JUDGMENT : RATNAKER BHENGRA, J. 1. When the matter was called out, nobody had appeared on behalf of appellant. However, counsel for the State Mr. Gauri Shankar Prasad was present. 2. Mrs. Ruby Pandey is appointed as amicus curiae to assist the court which she rendered. 3. Vide order dated 21.12.2018 it was observed that a report vide memo no. 6388 dated 17.9.2018 has been received from the Superintendent of Birsa Munda Central Jail, Hotwar, Ranchi that the appellant has served out his sentence and has been released on 25.5.2005 from the jail. Nevertheless, a communication was again sent to the appellant seeking to know whether he will contest the appeal on the point of conviction. A report vide memo no. 108/2019 dated 9.1.2019 has been received from the officer-in-charge, Bariatu, Police Station, Ranchi that the appellant has sold out his property and moved away from the locality. In view of the aforesaid two communications, this court proceeded with the instant appeal. 4. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 28.11.2001 and 3.12.2002 passed by Additional Judicial Commissioner -cum- Special Judge, IV, Ranchi in S.T. No. 281 of 2001 whereby and whereunder appellant namely Matlub Alam was convicted u/s 304 Part II IPC and sentenced to undergo R.I. for five years. 5. The case of the prosecution as per fardbeyan of the informant PW-6 Sayeed Muhammad Sajid who is brother of the deceased is that on 16.1.2001 in the evening at about 6:00 p.m. the deceased Saheed was taking tea near Alam Nursing home, in the tea stall of Jang Bahadur. In the meantime some altercation took place between the deceased and the accused and in course of it there was scuffle between them. In the meantime the accused assaulted the deceased by bricks repeatedly three to four times on his head due to which the deceased sustained injuries and fall down. The deceased was admitted to RMCH for treatment and subsequently he succumbed to his injuries. 6. On the basis of aforesaid fardbeyan a criminal case being Bariatu P.S. case no. 4 of 2001 was registered u/s 302 I.P.C. and after investigation the police submitted charge-sheet against the accused. On submission of the charge-sheet, cognizance of the offence was taken and the case was committed to the court of Sessions for trial. 6. On the basis of aforesaid fardbeyan a criminal case being Bariatu P.S. case no. 4 of 2001 was registered u/s 302 I.P.C. and after investigation the police submitted charge-sheet against the accused. On submission of the charge-sheet, cognizance of the offence was taken and the case was committed to the court of Sessions for trial. The appellant pleaded not guilty and claimed to be tried. 7. Prosecution has examined altogether ten witnesses to prove its case. PW-1 Md. Walayat Khan, PW-2 Md. Iqbal Khan, PW-3 Ramzan Khan, PW-4 Sanika Swansi, PW-5 Latan @ Rehman , PW-6 Sayeed Md. Sajid, the informant, PW-7 Sayeed Md. Khalid, PW-8 Ram Iqbal Monchi, the I.O. of the case, PW-9 ram Pukar Singh, A.S.I. and PW-10 Dr. Tulsi Mahto who had conducted autopsy of the deceased. 8. PW-3, PW-4 and PW-5 have been declared hostile. 9. PW-6 is the informant and younger brother of the deceased. He deposed that on the date of occurrence his brother went to the tea stall of Jang Bahadur for taking tea where accused demanded rangdari from the deceased for taking liquor. When his brother denien then the accused assaulted him on his head by bricks as a result he died. He further deposed that he came to know about it from one Md. Ibrar and reached at the place of occurrence. There he found his brother in injured condition who told him that the accused Matlub Alam had injured him by assaulting him with bricks. Thereafter he was taken to RMCH where he died during course of treatment. He denied the suggestion of defence that he had no talk with his deceased brother. 10. PW-1 is Md. Walayat Khan. He deposed that on the day of occurrence he was going to purchase medicine. He saw both the deceased and the accused taking tea. Thereafter altercation took place between them and the accused assaulted the deceased with brick three – four times as a result he sustained injuries. They rushed to rescue him. He further deposed that on receipt of the information, the brother of the deceased came. Deceased Saheed was taken to the hospital for treatment where in course of treatment he succumbed to his injury. In his cross-examination at para 7 he had categorically stated that he had seen the occurrence from a distance of 12 to 14 feet. 11. PW-2 Md. Deceased Saheed was taken to the hospital for treatment where in course of treatment he succumbed to his injury. In his cross-examination at para 7 he had categorically stated that he had seen the occurrence from a distance of 12 to 14 feet. 11. PW-2 Md. Iqbal Khan deposed that on the day of occurrence on 16.1.2000 he was taking tea in the hotel of Jang Bahadur. In the meantime, the deceased and the accused came there and they started gossiping. After 2 to 4 minutes they went out and he heard the sound of falling of something. Servant of the hotel came and informed that fighting is going on outside. He further deposed that immediately he and Jang Bahadur came out and saw Md. Saheed was lying on the earth and blood was oozing out from his mouth and head. He further said Saheed disclosed that Matlub assaulted him with brick. The accused was standing by the side and he was carrying brick in his hand. At para 9 he deposed that he asked the deceased how incidence occurred then deceased replied Matlum assaulted him. Deceased was conscious. 12. PW-7 Sayeed Md. Khalid is also the brother of the deceased. He deposed that on the day of occurrence he saw deceased in injured condition. When being asked deceased disclosed that while the deceased was taking tea in the stall of Jang Bahadur the accused demanded a sum of Rs. 20 as rangdari and when he refused to give him the accused assaulted him by bricks on his head and face as a result he sustained injury. 13. PW-8 is the I.O. of the case. He deposed that place of occurrence is the open space in front of Jang Bahadur Khan hotel and Md. Islam STD booth. The brick by which deceased was said to have been assaulted by the accused was found lying on the ground. 14. PW-9 is A.S.I. who prepared the inquest report of the deceased. He proved his signature on the inquest report. The inquest report was marked as Ext. 3/A. 15. PW-10 is the Dr. Tulsi Mahto who conducted postmortem examination on the dead body of the deceased. He found abrasion 1 c.m. x1 c.m. over left nala region of the face and 2 cm x 1 cm over left elbow back. He proved his signature on the inquest report. The inquest report was marked as Ext. 3/A. 15. PW-10 is the Dr. Tulsi Mahto who conducted postmortem examination on the dead body of the deceased. He found abrasion 1 c.m. x1 c.m. over left nala region of the face and 2 cm x 1 cm over left elbow back. He also found lacerated wound 2 cm x ½ c.m. x bone deep over the face around the right angle of mouth, 3 c.m. x 2 c.m. x bone deep over right side of chin. He opined that all the injuries were ante mortem caused by hard and blunt substance. He proved the postmortem report marked as Ext.4. ARGUMENTS ON BEHALF OF APPELLANT: 16. Learned counsel has first and foremost argued that the fardbeyan has been instituted after delay of 14 hours and there is no explanation as to why there was such delay. Counsel submits that it is only because there was much application of the mind in making out the case against the appellant and as such the delay has been caused and therefore the delay allows at least benefit of doubt to the appellant. Learned counsel for the appellant has also argued that the informant himself who is PW-6 is not an eye witness to the occurrence and not being an eye witness and instituting the fardbeyan itself creates doubt in the case of the prosecution. In his evidence he had deposed that he came to know about the incident subsequently and thereafter after much delay he had lodged the fardbeyan and therefore, this witness is not a reliable witness and his fardbeyan as well as his evidence is not credible. Learned counsel for the appellant has also argued that all the relevant witnesses who are the main witnesses are interested witness. The place of occurrence is said to be in front of a hotel where other people normally assemble including the owner of the hotel but none of them and even the owner of the hotel was examined. The non-examination of the owner of the hotel had definitely prejudiced the case of the appellant. Learned counsel for the appellant also argued that there was recovery of brick used in the assault but was not sent to the Forensic Science Laboratory which also prejudiced the case of the appellant. There was no intention to commit such offence. The non-examination of the owner of the hotel had definitely prejudiced the case of the appellant. Learned counsel for the appellant also argued that there was recovery of brick used in the assault but was not sent to the Forensic Science Laboratory which also prejudiced the case of the appellant. There was no intention to commit such offence. If intention would be there, the assault could have been made on the head of the deceased and even the appellant was not carrying any weapon. Therefore, relying only on the evidence of related or interested witnesses will not be proper justice. Lastly, learned counsel submitted that the impugned judgment of learned court below is based on no evidence and requires to be set aside. 17. ARGUMENTS ON BEHALF OF STATE: Learned counsel for the State –APP has vehemently argued that the delay of 14 hours in lodging of FIR is of no relevance as it has been lodged before 24 hours and that cannot be considered a delay at all. FIR was lodged in reasonable period of time and therefore, it cannot be considered as valid point of argument. He has also argued that death has occurred and initially the case was lodged against the appellant u/s 302 IPC however the appellant had been convicted u/s 304 Part II of IPC and as such he has been leniently punished. Further it is apparent from the evidence of informant PW-6 that he had received information immediately after the occurrence hence, his evidence cannot be burst aside so far as the reason and manner in which death had occurred. Learned APP further submitted that evidence of PW-1 is very important as he said that at the relevant time he was going to purchase medicine and he had seen the altercation taking place between both of them and hence the evidence of PW-1 cannot be burst aside. Similarly, the evidence of PW-2 who has deposed that at the time of occurrence he was taking tea in the hotel of Jang Bahadur and in the mean time the deceased and accused came there and after some time some altercation had taken place between both of them. Learned counsel said that P.W.2 had also seen the occurrence and therefore the evidence of PW-2 fully corroborates the evidence of PW-1. Learned counsel said that P.W.2 had also seen the occurrence and therefore the evidence of PW-2 fully corroborates the evidence of PW-1. Learned counsel further said that post mortem report Ext.4 is fully supportive of the assault and injury that has been tendered by prosecution witnesses. The inquest report Ext. 3/A also indicates that there was a mark of bleeding on his face. Counsel further pointed out from the post mortem report that the injury pointed out by the doctor is lacerated wound of bone deep over the face around right angle of mouth lacerating the both upper and lower lips and there was fracture and dislocation of teeth. There was also bone deep lacerated wound over the right side of chin and over the nose and under line fracture of nasal holes. The doctor has also opined that the injuries were ante mortem caused by hard and blunt substance. Learned counsel for the State further submitted that the appellant had only been sentenced u/s 304 Part II IPC and he should have been punished u/s 302 IPC and therefore, he has already been leniently punished and that too he had received remission and therefore his conviction needs to be fully sustained. 18. CONCLUSION: Having gone through the arguments of both parties and having gone through the records of the case and in the facts and circumstances of the case I see that this is a case in which though the informant is not an eye witness and though PW-7 who is the brother is also not an eye witness but there are other witnesses PW-1 and PW-2 who are eye witnesses to the occurrence and have justified the assault. The post mortem report Ext.4 corroborates the ocular evidence of the both eye witnesses PW-1 and PW-2. It has come in the evidence of PW-1 and PW-2 that appellant assaulted the deceased after an altercation so there was no intention of the appellant to cause death of the deceased. Therefore, the learned court below had rightly held him guilty of offence u/s 304 Part II IPC and not u/s 302 IPC. 19. Therefore, the judgment of conviction dated 28.11.2002 and order of sentence dated 3.12.2002 passed by the learned court below in S.T. case no. 281 of 2001 is fully sustained and upheld. Therefore, the learned court below had rightly held him guilty of offence u/s 304 Part II IPC and not u/s 302 IPC. 19. Therefore, the judgment of conviction dated 28.11.2002 and order of sentence dated 3.12.2002 passed by the learned court below in S.T. case no. 281 of 2001 is fully sustained and upheld. As appellant had already served out the sentence and therefore there is no further need to pass any order on sentence. 20. Accordingly, the appeal stands dismissed. 21. Member Secretary, Jharkhand High Court Legal Services Authority is directed to pay remuneration as admissible to Smt. Ruby Pandey, amicus curiae for her assistance in this case. 22. Copy of the judgment be sent to Member Secretary, JHALSA for needful.