JUDGMENT : Mir Alfaz Ali, J. This appeal is directed against the judgment and order passed by learned Sessions Judge No. 2(FTC), Tinsukia in Sessions Case No.130(T)/2012. By the said judgment, learned Sessions Judge convicted the appellants under Sections 302/34 IPC and sentenced them to rigorous imprisonment for life and fine of Rs. 5,000/- (Rupees five thousand only) each with default stipulation. 2. As per prosecution case, Smti. Dipali Mallah, wife of Jugesh Mallah was missing since 4 pm of 05-12-2011. Suspecting involvement of the deceased husband of the informant in the disappearance of Dipali Malla, appellant Jugesh Mallah along with his co-villagers Bhagat Sahani, Sukhi Shah, Kutu Das, Amal Das, Prafulla Das, Raju Das and 6/7 others being armed with dao, stick etc. came to the house of the informant at about 10 pm and took the husband of the informant to a field near the house of one Bhagatji and mounted assault on him. After inflicting multiple injuries, the accused persons left the victim in his house at about 2 am. They also threatened the informant with dire consequences, if she informs the police. At about 5 am in the morning on 06-12-2011, the husband of the informant died and an FIR (Ext.-7) was lodged by PW-2, wife of the victim. On the basis of the said FIR, police registered Tinsukia PS Case No. 752/2011 under Sections 302/34 IPC, prepared the inquest report and subjected the body to post mortem examination. 3. PW-1, Dr. Jayanta Bhattacharjee, who conducted the post mortem examination on the body of the victim found the following injuries : “(i) Lacerated injury on right leg 3 cm x 105 cm x 1 cm at lateral aspect, age 12-18 hours. (ii) Abrasion mark on left knee in joint 1 cm x 0.5 cm, age 12-18 hours. (iii) Penetrating injury at outer aspect of right fore arm with sharp margins 2 cm x 1 cm x 2cm deep, age 12-18 hours. (iv) lacerated injury at fore arm below injury no. (iii) 2 cm x 1 cm x 0.5 cm, age 12-18 hours. (v) Lacerated injury at occipital region of scalp 2 cm x 0.5 cm x 0.5 cm, age 12-18 hours. (iv) lacerated injury at fore arm below injury no. (iii) 2 cm x 1 cm x 0.5 cm, age 12-18 hours. (v) Lacerated injury at occipital region of scalp 2 cm x 0.5 cm x 0.5 cm, age 12-18 hours. (vi) Multiple abrasions at back ranging from 2 cm to 5 cm in length and 1 cm breadth, age 12-18 hours.” In the opinion of the doctor the cause of death was haemorrhage from vital organs (left lung, spleen) leading to shock, coma and death. The injuries were ante-mortem and homicidal in nature. Death was within 12-18 hours before the post mortem examination. 4. On conclusion of investigation, charge-sheet was laid against eleven accused persons including the present appellants. Two of the charge-sheeted accused persons absconded and eventually nine accused persons including the present appellants stood trial for the offence u/s 302/34 IPC. 5. During trial, learned Sessions Judge framed charge u/s 302/34 IPC against the nine accused persons including the present appellants, to which all of them pleaded not guilty. In course of trial, the accused Sanjib Dey expired and eventually altogether eight accused persons including the present appellants, stood trial. 6. Prosecution examined 11 (eleven) witnesses to bring home the charge against the accused/appellants and on appreciation of evidence, learned Sessions Judge convicted the present appellants u/s 302 IPC and awarded sentence as has been indicated above. 7. We have heard Mr. P.J. Saikia assisted by Mr. A.K. Gupta, learned counsel for the appellants, Ms.S. Jahan, learned Addl. Public Prosecutor for the respondent No. 1 and Ms. R.S. Deuri, learned counsel appearing for the informant/respondent No.2 and also scrutinized the evidence brought on record. 8. The informant, Sarika Sahani was examined as PW-2. She deposed that at about 10 pm at night, accused Jugesh Malla came to her house and enquired about her husband. She (PW-2) told that her husband was sleeping and thereafter she woke up her husband. The accused Jugesh Mallah told her husband that Bhagat Sahani has called him and accordingly the victim accompanied the accused Jugesh Mallah. She further stated that, the accused Jugesh Mallah, Bhagat Sahani, Kutu Das, Ranjan, Sukhi Saha, Prafulla Das, Amal Das and two sons of Sattya assaulted the victim with bamboo sticks and iron rods. The accused Jugesh Mallah told her husband that Bhagat Sahani has called him and accordingly the victim accompanied the accused Jugesh Mallah. She further stated that, the accused Jugesh Mallah, Bhagat Sahani, Kutu Das, Ranjan, Sukhi Saha, Prafulla Das, Amal Das and two sons of Sattya assaulted the victim with bamboo sticks and iron rods. She also stated that she herself and elder brother of the victim (PW-3) requested the accused persons not to assault him, but they did not pay heed to their request and as a result of the assault, the victim sustained multiple injuries and succumbed to the injuries on the way to hospital. During cross-examination, she stated that at about 3 am she visited the police station and FIR was lodged in the early morning at about 4 am. According to her, altogether eleven persons gathered at the place of occurrence. It was also elicited during cross-examination that the night was dark and there was no light near the place of occurrence. She further deposed that there was also heavy fog at the time of occurrence. 9. PW-3, Krishna Sahani, who happens to be the elder brother of the victim, deposed that on the day of occurrence, at about 10 pm, the accused Jugesh Malla came to his house and called him to come out of his house. He (PW-3) immediately came out of his house on being called by Jugesh Malla and found that many people armed with shovel, sticks etc assembled in an around his residence. He further deposed that all those persons who assembled in his house took him to the residence of the victim. Thereafter on being called by Jugesh Malla, his brother (victim) came out of his residence and accused Ramesh caught hold the hand of his brother and took him to the paddy field, where they assaulted the victim mercilessly. PW-3 further stated that after assaulting the victim, he was taken to the residence of a member of the village defence party (VDP). Said VDP person advised Bhagatji to take the victim to his residence. He further stated that the accused persons threatened him with dire consequences in case the victim flee away from the house. 10. PW-6, the wife of the PW-3, deposed that all the accused persons surrounded their house and took her husband to the residence of the victim. Said VDP person advised Bhagatji to take the victim to his residence. He further stated that the accused persons threatened him with dire consequences in case the victim flee away from the house. 10. PW-6, the wife of the PW-3, deposed that all the accused persons surrounded their house and took her husband to the residence of the victim. When the victim woke up, the accused persons took the victim to the residence of one Bhagatji and thereafter all the accused persons assaulted the victim in the field near the house of Bhagatji. She also stated that after assaulting the victim he was taken to the residence of one VDP member, who advised them to take the victim to his residence. Thereafter, the victim was brought to his residence and he died on the way to hospital. This witness also stated that the occurrence took place in a winter night and there was heavy fog. She (PW-6) also stated that it was dark as no street light was there at the place of occurrence. 11. PW-4, Raju Mandal deposed that on the day of incident at about 9.30 pm, hearing hue and cry near his house, he came out and noticed about 40/50 persons assaulting the victim Hareram Sahani with lathi. He also stated that accused Jugesh Mallah was assaulting the victim with iron rod. He further stated that he could not notice exactly whether the appellants were also involved in the assault of the victim. 12. PW-7, Ranju Das deposed that he had seen quarrel amongst some people and on the next morning he came to know that Hareram Sahani died. 13. PW-8, Badal Dey stated that about 1.30 am at night, some persons of the village brought Hareram Sahani to his house in injured conditions and informed him that some villagers had assaulted Hareram Sahani causing injuries. PW-8 further stated that he tried to inform the police, but could not contact the police station and thereafter advised them to admit the victim in the hospital. During cross-examination, it was elicited that when he met the victim Hareram Sahani, he was in a conscious state, but he did not disclose to him the name of the persons, who assaulted him. 14. During cross-examination, it was elicited that when he met the victim Hareram Sahani, he was in a conscious state, but he did not disclose to him the name of the persons, who assaulted him. 14. A dispassionate scrutiny of the oral testimony of PW-2, PW-3 & PW-6, who claimed to be eye witness shows, that on the day of occurrence at about 10 pm, the victim was taken away from his house by a large number of villagers and he was assaulted in a field. PW-2, PW-3, PW-4 & PW-6 stated that many people assembled at the place of occurrence armed with lathi etc, who took the victim to the nearby field. PW-4, who was also an eye witness, deposed that about 40/50 persons assembled and assaulted the victim. It was stated in the FIR lodged by PW-2 that the wife of absconding accused Jugesh Mallah was missing and the victim was taken out of his house on the suspicion that he might be involved in the incident of disappearance of the wife of the accused Jugesh Mallah. 15. The statement of PW-2, PW-3, PW-6 & PW-7 recorded u/s 164 CrPC has been proved as Exts. 4, 5, 12 and 13. On our assessment of the evidence brought on record and the previous statement recorded u/s 161 CrPC, we find that the eye witness, namely, PW-2, PW-3 and pW-6 consistently deposed through out the proceeding that accused Ramesh, Bhagat, Kutu Das, Sukhi Saha, Prafulla Das & Amal Das were involved in the assault of the victim. Evidently 40 to 50 villagers assembled near the field and assuatled the victim. PW-4 deposed that accused Jugesh Mallah assaulted the victim with iron rod and others assaulted him with bamboo sticks. Although there were some minor discrepancies and embellishment in the testimony of these three witness, such discrepancies and inconsistencies appear to be quite natural, inasmuch as, the occurrence took place in a winter night in darkness and there was heavy fog. 16. Learned counsel for the appellants submits that except Jugesh Mallah, who went to the house of the victim, the involvement of the appellants was doubtful, inasmuch as, large number of the people assembled in the dark night and therefore, it was not possible for the prosecution witness to identify the assailants in darkness, that too when there was heavy fog. 17. 17. Evidently all the appellants were close neighbours of the prosecution witness and they were known to each other. Therefore, when the appellants were known to the prosecution witness, their identification by the prosecution witness at the time of occurrence cannot be said to be improbable, inasmuch as, known persons can be recognized by gait or voice etc even with insufficient light. Be that as it may, when all the three witness have consistently stated about the involvement of the appellant Ramesh, Bhagat, Sukhi, Prafulla, Amal and Kutu, we do not find any reason to discard the oral testimony of these three vital witness implicating all the appellants, except Sanku Dey, who was not specifically implicated by any one. The name of accused Sanku was also not mentioned in the FIR lodged by PW-2. It would appear from the statement recorded u/s 164 CrPC, that the victim was taken by the villagers to enquire about the whereabouts of the wife of the accused Jugesh Mallah. It is also evident that except Jugesh Mallah, who was armed with an iron rod, as deposed by PW4, no other appellant was armed with any weapon, though some of them allegedly assaulted the victim with bamboo sticks. The medical evidence shows that none of the external injury was on vital part of the body, nor any of the external injury was grave in nature and the death of the victim was caused due to internal hemorrhage in the lung and spleen. Admittedly after inflicting the injury, the appellants left the victim in his house and threatened the inmates of the house with dire consequence in the event of informing police. The appellants also cautioned them not to allow the victim to leave the house, which clearly indicated that the appellants or for that matter, the assailants did not even have the knowledge about the nature of injury or the impact of the assault or that the injury might be fatal. The appellants also cautioned them not to allow the victim to leave the house, which clearly indicated that the appellants or for that matter, the assailants did not even have the knowledge about the nature of injury or the impact of the assault or that the injury might be fatal. Had the appellants harboured any intention to cause death of the victim or had they any knowledge that injury was eminently dangerous and likely to cause death, they would not have gone to the house of the victim to leave him nor did they caution the inmates of the house for preventing escape of the victim The nature of injury sustained by the victim and the conduct of the appellants made it abundantly clear that the appellants did not have any intention to cause death of the victim or to cause such bodily injury which they knew to be likely to cause death or that the injury was sufficient to cause death in the ordinary course of nature. It was also evident, that wife of Jugesh Malla was missing and the victim was suspected to be involved in the occurrence. Evidently the victim was brought from his house to extract information about the whereabouts of Jugesh Malla’s wife and later on he was subjected to assault. In view of the above facts and circumstances, it is also difficult to say that the appellants acted without any excuse while inflicting the injury. Therefore, having regard to the evidence and materials in its entirety, the conviction and sentence of the appellants u/s 302 IPC, in our considered view, cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants u/s 302 IPC, instead we convict them u/s 304 Part (II) IPC, except appellant Sanku Dey. Regard being had to the facts and circumstances, under which the injury was inflicted, we are of the considered opinion, that sentence of rigorous imprisonment for a period of four years would meet the ends of justice. Accordingly, the appellants except appellant Sanku Dey are sentenced to rigorous imprisonment for four years and to pay fine of Rs. 1,000/-(Rupees one thousand). The period of sentence which the appellants had already undergone during investigation, trial and thereafter shall be set off. In default of payment of fine, the appellants shall undergo imprisonment for one month. 18. Accordingly, the appellants except appellant Sanku Dey are sentenced to rigorous imprisonment for four years and to pay fine of Rs. 1,000/-(Rupees one thousand). The period of sentence which the appellants had already undergone during investigation, trial and thereafter shall be set off. In default of payment of fine, the appellants shall undergo imprisonment for one month. 18. So far the appellant Sanku Dey is concerned, we find no incriminating evidence to hold him liable for inflicting injury to the victim even with the aid of Section 34 IPC. Because, in order to attract the provision of Section 34 IPC prosecution needs to prove two vital ingredients Firstly common intention in the sense of pre-arranged plan and secondly participation in the commission of the offence in some form. So far the appellant Sanku Dey is concerned both the ingredients are absent. Therefore, we acquit the appellant Sanku Dey. Accordingly, appellant Sanku Dey shall be set at liberty forthwith if not required in any other case. 19. With the above modification in the conviction and sentence, appeal stands partly allowed. 20. Send back the record.