JUDGMENT : (Joymalya Bagchi, J.) 1. Appellants have assailed judgment and order dated 09.12.2019 and 10.12.2019 passed by the learned Additional Sessions Judge, F.T.C.II, Alipurduar, Dist. Jalpaiguri in connection with Sessions Case No.189 of 2013 (Sessions Trial No.05 of 2015) convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- (Rupees five thousand) each, in default, to suffer further rigorous imprisonment for two months more. Prosecution case as alleged against the appellants is as follows:- 2. On 30.03.2013 at 12.00 mid night there was an altercation between one Emil Buxla and Prakash Kujur (appellant no.8). Prakash suffered injuries. On the next morning, all the appellants came in a body and insisted that Emil Buxla bear the expenses for medical treatment of Prakash Kujur. Emil Buxla refused. Thereupon, the appellants hit him with bricks, stone, wooden stand (piri) in presence of his wife Teresha Buxla (PW 1). His daughter Namita Baxla (PW 8) intervened and stated she would bear the cost of Prakash Kujur’s treatment. She took Prakash Kujur to hospital and got him treated. Unfortunately, due to assault Emil Buxla died. 3. His wife Teresha Buxla lodged written complaint against the appellants resulting in registration of Samuktala Police Station Case No.57 of 2013 dated 31.03.2013 under Section 302/34 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed and charges were framed under Section 302/34 of the Indian Penal Code against the appellants. Appellants pleaded not guilty and claimed to be tried. During trial prosecution examined 11 witnesses and exhibited a number of documents. In conclusion of trial, trial Judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid. Arguments at the Bar:- 4. Mr. Banerjee with Ms. Rudra for the appellants contend the prosecution witnesses are related to the deceased. They had prior enmity and are unreliable. Their depositions in court suffer from embellishments and contradictions. Even if assault by appellant No.8 is believed, the incident occurred in course of a quarrel and the said appellant had not intended to murder the victim. 5. In response, Mr. Mishra with Mr. Luksom argue PWs 1 and 8 i.e. mother and daughter of the deceased are natural witnesses. They were present at the spot. Even if assault by appellant No.8 is believed, the incident occurred in course of a quarrel and the said appellant had not intended to murder the victim. 5. In response, Mr. Mishra with Mr. Luksom argue PWs 1 and 8 i.e. mother and daughter of the deceased are natural witnesses. They were present at the spot. They deposed appellants came in a body with arms and assaulted the deceased. As a result, he suffered head injury and other injuries. Consequentially, he died. Appeal is liable to be dismissed. 6. PWs 1 and 8 are the eyewitnesses. PW 1 is the most vital eyewitness. PW 1 is the wife of the deceased. She deposed the previous evening they had gone to Church to observe Easter Saturday and returned home at mid night. On the next day morning, appellants surrounded her husband. One person who is dead assaulted him with a wooden stand (piri). Appellant No.8 assaulted him with a stone on the back side of his head. Other appellants also assaulted her husband. Appellants caught hold of her, pulled the testicles of her husband and threw him on the ground. He became unconscious. His daughters viz., Namita and Jurita were present at the spot. Her husband died. She informed police. PW 5 scribed the complaint. 7. PW 8 Nanita is the daughter. She stated on the day of incident at 6/7 AM, appellants came to their courtyard. Hearing hue and cry she came out and found her father was being assaulted. Appellants assaulted her father with stone, lathi, wooden stand (piri). He received injury on the back of his scalp. He ran inside the house, fell down on her lap and died. She made statement before the Magistrate. PW 8 was confronted with her earliest statement before police where she had not stated that the appellants had assaulted her father with stone, wooden stand (piri) and lathi or that he had ran to the house and fell on her lap. 8. PW 9 is the post mortem doctor. He found the following injuries. “One blackish bruish in the lateral side of the left eye, one 3” X 2” sharp cut injury over and above the right chest below the clavicle, 3” X ¾” scalp injury over temporo parietal region were found. The scalp was found fracture and intracerebral haemorrhage was present.” He opined injuries were ante mortem and homicidal. “One blackish bruish in the lateral side of the left eye, one 3” X 2” sharp cut injury over and above the right chest below the clavicle, 3” X ¾” scalp injury over temporo parietal region were found. The scalp was found fracture and intracerebral haemorrhage was present.” He opined injuries were ante mortem and homicidal. Cause of death was due to effects of the head injury associated with intracranial haemorrhage, ante mortem in nature. 9. PW 11 is the Investigating Officer. He deposed he visited the place of occurrence, drew rough sketch map with index. He recorded statements of witnesses. He seized one wooden stand (piri), half brickbat and stone boulder from place of occurrence, Ext.2/2. He prepared inquest report. He sent the body for post mortem examination. He submitted charge sheet. Findings of the Court :- 10. Analysis of the evidence on record particularly that of the two eye-witnesses PWs 1 and PW 8 would show the role of the appellants apart from appellant no. 8 is unclear. PW1 wife of the deceased did not state that the appellants other than PW 8 were armed. She made generic statement they participated in the assault. Her deposition that appellants had pulled testicles and pushed the victim to the ground is neither supported by her daughter PW8 nor borne by the injuries described by post mortem doctor (PW 9). PW1 attributed specific assault on the back of head with a stone to appellant no. 8 and assaulted by wooden stand (piri) to another person who had died. PW 8’s evidence with regard to role of other appellants is an embellished one. Before police she made generic statement with regard to assault. In court she improved her version and stated that all appellants assaulted her father with stones, brick and piri. Post mortem doctor PW 9 noted two superficial injuries, one bruise on the left eye and a cut on the right clavicle in addition to head injury which is attributed to appellant no. 8. Had all the appellants assaulted the victim with lathi, stone, piri etc. there would have been extensive injuries on the deceased. This improbabilises prosecution case that all the appellants had come to the spot with arms and assaulted the victim with stone, lathi and piri. 11. Even prior concert has not been proved. In the FIR it is alleged in the previous night appellant no. there would have been extensive injuries on the deceased. This improbabilises prosecution case that all the appellants had come to the spot with arms and assaulted the victim with stone, lathi and piri. 11. Even prior concert has not been proved. In the FIR it is alleged in the previous night appellant no. 8 was assaulted by the victim. On the next morning all the appellants came in a body and demanded money. When the victim refused they assaulted him to death. During trial neither PW 1 nor PW 8 disclosed the incident of assault upon appellant no. 8 on the previous night. PW 6 merely stated there was quarrel between appellant no. 8 and the victim. 12. In this backdrop, I am constrained to hold prosecution case with regard to pre-concert amongst the appellants to extort money from the victim for medical treatment and assaulting him on his refusal has not been proved. 13. However, assault by appellant no. 8 with a stone on the head of the victim has been established. PW1 stated appellant no.8 had assaulted the victim on the back of head with a stone. Her deposition is corroborated by medical evidence. 14. Mr. Banerjee argues in course of quarrel appellant no. 8 suddenly assaulted the victim with a stone. He had not intended to kill him. On the other hand Mr. Mishra contends that the assault was on a vital part of the body and had caused death. 15. From the evidence on record it appears that appellant no. 8 and the victim were quarrelling since the previous night. On the day of incident there was a commotion. It is unclear whether appellant no. 8 had come to the spot armed with stone. On the other hand, the trajectory of evidence gives an impression in course of quarrel he had picked up a stone and hit the victim on the head. He had struck a single blow. Post mortem doctor did not state that the injury was sufficient in ordinary course of nature to cause death. 16. In this backdrop, I am of the opinion conviction of appellant no. 8 may be altered from section 302/34 IPC to section 304 Part I IPC. Evidence against him with regard to assault on the back of head resulting in death is clear and unambiguous. 16. In this backdrop, I am of the opinion conviction of appellant no. 8 may be altered from section 302/34 IPC to section 304 Part I IPC. Evidence against him with regard to assault on the back of head resulting in death is clear and unambiguous. In this circumstance altering the sentence from section 302/34 IPC to section 304 part I IPC simplicitor does not cause prejudice to him. 17. Evidence regarding assault by other appellants is vague and omnibus. Three was prior enmity between the families. This may have prompted the mother and daughter of the deceased (PWs 1 & 8) to cast the net wide and implicate all the family members of appellant no. 8. Their evidence ought to be tested from this perspective and the role of the appellants apart from appellant no. 8 requires to be assessed accordingly. 18. Distilling evidence of PWs 1 and 8 through the prism of probability, it appears though the other appellants were at the spot, none of them were armed and PW 1 does not state that the said appellants apart from appellant no. 8 assaulted the victim on the head. Accordingly, I am of the opinion the other appellants did not share common intention with appellant no. 8 to commit murder. They may be acquitted of the charges levelled against them. 19. Conviction and sentence of appellant nos. 1 to 7 are set aside. 20. Appellant nos. 1 to 7 viz. Santiush Kujur, Christofar Kujur, Nicolash Kujur, Nilima Kujur, Bishmani Kujur, Kishore Kujur and Anand Kujur shall be discharged from their bail bonds after expiry of six months in term of section 437A Cr.P.C. 21. Conviction of appellant no. 8 viz. Prakash Kujur is converted from section 302/34 IPC to section 304 part I IPC. He has already suffered incarceration for ten years. Accordingly, his sentence is modified to the period already undergone and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for two months more for the offence punishable under Section 304 Part I of the Indian Penal Code. Fine amount, if not deposited, within a fortnight shall be realised in accordance with law. 22. The appeal is allowed to the aforesaid extent. 23. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 24. Fine amount, if not deposited, within a fortnight shall be realised in accordance with law. 22. The appeal is allowed to the aforesaid extent. 23. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 24. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree, (Ajay Kumar Gupta, J.)