JUDGMENT : 1. Heard learned Senior Counsel for the appellant, Mr. P.P.N.Ray assisted by Mrs. Pragati Prasad and Mr. Sachin Kumar, learned Advocates and Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor representing the State. 2. Out of the seven accused persons, who were sent up for trial in connection with Gumla P. S. Case No. 62 of 1988, G.R. No. 670 of 1988 dated 12th November, 1988 leading to Sessions Trial No. 184/89 tried by the learned Additional Sessions Judge, Gumla, three accused persons, who faced conviction under Sections 302/34 I.P.C and Section 324 I.P.C approached this Court in the present appeal. Rest four accused persons were acquitted of the charges under Sections 304/302/307/324/323 I.P.C. Out of three appellants, appellant no. 1, Hardayal Turi died during pendency of the appeal and his appeal stands abated by order of the instant date. Thus, before us are the two surviving appellants, who assail the impugned judgment of conviction dated 9th October, 1996 passed in S. T. No. 184/89 and the order of sentence dated 10th October, 1996. 3. Investigation commenced on institution of Gumla P. S. Case No. 62/88 upon the Fardbeyan of Mahendra Turi, son of Chandrapal Turi of village Bagesera, Tola-Ganeshpur, P.S.- Palkot, District-Gumla (P.W.5) recorded by Sub-Inspector, Sri A. K. Gupta, Officer-in-Charge, Palkot Police Station on 11.11.1988 at 2:00 Hours at Palkot Hospital, Palkot. 4. The gist of the allegations as contained in the Fardbeyan is as under: According to the informant, on 10th November, 1988 (Thursday), the informant along with his family members were celebrating Laxmi Puja when at 6.30 in the evening Mangra Turi son of informant's uncle, Harkhu Turi went nearby his house to relieve himself when brother-in-law of Aghnu Turi (appellant no.3), whose house is adjacent namely, Bandhna Turi, son of Honda Turi and Beetu Turi son of unknown, both of village- Sarubeda, P.S.-Palkot, who had come to celebrate the festival in the house of their brother-in-law called Mangra Turi. Mangra Turi on being called went to the house of Aghnu Turi and after sometime his cries for help were heard when informant, his brother, Ghuran Turi (P.W.6), Budhram Turi (P.W.7/B), son of Harkhu Turi, Lodha Turi @ Jagdish Turi (P.W.7) and Jagmohan Turi (P.W.8), both sons of Karam Dayal Turi, all proceeded towards the house of Aghnu Turi. Mangra Turi on being called went to the house of Aghnu Turi and after sometime his cries for help were heard when informant, his brother, Ghuran Turi (P.W.6), Budhram Turi (P.W.7/B), son of Harkhu Turi, Lodha Turi @ Jagdish Turi (P.W.7) and Jagmohan Turi (P.W.8), both sons of Karam Dayal Turi, all proceeded towards the house of Aghnu Turi. As soon as they reached the entrance of the house of brother of Aghnu Turi i.e., Mohan Turi, they saw his cousin Mangra Turi (deceased) lying in the outer room of the house of Mohan Turi. Hardayal Turi (deceased appellant no.1) son of Bodho Turi and four sons of Hardayal Turi namely, Aghnu Turi(appellant no.3), Mohan Turi, Gulma Turi (appellant No. 1) Sita Turi, all by means of lathi (hard and blunt wooden rod), tangi, balua (sharp cutting weapons) and Chura(knife) were assaulting. On seeing the informant and the accompanying members these five persons also started assaulting them. Informant got assaulted on his back and his hand, Ghuran Turi (P.W.6) in his ribs, Lodha Turi (P.W.7) in his chest and Jogo Turi (P.W.8) also got serious injuries on his hand. Informant further alleged that these accused persons together killed Mangra Turi. He further stated that somehow the informant and his accompanying members ran away to save themselves in an injured condition. On hearing their brawl, people from nearby came there and then with the help of the villagers and the Chaukidar, the informant along with his brother Ghuran Turi and Lodha Turi were taken to the Palkot Hospital for treatment. As per the informant the reason for assault was a dispute relating to land in respect of which the informant party were fighting a case in the Court. 5. Upon conclusion of investigation, seven accused persons were charge-sheeted vide charge-sheet no. 06 of 1989 dated 31st January, 1989 under Sections 147/148/149/324/307/302 I.P.C and nine witnesses were cited. After cognizance and commitment to the Court of learned Sessions Judge, charges were framed against 7 accused persons under Section 302 of the I.P.C on 22nd November, 1991 and under Section 324 of the I.P.C against four accused persons, namely, Aghnu Turi (appellant no.3), Mohan Turi (acquitted by the trial court) Gulma Turi (appellant no. 2) and Shiv Kumar Turi (acquitted by the learned trial court) on the same date. 2) and Shiv Kumar Turi (acquitted by the learned trial court) on the same date. The charges were read over to the accused persons in Hindi, to which they denied and claimed to be tried. Thus, trial commenced and prosecution in order to support its case adduced 12 witnesses and also adduced certain documentary evidence upto Ext.-6 Series, which were admitted without objection as under : P.W.1-Birsai Oraon P.W.2-Maheshwari Prasad P.W.3-Birsai Oraon P.W.4-Dr. Krishna Prasad P.W.5-Mahendra Turi P.W.6-Ghuran Turi P.W.7-Jagdish @ Lodha Turi P.W.7/A-Karam Dayal Turi P.W.7/B- Budh Ram Turi P.W.8-Jagmohan Turi @ Jogo P.W.9-Sheo Tahal Sao P.W.10- Punit Sahu Ext.-1-F.I.R Ext.2-Charge-sheet Ext.-3-Postmortem Report Ext.-4-Signature of Mahinder Turi in Fardbeyan Ext.-5- Case diary Ext.-6 to 6/1- Injury report 6. After closure of the prosecution evidence, the statement of the accused persons were recorded under Section 313 Cr.P.C on 14th August, 1996, their case was of total denial and they pleaded themselves to be innocent and falsely implicated. Learned Trial Court considered the evidence on record and submission of the learned counsel for the parties and found the charges under Section 302/34 proved against the three accused persons, who were the original appellants before us. They were also convicted for the charge under Section 324 of the IPC by the impugned judgment dated 9th October, 1996. For the conviction under Sections 302/34 of the I.P.C, they were sentenced to undergo Rigorous Imprisonment for life while under Section 324 I.P.C they were sentenced to undergo R.I. for 3 years. 7. Being aggrieved by the judgment of conviction and the order of sentence, the present appeal was preferred before this Court. 8. On behalf of the appellants, learned Senior Counsel for the appellant Mr. P.P.N. Rai has advanced the following submissions in support of the challenge to the impugned finding. Learned counsel submits that the charge-sheet was filed against seven accused persons under different provisions of the Indian Penal Code. Charges were framed under Sections 307, 302 and 324 I.P.C but not with the aid of Section 34 of I.P.C. Learned trial court proceeded to convict the three out of seven accused persons for the charge under Section 302/34 I.P.C and Section 324 of the I.P.C without any evidence on record to support the charge under Section 302 read with Section 34 of the I.P.C. Appellants suffered prejudice on non framing of the appropriate charge. On that count, the judgment is weak in law. It has been further submitted that the prosecution failed to examine the Investigating Officer which has resulted in great prejudice to the appellants. The place of occurrence has not been properly proved in the absence of the Investigating Officer. There are contradictions on the actual place of occurrence as some of the witness including P.W. 5 alleged that the victim was killed inside the house of Mohan while other prosecution witnesses have stated that the accused died outside the door of Aghnu. It has been further urged that the prosecution case were not substantiated during trial, as a result four out of seven accused persons, who faced trial had to be acquitted by the learned trial court. This has resulted on account of the contradiction in the ocular evidence vis-a-vis the medical evidence. On the body of the deceased, P.W. 4, Dr. Krishna Prasad found ten injuries but according to his opinion they were not caused by lathi or chura (knife). This created doubt about the ocular testimony. When the learned trial court has acquitted the four accused persons on such doubt, conviction of the appellants together with Hardayal Turi was unsustainable on account of grave doubt and contradiction in the prosecution case. The credibility of the prosecution witnesses, in particular P.W. 5, Mahendra Turi, P.W.6, Ghuran Turi, P.W.7, Jagdish @ Lodha Turi and P.W. 7/B, Budh Ram Turi and P.W.8, Jagmohan Turi, all of whom claim to be present at the place of occurrence and except P.W. 8 rest also claim to have suffered injuries, are unreliable. If the evidence of this prosecution witnesses is read minutely, none of them claim to have seen the actual assault on the deceased. Therefore, they were not eye witnesses to the occurrence. Any role allegedly assigned to the appellants through their mouth during trial is to be treated with suspicion. In criminal law, suspicion cannot take the place of legal proof. Learned Senior counsel for the appellants submits that in the wake of such unreliable ocular testimony, which has been overruled by the medical evidence and has led to acquittal of the four out of seven accused persons, conviction of the remaining three and the surviving two before this Court is wholly unsafe to be upheld. The entire prosecution evidence suffers from a ring of falsehood. The entire prosecution evidence suffers from a ring of falsehood. Prosecution witnesses, namely, P.W. 5 Mahendra Turi, P.W.6, Ghuran Turi, P.W.7, Jagdish @ Lodha Turi and P.W. 7/B, Budh Ram Turi alleged use of tangi and balua (sharp cutting weapons) and chura (knife) and lathi in the hands of the accused persons, but their version has been shown to be untrue on the basis of the medical evidence depicting the actual injuries found on the deceased. In such a situation when the allegations of assault were directed against the convicts/appellant, Hardayal Turi upon the deceased Mangra Turi, it is not proper to uphold the conviction against the surviving two appellants with the aid of Section 34 of the I.P.C. Therefore, they are entitled to benefit of doubt and deserve to be acquitted. Learned trial court has also committed serious error in recording conviction under Section 324 I.P.C against the appellants. The injury report has not been brought on record in a proper manner as to constitute legal evidence i.e., Ext. 6 series. It is also submitted that the evidence of P.W. 5 clearly shows motive for false implication as there was a pre-existing land dispute between the parties. The informant party and the accused both are related as is evident from the reading of the Fardbeyan and the evidence of the tendered witness P.W.7/A, who is father of P.W. 7 and 8. In such circumstances, this Court in exercise of the appellate jurisdiction should acquit the appellants of all the charges since the impugned judgment suffers from various errors in the appreciation of evidence and illegalities which go to the root of the matter. 9. Learned Additional Public Prosecutor has argued in support of the impugned findings. According to him, the judgment rendered by learned trial court is well reasoned and based upon the proper appreciation of the materials brought on record. The prosecution has been able to prove the first information story brought through the Fardbeyan of informant, Mahendra Turi, P.W. 5 in all its material parts. The time of occurrence, the place of occurrence and the manner of occurrence, all have been duly proved by the prosecution witnesses. The prosecution has been able to prove the first information story brought through the Fardbeyan of informant, Mahendra Turi, P.W. 5 in all its material parts. The time of occurrence, the place of occurrence and the manner of occurrence, all have been duly proved by the prosecution witnesses. The prosecution witnesses i.e. Mahendra Turi, P.W.5, Ghuran Turi, P.W.6, Jagdish @ Lodha Turi , P.W. 7, Budh Ram Turi, P.W. 7/B, Jagmohan Turi, P.W.8, all have consistently deposed having reached the place of occurrence immediately on hearing the shouts of the victim Mangra Turi and four out of these 5 prosecution witnesses except 8, have also suffered grievous injuries on their body as a result of the assault committed by the appellants including the deceased appellant. The injury report of these persons P.W. 5, 6 and 7 have been brought on record without objection and marked as Ext.-6 series. They show sharp cutting wounds attributable to the weapons in the hands of the appellants including the deceased-appellant and injuries are both simple and grievous. The postmortem report brought on record proved by P.W. 4 Dr. Krishna Prasad also substantiate the use of sharp cutting weapons i.e,, tangi and balua in the assault committed on the victim Mangra Turi by these appellants and corroborates the ocular testimony. Learned trial court, however, went along with the opinion of the medical evidence so far absence of injuries by lathi or chura (knife) is concerned and that is why acquitted the remaining four accused persons. However, the presence and the role of the three appellants including the deceased appellant in the assault on the victim and these three injured prosecution witnesses also were fully substantiated. Fardbeyan shows the motive for the commission of the offence being a land dispute between the parties, who are agnates. This stands substantiated from the oral testimony of P.W.5 during trial at para-9 in particular. Non-examination of the Investigating Officer has not led to any prejudice to the accused persons since the time of occurrence, the place of occurrence and the manner of occurrence apart from the Fardbeyan, the formal F.I.R, and the three injury reports have been duly brought on record without any objection from the accused persons. They are admissible in evidence and therefore rightly taken into account for recording the conviction. They are admissible in evidence and therefore rightly taken into account for recording the conviction. As such, when the findings rendered by learned trial court are tested on the entirety of the prosecution evidence, minor inconsistencies in the ocular testimony as to the manner of occurrence or the actual place of occurrence or absence of lathi and chura (knife) injuries is not sufficient to dent the core of the prosecution case in order to acquit these appellants from the charges altogether. The defence has also not put any questions to the effect that the house of Mohan Turi and Aghnu Turi were separate and they were living in partition or their house are not contiguous to each other. These appellants apart from the two other i.e., all four were sons of the main accused, Hardayal Turi, appellant no. 1 (deceased). As such, minor inconsistency regarding the place of occurrence should not weigh in the minds of the court to discard their testimony as a whole. The conviction of the appellants under Section 302 I.P.C with aid of Section 34 of the I.P.C. is proper since the prosecution has been able to prove that all these three accused persons had in furtherance of their common intention assaulted the victim Mangra Turi, son of uncle of the informant with an intention to kill him and the injuries found on the body of the deceased were sufficient to cause his death in ordinary circumstances. The injuries proved on the body of P.W. 5, 6 and P.W. 7 through Ext.-6 series also substantiate the charge under Section 324 I.P. C as against these two appellants. As such, there is no element of doubt in the findings recorded by learned trial court to interfere in the conviction of these two appellants for the charges. Therefore, the appeal deserves to be dismissed. 10. We have considered the submission of learned counsel for the appellant and learned Additional Public Prosecutor, gone through the entire materials brought on record including the Fardbeyan, framing of charge, evidence of 12 prosecution witnesses, 6 prosecution exhibits, statement of accused under Section 313 Cr.P.C and also perused the impugned judgment of conviction and order of sentence. 11. 10. We have considered the submission of learned counsel for the appellant and learned Additional Public Prosecutor, gone through the entire materials brought on record including the Fardbeyan, framing of charge, evidence of 12 prosecution witnesses, 6 prosecution exhibits, statement of accused under Section 313 Cr.P.C and also perused the impugned judgment of conviction and order of sentence. 11. The question before us is whether the conviction of these appellants under Section 302/34 and Section 324 of the I.P.C. is proper in the eye of law and sustainable on the basis of the materials brought on record by the prosecution or not? Whether the appellants have been able to make out a case that the prosecution story has not been proved beyond all reasonable doubt warranting their acquittal? The initiator of the prosecution case, informant Mahendra Turi has been examined as P.W.5. From perusal of his evidence, we find that the time of occurrence described by him in his fardbeyan is in the evening on Thursday, on the event of Laxmi Pooja/Diwali which has been duly supported by him during trial. The other relevant facts in issue relating to movement of the victim Mangra Turi and he being called upon to the house of Mohan, where the assault took place upon him has also been supported during his deposition in trial. This witness has proved the presence of himself, P.W.7 Jagdish @ Lodha Turi, P.W.6, Ghuran Turi, P.W.7/B, Budh Ram Turi and P.W.8 Jagmohan Turi at the place of occurrence, which is in front of the house of Mohan, immediately on hearing the cries of Mangra Turi. According to this witness, Hardayal Turi (deceased appellant) was armed with Tangi, appellant no.2 Gulma Turi armed with Chura (knife) and appellant no.3 Aghnu Turi armed with Balua and rest four acquitted accused persons namely, Mohan, Sitkunwar, Bitu and Bandhan were armed with Lathi and were assaulting Mangra. According to this witness, he sustained injuries on his wrist due to assault by Aghnu with a Balua and with a Tangi by Hardayal (deceased-appellant no.1). He has also stated about the assault upon Lodha (P.W.7) by Gulma (appellant no.2) with a Chura (knife) and P.W.6 (Ghuran) with a Tangi by Hardyal (deceased-appellant no.1.). According to this witness, he sustained injuries on his wrist due to assault by Aghnu with a Balua and with a Tangi by Hardayal (deceased-appellant no.1). He has also stated about the assault upon Lodha (P.W.7) by Gulma (appellant no.2) with a Chura (knife) and P.W.6 (Ghuran) with a Tangi by Hardyal (deceased-appellant no.1.). He has stated that they fled away from the place of occurrence on sustaining the injuries Mangra died due to assault by Hardyal Turi and others and that he was lying into their house. On hearing the brawl, the Chowkidar and other villagers had assembled. These three injured witnesses were taken to Palkot Hospital where the incidence was reported and this informant being examined as P.W.5 has proved and identified his signature on the Fardbeyan which has been marked as Ext.4. During cross-examination, this witness has stated that he had narrated it to the Police that Hardayal Turi (deceased appellant no.1) was armed with a Tangi, appellant no.2 Gulma Turi was armed with Chura (knife) and appellant no.3 Aghnu Turi was armed with Balua while rest four were armed with lathi. In his cross-examination, he has truthfully stated that on hearing the screams when they reached the house of Aghnu, Mangra was lying still and was not speaking anything in the courtyard. The Dhaba of Aghnu was at a distance of 1-2 hands from his courtyard. Dhaba has a door from which they enter or exit. This witness has further stated that he could not count the number of assaults committed by the accused persons, but since they had also started assaulting them, they fled away. At para-9 of his deposition this witness has stated that there was no proceeding under Section 144 Cr.P.C. with the accused. He further stated that he had lodged a case under Section 379 I.P.C against the accused persons except Bitu and Bandhan in which these persons have been acquitted. He denied that the accused were implicated on account of any previous enmity and that there was no actual assault by them. 12. P.W.6 in his deposition has stated in similar fashion about the time of occurrence and the movement of Mangra the victim for relieving himself from their house to the adjacent place when he was called by Bitu and Bandhan to the house of Aghnu and soon thereafter they heard his cries for saving him. 12. P.W.6 in his deposition has stated in similar fashion about the time of occurrence and the movement of Mangra the victim for relieving himself from their house to the adjacent place when he was called by Bitu and Bandhan to the house of Aghnu and soon thereafter they heard his cries for saving him. This witness has also proved the presence of the informant himself (P.W.5), P.W. 6, Ghuran Turi, P.W.7, Jagdish @ Lodha Turi and P.W.8, Jagmohan Turi, who had reached at the place of occurrence after hearing the screams of Mangra. He has also attributed the weapons in the hands of Hardayal (deceased appellant no.1) i.e., a Tangi; Gulma, appellant no.2 with a Chura (knife); Aghnu appellant no.3 with a balua and other four accused persons, who were allegedly armed with lathi. This witness has stated that he was assaulted by Hardayal with a Tangi on his back when he tried to stop them from committing the assault. He has also stated that informant apart from Jogo and Lodha, P.W. 8 and P.W.7 received injuries in the assault. As such, this witness supports the prosecution case set up by the informant in the material parts referred to above. P.W.7 Jagdish @ Lodha Turi has also in his deposition supported the prosecution case on the aforesaid material counts and clearly stated that Hardayal was armed with Tangi, Aghnu with Balua, Gulma with Chura (knife) and rest four with Lathi. When he tried to save Mangra, he was also assaulted by Gulma with a knife in his chest. These accused were taken for treatment while Mangra died despite their attempts to save him. He also stated at para- 6 that he could not say as to how many assaults were committed by how many persons . P.W. 7-A is the father of P.W.7 and P.W. 8 i.e., Lodha and Jago, but he has been tendered by the prosecution. In his cross examination he has however stated that the accused persons are the sons of his brother Hardayal. Father of the informant i.e., Chandrapal was one of the five brothers of P.W. 7-A including Hardayal, appellant no.1. Evidence of this witness in cross-examination indicates the relationship between the accused parties and the informant parties. In his cross examination he has however stated that the accused persons are the sons of his brother Hardayal. Father of the informant i.e., Chandrapal was one of the five brothers of P.W. 7-A including Hardayal, appellant no.1. Evidence of this witness in cross-examination indicates the relationship between the accused parties and the informant parties. P.W.7, Budhram who has been named by the informant, P.W.5 as having reached the place of occurrence also supports the case of the prosecution regarding the assault on Mangra, the screams raised by him and the weapons attributed to different accused persons which are balua, Tangi, Chura and Lathi. He also states that Mahendra Turi (P.W.5), Ghuran Turi (P.W.6) and Jagdish (P.W.7), all sustained injuries while trying to save Mangra, who however died. He has described the adjacent houses to the place of occurrence in para-2. According to him, the house of Karamdayal is situated next to his house. Lodha and Jogo lived separately from their father. Adjacent to the house of Karamdayal is the house of Lodha at 10' and the house of Joga is next to Ramdayal's house. In the east of the house of this prosecution witness is the house of the informant Mahendra and Ghuran also stays with him. Laxmi Puja was being celebrated on that date. He has further described the presence of the prosecution witnesses in para-4 namely P.W.5 Mahendra Turi, P.W.6 Ghuran Turi and P.W.7/B) Budhram Turi. He has also stated that Mangru fell down at the door of Mohan and after the door is the Dhaba which they entered through the door. He claims to have seen the occurrence from the side and also stated that the injured witnesses namely Mahendra, Ghuran, Jago and Karamdayal started fleeing and he also fled away. 13. P.W.8, Jagmohan Turi @ Jago has also supported the case of the prosecution and attributed possession of the weapons like Balua, Tangi and Lathi in the hands of the accused persons, from which they had assaulted the deceased. This witness was assaulted by appellant no.2 Gulma with a knife on the elbow of his right hand. He also claims to have fled away after sustaining injuries. Other persons like his father Karamdayal and brother Jagdish had also reached the place of occurrence upon hearing the brawl. 14. This witness was assaulted by appellant no.2 Gulma with a knife on the elbow of his right hand. He also claims to have fled away after sustaining injuries. Other persons like his father Karamdayal and brother Jagdish had also reached the place of occurrence upon hearing the brawl. 14. P.W.9 has adduced the case diary of Palkot P.S. Case No.62/88 in the handwriting and signature of Ashok Kumar Gupta, the Officer In-charge, but in his cross-examination, he has stated that he had not seen it written. Punit Sahu, P.W.10 has identified the handwriting and signature of Dr. K.N. Sinha, posted at Palkot Primary Health Centre, who prepared the injury report, which has been proved and marked as Ext.6 to 6/2. In his cross-examination he states that these were not writ- ten before him. However, the injury reports were marked without objection from the defence. 15. It is now proper to come to the evidence of Dr. Krishna Prasad (P.W.4) who conducted post-mortem on the body of the deceased. P.W. 4 was posted at Sadar Hospital, Gumla as Civil Assistant Surgeon and on 12.11.1988 i.e. the next date of the institution of the F.I.R. he conducted post-mortem on the dead body of Mangra Turi, the deceased, brought by Constable Sudheshwar Turi and Choukidar Sukhlal Oraon and found the following antemortem injuries on the dead body. The injuries found on the dead body along with his opinion contained in the post mortem report in his writing and signature have been proved and marked as Ext.3 which are extracted herein below : “(I) Incised wound over the forehead, brain matter coming out 6” x 1” x 2” (2) Incised wound over left side of neck 3” x 1” x 2” third cervical vertebra cut. (3) Incised wound over left lumber region cutting the intestine 4”x1”x2” (4) Incised wound over umbilical region cutting the viscera 3”x1”x3”. (5) Incised wound over left shoulder cutting the scapula 3”x1”x2”. (6) Incised wound over left wrist 2” x 1” x 1/2” (7) Incised wound over left upper thigh 2” x 1” x 1/2” (8) Incised wound over left upper thigh just lateral to injury no. 7, 2”x 1/2” x 1/2” (9) Incised wound over rt. Chin, both bones broken 2” x 1” x 2”. (10) Incised wound over rt. gluteal region 2”x1”x1/2” All the above injuries were antemortem and injury nos. 7, 2”x 1/2” x 1/2” (9) Incised wound over rt. Chin, both bones broken 2” x 1” x 2”. (10) Incised wound over rt. gluteal region 2”x1”x1/2” All the above injuries were antemortem and injury nos. 1, 2, 3, 4, 5 and 9 were grievous in nature and the remaining were simple in nature. Time elapsed since death within 24 hours approximately. Cause of death shock and hemorrhage. All the injuries were caused by some sharp cutting weapon e.g.. Tangi and Balua. Injury Nos. 1, 3 and 4 are singularly responsible for causing death in ordinary course of nature. I prepared the postmortem report. It is written and signed by me. It is already marked as Ext.3.” During his cross-examination this witness made a categorical statement that the above injuries could not be caused by Lathi or Chura (knife). According to this witness injuries no. 1, 2, 3, 4, 5 and 9 were grievous in nature and rest simple. Injury nos. 1, 3 and 4 were singularly responsible for causing death in ordinary course of nature. 16. P.W.1 is an Advocate's Clerk, who has identified the formal F.I.R. in the hand writing and signature of Officer-in-Charge, Ashok Kumar Gupta of Palkot P.S. proved and marked as Exbt.1 without objection. P.W.2 is Maheshwari Prasad, who has proved the charge-sheet submitted in the handwriting of Ashok Kumar Gupta, Officer-In-charge, Palkot P.S. marked as Ext.5 without objection. He stated that these were not written in his presence. Birsai Oraon has claimed to identify the postmortem report proved as Ext.3 but stated that it was not written before him in the handwriting and signature of Dr. Krishna Prasad, who has been examined as P.W.4. This post- mortem report was proved and marked as Ext.3 during his examination and also proved by P.W.4 during his examination. 17. On consideration of the evidence on record as above, we are in a position to derive the following conclusions : The victim, Mangra Turi sustained fatal injuries due to assault by Tangi and Balua which as per the testimony of the prosecution witnesses no.5 Mahendra Turi (informant), P.W.6 Ghuran Turi and P.W.7 Jagdish @ Lodha Turi were in the hands of Hardayal Turi (deceased appellant no.1) and Aghnu Turi (appellant no.3). The medical evidence does not show presence of injury by knife or lathi. The medical evidence does not show presence of injury by knife or lathi. Gulma Turi (appellant no.2) has been shown to be possessing the weapon Chura (knife) by this prosecution witnesses who have reached the place of occurrence immediately after hearing the cries of Mangra Turi and have also sustained injuries on their body which are proved by Ext.6 series the injury reports. It is apparent from the above that Gulma Turi having knife did not inflict any injuries on the victim Mangra Turi though Aghnu Turi possessing Balua along with Hardayal Turi inflicted injuries on the body of the victim which ultimately proved to be the cause of his death. We also find that though these prosecution witnesses attributed possession of lathi on other four accused persons but in the absence of any injury by Lathi on the body of the victim, the learned trial court had reason to acquit these four accused persons, namely Mohan, Sitkunwar, Bitu and Bandhan. As such, on re- appreciation of the evidence on record, we are of the considered opinion that the charge under Section 302 or Section 302/34 I.P.C for conviction of appellant no.2, Gulma Turi cannot be sustained However, the appellant, Aghnu Turi, who was possessing baluwa (a sharp cutting weapon) and has been shown to have assaulted the victim Mangra Turi by the consistent statement of these prosecution witnesses nos. P.W.5, 6 and 7 all of whom, who had also sustained injuries while trying to save him, has to suffer the conviction under Section 302 of the I.P.C. On careful scanning of the entire prosecution evidence, conviction of the appellant, Gulma Turi under Section 302 with the aid of Section 34 I.P.C would not be proper in the eye of law, moreover when the prosecution case that all the accused persons acted in furtherance of common intention has not been substantiated against the remaining 4 accused persons (acquitted by the learned Trial Court) either. 18. The following injuries were found on the body of P.W.5, Mahendra Turi, P.W.6, Ghuran Turi and P.W. 7, Jagdish Turi proved and brought on record as Ext.6/2 , 6 and 6/1: “Injuries of P.W.5, Mahendra Turi Injuries: (1) A cut injury at back side of neck 1 1/2” x 1/2”x muscle deep; (2) Fracture of Lt. 18. The following injuries were found on the body of P.W.5, Mahendra Turi, P.W.6, Ghuran Turi and P.W. 7, Jagdish Turi proved and brought on record as Ext.6/2 , 6 and 6/1: “Injuries of P.W.5, Mahendra Turi Injuries: (1) A cut injury at back side of neck 1 1/2” x 1/2”x muscle deep; (2) Fracture of Lt. thumb (scapular of bone) Nature of injury: No. 1 is single from sharp cutting weapon No.2 is grievous from sharp cutting weapon Age of injury: -within 24 hours M/I – A small mole at lower Boarder of Lt. scapular region Injuries of P.W.6, Ghuran Turi Injuries: (1) A cut injury at Rt. side back 4”x1/2”x Bone deep (fracture of ribs) (2) A cut injury at Anterior aspect of Lt. wrist 1/2” x 1/2” x skin deep Nature of injury: No. 1 is grievous from hard and sharp cutting weapon No. 2 is single from hard blunt substance Age of injury-within 24 hours M/I-An old scar mark at anterior side of Lt. Leg Injuries of P.W.7, Jagdish Turi Injury- A cutting injury at mid of chest (at xyphe sterrum) 2 1/2” x 1/4” x Bone deep Nature of injury-Simple from sharp cutting weapon Age of injury: - within 24 hours M/I-Two moles at both Lab (Rt.+Lt) side of umbilicus.” 19. The injury on these three prosecution witnesses as narrated by them during deposition stands corroborated through the medical evidence noted above. As such, the appellants cannot escape conviction under Section 324 I.P.C. i.e. causing voluntary hurt by a dangerous weapon of assault. The learned trial court has imposed a sentence of three years under Section 324 I.P.C upon the three convicts one of whom has died. However, on consideration of the totality of the facts and circumstances on record and also taking into account the submissions of the learned counsel for the appellant that these appellants are about 63 years and 68 years of age as on date and their conviction was recorded in the year 1996 for an offence committed in the year 1988, the sentence for one year of rigorous imprisonment would meet the ends of justice. Accordingly, the sentence of three years of R.I. upon these two appellants under Section 324 I.P.C. stands modified to one year of Rigorous Imprisonment. 20. Resultantly, the conviction of the appellant Gulma Turi under Section 302/34 I.P.C. is set aside. Accordingly, the sentence of three years of R.I. upon these two appellants under Section 324 I.P.C. stands modified to one year of Rigorous Imprisonment. 20. Resultantly, the conviction of the appellant Gulma Turi under Section 302/34 I.P.C. is set aside. Conviction of the appellant, Aghnu Turi under Section 302/34 IPC is modified to one under Section 302 I.P.C. The sentence of Rigorous Imprisonment for three years upon these two appellants under Section 324 I.P.C. however stands reduced to one year of Rigorous Imprisonment. Both these appellants are on bail, their bail bonds are canceled. They are directed to be taken in custody and serve out the remainder of the sentence. The impugned judgment of conviction is partly set aside and order of sentence is partly modified in the manner and to the extent indicated herein above. The sentence of Rigorous Imprisonment for life under Section 302 of I.P.C and Rigorous Imprisonment for one year under Section 324 of I.P.C upon appellant Aghnu Turi shall run concurrently. Accordingly, the appeal is partly allowed. 21. Let the lower court records be sent down to the concerned Court forthwith with a copy of this judgment.