JUDGMENT : Per Deepak Roshan, J. This appeal is directed against the judgment of conviction dated 26.07.1993 and order of sentence dated 31.07.1993 passed in Sessions Case No.71/1993/16/1993 by the learned 2nd Additional District and Sessions Judge, Godda, whereby the appellant along with the other accused namely, Ram Hansda (since dead) have been found guilty, convicted and sentenced for the offence under Section 302/34 IPC to undergo R.I. for life. 2. The appellant No.2 namely, Ram Hansda has passed away one year ago and vide order dated 18.12.2018, the appeal preferred by the appellant no.2 has abated. 3. The appellant no.1 namely, Gopin Marandi was granted bail by this Court on 16.07.1999, whereas the appellant No.2-Ram Hansda was granted bail vide order dated 23.02.1994. 4. On the basis of the evidences laid before the Court below, the 2nd Additional District and Sessions Judge, Godda has held that the appellants did assault with stone weighing about 14 or 15 Kg on vital parts, like chest and neck of the deceased Phulmani Murmu, which would clearly indicate their intention to cause death of the deceased and, in fact, the prosecution has succeeded in proving the guilt of these two appellants beyond reasonable doubts. 5. Based on the prosecution case, the charge under Section 302/34 IPC was framed against all the accused and the appellants along with three others namely, Bala Murmu, Mahadeo Marandi and Rasik Lal Tudu faced the trial. But, only two of the accused persons who were the appellants were convicted and Bala Murmu, Mahadeo Marandi and Rasik Lal Tudu were discharged from the charge under Section 302/34 IPC and acquitted. 6. In this appeal, the finding recorded by the learned Court below about the appellants/accused persons sharing common intention to kill Phulmani Murmu was challenged by the appellants, now the appellant no.1. 7. On the basis of the fardbeyan(Ext.5) recorded by Barha Munshi Soren (P.W.7) before S.I. S. Khan, Officer-in-Charge, Poraiyahat Police Station stating therein, in short, that on 24.10.1992 at about 2.00 P.M. when his wife (deceased) was sitting on ‘Pinda’ of his house, the appellants along with other persons arrived there and caught his wife and assaulted her with fists and slaps. The appellants assaulted her with stone on chest and neck. It has further been alleged that due to such assault, his wife became unconscious and after some time she died. The appellants assaulted her with stone on chest and neck. It has further been alleged that due to such assault, his wife became unconscious and after some time she died. The motive as disclosed in the fardbayan is said to be old enmity on account of land dispute. On the basis of the aforesaid case, trial was held and altogether 9 prosecution witnesses were examined, out of whom P.W.-9 is Gajodhar Nath Mishra, I.O. who has submitted charge-sheet and proved paras 1 to 63 of the case diary (Ext.-4) by identifying and proving handwriting and signature of S.I. Safruddin Khan, the first I.O., fardbayan(Ext.5) by proving and identifying handwriting of S.I. A.L. Thakur and signature of S.I. Safruddin Khan, formal F.I.R. (Ext.6) by proving and identifying handwriting of A.S.I. H.D. Singh and his own signature. P.W.8-Dr. Pradeep Kumar Sinha, who held autopsy on the dead body, has proved Post-Mortem examination report (Ext.3), P.W.4-Narayan Murmu who is witness to the inquest and seizure, has proved inquest report (Ext.1) and seizure list (Ext.2). P.W.1-Bitiya Murmu, P.W.2-Ramdhani Murmu, P.W.5-Deo Lal Soren, P.W.6-Logo Tudu (wife of informant) and P.W.7-Barha Munshi Soren (informant) are said to be eye witnesses to the occurrence. P.W.5-Deo Lal Soren has also proved the stone (Material Ext.I) which is said to be used in commission of the offence and P.W.3-Kisun Hansada is a hearsay witness. Beside the above, the prosecution has adduced documentary evidence, such as, Ext.1-Inquest report, Ext. 2-Seizure list, Ext.3-Post mortem Examination Report, Ext.4-Case Diary, Ext.5-Fardbayan, Ext.6-Formal F.I.R and Material Ext.I-piece of stone. 8. The informant-Barha Munshi Soren, husband of deceased, has given evidence that on the fateful day, at about 2 p.m, the accused Gopin Marandi had called Panchayat but as he did not show any paper relating to 'Ghar Jamai' Panchayat could not reach on any conclusion and thereafter the Panches started leaving for their house. At that time, Phulmani, the deceased, was sitting on the ‘Pinda’ of her house. Bala said to Phulmani that nothing could happen and pulled her up from ‘Pinda’ and at the same time co-accused Mahadeo slapped her as a result of which she fell down. Thereafter, Gopin struck three times on her chest with a stone and Ram struck stone on her neck due to which Phulmani died on the spot. In his cross-examination, he has stated that Panchayat started at 12 hours and prolonged for about two hours. Thereafter, Gopin struck three times on her chest with a stone and Ram struck stone on her neck due to which Phulmani died on the spot. In his cross-examination, he has stated that Panchayat started at 12 hours and prolonged for about two hours. He further stated that Sangram Murmu, Chhotu Munshi Soren, Ladoo Murmu and Dhena Murmu were amongst Panches. About 200-300 peoples of seven 'Bastis' had assembled there. But, as no decision was arrived in the Panchayat so accused persons left the place earlier, however, this witness along with his wife and nephew remained sitting there with Panchas for an hour. He has further stated that when quarrel between Phulmani and Bala started at that time all the male members were present in the Panchayat and females were at the place of occurrence. He further stated that on hearing hue and cry of females he rushed to the place of occurrence and found Phulmani lying unconscious. He lifted her and took her inside the house and laid on cot. On touching her body he felt that she had died. He has admitted in the cross-examination that accused persons had filed a criminal case of theft against him that ended in his conviction but appeal is still pending. He has further admitted that a proceeding under Section 107 Cr.P.C was also instituted against him by the accused persons. He has admitted that there was long-standing land dispute between both the parties. 9. P.W.1-Bitiya Murmu is another eye-witness to the occurrence and she has given evidence to the effect that in the afternoon a Panchayat in regard to land dispute was convened in which Panchas called for papers. At that time she and Phulmani were sitting on 'Pinda' of the house. She has further stated that Ramdhani Murmu was also sitting on 'Pinda'. The accused Bala pulled down Phulmani from Pinda and Mahadeo Marandi slapped her and she fell down. Gopin Marandi struck stone on her chest and Ram Hansada struck stone on her neck. She has stated in her cross-examination that relevant paper was not shown by the opposite-parties and therefore Panches could not reach at any conclusion. In the meantime, quarrel between them started. She has stated that the stone from which Gopin Marandi hit the deceased was one foot long and she was badly smashed by stone on her chest. 10. She has stated in her cross-examination that relevant paper was not shown by the opposite-parties and therefore Panches could not reach at any conclusion. In the meantime, quarrel between them started. She has stated that the stone from which Gopin Marandi hit the deceased was one foot long and she was badly smashed by stone on her chest. 10. Other material witnesses are Ramdhani Murmu-P.W.2, Deo Lal Soren-P.W.5 and P.W. 6 namely Logo Tudu who have also supported the case of prosecution regarding assault on the deceased by the accused persons and they are consistent in their evidence. 11. P.W.8-Dr. Pradeep Kumar Sinha, who has conducted the Post-mortem examination on the dead body of Phulmani on 25.10.1992 at 6.30 a.m., has found the following ante-mortem injuries over the dead body- (i) One abrasion 3” x 2” over right side of front of upper chest. (ii) Bruise 4” x 2” over lateral part of front of right side of the chest in the middle region. (iii) Abrasion 2” x 2” over front of neck in the middle. (iv) No ligature mark on the neck however on dissection neck muscles found to be lacerated with dark blood. Trachea, scalp, skull and vertebra intact. Membranes, Brain and spinal cord were normal. 12. As per the Doctor, all the injuries were confined to neck and thorax particularly right side of thorax leading to fracture of 2nd 3rd 4th and 5th ribs. He has also stated that time elapsed since death was 24 hours and the injuries were caused by hard blunt substance like stone. He has opined that cause of death was asphyxia, shock and internal hemorrhage due to the injuries. 13. The Sessions Court came to a finding that P.W.1, 5, 6 and 7 have given consistent and cogent evidence that on the relevant day a Panchayat was held under tamarind tree near the house of Sangram Murmu and about 150 to 300 people had assembled there. About 25 yards away from the tamarind tree deceased Phulmani was sitting on the ‘Pinda’ of the house. Panchayat ended in fiasco due to non-production of any document regarding ‘Ghar Jamai’. Accused Bala Murmu pulled her up from ‘Pinda’ and at the same time co-accused Mahadeo slapped her as a result of which she fell down. About 25 yards away from the tamarind tree deceased Phulmani was sitting on the ‘Pinda’ of the house. Panchayat ended in fiasco due to non-production of any document regarding ‘Ghar Jamai’. Accused Bala Murmu pulled her up from ‘Pinda’ and at the same time co-accused Mahadeo slapped her as a result of which she fell down. Thereafter, Gopin struck three times on her chest with a stone and Ram Hansda struck stone on her neck due to which Phulmani died on the spot. The doctor, P.W.8, has also corroborated their evidence as he has stated that he found Bruise and Abrasion over the chest and neck, fracture of 2nd, 3rd, 4th and 5th ribs, on the right side, laceration of right lung with moderate collection of blood in chest, laceration of pleura and neck muscles lacerated with dark blood. He has stated that Bruise and Abrasion might have been caused by striking with stone alike the one produced in the court. He has opined that death was caused due to Asphyxia, shock, internal hemorrhage as result of injuries found by her. 14. Mr. Jai Prakash Jha, the learned senior counsel appearing on behalf of the appellant has argued that nothing is said regarding the Panchayat in the FIR and there is improvement in the story from fardbayan to the evidence led before the Court. It was further argued by the learned Senior counsel that though there where more than 200 people who had assembled in Panchayat but no independent witness has been examined and as such the learned trial Court was not justified in holding the appellant guilty of charges under Section 302/34 of the Indian Penal Code. Mr. Jha, further argued that even assuming for a moment that the accused-appellant had hit the deceased Phulmani but there was no pre-mediation between the accused persons and there was no intention to kill by the accused-appellant. He has further argued that almost all the prosecution witnesses on whom the learned trial court has relied have stated that there was dispute between the parties and there was heated altercation between Phulmani and accused persons and therefore, in no case this occurrence can be termed as murder and the commission of offence will not come under Section 302/34 of the Indian Penal Code. 15. Mr. 15. Mr. Rajesh Kumar Mishra, the learned APP on the other hand had submitted that non-mentioning of the fact of Panchayat in the fardbayan does not create doubt because it is not necessary to give details of all the circumstances in FIR. He has further argued that every witness has given consistent statement that when the Panchayat was going on the deceased Phulmani was sitting on ‘Pinda’ which was very close to the site of Panchayat and, thus, they have clearly seen the occurrence. He further argued that all the prosecution witness were consistent with regard to manner of occurrence i.e. pulling down deceased Phulmani from the Pinda by accused Bala Murmu, stroking of stone on chest by Gopin Marandi and on neck by Ram Hansda. He further submitted that P.W.8, who conducted the post-mortem of the deceased, has categorically stated about injuries. In para-4 of cross-examination, Dr. Pradeep Kumar Sinha has opined that death was due to internal hemorrhage as a result of injury. The learned APP concluded his argument by submitting that the prosecution has proved its case beyond all reasonable doubts. 16. We have carefully examined the impugned judgment, evidences on record and considered the arguments advanced by the parties. The learned Court below in paragraph-17 of the impugned judgment has held that the accused Gopin Marandi and Ram Hansada have assaulted with a stone weighing about 14 or 15 Kg on vital parts like chest and neck of the deceased Phulmani Murmu and this fact indicates their intention to cause death of the deceased. However, on close scrutiny of the evidences, we find that it was a peaceful Panchayat and the accused appellants did not had a pre-meditated plan to cause death of the deceased in as much as they were not carrying any weapon of assault and the occurrence of assault had taken place due to heated exchange of words on a sudden quarrel. 17. It is a well-settled proposition in law that the prosecution has to prove the guilt beyond all shadow of reasonable doubts. In the present case, the prosecution has failed to establish that there was meeting of minds of the accused persons before commission of the offence. Further, none of the prosecution witnesses have proved that intention to murder was carried by the accused-appellant. In the present case, the prosecution has failed to establish that there was meeting of minds of the accused persons before commission of the offence. Further, none of the prosecution witnesses have proved that intention to murder was carried by the accused-appellant. Evidences of almost all the prosecution witnesses which have been relied upon by the learned trial court clearly indicate that there was dispute between the parties before the actual occurrence took place and there was heated altercation between Phulmani on the one side and accused persons on the other. Therefore, in no case the occurrence would come under Section 302/34 of the Indian Penal Code. The above reasoning is also fortified by the fact that none of the accused persons were carrying any deadly weapon and it is well-established by the evidences of prosecution witnesses that there was heated altercation between the deceased Phulmani and the accused persons. 18. However, the evidence of the doctor and the eye-witnesses establish that the death of the deceased is homicidal in nature. It is also proved by the prosecution that the death of the deceased was caused due to the ante-mortem injuries caused by assault by the stone. The question is whether the present appellant can be convicted for the offence punishable under section 302/34 IPC. 19. Section 300 of the Indian Penal Code, 1860 provides that culpable homicide is murder if the act by which the death is caused is done; (i) with the intention of causing death, or (ii) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (iii) if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or, (iv) if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury. Exception to section 300 IPC provides the circumstances in which culpable homicide is not murder. Exception to section 300 IPC provides the circumstances in which culpable homicide is not murder. There can be another situation in which though death has been caused, the accused should not be convicted for the offence of murder. By now it is well-accepted that if there are more than one accused and the number of injuries caused to the deceased is also more than one and which is the fatal injury cannot be ascertained, it would not be proper to convict the accused persons for the offence under section 302 IPC, unless the ingredients under section 300 IPC can be gathered from the prosecution evidence. 20. In the present case, in cross-examination, the doctor has stated that if a stone of 15 Kg having uneven surface of the size 1 palm 7 fingers x 1 palm 3 fingers x 7 fingers is stoked forcibly twice on the chest, bruise and abrasion would be caused. Laceration is also possible. And if the stone of same size strokes on collar bone, collar bone may be fractured or may not fracture but there will be laceration in the surrounding area. He has stated that he did not find fracture of collar bone. He has admitted that he has not mentioned that injuries were ante-mortem and he has stated that he says injuries ante-mortem because bruise and abrasion are always ante-mortem, however, he has admitted that bruise and abrasion may be caused just after the death if body is warm. Therefore, bruise and abrasion may be ante-mortem as well post-mortem. He has stated that it is not correct to say that he has not found any ante-mortem injury as he has not mentioned so. He has admitted that if a person falls from a height on stone bruises, abrasion and fracture may be caused. The doctor who has conducted autopsy has found three injuries on the dead body and he has held that death has been caused due to “the injuries” sustained by the deceased, however, there is no finding recorded by the doctor on the fatal injury which was sufficient to cause death in the ordinary course of nature. The doctor who has conducted autopsy has found three injuries on the dead body and he has held that death has been caused due to “the injuries” sustained by the deceased, however, there is no finding recorded by the doctor on the fatal injury which was sufficient to cause death in the ordinary course of nature. Now, in this state of evidence it cannot be held that the appellant intended to cause death or intended to cause such bodily injury which would cause death or intended to cause such bodily injury which is sufficient in the ordinary course of nature to cause death or he had knowledge that the injury caused by him is so imminently dangerous that it must be in all probability cause death. Obviously, the appellant cannot be convicted for the offence punishable under section 302 IPC or under section 302/34 IPC. 21. In view of the aforesaid discussions, on the evidences led by the prosecution against the Appellant-Gopin Marandi, we hold that the judgment of conviction dated 26.07.1993 passed in Sessions Case No.71/1993/16/1993 by the learned 2nd Additional District and Sessions Judge, Godda is not sustainable. Considering the aforesaid facts and the medical evidence, we are of the opinion that the appellant is liable to be convicted for the offence punishable under section 326 IPC and accordingly, he is convicted for the said offence. 22. On the question of sentence, we find that the accused appellant has already remained in custody for a period of almost seven years. Therefore, his sentence is modified to the extent the period already undergone. 23. In the result, the instant Appeal is partly allowed. The Appellant stands discharged of his liability of Bail Bonds furnished by him. 24. Let the Lower Court records be transmitted to the Court concerned.