JUDGMENT Shree Chandrashekhar, J. - The sole appellant has been convicted and sentenced to RI for life and fine of Rs.5000/- under section 302 of the Indian Penal Code for committing murder of Luis Kerketta. 2. The informant of this case is wife of Luis Kerketta. On the basis of her fardbeyan which was recorded on 24.11.2007 at about 15:30 hrs. at the place of occurrence, Simdega P.S. Case No. 164/07 has been lodged against the appellant. During the trial, the prosecution has examined eleven witnesses. The informant, namely, Philisita Kerketta is PW-5. 3. The prosecution has projected PW-3, PW-4 and PW-5 as eye-witnesses. 4. In her fardbeyan, the informant has stated that in the morning of 24.11.2007, at about 8:30 a.m., she served breakfast to her husband and children and thereafter she accompanied her nephew, namely, Anmol Dungdung for winnowing paddy. At about 10:00 a.m. when she was returning home, she heard hulla in the village. When she ran there she found that the appellant who was holding a lathi was assaulting her husband. When her husband fell in the courtyard the accused sat on his chest and tried to strangulate him with hand. However, when she reached there he ran away. She tried to help her husband but he had died. On raising hulla by her nephew several villagers came there and took her husband home. They sent information to ANM who declared her husband dead. 5. The informant has been examined in the court as PW-5 and her nephew is PW-4. Selestina Dungdung, who is PW-3, is also an eye-witness. She has also arrived at the place of occurrence on hearing hulla. She has claimed that she has seen the appellant assaulting Luis Kerketta. PW-1 and PW-2 are inquest witnesses. PW-6, PW-7 and PW-8 are hearsay witnesses and PW-4 is a hostile witness. PW-11 has visited the place of occurrence on a telephonic information. He has recorded fardbeyan of wife of the deceased and prepared the inquest report. Further investigation of the case has been conducted by PW-9. He has recorded statement of the witnesses and during his cross-examination has affirmed that PW-3 has disclosed the name of the assailant before him. 6. On such evidence, the prosecution has proved that the appellant has assaulted Luis Kerketta who has succumbed to the injuries. 7. Further investigation of the case has been conducted by PW-9. He has recorded statement of the witnesses and during his cross-examination has affirmed that PW-3 has disclosed the name of the assailant before him. 6. On such evidence, the prosecution has proved that the appellant has assaulted Luis Kerketta who has succumbed to the injuries. 7. Now, the issue for determination is whether conviction of the appellant under section 302 of the Indian Penal Code is proper and legal. 8. Dr. Christ Anand Xaxa PW-10, who has conducted the postmortem examination, has observed bruise marks on the front part of the body of Luis Kerketta. He has found 8th and 9 th thoracic ribs fractured. In the opinion of the doctor, the injuries were ante-mortem in nature and caused by hard and blunt substance, such as, lathi. However, the doctor has not rendered a definite opinion on the cause of death. In his opinion, death has occurred due to shock and haemorrhage resulting from the injuries found on the person of Luis Kerketta. The informant has stated that the appellant had a land dispute with her husband. He was threatening the deceased to vacate the land. He is agnate of the deceased. But, how the quarrel had started has not been seen by any one of the prosecution witnesses. All that has been said by PW-3 and PW-5 is that they have seen the appellant assaulting Luis Kerketta by lathi. 9. From the aforesaid all that can be gathered is that the appellant intended to assault Luis Kerketta. 10. The above being the factual scenario, we hold that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against the appellant and, accordingly, conviction and sentence of the appellant, namely, Juel Dungdung under section 302 of the Indian Penal Code dated 31.05.2010 passed by the learned Sessions Judge, Simdega in Sessions Trial No. 32/08 are set aside. 11. No external injury has been found by the doctor on vital part of the body of Luis Kerketta, though on account of assault on the front part of his body his three ribs have been found fractured and the abdominal cavity of the deceased was found full of blood. 12. Section 320 of the Indian Penal Code defines grievous injury. No external injury has been found by the doctor on vital part of the body of Luis Kerketta, though on account of assault on the front part of his body his three ribs have been found fractured and the abdominal cavity of the deceased was found full of blood. 12. Section 320 of the Indian Penal Code defines grievous injury. Clause- Seventhly to section 320 provides that fracture or dislocation of a bone or tooth would amount to grievous hurt. 13. In view of the above discussions, we hold that the appellant, namely, Juel Dungdung has committed the offence under section 326 of the Indian Penal Code and, accordingly, he is convicted and sentenced to RI for ten years under section 326 of the Indian Penal Code. 14. Mr. Shekhar Sinha, the learned Public Prosecutor states that the appellant, namely, Juel Dungdung has remained in custody for more than twelve years. 15. Accordingly, the appellant, above named, shall be set free forthwith, if not required in connection to any other case. 16. Criminal Appeal (D.B.) No.358 of 2011 is partly allowed, in the above terms. 17. Let lower court records be transmitted to the court concerned, forthwith. 18. Let a copy of the judgment be communicated to the trial court through FAX.