JUDGEMENT : Shree Chandrashekhar, J. 1. The sole appellant has faced the trial on the charge under section 302 IPC and he has been convicted and sentenced to R.I. for life and fine of Rs. 5,000/- for the said offence. 2. On the basis of the fardbeyan of Chirlu Mundri, the wife of the deceased, a First Information Report vide Bandgaon P.S. Case No. 31 of 2008 was lodged against the appellant under section 302 IPC. In her fardbeyan which was given in Mundari language, the informant has stated that on 08.06.2008 a house warming function was organized by her elder brother-in-law Elihazar Mundri in which her husband had participated. He had drinks (haria) in the house of his brother and then the villagers after taking drinks at the house of Elihazar Mundri left, but her husband did not come back home. She thereafter, at about 8:00 p.m in the night, went to the house of Elihazar Mundri to call her husband and when she was returning home with her husband, Elihazar Mundri armed with baluwa appeared there and started assaulting her husband indiscriminately. Her injured husband fell on the ground, wreathing in pain and died on the spot. Elihazar Mundri left the place abusing her husband that he has constructed a house adjacent to his house. When the informant raised cries, Eetwari Mundri, Banda Mundri, Parbhu Sahai Mundri and others came there and saw the incident. 3. During the trial, the prosecution has examined 10 witnesses; the informant is P.W.2. 4. The Investigating Officer of the case has not been examined during the trial. 5. Dr. Ramji Bhagat, who has conducted the post-mortem examination, has found the following injuries on Jaura Mundri @ Soma Mundri (i) Incised wound 6”x 3” x bone deep extending from base of neck to the right side of head cutting skin, muscles, jugular veins superior vena-cava carotid artery and nerves. (ii) Incised wound size 2”x1” x deep intra-cranial cavity over mid portion of vertex. 6. According to P.W.10, time elapsed since death was between 12 to 48 hrs. and the cause of death was shock and haemorrhage due to injuries on the head and neck of Jaura Mundri. 7. The learned Sessions Judge has found that P.W.7, P.W.8 and P.W.9 are hearsay witnesses. The other witnesses are also formal witnesses. 6. According to P.W.10, time elapsed since death was between 12 to 48 hrs. and the cause of death was shock and haemorrhage due to injuries on the head and neck of Jaura Mundri. 7. The learned Sessions Judge has found that P.W.7, P.W.8 and P.W.9 are hearsay witnesses. The other witnesses are also formal witnesses. They are witnesses on the point of dead body of Jaura Mundri and injuries on him. 8. The prosecution has projected the informant as an eye witness. In her examination-in-chief, the informant has given a similar narration of the incident which had happened in the night of 8th June, 2008. She has spoken about house warming function in the house of the appellant, her husband returning home in the evening from the house of the appellant, the appellant suddenly appearing there armed with baluwa and assault on her husband by him. The learned Sessions Judge has found that the informant is a reliable witness. Her evidence is corroborated by the testimony of Eetwari Mundri, who was examined as P.W.5. The prosecution witness-Eetwari Mundri is the sister of the deceased. She has stated that she is residing nearby and she has seen the informant and the deceased coming back home and the appellant assaulting the deceased. During their cross-examination, P.W.2 and P.W.5 have remained unshaken and nothing material could be elicited from them by the defence during their cross-examination. 9. In the above state of evidences, we are of the opinion that the prosecution has proved presence of the appellant at the place of occurrence and at the time of occurrence. It has also proved assault by the appellant on Jaura Mundri. However, in the crime scene which has been projected by the prosecution we are of the view that conviction of the offence under section 302 IPC is not proper. The reason why we are inclined to say so is the medical evidence led through P.W.10. The doctor has not rendered a definite opinion, which one was the fatal injury and whether it was the cumulative effect which has caused death. The reason why we are inclined to say so is the medical evidence led through P.W.10. The doctor has not rendered a definite opinion, which one was the fatal injury and whether it was the cumulative effect which has caused death. The opinion of doctor on the cause of death and the other attending circumstances, such as, drinks served to the guests at the house of the appellant, a trivial issue on the construction of a house by the deceased adjacent to the house of the appellant and no motive to commit the crime, in our opinion, bring the case against the appellant under section 326 IPC. The prosecution has proved that the appellant has caused grievous injuries with dangerous weapon to Jaura Mundri and, therefore, the appellant is convicted and sentenced to RI for Ten years under Section 326 IPC. 10. Accordingly, the judgment of conviction under section 302 IPC dated 11.01.2010 and the order of sentence of R.I for life and fine of Rs. 5,000/- dated 13.01.2010 passed by the learned 1st Addl. Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 226 of 2008 against the appellant, namely, Elihazar Mundri are set-aside. 11. Mr. Abhay Kumar Tiwari, the learned APP, states that the appellant has remained in custody for more than Eleven years. 12. Accordingly, the appellant, namely, Elihazar Mundri shall be set free forthwith, if not wanted in connection to any other criminal case. 13. In the result, Criminal Appeal (DB) No. 202 of 2010 is partly allowed. 14. Let lower-court records be transmitted to the court concerned, forthwith.