JUDGMENT 1. Heard learned Amicus Curiae and Additional Public Prosecutor on behalf of the State. The conviction of the sole appellant Devilal Murmu in Sessions Trial No.68 of 2010 for the charges under Section 302 of the Indian Penal Code is under challenge herein. The impugned judgment has been rendered on 17 th December 2013 by learned District and Additional Sessions Judge-III, Dumka and the appellant has been sentenced to undergo imprisonment for life with a fine of Rs.25,000/- in default whereof to suffer simple imprisonment for further two months by the impugned order of sentence dated 21 st December 2013. 2. The informant Bhutal Soren is the brother of the deceased Guddu Soren aged 40 years who inter-alia alleged that the accused Devilal Murmu had committed the offence. His Fardbeyan was recorded at 5.30 hours on 1 st January 2010 by the Sub-Inspector Sanoj Kumar, Officer In-charge, Ramgarh Police Station at Dholpathar Maidan. As the prosecution story goes the informant asserted that he received an information in the night that his brother (deceased) Guddu Soren had been killed by someone near Dholpathar Maidan (field). He proceeded along with his brother Dhaniram Soren (P.W.4) from village Majdiha at around 10.00 in the night. On reaching there, the villagers present informed that a football match had been played earlier and people present there were indulging in drinking, eating, etc. His brother Guddu Soren was also indulging in drinking and eating with the accused Devilal Murmu son of Late Sukul Murmu of village Kushumdih, P.S. Ramgarh, District Dumka. In course thereof, there was a quarrel amongst them, as a result the accused Devilal Murmu sat over his chest and assaulted him with a stone and also took his life by throttling. This incidence was seen by several people around whereafter Devilal Murmu was chased and caught. On these assertions the informant pleaded legal action against him. Upon this Fardbeyan a formal F.I.R. bearing Ramgarh P.S. Case No.01/2010 was registered under Section 302 of the Indian Penal Code against the sole accused Devilal Murmu. The case was found true as against the accused/appellant herein and charge sheet was submitted bearing no.13/2010 dated 26.01.2010 under Section 302 of the Indian Penal Code. 3. After cognizance was taken on 5 th February 2010, the case was committed to the court of sessions. The case was found true as against the accused/appellant herein and charge sheet was submitted bearing no.13/2010 dated 26.01.2010 under Section 302 of the Indian Penal Code. 3. After cognizance was taken on 5 th February 2010, the case was committed to the court of sessions. Charges were framed on 3 rd April 2010 under the aforesaid Section of Indian Penal Code. It was read over and explained to the accused in Hindi language to which he pleaded not guilty and claimed for trial. 4. During course of trial prosecution produced eight witnesses in support namely P.W.1 Brenyus @ Briantus Soren, the nephew of the deceased who claimed himself to be an eye-witness; P.W.2 Kisto Marandi is the brother-in-law of P.W.1, P.W.3 Rahul Hansda is brother of P.W.1, P.W.4 Dhaniram Soren respectively are hearsay witnesses. P.W.5 Dr. C.P. Sinha is the Medical Officer who conducted autopsy on the dead body and proved the post-mortem report as Ext.2. P.W.6 is Lukhiram Hansda who also had gone along with P.W.2, P.W.3 and one Bhimsen Tudu to the place of occurrence immediately after being informed by P.W.1 that his uncle Guddu Soren was being assaulted by a person. This witness claims to have also seen the accused sitting on the chest of the deceased and trying to throttle his neck. P.W.7 Bhutal Soren is the informant, a hearsay witness as stated above who has proved his signature on Fardbeyan and carbon copy of inquest report as Ext.1/2 and 1/3. P.W.8 is the Investigating Officer. 5. The prosecution adduced the following documentary evidence also in support during trial: Ext.1 and 1/1 are the inquest report and signature of P.W.4 proved by him; Ext.2 is the post-mortem report proved by the Medical Officer P.W.5; Ext. 1/2 and 1/3 are the signature of P.W.7, informant on Fardbeyan and on the inquest report; Ext.3 is the Fardbeyan; Ext.3/1 is the signature of Sanoj Kumar on the Fardbeyan; Ext.3/2 is the registration on the Fardbeyan; Ext.4 is the formal F.I.R.; Ext.5 is the inquest report; Ext.6 is memo of arrest of the accused and Ext.7 is charge sheet, all of which have been proved by the Investigating Officer P.W.8. 6. After conclusion of the prosecution evidence, material evidence was put to the accused whose case was of complete denial. No defence evidence was exhibited or adduced on behalf of the accused. 7. 6. After conclusion of the prosecution evidence, material evidence was put to the accused whose case was of complete denial. No defence evidence was exhibited or adduced on behalf of the accused. 7. Learned trial court on the basis of the material evidence on record was satisfied that the prosecution has been able to prove their case beyond shadow of all reasonable doubts. As such the sole appellant was convicted of the charges and sentenced to undergo imprisonment for life with a fine of Rs.25,000/- in default whereof to undergo simple imprisonment for further two months. 8. On behalf of the appellant learned Amicus Curiae has assisted the Court. He has made the following submissions to question the findings of the learned trial court :- P.W.7 Bhutal Soren the informant is a hearsay witness whose source of information is villagers and one Lukhiram Hansda (P.W.6). Lukhiram Hansda claims to have gone along with P.W.2 Kisto Marandi, P.W.3 Rahul Hansda and one Bhimsen Tudu to the place of occurrence after P.W.1 Brenyus @ Briantus Soren informed them of assault by a person on the uncle (deceased) of P.W.1. P.W.1 claims to be an eye-witness but his testimony does not inspire confidence that he was an eye-witness. The prosecution story is built upon a theory of quarrel between the accused and the deceased but the same has not been proved by P.W.1 Brenyus @ Briantus Soren. P.W.1 claims to have seen the deceased lying on the ground and a person sitting on his chest and on approaching further near to them, he identified the person lying as his uncle Guddu Soren (deceased). The other person on being asked by that time was also lying beside him. He was identified as Devilal Murmu, the accused. P.W.1 Brenyus @ Briantus Soren however does not disclose as to how he identified the accused Devilal Murmu whether he had any previous acquaintance or relationship, moreover it was night and no artificial light was there. Upon his information the other prosecution witnesses P.W.2 Kisto Marandi, P.W.3 Rahul Hansda, P.W.6 Lukhiram Hansda and one Bhimsen Tudu who were present at the cultural program being held at the field near Dholpathar School, claimed to have reached the place of occurrence. Upon his information the other prosecution witnesses P.W.2 Kisto Marandi, P.W.3 Rahul Hansda, P.W.6 Lukhiram Hansda and one Bhimsen Tudu who were present at the cultural program being held at the field near Dholpathar School, claimed to have reached the place of occurrence. Testimonies of P.W.2 Kisto Marandi and P.W.3 Rahul Hansda in particular in their examination-in-chief show that P.W.1 had informed them that one person was sitting on the chest of his uncle (deceased). On this information they rushed to the place and claimed to have seen the accused fleeing from the place of occurrence in the light of a torch. P.W.2 and 3 claimed to have chased the accused to Pindargarhia village and caught him. The statement of this prosecution witness indicates that P.W.1 had not named the accused at the first instance and that after he was apprehended from a village Pindargarhia which is about 3/4 k.m. from the place of occurrence in the house of one Parme that they could identify the accused as Devilal Murmu. Statement of P.W.2 Kisto Marandi at para-6 is referred to in support of the submission. P.W.3 Rahul Hansda is the brother of P.W.1 Brenyus @ Briantus Soren. P.W.6 Lukhiram Hansda as per para-3 of his cross-examination has stated that he did not know Devilal Murmu accused from before the incidence. The distance where the cultural program was being held from the place of occurrence has been variously described by P.W.1 and P.W.2 and creates doubt whether these prosecution witnesses had reached the place of occurrence immediately on information of P.W.1 and had seen the accused fleeing away from there. 9. If the testimony of P.W.5 the Medical Officer who conducted the autopsy is taken into account, the nature of injuries found on the dead body do not indicate any intention to commit murder on the part of the accused. Injuries are abrasion over right cheek size 2" X 2"; lacerated wound 3" X 2" over right side of head and in front of the right ear with depression of right cheek on upper part; diffused swelling over left cheek. On dissection, the right parietal bone of the deceased was found fractured above the right ear and on further dissection he found that underlying brain and meninges were lacerated and collection of blood also found inside the cranium. Death was caused as a result of injury no.(ii). On dissection, the right parietal bone of the deceased was found fractured above the right ear and on further dissection he found that underlying brain and meninges were lacerated and collection of blood also found inside the cranium. Death was caused as a result of injury no.(ii). In the opinion of the Doctor these injuries were caused by hard and blunt substance and death had occurred within 24 hours of the autopsy. The nature of injuries were such which could have resulted due to fall on hard and blunt substance. His evidence also does not show repetition of assault from which intention to commit murder can be gathered. The place of occurrence described by the Investigating Officer P.W.8 shows that it was a field and the injuries could be as a result of fall. The accused was not arrested from the place of occurrence, but from a house in village Pindargarhia, from the house of one Parme. Informant has later on reached the place of occurrence upon information by villagers and has not seen the occurrence. The apprehension of the accused by these prosecution witnesses from a house 3/4 k.m. from the place of occurrence after sufficient gap of time creates a serious doubt about his involvement in the commission of the crime. All these circumstances leave several loop holes in the prosecution story. If the testimony of P.W.1 Brenyus @ Briantus Soren as an eye-witness stands discredited, the prosecution has not been able to prove circumstances of conclusive nature which form a complete chain leading to the only hypothesis of the guilt of the accused and no other, since there is no motive to the crime established. As such, the prosecution has failed to prove its case beyond shadow of all reasonable doubts. Assuming the prosecution case to be true also, the intention to kill cannot be made out from the nature of the injuries and the absence of any blood stained, soil or stone etc. seized and proved by the prosecution i.e. the investigating officer. The appellant has remained in custody since the date of occurrence for slightly more than 9 years by now. Therefore, his conviction can be modified to culpable homicide not amounting to murder and he may be released on the basis of period of custody of 9 years already undergone. 10. Learned Additional Public Prosecutor has vehemently argued in support of the impugned judgment. Therefore, his conviction can be modified to culpable homicide not amounting to murder and he may be released on the basis of period of custody of 9 years already undergone. 10. Learned Additional Public Prosecutor has vehemently argued in support of the impugned judgment. He submits that the statement of P.W.1 Brenyus @ Briantus Soren as an eye witness is unimpeachable. On the information of this P.W.1, an eye witness, other prosecution witnesses, namely, P.Ws. 2, 3 and 6 had reached the place of occurrence and seen the accused there. The accused fled away on their arrival and was chased and apprehended soon thereafter from the house of Parme at a distance of 3/4 kilometres from the village- Pindargarhia in the presence of other villagers also and handed over to the police. The informant was at his own village-Magdiha and had reached the place of occurrence on information, whereafter the entire story was disclosed to him. This has been the basis of Fardbeyan which stands duly corroborated by the testimony of P.W.7 and P.W.1 along with other witnesses. Death is a result of haemorrhage and shock due to injury no. 2 which is lacerated wound 3"x2" over the right side of head and in front of right ear with depression of right cheek which had caused fracture of parietal bone above the right ear; the severity of the injury were such that the brain and meninges were lacerated and blood had collected inside cranium. The injuries were inflicted with the only intention to cause death and were sufficient in the ordinary course of nature to lead to death. Thus, the case of prosecution is not only based on eye witness account of P.W.1 Brenyus Soren, but corroborated by other circumstances immediately following the assault by the accused. He had intentionally inflicted injuries on head and on vital part of the body while sitting over his chest. He has been apprehended soon thereafter on chase by the prosecution witnesses from the house of a complete stranger which removes any scope. The prosecution has also been able to show that there was drinking and eating activity after a Football match on 31 st December, 2009 at the field near Dholpathar School and that a quarrel had resulted between the accused and deceased which was the reason for the serious assault on the part of the accused. The prosecution has also been able to show that there was drinking and eating activity after a Football match on 31 st December, 2009 at the field near Dholpathar School and that a quarrel had resulted between the accused and deceased which was the reason for the serious assault on the part of the accused. No more motive need to be searched to support the intent of the accused in committing the crime. 11. Learned trial court has taken a comprehensive view of the entirety of the material evidence on record and rightly come to a finding of guilt. The defence had failed to show any gaping holes in the entire prosecution story to create a doubt. As such, appellant does not deserve any leniency in the punishment also. 12. We have considered the submission of learned Amicus Curiae and learned Additional Public Prosecutor, gone through the entire material evidence on record and also perused the impugned judgment. 13. A forensic analysis of the entire material evidence on record by us creates the following picture of the manner of occurrence, the place of occurrence and the immediate consequence and effect of the occurrence described as under: The date of occurrence is 31 st December, 2009. A football match had been played on the field near Dholpathar School, during day time, where a lot of persons had assembled including the accused and deceased. Many of them were indulging in eating and drinking apart from deceased and accused also. Quarrel ensued between the accused and deceased. P.W.1 Brenyus @ Briantus Soren chanced to be there where the accused was seen sitting over the chest of his uncle the deceased. On approaching further near to him, the accused slipped aside and tried to lie down beside the body of his uncle. P.W.1, Brenyus @ Briantus Soren being alone immediately returned to the place where cultural programme was being held at the field near Dholpathar School at about a distance of 500-600 yards and informed his friends and others, namely, Bhimsen Tudu, Kisto Marandi P.W.2, Lukhiram Hansda and Rahul Hansda, P.W.3 about the incidence. He also identified the accused as Devilal Murmu. The other prosecution witnesses i.e., P.W.2, P.W.3 and P.W.6 also reached the place of occurrence immediately after such information and saw the accused fleeing away from near the body of the uncle of P.W. 1 i.e. the deceased. He also identified the accused as Devilal Murmu. The other prosecution witnesses i.e., P.W.2, P.W.3 and P.W.6 also reached the place of occurrence immediately after such information and saw the accused fleeing away from near the body of the uncle of P.W. 1 i.e. the deceased. They also found blood oozing out of neck, nostril, mouth and ear. They pursued the accused for some distance about 3/4 kilometres to a nearby village- Pindargarhia and caught him inside the house of one Parme. This prosecution witness no. 2 Kisto Marandi has truthfully stated in his cross-examination that he did not know the accused from before. It is quite likely that this P.W. 2 Kisto Marandi and P.W.3 Rahul Hansda were not acquainted or known with the accused like P.W.1. 14. However, defence has not been able to elicit any material from the mouth of P.W. 1 Brenyus @ Briantus Soren as to source of his knowledge about the accused from before. P.Ws. 2 Kisto Marandi, P.W.3 Rahul Hansda and P.W.6 Lukhiram Hansda have consistently stated that the accused after fleeing, was chased and caught from Pindargarhia village inside the house of one person. They had also seen the deceased lying in a pool of blood oozing out of nose and ears. The description of distance between the place where cultural programme was held near Dholpathar School and the place of occurrence described as 500-600 yards by P.W.1 Brenyus @ Briantus Soren or 100 ft. by P.W.2 Kisto Marandi, for that matter, would not create any element of doubt about the place of occurrence as the place where cultural programme was held, was definitely not at a far of distance from the place of occurrence and was rather a field spread out, the distance whereof could be variously described by different individuals as per their perception. We do not find any reason to doubt the testimony of P.W. 1 Brenyus @ Briantus Soren on the grounds suggested by learned Amicus Curiae. The testimony of other prosecution witnesses P.W. 2 Kisto Marandi, P.W.3 Rahul Hansda and P.W.6 Lukhiram Hansda, who on information of P.W.1 Brenyus @ Briantus Soren reached the place of occurrence immediately, saw the deceased lying in a pool of blood and the accused fleeing from the place of occurrence are reliable. The testimony of other prosecution witnesses P.W. 2 Kisto Marandi, P.W.3 Rahul Hansda and P.W.6 Lukhiram Hansda, who on information of P.W.1 Brenyus @ Briantus Soren reached the place of occurrence immediately, saw the deceased lying in a pool of blood and the accused fleeing from the place of occurrence are reliable. In continuous sequence of events described by them they chased the accused to village- Pindargarhia from where he was caught inside the house of one Parme. All these material evidence taken together satisfy the conscience of this Court that the evidence of P.W.1 Brenyus @ Briantus Soren an eye witness read with the statement of P.W.2 Kisto Marandi, P.W.3 Rahul Hansda and P.W.6 Lukhiram Hansda, who have been treated as hearsay witnesses are as so connected with the facts in issue as to form part of the same transaction and were relevant under the principles of res gestae as provided under Sections 6 & 7 of the Indian Evidence Act quoted as under: "6. Relevancy of facts forming part of same transaction.Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 7. Facts which are the occasion, cause or effect of facts in issue.- Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant." 15. The accused was apprehended soon after the incidence without any time gap and there was a contemporaneity in the sequence of events as described through the mouth of P.W.2 Kisto Marandi, P.W.3 Rahul Hansda and P.W.6 Lukhiram Hansda as well. The information of the occurrence was conveyed to P.W.7, informant, who was at his village- Majdiha and he also reached the place of occurrence soon thereafter. The prosecution story as narrated in the Fardbeyan duly stands corroborated with the testimony of P.W.1 and other prosecution witnesses like P.Ws. 2, 3 and 6 apart from the informant, P.W.7 himself. 16. The information of the occurrence was conveyed to P.W.7, informant, who was at his village- Majdiha and he also reached the place of occurrence soon thereafter. The prosecution story as narrated in the Fardbeyan duly stands corroborated with the testimony of P.W.1 and other prosecution witnesses like P.Ws. 2, 3 and 6 apart from the informant, P.W.7 himself. 16. We, therefore, do not find any such discrepancy in the sequence of events proved through the mouth of prosecution witness about the manner of occurrence, the place of occurrence and the immediate effect thereof i.e. the way the accused was caught soon after the incidence by these prosecution witnesses. Minor inconsistency in the statement of the prosecution witnesses cannot be a reason to discredit their testimony as a whole. Defence has not been able to elicit any material to justify false implication of this appellant by P.W.1 and other prosecution witnesses. 17. On the basis of these evidence on record, we consider it proper to now deal with the contention of learned Amicus Curiae whether the nature of the assault proved through the mouth of P.W.1 Brenyus Soren and corroborated through the medical evidence P.W.5 Dr. C.P. Sinha taken together proved a definite intention to commit murder on the part of the accused. It is appropriate to point out here that the Investigating Officer failed to seize any incriminating article or stone or blood stained soil from the place of occurrence. The Medical Officer who conducted autopsy, found the following ante-mortem injuries on the dead body and proved the post-mortem report as Ext.-2: (i) Abrasion over right cheek 2" x 2", (ii) Lacerated wound 3" x 2" over right side of head and in front of the right ear with depression of right cheek in upper part (iii) Diffused swelling over left cheek; on dissection right parietal bone found fractured above the right ear; on further dissection underlying brain and meninges found lacerated, collection of blood found inside cranium. 18. Injury no. 2 as described above was a lacerated wound 3"x2" over the right side of head and in front of the right ear with depression of right cheek in upper part. It seems to have been inflicted by hard and blunt substance. The prosecution witness no. 18. Injury no. 2 as described above was a lacerated wound 3"x2" over the right side of head and in front of the right ear with depression of right cheek in upper part. It seems to have been inflicted by hard and blunt substance. The prosecution witness no. 1, Brenyus Soren in his testimony has not stated having seen repeatedly assaulting the victim on his head i.e., a vital part of the body by any such object. In the face of such evidence, it is difficult to gather that the accused carried an intention to kill the deceased. There is absence of repetition of assault to substantiate it. The object or weapon of assault has not been brought on record. In the opinion of the Doctor it was by a hard and blunt substance. Apparently, there was one injury on the head of the deceased which led to death. The prosecution has also tried to prove that there was a quarrel between the deceased and the accused during the course of eating and drinking, but no other incidence of previous enmity and grudge has been shown between them. These conspicuous circumstances therefore persuade us to come to a conclusion that the ingredient of offence under Section 300 Thirdly I.P.C have not been made out i.e. the accused/appellant had an intention to commit murder and had caused such a bodily injury which was sufficient in the ordinary course of nature to cause death. 19. In the aforesaid facts and circumstances and in view of the discussions made hereinabove, we are of the view that the appellant is liable to be convicted for the offence of culpable homicide not amounting to murder. The conviction recorded by learned trial court is modified accordingly to culpable homicide not amounting to murder. As a result thereof, appellant is liable to be sentenced under Section 304 Part II I.P.C. Appellant has undergone custody for slightly more than nine years by now. We are therefore of the considered view that interest of justice would be met if the sentence of the appellant is modified to the period of custody undergone already. The impugned judgement of conviction dated 17 th December 2013 and the order of sentence dated 21 st December 2013 is accordingly modified to the aforesaid extent. Appeal is partly allowed. 20. The impugned judgement of conviction dated 17 th December 2013 and the order of sentence dated 21 st December 2013 is accordingly modified to the aforesaid extent. Appeal is partly allowed. 20. While parting, this Court records its appreciation to the valuable assistance accorded by the learned Amicus Curiae during hearing of the case. The Member Secretary, High Court Legal Services Committee shall bear the admissible fee/legal remuneration of the learned Amicus Curiae within a period of four weeks from the date of receipt of an application accompanied with a certified copy of this judgment.