JUDGMENT : Shree Chandrashekhar, J. Five persons, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya, Jagarnath Bhuinya and Pacchu Bhuinya have faced the trial on the charges under section 302/34 IPC, under section 201/34 IPC and under section 323/34 IPC. 2. In S.T. No. 123 of 2007, the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya have been sentenced to undergo RI for life and fine of Rs. 5,000/-each under section 302/34 IPC. For the offence under section 323/34 IPC, the appellants, namely, Bajrangi Bhuinya and Chandip Bhuinya have been sentenced to undergo RI for six months and for the offence under section 201/34 IPC all the five appellants have been sentenced to undergo RI for 5 years and fine of Rs. 2000/-each. 3. During the trial, the prosecution has examined seven witnesses; the informant, namely, Tetari Kunwar who is the wife of Sohrai Bhuinya, the deceased, is P.W. 1. The son of the deceased, namely, Raj Kumar Bhuinya-P.W.-2 and his daughter-in-law, namely, Kanti Devi-P.W.-3 have also been examined as eye-witnesses. 4. Dr. Kedar Prasad-P.W.-4, who has examined Tetari Devi, has found following injuries on her: (i) Bruise on left side back and right side back. Left side back 5”x 2” and right side back 6” x 2”; (ii) Bruise on middle of back 2” x 2”; (iii) Bruise on right arm 1” x1” 5. The injuries found on Tetari Devi were simple in nature. 6. The Investigating Officer, who has been examined as P.W.-5, has deposed in the court that he has prepared requisition vide Ext.-4 for medical examination of Tetari Devi. He has found fresh marks of cow-dung spread over the place of occurrence but no reminiscence of dead body was found at the bank of the river. 7. The prosecution witnesses, namely, Bihari Bhuinya and Dukhan Bhuinya who have been examined as P.W.-6 and P.W.-7 respectively have not supported the prosecution's case and they have been declared hostile. 8. The informant in her examination-in-chief has stated that when her husband was preparing to leave, the accused persons came there and dragged him to their house where they assaulted him with Tangi, Garasa and Lathi. She has stated that the accused persons have put on fire the dead body of her husband with the dead body of Ramnath Bhuinya. 8. The informant in her examination-in-chief has stated that when her husband was preparing to leave, the accused persons came there and dragged him to their house where they assaulted him with Tangi, Garasa and Lathi. She has stated that the accused persons have put on fire the dead body of her husband with the dead body of Ramnath Bhuinya. She has made allegation of assault on her with Tangi and Garasa. The son of the deceased, P.W.-2 has deposed in the court about the appellants' coming to his house and taking away his father to the house of Ramnath Bhuinya. He has spoken about assault upon his mother by the appellants. In his cross-examination, he says that when his father was leaving for his in-laws' place (Sasural), he was caught by the appellants midway and assaulted. The daughter-in-law of the deceased, P.W.-3 has also stated about the assault upon Sohrai Bhuinya by Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya. 9. Sri A.K. Kashyap, the learned senior counsel and Mr. Prabhat Singh, the learned Amicus has made the following submissions: (i) the informant and other two witnesses; P.W.-2 and P.W. 3 are not the eye-witnesses, (ii) the manner of occurrence described by the prosecution witnesses in the court is substantially different from what has been stated by the informant in her fardbeyan, (iii) the dead body has not been recovered and the prosecution has not proved by cogent evidence that Sohrai Bhuinya has been killed and, (iv) at best the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya can be convicted and sentenced under section 304 Part-II IPC but not under section 302/34 IPC and the appellant, namely, Pacchu Bhuinya is entitled for clean acquittal. 10. From the evidence of P.W.-1, P.W.-2 and P.W.-3, it stands established that the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya have assaulted Sohrai Bhuinya. The minor inconsistency in the testimony of these witnesses on the place where Sohrai Bhuinya was caught by them and assaulted would not make their testimony unreliable. It has come in their evidence that the house of Bajrangi Bhiunya was just adjacent to the house of the deceased. According to P.W.-1 (paragraph 11 of her evidence) and according to P.W.-3 (para 7) both houses are nearby and only ten steps apart. It has come in their evidence that the house of Bajrangi Bhiunya was just adjacent to the house of the deceased. According to P.W.-1 (paragraph 11 of her evidence) and according to P.W.-3 (para 7) both houses are nearby and only ten steps apart. P.W. 3 has stated that she has seen the occurrence from a gap. These witnesses have remained unshaken during their cross-examination, at least on presence of the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya at the place of occurrence and assault by them upon Sohrai Bhuinya. 11. In the above state of affairs, we hold that the prosecution has established presence of the above-named appellants at the place of occurrence, at the time of occurrence and assault by them on Sohrai Bhuinya. 12. In so far as the appellant, namely, Pacchu Bhuinya against whom a charge under section 201/34 IPC has been framed, we find that the prosecution has not brought on record any cogent evidence against him to prove the charge for causing disappearance of dead body of Sohrai Bhuinya. 13. Accordingly, the appellant, namely, Pacchu Bhuinya is acquitted of the charge framed against him. He is on bail and, therefore, he stands discharged from the liability of bail bonds furnished by him. 14. The other four appellants have been convicted under section 302/34 IPC but no separate charge under section 302 IPC simpliciter has been framed against any one of these appellants. This fact itself would indicate that the prosecution was not sure about the appellant who has caused the fatal injury to Sohrai Bhuinya. Section 300 IPC provides that culpable homicide would amount to murder if the case falls under any one of the four clauses enumerated thereunder. From the manner of occurrence and the motive behind the occurrence, all that can be inferred is that the appellants intended to beat Sohrai Bhuinya. But, the prosecution has failed to lead any evidence to establish that the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya shared common intention to murder Sohrai Bhuinya. It has come on record that Sohrai Bhuinya was practicing black-magic and the informant has admitted in her cross-examination that due to his practicing black-magic her husband had incurred enmity with several other persons. It has come on record that Sohrai Bhuinya was practicing black-magic and the informant has admitted in her cross-examination that due to his practicing black-magic her husband had incurred enmity with several other persons. It is the prosecution's case that these four appellants were nurturing suspicion against Sohrai Bhuinya that he had practiced witchcraft due to which Ramnath Bhuinya had died and previously his grand-daughter had also died. It has also come on record that Sohrai Bhuinya himself feared that the villagers may raise suspicion again him for causing death of Ramnath Bhuinya and that was the reason on the fateful day he was leaving the village. From these facts, it cannot be inferred that the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya intended to cause death of Sohrai Bhuinya. Accordingly, their conviction under section 302/34 IPC is set aside. However, conviction of the appellants, namely, Bajrangi Bhuinya and Chandradip Bhuinya @ Chandip Bhuinya under section 323/34 IPC stands upheld but the conviction of the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya under section 201/34 IPC is set-aside. 15. The prosecution has proved assault by these appellants with deadly weapons on Sohrai Bhuinya and, therefore, the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya are convicted under section 326/34 IPC and sentenced to RI for seven years with fine of Rs. 10,000/-each. The amount of fine shall be paid to the informant or any one of her family members. 16. Sri. Ram Prakash Singh, the learned APP states that according to the report received by him, the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya have remained in custody for more than eight years. 17. Accordingly, the appellants, namely, Bajrangi Bhuinya, Chandradip Bhuinya @ Chandip Bhuinya, Amarik Bhuinya and Jagarnath Bhuinya shall be set free forthwith, if not wanted in connection to any other criminal case. The amount of fine shall be deposited by them within six weeks, failing which they shall serve R.I. for further one year. 18. In the result, Cr. Appeal(DB) No. 479 of 2011 is partly allowed. 19. We appreciate the assistance rendered by Mr. Prabhat Singh, the learned Amicus. 20. The amount of fine shall be deposited by them within six weeks, failing which they shall serve R.I. for further one year. 18. In the result, Cr. Appeal(DB) No. 479 of 2011 is partly allowed. 19. We appreciate the assistance rendered by Mr. Prabhat Singh, the learned Amicus. 20. The Secretary, Jharkhand High Court Legal Services Authority, Ranchi shall reimburse the learned Amicus on submission of the bill(s) as per the notification dated 23.11.2017. 21. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 22. Let lower court records be transmitted to the court concerned, forthwith.