JUDGMENT : 1. Ms. Kumari Rashmi, the learned APP has filed counter-affidavit bringing the facts on record that the appellant No. 1 Lal Lohra and appellant No. 3 Jago Lohra have died. 2. Accordingly, this appeal stands abated as far as appellant No. 1 Lal Lohra and appellant No. 3 Jago Lohra are concerned. 3. Heard Mr. A.K. Sahani, the learned counsel for the remaining appellants and Ms. Kumari Rashmi, the learned APP on behalf of the State. 4. The appellants have filed this appeal against the judgment dated 30th January 1999 passed by Mr. Ravindra Nath Verma, Additional Judicial Commissioner-II, Khunti in connection with Sessions Trial No. 284 of 1994, corresponding to GR No. 740 of 1993, arising out of Arki PS Case No. 49 of 1993 holding the appellants guilty of the offence under section 302/34 of the Indian Penal Code and thereby sentencing them to undergo imprisonment for life. 5. The prosecution case was instituted on the basis of fardbeyan of the informant Dani Swansi alleging therein that on the date of occurrence at about 02:15 p.m. he was going with Sobraj Singh Munda to the village Jenadih to collect Tono. When they reached near the house of Lal Lohra, they found the appellants standing there. The deceased Sobran Singh Munda asked appellant No. 1 Lal Lohra to hand over his Tono but the same was not ready. There was some altercation between Sobran Singh Munda and the appellants. The deceased appellant No. 1 Lal Lohra fell Sobran Singh Munda on the ground, thereafter, the appellant No. 2, Gurwa @ Guru Lohra and the deceased appellant No. 3 Jago Lohra caught hold of Sobran Singh Munda and Jago Lohra stabbed Sobran Singh Munda due to which he succumbed to his injuries. 6. After investigation, police has found the offence to be true and submitted charge-sheet under section 302/34 of the Indian Penal Code. 7. The learned Additional Chief Judicial Magistrate, Khunti committed the case to the court of Sessions on 15.4.1994 as the same was exclusively triable by the Sessions Court. Charge was framed against the appellants on 18.5.1998 under section 302/34 of the Indian Penal Code. The contents of the charge were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 8. Charge was framed against the appellants on 18.5.1998 under section 302/34 of the Indian Penal Code. The contents of the charge were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 8. In order to prove its case, the prosecution has adduced both oral as well as documentary evidence. Dr. Sudhir Kumar Sandilya has been examined as PW-1. He has proved the postmortem report of the deceased which is Ext.1. Dani Swansi who is informant of this case has been examined as PW-2. Chamo Machua has been examined as PW-3. He is an eyewitness to the occurrence. Jag Jivan Munda has been examined as PW-4. He is also an eyewitness to the occurrence. Laxmi Narayan Singh Munda has been examined as PW-5. He is a hearsay witness. Purnchandra Singh Munda has been examined as PW-6. He is a witness to the inquest has proved his signature on the inquest report,which is Ext.3/1. Mahendra Munda is PW-7 has been declared hostile. Moti Chand Choudhary has been examined as PW-8. He is a formal witness. He has proved the formal FIR which is Ext.5. 9. Statement of the appellants was recorded under section 313 Cr.P.C., defense is general denial of the occurrence and false implication. 10. On the basis of the evidence both oral and documentary available on record, the learned Sessions Court held the appellants guilty and sentenced them accordingly. 11. Mr. A.K.Sahani, the learned counsel for the appellants submitted that all the eyewitnesses have specifically stated about overt acts of deceased-appellant No. 1 Lal Lohra and deceased-appellant No. 3 Jago Lohra. So far as present surviving appellants are concerned, none of the eyewitness including the informant has stated anything about their complicity in murder of the deceased. It was further submitted that the informant Dani Swansi (PW-2) has stated that the appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda had assaulted him. There is nothing on the record to show that the informant Dani Swansi(PW-2) has sustained grievous injury. Accordingly, it was submitted that at best a case under section 323 of the Indian Penal Code can be made against the appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda. There is nothing on the record to show that the informant Dani Swansi(PW-2) has sustained grievous injury. Accordingly, it was submitted that at best a case under section 323 of the Indian Penal Code can be made against the appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda. On these grounds, it was prayed that the appellant No. 2 Gurwa @ Guru Lohra may be acquitted of the charge under section 302/34 of the Indian Penal Code and the judgment of conviction and order of sentence of appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda under section 302/34 of the Indian Penal Code may be set-aside and they may be held guilty for the offence under section 323 of the Indian Penal Code. It was further submitted that both the appellant Nos. 4 and 5 have remained in custody for substantial period and, as such, their sentence may be reduced to period already undergone by them during the trial. 12. Ms. Kumari Rashmi, the learned APP submitted that all the prosecution witnesses have supported the case of prosecution and the prosecution has been able to prove that the deceased Sobran Singh Munda died a homicidal death. 13. Now, it is ascertained, whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubt. In order to come to the aforesaid findings it has to be further ascertained: (i) Whether the deceased Sobran Singh Munda died homicidal a death. (ii) Whether the appellants had caused his homicidal death. 14. The informant Dani Swansi has specifically stated in his fardbeyan that there was some altercation between the deceased and the appellants and the deceased-appellant No. 1 Lal Lohra fell Sobran Singh Munda on the ground and the deceased-appellant No. 3. Jago Lohra and appellant No. 2 Gurwa @ Guru Lohra had caught hold of the deceased and Jago Lohra stabbed the deceased due to which he died. 15. Dr. Sudhir Kumar Sandilya (PW-1) has conducted postmortem of the deceased Sobran Singh Munda and found the following injuries on his person: “(i) Face placid and clothes socked with clotted blood, sweater, check shirt and ganji and one inch cut of all mentioned clothes. 15. Dr. Sudhir Kumar Sandilya (PW-1) has conducted postmortem of the deceased Sobran Singh Munda and found the following injuries on his person: “(i) Face placid and clothes socked with clotted blood, sweater, check shirt and ganji and one inch cut of all mentioned clothes. (ii) Stab injury over fifth wider-coastal space just lateral to sternum size 1” x1/2 “ x 6” puncturing the chest wall, ilia sternum and right vertical of heart both interior and posterior wall. Media sternum full with blood. Nature: ante mortem in nature. Weapon: Injury was caused by stabbing weapon, chaku or chhura may cause it.” In his cross-examination, he has stated that such injuries may cause instant death. 16. PW-5 Laxmi Narayan Singh Munda and PW-6 Purnchandra Singh Munda are witness of inquest. They have identified their signatures on the seizure list which are Ext.3 series. PW-5 Laxmi Narayan Singh Munda has stated that when he came to know about the occurrence he went to the place of occurrence and saw the dead body of the deceased. Police has seized blood stained mud from the place of occurrence. PW-6 Purnchandra Singh Munda has also stated that he saw the dead body of the deceased and police has seized blood stained mud from the place of occurrence. 17. The prosecution has brought the inquest report on the record which is Ext.7. From perusal of which it appears that the deceased Sobran Singh Munda had sustained stab injury on his chest. The prosecution has also brought postmortem report which is Ext.1. From perusal of which it appears that the findings of Dr. Sudhir Kumar Sandilya (PW-1) in the postmortem report regarding the nature of injury sustained by the deceased and cause of his death fully corroborates his oral testimony recorded in the Court on these points. 18. From the aforesaid oral and documentary evidence it is evident that the prosecution has been able to prove that the deceased Sobran Singh Munda had sustained stab injury on his chest due to which he died. As per the statement of witnesses, the said injury was neither accidental nor self-inflicted. Accordingly, we find that the deceased Sobran Singh Munda had died a homicidal death. 19. As per the statement of witnesses, the said injury was neither accidental nor self-inflicted. Accordingly, we find that the deceased Sobran Singh Munda had died a homicidal death. 19. The informant Dani Swansi has stated in his fardbeyan regarding the complicity of the deceased-appellants Lal Lohra and Jago Lohra and the surviving appellants Gurwa @ Guru Lohra, Pandya Munda and Mangal Singh Munda but in his statement recorded in the Court as PW-2 has not stated about complicity of the appellant No. 2 Gurwa @ Guru Lohra. He has specifically stated that Lal Lohra fell the deceased Sobran Singh Munda on the ground and Jago Lohra stabbed him. He has further stated that the appellants Pandya Munda and Mangal Singh Munda had assaulted him by lathi. 20. Chamo Munda (PW-3) has specifically stated that when he reached at the place of occurrence he saw the deceased-appellant Jago Lohra stabbing the deceased Sobran Singh Munda. In his cross-examination, he has stated that fight has ensued between the parties when he reached at the place of occurrence. Jag Jivan Munda (PW-4) has stated that when he reached at the place of occurrence, he saw Sobran Singh Munda lying on a cot in injured condition. On inquiry, Sobran Singh Munda told him that Jago Lohra had stabbed him. 21. From the aforesaid oral testimony of the prosecution witnesses it is evident that the aforesaid witnesses have stated that deceased-appellant Lal Lohra had fell the deceased Sobran Singh Munda on the ground and Jago Lohra stabbed him due to which he succumbed to his injury. It is also apparent from the statement of Jag Jivan Munda (PW-4) that the deceased Sobran Singh Munda told him that it was Jago Lohra who stabbed him. As far as Gurwa @ Guru Lohra is concerned, none of the witnesses have stated anything regarding his complicity in commission of murder of the deceased Sobran Singh Munda. 22. Dani Swansi (PW-2) the informant of this case stated that appellant No. 4 Pandya Munda and PW-5 Mangal Singh Munda had assaulted him. The prosecution has not brought any evidence on record that he has sustained any grievous injury. There is no evidence against the appellant Pandya Munda and Mangal Singh Munda that they had even touched the body of the deceased Sobran Singh Munda. 23. The prosecution has not brought any evidence on record that he has sustained any grievous injury. There is no evidence against the appellant Pandya Munda and Mangal Singh Munda that they had even touched the body of the deceased Sobran Singh Munda. 23. From the aforesaid facts, we are of the opinion that the prosecution has failed to prove its case against the appellant No. 2 Gurwa @ Guru Lohra and appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda for committing the murder of the deceased Sobran Singh Munda. However, the prosecution has proved its case against the both the deceased appellants Lal Lohra and Jago Lohra for committing the murder of the deceased Sobran Singh Munda. 24. Accordingly, all these three appellants namely Gurwa @ Guru Lohra, Pandya Munda and Mangal Singh Munda are acquitted of the charge under section 302/34 of the Indian Penal Code. As far as appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda are concerned, the informant PW-2 has specifically stated that these appellants have assaulted him. He has not been cross-examined on this point. 25. Accordingly, we came to a finding that the prosecution has been able to prove that both appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda have assaulted the informant (PW-2) causing simple hurt and, therefore, we hold these two appellants guilty for offence under section 323 of the Indian Penal Code. 26. From the counter-affidavit filed by Ms. Kumari Rashmi the learned APP, it transpires that the appellant No. 4 Pandya Munda has remained in custody for about 1 year 8 months and the appellant No. 5 Mangal Singh Munda has remained in custody for 8 months and 25 days. 27. Accordingly, appellant No. 4 Pandya Munda and appellant No. 5 Mangal Singh Munda are hereby sentenced to undergo SI for 8 months. The period already undergone by them in custody during trial and during pendency of this appeal is set-off. 28. This appeal is partly allowed. Pending IA(s), if any, stands disposed of.