JUDGMENT : Shree Chandrashekhar, J. In S.T. Case No. 159 of 2009, the appellant has suffered the judgment of conviction dated 30.04.2010 and the order of sentence dated 07.05.2010. He has been sentenced to life imprisonment on each count under section 449/34 of the Indian Penal Code, under section 307/34 of the Indian Penal Code and under section 302/34 of the Indian Penal Code. 2. The informant of this case is son of the deceased. On the basis of a written report dated 17.09.2008 which was given to the police by the informant after death of his father, Dhanwar P.S. Case No.178 of 2008 has been registered against Shambhu Rai, Jhandu Chaudhary and unknown under section 302/449/341/323/324/325/307/120(B) of the Indian Penal Code. After the investigation a charge-sheet was submitted against the appellant and Jhandu Chaudhary, who has, however, absconded. The appellant has faced the trial on the charge under section 302/34 of the Indian Penal Code for committing murder of Sahdev Rai, under section 307/34 of the Indian Penal Code for attempting to cause murder of wife of the deceased and under section 449/34 of the Indian Penal Code for house trespass in order to commit an offence punishable with death. 3. According to the prosecution, the incident has happened in the midnight of 16/17.09.2008. At that time Sahdev Rai was sleeping with his wife and minor daughters in a newly constructed house. The informant who is son of Sahdev Rai has stated in his written report that he has two houses in the village. On the day of the occurrence his father, mother and younger sisters, namely, Anju Kumari and Ranju Kumari were sleeping in the newly constructed house and he was in the old house. After the midnight, at about 2:00 a.m., Anju Kumari came to the old house and informed him that few persons entered their house and assaulted their parents. He brought his parents to the Referral Hospital, Raj Dhanwar for treatment, however, his father died at 3:30 a.m. and his mother was shifted to RIMS, Ranchi for further treatment. The informant has asserted that his mother has told him that Shambhu Rai and Jhandu Chaudhary along with some unknown persons have assaulted them on account of an old land dispute. 4. During the trial, the prosecution has examined twelve witnesses; the informant has been examined as PW-10. The informant has asserted that his mother has told him that Shambhu Rai and Jhandu Chaudhary along with some unknown persons have assaulted them on account of an old land dispute. 4. During the trial, the prosecution has examined twelve witnesses; the informant has been examined as PW-10. In the court also he has deposed about his sister coming to the old house in the night and informing him about assault by Shambhu Rai and Jhandu Chaudhary on their parents. He has stated that on getting information about the assault on his parents he had first informed Surendra Rai and thereafter he and his co-villagers brought his parents to Dhanwar hospital. The informant has reiterated that his mother has told him that Shambhu Rai and Jhandu Chaudhary have assaulted her and his father. PW-1 who is daughter of the deceased has also deposed in the court that she has seen Shambhu Rai and Jhandu Chaudhary assaulting her parents. The wife of the deceased has been examined as PW-9. She is an eye-witness. In the court, she has stated that on 17.09.2008 she was sleeping with her husband. Her minor daughters were sleeping in another room and at about midnight she heard some sound whereupon she woke up her husband who had asked her to find out the matter. In the lantern light she has seen Shambhu Rai and Jhandu Chaudhary coming down from the roof of her house. At that time both were carrying Dab. She has further stated that Shambhu Rai first assaulted her husband on his forehead and thereafter Jhandu Chaudhary has also assaulted him. She has further stated that both the accused persons have assaulted her also and she became unconscious. She along with her husband were brought to the Referral Hospital where her husband has died in course of his treatment. On regaining consciousness she has informed Ajay, Tulsi, Malik, Sadanand and others about the occurrence. She has accepted that her statement under section 164 of the Code of Criminal Procedure was recorded. 5. During their cross-examination PW-1, PW-9 and PW-10 have remained firm and nothing material except a minor inconsistency in the manner of assault could be elicited by the defence. Their presence in their house in the dead of the night when the occurrence has happened is quite natural. PW-1 and PW-9 are the eye-witnesses. 5. During their cross-examination PW-1, PW-9 and PW-10 have remained firm and nothing material except a minor inconsistency in the manner of assault could be elicited by the defence. Their presence in their house in the dead of the night when the occurrence has happened is quite natural. PW-1 and PW-9 are the eye-witnesses. Their testimony on complicity of the appellant is cogent and consistent. Through PW-1 and PW-9 the prosecution has proved presence of the appellant at the place of the occurrence and at the time of the occurrence. He has assaulted both the victims is also established from the prosecution’s evidence. PW-3 is niece of the informant, PW-4 is a friend of the informant, PW-5 and PW-7 are cousin of the informant and PW-8 is brother-in-law of the deceased. They are not eye-witnesses but they have corroborated testimony of PW-1 and PW-9 on complicity of the appellant in the crime. 6. However, we are of the opinion that conviction of the appellant under section 302/34 of the Indian Penal Code is not proper. The sentence of imprisonment of life inflicted upon him under section 307/34 of the Indian Penal Code and under section 449/34 of the Indian Penal Code is also not proper. 7. The initial case projected by the prosecution which is reflected in the written report dated 17.09.2008 is that there were more than two accused persons who were involved in the occurrence. The informant has stated in his written report that his sister came to the old house and informed him that Shambhu Rai, Jhandu Chaudhary and few others have assaulted their parents. A First Information Report was lodged against Shambhu Rai, Jhandu Chaudhary and unknown, however, identity of the unknown accused person(s) has not been established during the trial. 8. Dr. Suresh Chandra Sharma who has been examined as PW-6 has proved the injury report of the deceased and his wife. He has examined Yasoda Devi and Sahdev Rai on 17.09.2008 at the Referral Hospital, Raj Dhanwar. He has found the following injuries on Sahdev Rai: “(i) Sharp cutting wound 10.5 cm x 1 cm x cutting through and through bones of nose as well as frontal bones of the head. Meninges and brain tissues coming out through wound. (ii) Sharp cutting wound 15 cm x 1.5 cm x deep going through both tables of bones of head. Meninges and brain tissues coming out through wound. (ii) Sharp cutting wound 15 cm x 1.5 cm x deep going through both tables of bones of head. Meninges and brain matter seen on left parieto occipital area of head. (iii) Sharp cutting wound 5.5. cm x .8 cm x muscle deep on left hands palm of hypo thinner area. (iv) Sharp cutting wound 3 cm x .5 cm x muscle deep cutting on upper lip through and through. (v) Sharp cutting wound 2.8. cm x 1 cm x bone deep in mid line on chin.” 9. According to PW-6, the injuries on Sahdev Rai were caused by sharp-cutting weapon and injury Nos.1 & 2 were grievous whereas injury Nos. 3, 4 & 5 were simple in nature. 10. Dr. Sunil Kumar Singh who has been examined as PW-2 has conducted the post-mortem examination on 17.09.2008. He has found the following injuries on Sahdev Rai: “(i) One stitched wound of 6” of length from mid forehead to upper lip. On removal of stitches it was found incised wound which was bone deep frontal and frontal bone were found shortly cut. (ii) One stitched wound of ½” length over chin on removal of stitch it was incised wound and it was bone deep. (iii) One stitched wound 2” length over left Temporo-parietal head. On removal of stitch it was incised wound and bone deep. Left Tempro parietal bone was sharply cut. (iv) One stitched wound of 8” length over left occipital parietal head. On removal of stitch it was incised wound and bone deep. Occipital bone was fractured.” 11. According to PW-2, the injuries were caused by sharp-cutting weapon and the death has been caused due to head injury. 12. From the testimony of PW-1 and PW-9, we observe that the prosecution witnesses are not consistent on the manner of occurrence and assaulted to Sahdev Rai. PW-10 has stated that his sister has informed him that Shambhu Rai and Jhandu Chaudhary have assaulted their parents. His sister has not been examined during the trial. PW-9 has stated that both the accused persons first assaulted her husband and thereafter she was also assaulted by them. In her statement under section 164 of the Code of Criminal Procedure, PW-9 has stated that she was assaulted by Shambhu Rai whereas Jhandu Chaudhary has assaulted her husband. His sister has not been examined during the trial. PW-9 has stated that both the accused persons first assaulted her husband and thereafter she was also assaulted by them. In her statement under section 164 of the Code of Criminal Procedure, PW-9 has stated that she was assaulted by Shambhu Rai whereas Jhandu Chaudhary has assaulted her husband. She has proved her statement recorded under section 164 of the Code of Criminal Procedure, however, in the court she has denied that she has made such statement before the Magistrate. On such evidence, the prosecution has thus failed to establish who amongst Shambhu Rai and Jhandu Chaudhary was author of the injuries caused to PW-9 and her husband. The prosecution has also failed to establish which injury was caused by whom. In this context it is also important to keep in mind that the initial case of the prosecution is that there were other unknown accused persons also who were involved in the crime. And, the medical evidence does not establish that any particular injury which can be relatable to assault by the appellant was sufficient to cause death in the ordinary course. PW-2 has rendered an opinion that the injuries caused to Sahdev Rai were cumulatively sufficient to cause death in the ordinary course; no particular injury has been found sufficient to cause death in the ordinary course. 13. In the aforesaid state of evidence, though a charge has been framed with the aid of section 34 of the Indian Penal Code, we find that all that the prosecution has been able to establish is that the appellant shared common intention to cause grievous injury to Sahdev Rai and, therefore, he can be held guilty for causing grievous injuries to Sahdev Rai. Accordingly, his conviction under section 302 of the Indian Penal Code with the aid of section 34 of the Indian Penal Code is set-aside. The appellant is acquitted of the charge under section 302/34 of the Indian Penal Code. He is convicted and sentenced to RI for ten years under section 326/34 of the Indian Penal Code [refer, Vijay Singh & another Vs. State of Madhya Pradesh reported in (2014) 12 SCC 293 and Rama Meru & another Vs. State of Gujarat reported in 1993 Supp (1) SCC 315]. 14. The appellant has also been convicted both under section 307/34 and section 449/34 of the Indian Penal Code. State of Madhya Pradesh reported in (2014) 12 SCC 293 and Rama Meru & another Vs. State of Gujarat reported in 1993 Supp (1) SCC 315]. 14. The appellant has also been convicted both under section 307/34 and section 449/34 of the Indian Penal Code. 15. PW-6 has found the following injuries on Yasoda Devi: (i) Sharp cutting wound 4.8 cm x 1 cm x cutting deep to nozzle bones through deep to both nostrils extending to left side of face to medial canthus of left eye. (ii) Sharp cutting 5.5. cm x 1.5 cm x muscle deep on left temporal area of head extending upto upper eye lid. (iii) Sharp cutting 4.5 cm x .5 cm x bone deep on left frontal area of head. (iv) Sharp cutting 6 cm x .8 cm x bone deep on left temporal frontal area of head. (v) Sharp cutting 4.5 cm x .5 cm x bone deep left temporal area of head above ear. (vi) Sharp cutting 6.5 cm x .5 cm x bone deep on left occipital area of head. (vii) Sharp cutting 5.8 cm x .5 cm x bone deep right parietal occipital area of head. (viii) Sharp cutting 2 cm x .2 cm x muscle deep on right side of neck. (ix) Sharp cutting 4.5 cm x .2 cm x skin and foscia deep on dorsum of left hand.” 16. According to the doctor, the injury No.(i) was grievous in nature and other injuries were simple in nature. Injury No.(i) has been caused on the parietal region of the head of Yasoda Devi. 17. The offence under section 307 of the Indian Penal Code provides that if an act is done with such intention or knowledge, and under circumstances, if that act has been finally accomplished it would have resulted in death of the person, the accused is liable for attempt to murder. The essential distinction between section 302 and section 307 of the Indian Penal Code is that the victim finally survives. 18. In view of the injuries caused to Yasoda Devi conviction of the appellant under section 307/34 of the Indian Penal Code is found proper. 19. However, sentence of life imprisonment inflicted upon the appellant for the offence under section 307/34 of the Indian Penal Code is liable to be interfered with. 18. In view of the injuries caused to Yasoda Devi conviction of the appellant under section 307/34 of the Indian Penal Code is found proper. 19. However, sentence of life imprisonment inflicted upon the appellant for the offence under section 307/34 of the Indian Penal Code is liable to be interfered with. There is no minimum sentence provided under section 307 of the Indian Penal Code, however, the maximum sentence can extend to imprisonment for life. Section 307 provides that the offender shall be liable “either to” imprisonment for life or to such punishment as provided under the Code. It has been held by the Supreme Court that maximum punishment cannot be inflicted as a matter of course. Before maximum punishment is awarded to an accused the trial Judge is required to assess and weigh the mitigating as well as aggravating circumstances in the case. There is no discussion by the learned Sessions Judge on this aspect in the order of sentence. 20. In “State of Punjab v. Manjit Singh and others” reported in AIR 2009 SC 2888 , the Supreme Court has observed thus: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 21. On examination of the materials on record and, particularly, the circumstances which are leaning towards the appellant, the order of sentence of RI for life both under section 307/34 and section 449/34 of the Indian Penal Code is set-aside. 22. The appellant is sentenced to RI for ten years both under section 307/34 and section 449/34 of the Indian Penal Code. 23. All the sentences shall run concurrently. 24. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Shambhu Rai, who is in jail, has remained in custody for more than eleven years. 25. 22. The appellant is sentenced to RI for ten years both under section 307/34 and section 449/34 of the Indian Penal Code. 23. All the sentences shall run concurrently. 24. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Shambhu Rai, who is in jail, has remained in custody for more than eleven years. 25. Accordingly, the appellant, named-above, shall be set free forthwith, if not required in connection to any other criminal case. 26. In the result, Criminal Appeal (D.B.) No. 610 of 2010 is partly allowed, in the aforesaid terms. 27. Let lower court records be transmitted to the court concerned, forthwith.