JUDGMENT Kailash Prasad Deo, J. - Heard learned Senior Counsel for the appellant Mr. A.K.Kashyap assisted by learned counsel Mr. Manoj Kumar Sah and Learned counsel for the State Mr. Ashok Kumar, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 21.06.1996 and order of sentence dated 25.06.1996 passed by 1 st Additional Sessions Judge, Godda in Sessions Case No. 318 of 1983/27 of 1988 whereby the appellants have been held guilty for the offence committed and punishable under Section 302/34 and 325/34 of the I.P.C and were sentenced to undergo imprisonment for life for the offence committed and punishable under Section 302/34 of the I.PC and R.I. for 7 years for the offence committed and punishable under Section 325/34 of the I.P.C. Both the sentences were directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of Informant Mangal Soren (P.W.7) recorded by A.S.I. Bhagwan Singh (P.W.8) of Poraiyahat Police Station on 06.02.1980 at Poraiyahat Hospital at 20.00 Hrs. Informant has alleged that on the same day at 11.00 a.m. Informant Mangal Soren (P.W.7) and Hiralal Mandal (deceased) were returning to their house from Bhuiyatola and as soon as they reached near the Kali Temple, all of a sudden they met accused Anand Mandal, Sudhir Mandal and Ganesh Mandal, resident of Parsati School Tola, P.S Poraiyahat, District Godda and after seeing them, all the three accused persons have stated, that we met today and they have to pay the compensation for the Panchayati and thereafter Sudhir Mandal (appellant no.2) pelted stone upon him which caused injury on his head, Ganesh Mandal (appellant no.1) also assaulted the informant by pelting stone which also caused injury on the head causing oozing of blood. Upon protest made by Hiralal Mandal (deceased) Anand Mandal (co- accused) assaulted Hiralal Mandal by a stone which hit Hiralal Mandal and he fell down on the ground. It is alleged that thereafter Anand Mandal, Ganesh Mandal and Sudhir Mandal assaulted Hiralal mandal by means of legs. The co-villagers namely Premlal Mandal (P.W.1), Bhudeo Mandal(P.W.2), Bona Mandal (P.W.3) and Bhagwan Soren who were standing nearby have witnessed the occurrence. It is stated that when Premlal Mandal (P.W.1) came for rescue, he also sustained injury because of stone and thereafter accused persons fled away. The co-villagers namely Premlal Mandal (P.W.1), Bhudeo Mandal(P.W.2), Bona Mandal (P.W.3) and Bhagwan Soren who were standing nearby have witnessed the occurrence. It is stated that when Premlal Mandal (P.W.1) came for rescue, he also sustained injury because of stone and thereafter accused persons fled away. Informant has stated that Devendra Kumar Mandal, Santlal Mandal and other co- villagers also came. At that time Hiralal Mandal was unconscious. It is stated by the informant that he along with Premlal Mandal and Hiralal Mandal in unconscious state have been brought to Poraiyahat Hospital in bullock cart and they were undergoing treatment. Informant alleged that occurrence took place as yesterday i.e., on Tuesday. Informant Mangal Soren and Hiralal Mandal had called a panchayati against Anand Mandal and Ganesh Mandal as both these accused persons have assaulted the elder sister-in-law of Hiralal Mandal, in which co- villagers have held them guilty but Anand Mandal has not obeyed the decision of the panchayti and had given threatening. The fardbeyan of the informant was recorded by the police officer in presence of co- villager Bhagwan Soren and Munshi Soren on which informant has put his thumb impression. 4. On the basis of the fardbeyan of the Informant Police has registered Poraiyahat P.S. Case No. 04 of 1980 dated 06.02.1980 under Section 341/323/307/34 I.P.C against three named accused persons Anand Mandal, Ganesh Mandal and Sudhir Mandal and vide order dated 11.02.1980 Section 302 I.P.C has been added. 5. After completion of the investigation, Police has submitted charge-sheet vide no. 55 of 1980 dated 10.09.1980 against the three named accused persons under Section 341/325/302/34 of the I.P.C Cognizance has been taken vide order dated 27.03.1981 and thereafter case has been committed to the Court of Sessions vide order dated 13.05.1983 The charge has been initially framed against all the three accused persons under Section 302/34 of the I.P.C vide order dated 30.09.1991, which was read over and explained to the accused in Hindi to which they have pleaded not guilty and claimed to be tried. Subsequently another charge was framed against the three accused persons under Section 325/34 of the I.P.C vide order dated 16.02.1993 which was read over and explained to them, to which they have pleaded not guilty and claimed to be tried. Thus, the accused were put under trial. Subsequently another charge was framed against the three accused persons under Section 325/34 of the I.P.C vide order dated 16.02.1993 which was read over and explained to them, to which they have pleaded not guilty and claimed to be tried. Thus, the accused were put under trial. The initial charge was framed on 30.09.1991 and the second charge was framed on 16.02.1993 and till that date 7 witnesses have been examined by the prosecution. As such after framing of the charge under Section 325/34, all the 7 prosecution witnesses have been recalled and re-examined. 6. In order to prove the case, the prosecution has examined altogether 10 prosecution witnesses and also adduced number of documentary evidence up to Ext. 6 in support of the prosecution case. Premlal Mandal, injured eye witness of the occurrence has been examined as P.W.1; Bhudeo Mandal, son of the deceased has been examined as P.W.2; Bona Mandal has been examined as P.W.3; Devendra Kumar Mandal has been examined as P.W.4; Vimala Devi has been examined as P.W.5; Sant Lal Mandal, another eye witness has been examined as P.W.6; Mangal Soren, Informant and injured witness has been examined as P.W.7. He has also put his thumb impression on the fardbeyan and the same has been proved and marked as Ext.1. Signature of seizure witnesses namely Domen Mandal and Munshi Soren on the seizure list of blood stained soil and one blood stained stone have been proved and marked as Ext.2 and 2/1. Bhagwan Singh, Assistant Sub Inspector of Police who has recorded the fardbeyan of the informant has been examined as P.W.8. He has also proved signatures of witness Bhagwan Soren and Munshi Soren on the fardbeyan of the Informant which have been marked as Ext.2/2 and 2/3. He has proved the F.I.R in the handwriting of the Officer-In-Charge S.B.Paramhans which has been proved and marked as Ext.3. Seizure list of blood stained soil and blood stained stone signed by the seizure witness Doman Mandal and Munshi Soren has been proved and marked as Ext.4. This witness has further stated that injured Hiralal Mandal died on 07.02.1980 at Godda Sadar Hospital and thereafter based on the injury report, post mortem report and order of the Superintendent of Police, Investigating Officer (P.W.8) has submitted charge-sheet. Deep Narayan Dubey, the Medical Officer has been examined as P.W.9. This witness has further stated that injured Hiralal Mandal died on 07.02.1980 at Godda Sadar Hospital and thereafter based on the injury report, post mortem report and order of the Superintendent of Police, Investigating Officer (P.W.8) has submitted charge-sheet. Deep Narayan Dubey, the Medical Officer has been examined as P.W.9. He has examined Hiralal Mandal on 10.02.1980 at 6.30 a.m. and proved the injury report which has been marked as Ext.5. He has also examined Mangal Soren, son of Bhagwan Soren on 07.02.1980 at 8.15 a.m. and proved the injury report which has been marked as Ext. 5/1. Premlal Manda was also examined by him on 07.02.1980 at 8.20 a.m. and proved the injury report which has been marked as Ext. 5/2. Dr. Vishnu Kumar Singh has been examined as P.W.10 who has proved the post mortem report in the handwriting and signature of Dr. Kartik Prasad, who has conducted the post mortem of the dead body of the deceased Hiralal Mandal on 07.02.1980 which has been proved and marked as Ext. 6. 7. After closure of the prosecution evidence, statement of all the accused persons has been recorded under Section 313 Cr.P.C on 03.11.1995 where they have claimed that they have been falsely implicated as no occurrence has taken place but they have not adduced any defence witness or any documentary evidence on record. Before the judgment was pronounced, one of the accused Anand Mandal died on 04.06.1996 and his case was dropped vide order dated 21.06.1996. 8. After hearing learned counsel for the parties and on the basis of the materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence, holding the appellant guilty under section 302/34 and 325/34 of the I.P.C and awarded imprisonment for life for the offence committed and punishable under Section 302/34 I.P.C and R.I for 7 years for the offence committed and punishable under Section 325/34 of the I.P.C. Both the sentences were directed to run concurrently. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellants have preferred the instant Criminal Appeal before this Court assailing the impugned judgment of conviction and order of sentence. 10. Heard learned Senior Counsel for the appellant Mr. A.K.Kashyap assisted by learned Counsel Mr. Manoj Kumar Sah and learned counsel for the State Mr. Ashok Kumar, Additional Public Prosecutor. 10. Heard learned Senior Counsel for the appellant Mr. A.K.Kashyap assisted by learned Counsel Mr. Manoj Kumar Sah and learned counsel for the State Mr. Ashok Kumar, Additional Public Prosecutor. Learned senior counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned senior counsel for the appellants has further submitted that there was no mens rea on the part of the appellants, as per the prosecution case itself. The informant Mangal Soren and Hiralal Mandal suddenly met with all these three accused persons while returning to their house where these accused persons had said that they will pay compensation for decision taken in the panchayati. Learned senior counsel for the appellants has submitted that it is alleged that the accused persons assaulted the victim by means of stone and not by any lethal weapon as they were not carrying the same which shows lack of intention on the part of the appellants. Learned senior counsel for the appellants has further submitted that so far as the allegation against Ganesh Mandal and Sudhir Mandal are concerned, who are appellants before this Court, they have assaulted Prem Lal Mandal (P.W.1) and the informant Mangal Soren (P.W.7), but there is no indication that these two persons have assaulted the deceased Hiralal Mandal. As such, they cannot be held guilty for the offence under section 302/34 I.P.C. Learned Senior counsel for the appellants has further submitted that Hiralal Mandal died because of assault made by stone by Anand Mandal and the said accused Anand Mandal also died during pendency of the trial before the learned Trial Court. As such, these appellants cannot be held guilty for the offence committed under sections 302/34 I.P.C and on this score, the impugned judgment of conviction and order of sentence passed against the appellants under sections 302/34 I.P.C is not sustainable in the eyes of law. Learned Senior counsel for the appellants has further submitted that so far as the conviction of the appellants Ganesh Mandal and Sudhir Mandal under section 325/34 I.P.C. is concerned, it is alleged that Prem Lal Mandal (P.W.1) has sustained two injuries i.e. (i) Swelling 3"x2" on the head at occipital bone and (ii) one swelling 2"x3" on the root of the neck left side with the fracture of shaft of the left clavicle. Injury no. I is simple in nature caused by hard and blunt substance. Injury no. II is grievous in nature caused by hard and blunt substance. So far as injury upon Mangal Soren, informant is concerned, he has sustained three injuries i.e. (i) Lacerated 1"x "x Scalp deep on the left parietal bone (ii) Lacerated wound " x " x bone deep on the forehead left side (iii) Swelling 2" x 2 on the right middle finger with dislocation of metacarpophalangeal joint. The doctor has found that injuries no.1 and 2 are simple in nature caused by hard and blunt substance and injury no.3 is grievous in nature caused by hard and blunt substance. Learned senior counsel has further submitted that the post mortem report of the victim Hiralal Mandal has not been proved in accordance with law. Though the post mortem report has been brought on record and marked Ext.6 but the same has been proved by a private medical practitioner Dr. Vishnu Kumar Singh. Learned senior counsel has submitted that the post mortem was conducted by Dr. Kartik Prasad, Civil Assistant Surgeon, Godda on 07.02.1980 but the same has been proved by private Doctor Vishnu Kr. Singh who has categorically stated that after completing his education, he has never conducted post mortem examination. Apart from this he has categorically stated that the inscriber of the post mortem report Dr. Kartik Prasad is not his class mate nor they have worked together. As a medical practitioner, he is known to him since they have attended jointly the I.M.A. meeting in Bhagalpur and there is some correspondence with him as Joint Secretary of I.M.A Bhagalpur. Learned Senior counsel for the appellant has submitted in the absence of any legal proof of the post mortem report, appellants cannot be convicted under Section 302/34 of the I.P.C. Accordingly, learned Senior Counsel for the appellant has submitted that appellants may be acquitted from the charge under Section 302/34 and 325/34 of the I.P.C as the impugned judgment of conviction and order of sentence is bad in law. 11. Learned counsel for the State Mr. Ashok Kumar, Additional Public Prosecutor, has vehemently submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. 11. Learned counsel for the State Mr. Ashok Kumar, Additional Public Prosecutor, has vehemently submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has further submitted that altogether three accused persons including these two appellants, after seeing the informant Mangal Soren (P.W.7) and Hiralal Mandal (deceased) have stated that today they will pay the compensation of the panchayati, which shows pre-meditation on the part of all the three accused persons, so far as common intention is concerned. Learned counsel for the State has further submitted that Hiralal Mandal subsequently died because of injuries sustained in the occurrence and as such Section 302/34 I.P.C has been added in this case. Learned State counsel has further submitted that the allegation of assault committed upon Hiralala Mandal (deceased) has been made against Anand Mandal, who has assaulted him by means of stone because of which he fell down and became unconscious and succumbed to the injury in the hospital. Learned counsel for the State has further submitted that Ganesh Mandal and Sudhir Mandal have assaulted the injured witness Premlal Mandal (P.W.1) and Mangal Soren, Informant (P.W.7) by throwing stone. Learned State Counsel has submitted that some of the witnesses have also stated that these accused persons have climbed over the chest of the injured Hiralal Mandal and thus they are liable to be held guilty under Section 302/34 and 325/34 of the I.P.C and the learned Trial Court has rightly convicted the appellants. Learned counsel for the State has further submitted that the post mortem report has been proved and marked as Ext.6. Injury report of the injured including the deceased Hiralal Mandal, Mangal Soren and Premlal Mandal have been brought on record which has been marked as Ext.5,5/1 and 5/2. Learned State counsel has further submitted that there are three eye witnesses to the occurrence namely Premlal Mandal (P.W.1) as injured eye witness; Sant Lal Mandal (P.W.6) and Mangal Soren (P.W.7), informant of the case. Learned State counsel has thus submitted that considering the submission on behalf of the parties, the learned Trial Court has rightly convicted the appellants on the basis of materials available on record and as such, impugned judgment of conviction and order of sentence does not warrant any interference by this court. Learned State counsel has thus submitted that considering the submission on behalf of the parties, the learned Trial Court has rightly convicted the appellants on the basis of materials available on record and as such, impugned judgment of conviction and order of sentence does not warrant any interference by this court. As such the impugned judgment of conviction and order of sentence be upheld and affirmed. 12. Heard learned Senior Counsel for the appellant Mr. A.K.Kashyap assisted by learned counsel Mr. Manoj Kumar Sah and learned counsel for the State Mr. Ashok Kumar , Additional Public Prosecutor and perused the materials on record i.e., F.I.R, framing of charge, evidence of the 10 prosecution witnesses, 6 prosecution exhibits, statement of the accused recorded under Section 313 Cr.P.C as well as impugned judgment of conviction and order of sentence. While appreciating the materials brought on record, we have minutely scrutinized the evidence brought on record. From perusal of the First Information Report, it appears that the accused persons met the informant suddenly as they were not having any premeditation to assault the informant with any motive in order to kill him. From perusal of the First Information Report, it appears that the informant Mangal Soren (P.W.7) and Hiralal Mandal (deceased) had gone to Bhuiya Tola at 10.00 A.M on 06.02.1980 and were returning on 11.00 A.M. While they were returning, accused persons Anand Mandal, Sudhir Mandal and Ganesh Mandal met them and said that they will pay compensation of Panchayati here. It is alleged in the First Information Report that Sudhir Mandal initially assaulted the informant Mangal Soren by means of stone on his head and thereafter Ganesh Mandal also assaulted the informant by means of stone on his head causing bleeding injury. Thereafter, Hiralal Mandal intervened and made protest asking them why they are doing so, upon which, Anand Mandal assaulted Hiralal Mandal by means of stone, due to which, he fell down. This shows that the accused persons have no intention to kill Hiralal Mandal, rather their initial attack was on Mangal Soren (P.W.7) who was assaulted by Sudhir Mandal and Ganesh Mandal by stone once and he has sustained injuries on his head. The injury found on the person of Mangal Soren shows that he has sustained two injuries on his head, but those were simple in nature. The injury found on the person of Mangal Soren shows that he has sustained two injuries on his head, but those were simple in nature. The third injury is swelling 2"x2" on the right middle finger with dislocation of metacarpophalangeal joint which is grievous in nature. The injury has been caused while the informant Mangal Soren was trying to save himself. When Hiralal Mandal made protest, then the accused Anand Mandal assaulted Hiralal Mandal on the right temporal region by stone, due to which, he fell down. Though, the informant has claimed that after Hiralal Mandal fell down, all the accused persons have assaulted him by fist and legs and Sudhir Mandal has climbed over his chest, this has not been mentioned in the First Information Report. Rather, in the First Information Report it has been alleged that all the three accused persons Anand Mandal, Ganesh Mandal and Sudhir Mandal have assaulted Hiralal Mandal by means of legs. The allegation of climbing over chest of the deceased is not found in the First Information Report and not supported by the medical evidence of Dr. Vishnu Kumar Singh (P.W.10) upon Hiralal Mandal. Prem Lal Mandal (P.W.1) has reiterated the version of the informant Mangal Soren (P.W.7) and has stated that Sudhir Mandal has assaulted Mangal Soren on his head by means of stone. Then Ganesh Mandal assaulted Mangal Soren on his head by means of stone causing injury on his head and hand. Thereafter, Anand Mandal has assaulted on the right temporal region of Hiralal Mandal by means of stone, due to which, he fell down and became unconscious. Subsequently, it is stated by Prem Lal Mandal that Sudhir Mandal, Ganesh Mandal and Anand Mandal has also assaulted Hiralal Mandal by means of fist and legs. On making protest by this witness, Ganesh Mandal assaulted him, due to which, he has sustained injury on his clavicle bone. On brawl Baleshwar Mandal, Bhudeo Mandal and Bhagwan Soren came. This witness has further stated in para-5 of his deposition, the accused persons have not thrown stone from a distance, rather assaulted them from front at a distance of 2 hand. This witness has further stated in his evidence that before the assault was made by stone, there was altercation between the parties. This witness has further stated in para-5 of his deposition, the accused persons have not thrown stone from a distance, rather assaulted them from front at a distance of 2 hand. This witness has further stated in his evidence that before the assault was made by stone, there was altercation between the parties. In his cross examination on recall, this witness has stated that accused persons have not picked up stones from heap of stone rather they have brought stone in their both hands. Each person had more than 1 stone. He has further stated that 10/5 stones were in the hands. Bhudeo Mandal another eye witness to the occurrence has been examined as P.W.2. He has stated that while his father Hiralal Mandal (deceased) along with Mangal Soren were returning from Bhuiyantola, they met Anand Mandal, Ganesh Mandal and Sudhir Mandal near the Kali Temple and all three accused persons have assaulted these two persons by restraining them. Sudhir Mandal has assaulted Mangal Soren on his head by stone, Ganesh Mandal has assaulted Mangal Soren by stone on his head and on the finger of the hand and when Hiralal Mandal intervened into the matter, Anand Mandal assaulted on his right temporal region by means of stone due to which he fell down. This witness has further stated that Sudhir Mandal climbed over the chest of Hiralal Mandal which was witnessed by this witness. Bhagwan Soren, Baleshwar Mandal and Premlal Mandal were also there. The accused persons have also assaulted his father by means of leg and shoes. This witness has stated that Premlal Mandal has sustained injury on his left chin by a stone thrown by Ganesh Mandal. After brawl other co-villagers came there and accused persons fled away. The accused persons after reaching their house took Bhala, Barchi, Sword and stated that they will not allow to go from this passage. This witness has took his injured father to his house from different road. This witness has also stated during his examination on recall that all three accused persons have stone in their hand weighing approximately 1 kg and 1 kg and they were throwing stones indiscriminately from 2-3 yards. Bona Mandal has been examined as P.W.3. He has reiterated the evidence adduced by P.W.7 Mangal Soren, Premlal Mandal (P.W.1), Bhudeo Mandal (P.W.2). This witness has also stated during his examination on recall that all three accused persons have stone in their hand weighing approximately 1 kg and 1 kg and they were throwing stones indiscriminately from 2-3 yards. Bona Mandal has been examined as P.W.3. He has reiterated the evidence adduced by P.W.7 Mangal Soren, Premlal Mandal (P.W.1), Bhudeo Mandal (P.W.2). As per the evidence of Bona Mandal (P.W.3), both Ganesh Mandal and Sudhir Mandal have assaulted by means of stone on the head of the informant Mangal Soren (P.W.7). The evidence of this witness also suggest that when Premlal Mandal (P.W.1) went for rescue, he was also assaulted by means of stone which hit the clavicle on the left side. Similar is the evidence adduced by Devendra Kumar Mandal (P.W.4), Vimla Devi (P.W.5), Sant Lal Mandal (P.W.6) . A.S.I Bhagwan Singh has been examined as P.W.8. He has proved the signature of the Bhagwan Soren and Munshi Soren on the fardbeyan (Ext.1) which have been proved and marked as Ex.2/2 and 2/3. He has also proved the formal F.I.R in the handwriting of the Officer-In-Charge, which has been marked as Ext.3. Seizure list of blood stained soil and blood stained stone signed by the witness Doman Mandal and Munshi Soren has been proved and marked as Ext.4. This witness during his cross examination in para 7 has admitted that Premlal Mandal (P.W.1) has stated before him that when he intervened in the matter for rescue, he has also sustained injury. This witness has further stated that witness, Bhudeo Mandal (P.W.2) never disclosed before him that in the panchayati his father and Mangal Soren were Panch and that Anand Mandal had given any threat to them nor Bhudeo Mandal has disclosed that Anand Mandal has assaulted his father on the right temporal region nor Bhudeo Mandal has disclosed that Premlal Mandal was assaulted by Ganesh Mandal by means of stone. Bhudeo Mandal also did not say that accused persons have not allowed them to go through their passage. Bhudeo Mandal also did not say that accused persons have not allowed them to go through their passage. This witness has further stated in para 8 of his cross examination that Vimla Devi (P.W.5) has also not disclosed before him that accused persons have given threat on Tuesday and occurrence has been committed on Wednesday at 11.00 a.m. Injury report of injured Hiralal Mandal has been marked as Ext.5, which shows that he has sustained 3 injuries:- (i) swelling 3" x 4" on the right temporal bone with the fracture of the bone (ii) lacerated wound 1" x 1/2" on the right pinna of the ear (iii) bleeding through the right ear. Injury no.1 has been caused by hard and blunt substance which was grievous in nature. So far as injury no.2 and 3 are concerned, they are simple in nature. Injury report of Mangal Soren, which has been proved and marked as Ext.5/1 shows following injuries:- (i) lacerated 1" x 1/2" x scalp deep on the left parietal bone (ii) lacerated wound 1/2" x 1/2" x bone deep on the forehead left side (iii) swelling 2" x 2" on the right middle finger with dislocation of metacarpophalangeal joint. Injury no. 1 and 2 are simple in nature whereas injury no.3 is grievous in nature caused by hard and blunt substance. Injury report of Premlal Mandal has been proved and marked as Ext.5/2, which shows (i) swelling 3"x2" on the head of occipital bone and (ii) one swelling 2"x3" on the root of the neck left side with the fracture of shaft of the left clavicle. Injury no. I is simple in nature caused by hard and blunt substance. Injury no. II is grievous in nature caused by hard and blunt substance. 13. From perusal of the materials brought on record, we are of the considered view that the accused persons have not gone with intention to cause murder of Hiralal Mandal as they were not armed with any lethal weapon rather after seeing them there was some altercation between the parties and thereafter the three accused Anand Mandal , Ganesh Mandal and Sudhir Mandal started pelting stone. There is inconsistent evidence regarding assault made by these two appellants upon the deceased Hiralal Mandal rather consistent evidence of the prosecution is against Anand Mandal, who has assaulted Hiralal Mandal by means of stone causing injury on the left temporal region due to which Hiralal Mandal fell down and became unconscious and later on succumbed to the injury in hospital. Allegation of climbing over the chest by the accused persons or assault on Hiralal Mandal by leg and fist has not been corroborated by the medical evidence nor any such injury was found on the person of the deceased. The Investigating Officer Bhagwan Singh (P.W.8) has also stated that Bhudeo Mandal (P.W.2) has never stated before him that his father and Mangal Soren were Panch and that Anand Mandal had given any threat to them rather Premlal Mandal (P.W.1) has stated that when he went for rescue of the victims, he has sustained injury. 14. After considering the entire evidence brought on record, this Court is of the opinion that these two appellants Sudhir Mandal and Ganesh Mandal did not have common intention to commit murder of Hiralal Mandal. From the evidence on record, it is apparent that initially the assault was made by Ganesh Mandal and Sudhir Mandal upon the informant Mangal Soren by means of stone. It is stated that Mangal Soren has been assaulted by two stones each by Ganesh Mandal and Sudhir Mandal, though from the injury report, which has been brought as Ext. 5/1, Mangal Soren has only sustained three injuries, two on the head and one on the middle finger, with dislocation of metacarpophalangeal joint. Injury of Premlal Mandal shows that he has sustained injury on the root of the neck left side with the fracture of shaft of the left clavicle, which he has sustained while making protest. This shows that there was complete lack of common intention amongst the accused persons for causing the murder of any of the victim. Initially the assault was made on Mangal Soren and when Hiralal Mandal (deceased) intervened, he was assaulted by Anand Mandal, which can be considered as an act committed on the spur of the moment. Anand Mandal has thrown stone which hit the head of Hiralal Mandal causing injury due to which he fell down and died during treatment on 07.02.1980. Initially the assault was made on Mangal Soren and when Hiralal Mandal (deceased) intervened, he was assaulted by Anand Mandal, which can be considered as an act committed on the spur of the moment. Anand Mandal has thrown stone which hit the head of Hiralal Mandal causing injury due to which he fell down and died during treatment on 07.02.1980. In the aforesaid facts and in view of the evidence brought on record, appellant Ganesh Mandal and Sudhir Mandal cannot be held liable for death of Hiralal Mandal and as such conviction under Section 302/34 of the I.P.C is not sustainable in the eyes of law. Accordingly, we set aside the conviction of Ganesh Prasad Mandal and Sudhir Kumar Mandal for the charge and conviction under Section 302/34 of the I.P.C, so far as death of Hiralal Mandal is concerned. 15. While, re-appreciating the evidence from the materials brought on record, so far as conviction passed by the learned Court under Section 325/34 I.P.C against the appellant Ganesh Prasad Mandal and Sudhir Kumar Mandal are concerned, it appears that accused Anand Mandal died before the pronouncement of the judgment and as such these two appellants were convicted under Section 325/34 I.P.C by the learned Trial Court. From the materials brought on record, we are of the view that after seeing the informant Mangal Soren and Hiralal Mandal, the accused persons have some altercation as admitted by Premelal Mandal (P.W.1) and thereafter the accused persons namely Ganesh Mandal and Sudhir Mandal started pelting stone on Mangal Soren causing two injuries on his head and one injury on the middle finger, which was found to be grievous in nature. Injury found on the injured Premlal Mandal (P.W.1) shows one grievous injury on the root of the neck left side with the fracture of shaft of the left clavicle, which he has sustained when he went for rescue. Injury found on the injured Premlal Mandal (P.W.1) shows one grievous injury on the root of the neck left side with the fracture of shaft of the left clavicle, which he has sustained when he went for rescue. Considering this aspect of the matter, we are of the view that appellants have rightly been convicted by the learned Trial Court under Section 325/34 of the I.P.C. for causing grievous injury to Premlal Mandal (P.W.1) and Mangal Soren (P.W.7) So far as sentence awarded by the learned Trial Court of R.I. for 7 years under Section 325/34 I.P.C is concerned, learned Senior Counsel for the appellants has submitted that the occurrence was committed in the year 1980 and the impugned judgment of conviction was passed in 1996 and the present appeal preferred in 1996 is being heard in 2019. At the time of pronouncement of impugned judgment, the appellants who were aged 43 years and 40, are now 66 years and 63 years respectively as on date. Learned senior counsel for the appellants thus submitted that instead of sending them to jail after 39 years of the occurrence, it would be proper if they are being saddled with some fine under Section 325/34 I.P.C by reducing the sentence to the period already undergone by the appellants as they have no criminal antecedent. 16. Taking the submissions into account as well as surrounding factors that appellants have no criminal antecedent and that the incidence took place in the year 1980 and the appellants are now aged 66 and 63 years respectively having no previous conviction, we are reducing the sentence of R.I. for 7 years to S.I. for 1 year with a fine of Rs.50,000/- each, to be paid to the victim Premlal Mandal (P.W1) and informant Mangal Soren (P.W.7). In case the injured have died, the same will be paid to their legal heirs after due verification by the learned Trial Court within a period of 8 weeks from today and in default of payment of fine, appellants have to further undergo S.I. for 3 months. Appellants are on bail, therefore, their bail bonds are hereby cancelled and they are directed to surrender before the Court below. It goes without saying that period already undergone by the appellants shall be set off under Section 428 Cr.P.C. 17. Appellants are on bail, therefore, their bail bonds are hereby cancelled and they are directed to surrender before the Court below. It goes without saying that period already undergone by the appellants shall be set off under Section 428 Cr.P.C. 17. In the result, appeal is partly allowed by setting aside the judgment of conviction so far Section 302/34 I.P.C is concerned but upheld so far Section 325/34 I.P.C is concerned and accordingly the sentence is modified as stated above. 18. Let the Lower Court Records along with the copy of judgment be sent down to the Court below forthwith.