ORDER : Shree Chandrashekhar, J. The sole appellant has faced the trial on the charge under section 302 IPC for committing murder of Budhni Bhumij. In Sessions Trial No 147 of 2008, he has been found guilty under section 302 IPC and sentenced to R.I for life and fine of Rs. 20,000/-. 2. During the trial, the prosecution has examined seven witnesses; Dr. M. Lugun-P.W.6 who has conducted the postmortem examination has found the following injuries on Budhni Bhumij : “Lacerated wound at right angle of mouth measuring 2”x1” deep to buckle cavity with fracture of right mandible and maxilla. Blood and blood clot were present around the wound. Black bruise present below the neck anterialy measuring 2” x ½”.” 3. The investigating officer has prepared the inquest report and received the postmortem examination report. In the court, he has deposed that he has visited the place of occurrence and found tiles of the roof removed from where a person can enter the room. 4. The case of the prosecution as narrated by Sangita Bhumij, the informant, is that in the intervening night of 1st/2nd March, 2008 the appellant after removing the roof tiles entered her room and tried to sexually assault her. When she raised cries her mother Saraswati Bhumij and step-mother Budhni Bhumij came to rescue her. The informant has stated that the appellant gave a chura blow on the face of Budhni Bhumij and after she fell on the ground strangulated her by pressing her neck due to which she died. In the court, the informant has narrated a similar story of the incident. She has stated that the love-lorn appellant was trying to make physical relationship with her and that was the reason in the fateful night at about 2:00 a.m. he entered her house and attempted to sexually ravaged her. She has made a specific allegation of assault by him on her step-mother Budhni Bhumij with knife and pressing her neck by him. She has deposed that when the appellant tried to assault Saraswati Bhumij, her mother, both of them escaped to the other room. On her raising hulla several villagers came there where after the appellant fled away. 5. The prosecution has projected Saraswati Bhumij-P.W.4 as another eye-witness to the occurrence. She has deposed that when the appellant tried to assault Saraswati Bhumij, her mother, both of them escaped to the other room. On her raising hulla several villagers came there where after the appellant fled away. 5. The prosecution has projected Saraswati Bhumij-P.W.4 as another eye-witness to the occurrence. In her examination-in-chief, Saraswati Bhumij has stated about the appellant entering the house after removing the roof tiles and assault on Budhni Bhumij by the appellant with knife. She has also spoken about intention of the appellant to sexually assault the informant. She says that for teasing of the informant by the appellant a panchayati was convened. It is of some relevance to record that it is the prosecution's case that the appellant has struck a knife blow on Budhni Bhumij. However, we find that on the point of strangulation of Budhni Bhumij, P.W.4 is completely silent. Both the eye-witnesses – P.W.1 and P.W.4 – have stated that when the appellant tried to assault Saraswati Bhumij they escaped from the room. 6. In the aforesaid state of affairs, we find that the prosecution has failed to prove death by strangulation of Budhni Bhumij; the story of the appellant pressing the neck of Budhni Bhumij is not supported by P.W.4. 7. At the juncture, when the appellant entered the room of the informant and tried to sexually assault her, Budhni Bhumij was not in the picture. She was sleeping in the Verandah. On such facts, it can be safely inferred that when the appellant entered the house of the informant he did not intend to cause death of Budhni Bhumij. 8. The doctor who has conducted the postmortem examination has rendered an opinion that the death has been caused within 6 to 36 hours of the examination and the injury on Budhni Bhumij can be caused by a hard and blunt substance. On the cause of death, the doctor has opined that it was shock and hemorrhage on account of the injuries found on her which has caused death of Budhni Bhumij. The doctor has thus not rendered a conclusive opinion whether the death has been caused due to the knife blow on the face of Budhni Bhumij, which was of the extent of 2” x ½” deep. 9. In the above facts, conviction of the appellant under section 302 IPC is found unsustainable and, accordingly, it is set-aside. 10. The doctor has thus not rendered a conclusive opinion whether the death has been caused due to the knife blow on the face of Budhni Bhumij, which was of the extent of 2” x ½” deep. 9. In the above facts, conviction of the appellant under section 302 IPC is found unsustainable and, accordingly, it is set-aside. 10. Section 326 of the Indian Penal Code provides that whoever causes grievous hurt voluntarily shall be sentenced to life imprisonment or with imprisonment of either description which may extend to ten years. The doctor has found fracture on right Mandible and Maxilla. Section 320 of the Indian Penal Code describes grievous hurt. Under Clause-sixthly permanent disfiguration of the head or face would amount to grievous hurt. 11. On the evidences laid by the prosecution, particularly, the medical evidence, we find that the appellant has committed the offence punishable under section 326 IPC and, accordingly, he is convicted and sentenced to R.I for Ten years under section 326 IPC. 12. The judgment of conviction under section 302 IPC dated 11.02.2009 and the order of sentence of R.I for life and fine of Rs. 20,000/- dated 12.02.2009 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 147 of 2008 against the appellant, namely, Lal Singh Bhumij are set-aside. 13. Mr. Sanjay Kumar Srivastava, the learned APP states that the appellant has undergone more than Eleven years of imprisonment. 14. Accordingly, the appellant, namely, Lal Singh Bhumij shall be set free forthwith, if not wanted in connection to any other criminal case. 15. In the result, Criminal Appeal (DB) No. 951 of 2012 is partly allowed. 16. Let lower-court records be transmitted to the court concerned, forthwith.