuries on her person: “(i) Lacerated wound in occipital area 3”x ½” deep bone. (ii) Lacerated wound over left parietal 2”x½” deep bone. (iii) Lacerated wound on frontal area 2”x ½” deep bone. On X-ray the doctor found fracture of the skull bone. 9. Dr. Sheolal Kunkel-P.W.10 has examined Srimati Gagrai and observed the following injuries on her person: “(i) Lacerated wound in occipital area 3”x ½” deep bone. (ii) Lacerated wound over left parietal 2”x½” deep bone. (iii) Lacerated wound on frontal area 2”x ½” deep bone. On X-ray the doctor found fracture of the skull bone. The injuries were grievous in nature caused by hard and blunt object. 10. P.W.10 has examined Smt. Jaymati Gagrai on the same day and observed a lacerated wound to the extent of 2”x ½”, bone deep, on her head. He has also examined Km. Jasmati Gagrai and found lacerated wound over her head of the extent of 1”x ½” x ½”, bone deep. 11. According to P.W.10, the injuries found on P.W.13, P.W.14 and P.W.15 were grievous in nature. These injuries were caused within 24 hours of their examination by P.W.10. The eye-witness account of the incident as spoken by P.W.8, P.W.13, P.W.14 and P.W.15 is corroborated by the medical evidence. 12. In the above state of evidence, we are of the opinion that the prosecution has proved the presence of the appellant at the place of occurrence and at the time of occurrence. The prosecution has also proved assault by the appellant upon Dashrathi Gagrai and the prosecution witnesses – P.W.13, P.W.14 and P.W.15. However, in our opinion conviction of the appellant under section 302 IPC for causing death of Dashrathi Gagrai is not sustainable in law. 13. According to the prosecution, it was mid-night when the incident has happened. The informant has admitted in his examination-in-chief that he has no clue why the appellant has killed his father. The appellant was holding a danda and, above all, P.W.9 says in his cross-examination that injuries on Dashrathi Gagrai can be caused by fall. From the injuries found on Dashrathi Gagrai, that is, on his eyebrow it cannot be inferred that the appellant intended to murder Dashrathi Gagrai. We further find that the prosecution has failed to lead any evidence that the appellant had the requisite intention to cause death of Dashrathi Gagrai and, therefore, he cannot be convicted under section 302 IPC [refer: “Atul Thakur vrs. State of Himachal Pradesh and Others” reported in (2018) 2 SCC 496 ]. 14. We further find that the prosecution has failed to lead any evidence that the appellant had the requisite intention to cause death of Dashrathi Gagrai and, therefore, he cannot be convicted under section 302 IPC [refer: “Atul Thakur vrs. State of Himachal Pradesh and Others” reported in (2018) 2 SCC 496 ]. 14. In the aforesaid facts, conviction of Rohidas Gagrai @ Rohitas Gagrai under section 302 IPC is found unsustainable in law and, accordingly, the judgment of conviction under section 302 IPC dated 26.06.2009 and the order of sentence of R.I for life and fine of Rs. 5,000/- dated 06.07.2009 passed by the learned Additional Sessions Judge (F.T.C.-V), West Singhbhum at Chaibasa in Sessions Trial No. 207 of 2007 against the appellant-Rohidas Gagrai @ Rohitas Gagrai are set-aside. 15. However, the prosecution has proved that the appellant has voluntarily caused grievous injury to Dashrathi Gagrai due to which he has died. In our opinion, on such facts he is liable to be convicted under section 326 IPC. Accordingly, the appellant is convicted and sentenced to R.I for Ten years under section 326 IPC. However, his conviction under section 307 IPC for attempting to commit murder of Srimati Gagrai-P.W.13, Km. Jasmati Gagrai-P.W.14 and Smt. Jaymati Gagrai-P.W.15 is upheld. 16. Both the sentences shall run concurrently. 17. Mr. Pankaj Kumar, the learned APP states that he has received a report according to which the appellant has remained in custody for more than Twelve years. 18. Accordingly, the appellant namely, Rohidas Gagrai @ Rohitas Gagrai shall be set free forthwith, if not wanted in connection to any other criminal case. 19. In the result, Criminal Appeal (DB) No. 664 of 2009 is partly allowed. 20. Let lower-court records be transmitted to the court concerned, forthwith.