JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mrs. Rashmi Kumar, learned amicus Curiae appearing for the appellants and Mr. Bhola Nath Ojha, learned counsel for the State. 2. The instant criminal appeal is preferred by the present appellants through jail petition while in custody challenging their conviction dated 20.03.2004 and order of sentence dated 22.03.2004 passed by learned Additional Sessions Judge, Fast Track Court No.8, Hazaribagh in S.T. No.242 of 2003 arising out of Barkagaon P.S. Case No.87 of 2002 corresponding to G.R. Case No.2880 of 2002, whereby and whereunder, the appellants have been held guilty for the offence under Section 302/34 of Indian Penal Code and sentence to undergo R.I for life along with fine of Rs.500/- each. Factual Matrix:- 3. The factual matrix giving rise to this appeal is that on28.11.2002 at about 11:00 am, the informant, Bindwa Devi along with her husband Nageshwar Rana were harvesting their paddy crop. Meanwhile, above appellants armed with tangi and lathi came to the field and started scuffling with the husband of the informant and protested against the harvesting of paddy crops. It is further alleged that Chhatru Rana assaulted on head of the informant’s husband by tangi and Govind Rana assaulted by means of lathi. The informant’s husband died due to injury sustained by him in the said occurrence. The informant raised alarm then several villagers namely Ishwar Prajapati, Ramchandra and Most. Parwa Devi, who were working in nearby fields, arrived there, then accused persons fled away. The informant’s husband was brought to Barkagaon hospital where he died during treatment. It is further alleged that the accused persons have intentionally caused murder of the deceased due to land dispute. 4. On the basis of above information, FIR was registered for the offence under section 302/34 of I.P.C. After conclusion of the investigation, charge-sheet was submitted against the above appellants for the offence under section 302/34 of IPC. After taking cognizance, the case was committed to the court of Sessions where S.T. No.242 of 2003 was registered. The accused persons have denied the charges leveled against them and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and order of sentence has been passed, which has been assailed in this appeal. 5. In course of trial, altogether 9 witnesses were examined by the prosecution, namely:- P.W.1-Most. Purba Devi P.W.2 Baleshwar Prasad P.W.3-Most. The accused persons have denied the charges leveled against them and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and order of sentence has been passed, which has been assailed in this appeal. 5. In course of trial, altogether 9 witnesses were examined by the prosecution, namely:- P.W.1-Most. Purba Devi P.W.2 Baleshwar Prasad P.W.3-Most. Ishwari P.W.4-Baleshwar Prajapati P.W.5-Ram Chandra Prajapati P.W.6-Dr. Pranay Mohan P.W.7-Bindwa Devi(informant) P.W.8-Mohan Bhuiyan P.W.9- S.I. Sri Krishna Singh (I.O.) 6. Apart from oral testimony of the witnesses, following documentary evidence has also been adduced by the prosecution:- Ext.-Post-mortem report Ext.2.-singature of the informant, Bindwa Devi on fardbayan Ext.2/1.- Signature of Surendra Rana on fardbayan Ext.2/2.-hand writing on fardbayan Ext.2/3.-Endorsement on fardbayan by officer-in-charge Ext.3-Formal FIR Ext.4-Inquest report. 7. On the other hand, no oral or documentary evidence has been adduced by the defence. The case of defence is denial from occurrence and false implication due to land dispute. The accused, Govind Rana has also pleaded that he was not present in his house at the time of occurrence. 8. Learned trial court after evaluating the evidence available on record held the appellants guilty for the offence of murder in furtherance of the common intention, hence, convicted and sentenced for the offence under section 302/34 of IPC as stated above. Submission on behalf of the Appellants:- 9. Learned Amicus Curiae appearing for the appellants assailing the impugned judgment and order has vehemently argued that admittedly there was land dispute between the parties and the informant party were harvesting paddy crops in the field of the appellants, therefore, a scuffle arose between the parties in a sudden manner on the spur of moment and there was no intention to kill the deceased. There is allegation of single blow of lathi and tangi against the appellants but the post-mortem report of the deceased shows single injury on head of the deceased caused by hard and blunt substance. The sole eye-witness of the occurrence is the informant-cum-wife of the deceased, who has stated that her husband was assaulted by tangi from sharp edge side but no such injury has been found during post-mortem of the deceased. Another injury is abrasion found on left elbow upon forearm 1 ½” x ½”, which might be caused by felling down on earth. Another injury is abrasion found on left elbow upon forearm 1 ½” x ½”, which might be caused by felling down on earth. Therefore, the case is of single blow caused by lathi without any premeditation and intention to cause death of the deceased but unfortunately the deceased died during treatment. It is further submitted that in the overall facts and circumstances as brought on record by the prosecution, if admitted to be true on its face value, no offence under section 302/34 of IPC is constituted rather the case falls under section 304 part (II) of the IPC. Both the appellants have undergone more than 10 years imprisonment during trial and post conviction and have sufficiently been punished for their guilt. It is further submitted that more than two decades have been passed away from the alleged occurrence and both parties have settled in their life in main stream without involving in any other criminal activities. The appellants were granted bail vide order dated 18.03.2013. Hence, the impugned judgment and order of conviction and sentence of the appellants for the offence under section 302/34 requires to be altered/modified for the offence under section 304 Part (II) of IPC and the appellants may be sentenced for the period of imprisonment already undergone. Submission on behalf of State:- 10. On the other hand, learned Special Public Prosecutor appearing for the State defending the conviction and sentence of the appellants has contended that there was crush injury on head causing multiple fractures. Therefore, a single mighty blow leading to head of the deceased was sufficient in the ordinary course of nature to cause death. The appellants have approached the place of occurrence armed with deadly weapon in their hand, therefore, it cannot be said that they were not intending to cause death of the deceased rather they have come prepared to go to the extent of commit murder. As such, the appellants do not deserve any leniency in the matter of sentence also. This appeal has no merits and fit to be dismissed. Analysis, Reasons and Decision:- 11. We have gone through the record of the case along with impugned judgment and order of conviction and sentence of the appellants in the light of contentions raised on behalf of the both side. 12. For better appreciation of this case, it is here pertinent to briefly discuss the evidence led by the prosecution. Analysis, Reasons and Decision:- 11. We have gone through the record of the case along with impugned judgment and order of conviction and sentence of the appellants in the light of contentions raised on behalf of the both side. 12. For better appreciation of this case, it is here pertinent to briefly discuss the evidence led by the prosecution. P.W.1-Most. Purba Devi is gotni of the informant, Bindwa Devi. According to her evidence, on 28.11.2002 at about 11:00 hours, when she along with her gotni (informant) and bhaisur, Nageshwar Rana were harvesting paddy crops in the field, meanwhile, both the accused persons Chhatru Rana and Govind Rana came to the field and damaged the crops and started scuffling with Nageshwar Rana. Meanwhile, Chhatru Rana gave a lathi blow on head and Govind Rana by tangi on head of Nageshwar Rana, who sustained severe injuries and fell down. The injured was brought to hospital where he died. There is nothing in her cross-examination to rebut her testimony. P.W.2 Baleshwar Prasad is a hearsay witness. He came to know about the incident after returning from the market. He also came to know that both accused persons gave lathi blow on the head of Nageshwar Rana, due to which he died. P.W.3-Most. Ishwari has although stated like an eye-witness in her examination-in-chief that she has seen the accused, Chhatru Rana gave lathi blow and Govind Rana by wooden side of tangi to Nageshwar Rana on his head but in her cross-examination, she has categorically admitted that when she saw the incident, Nageshwar Rana was lying in the field and he was surrounded by several persons. She also admits that in her statement recorded before the police, she has not stated that Chhatru was bearing with lathi and Govind was having tangi with him. P.W.4-Baleshwar Prajapati has also claimed to be an eye-witness of the occurrence. He heard hulla of his son, Ram Chandra Prajapati, who was also harvesting paddy crops in his filed nearby the field of the informant, then he rushed towards the place of occurrence and saw that Chhatru and his son Govind were assaulting to Nageshwar Rana by lathi and tangi. The injured fell down in the muddy field and was brought to hospital for treatment, where he died. P.W.5 Ram Chandra Prajapati has also claimed to be eye-witness of the occurrence. The injured fell down in the muddy field and was brought to hospital for treatment, where he died. P.W.5 Ram Chandra Prajapati has also claimed to be eye-witness of the occurrence. According to his evidence, he was also harvesting his paddy crops in his field nearby the field of the informant. He saw that Chhatru and Govind were scuffling with Nageshwar Rana. Meanwhile, Chhatru started assaulting by lathi on head of Nagedhwar Rana and Govind Rana was having tangi also assaulted to Nageshwar Rana due to which he fell down in muddy filed. Thereafter, the injured was brought to hospital, where he died. P.W.6 Dr. Pranay Mohan has conducted autopsy on the dead body of deceased, Nageshwar Rana and found following injuries:- External Examination (i) Mouth half open, eyes closed, bleeding at nostril, rigor mortis present on both upper and lower limb. Abrasion found on left elbow up to forearm 1 ½” x ½”. (ii) Surgical stitches at scalp on right side of the parietal region. On removal of stitches he found fracture of parietal bones on both side with big hematoma inside. Internal Examination (iii) Both lungs intact and pale, heart both chambers empty. Spleen, liver and both kidneys intact and pale. Stomach shows three ounces mocoid fluid. Urinary bladder was empty. Time elapsed since death 6 to 36 hours. This witness has opined the cause of death due to shock and hemorrhage due to injury to scalp caused by hard and blunt substance. He has further opined that such injury on scalp may be caused hitting by blunt portion of tangi and lathi blows. The post mortem report is marked as Ext.1. P.W.7-Bindwa Devi is the informant-cum-wife of the deceased. According to her evidence, she was harvesting paddy crop in her field at the time of occurrence and has given vivid description of the incident that the appellants came to her field and started scuffling and protesting against the cutting of paddy crops. She has stated that at first Chhatru Rana gave lathi blow and Govind Rana by tangi to her husband. Thereafter, Chhatru Rana snatched tangi from Govind Rana and assaulted on head to her husband due to which, he fell down and in course of treatment, he died. She further stated that her fardbayan was recorded by police at Barkagaon hospital. She has stated that at first Chhatru Rana gave lathi blow and Govind Rana by tangi to her husband. Thereafter, Chhatru Rana snatched tangi from Govind Rana and assaulted on head to her husband due to which, he fell down and in course of treatment, he died. She further stated that her fardbayan was recorded by police at Barkagaon hospital. She has proved her signature on fardbayan marked as Ext.2 and the signature of her son, Surendra Rana marked as Ext.2/1. In her cross-examination, this witness exaggerated the incident and told that Chhatru has given 20-25 lathi blows to her husband and Govind by tangi from the side of sharp edge of tangi and that tangi was snatched by Chhatru and he gave twice and thrice tangi blows on the head of her husband. P.W.8-Mohan Bhuiyan has claimed to hear hulla about the incident of assault while he was working in a temple as a labour. He saw Chhatru Rana and his son Govind Rana were armed with tangi and danda, who assaulted Nageshwar Rana on his head. Thereafter, they fled away. P.W.9- S.I. Sri Krishna Singh is the Investigating Officer of this case. He has proved the fardbayan of the informant, Bindwa Devi recorded by literate constable Bindeshwari Singh on his dictation and signed by him (Ext.2/2) and has also proved the signature of the then Officer-in-Charge, Ram Pravesh Prasad on FIR as Ext.2/3 and Formal FIR as Ext.3. He has also prepared inquest report of the deceased in presence of the witnesses, which is marked as Ext.4. He recorded the re-statement of the informant and also visited the place of occurrence situated in village Meldi Penun Gadha, where there was a naala at the place of occurrence and blood-stains were not possible to be collected. He sent the deceased for post-mortem and arrested the accused persons and submitted charge-sheet against them. In his cross-examination, he admits that he has not seized the clothes of deceased. He has also not seized any lathi and tangi used in assaulting to the deceased. He further admits that one Baleshwar Prajapati (P.W.4) has not stated like an eye- witness of the occurrence that Chhatru Rana gave lathi blow and Govind Rana by tangi to the deceased. He has also not seized any lathi and tangi used in assaulting to the deceased. He further admits that one Baleshwar Prajapati (P.W.4) has not stated like an eye- witness of the occurrence that Chhatru Rana gave lathi blow and Govind Rana by tangi to the deceased. He has also stated that eye-witness, Bindwa Devi (informant) has not stated before him that Chhatru Rana gave lathi blow and Govind Rana gave tangi blow to her husband. She has also not stated about snatching the tangi by Chhatru Rana from Govind Rana and assaulting to her husband. He further states that from the place of occurrence, the police station is situated at a distance of 12 kms. This witness has denied the suggestion of the defence that his investigation is defective and he has submitted charge-sheet against the accused persons without sufficient evidence. 13. We have given thoughtful consideration to the aforesaid testimony of the witnesses. It appears that the genesis of occurrence is dispute regarding harvesting of paddy crops from disputed field by the informant party. The scuffle took place between the deceased and the accused persons, later on, there was exchange of assault. From post-mortem report of the deceased, it is quite obvious that a single blow injury was caused on head, which might be caused by back wooden portion of axe or by lathi as opined by the doctor (P.W.6). The injury sustained by the deceased has also not been opined to be sufficient in ordinary course of nature to cause death rather the cause of death is shock and hemorrhage due to above head injuries caused by hard and blunt substance. In the given situation, the ingredients of offence of murder as defined under section 300 of IPC corresponding to section 100 of Bharatiya Nyaya Sanhita, the degree of intention and knowledge for constituting the offence of murder are not attracted in this case rather the case falls under Exception 4 as well as within the ingredients of culpable homicide not amounting to murder as defined under section 299 of IPC i.e. injury caused by the appellants was likely to cause death of the deceased. 14. Under above circumstances, the offence committed by the appellants falls under section 304 part (II) of the IPC, the maximum sentence for which is R.I. for 10 years. 14. Under above circumstances, the offence committed by the appellants falls under section 304 part (II) of the IPC, the maximum sentence for which is R.I. for 10 years. The appellants have undergone custody during trial and post conviction from 28.11.2002 to 18.03.2013 i.e. more than 10 years. In our considered view, the appellants have sufficiently been punished for their guilt. 15. In view of above discussion and reasons, the conviction and sentence of the appellants for the offence under section 302/34 of IPC is altered/modified for the offence under section 304 Part (II) of IPC and the appellants are sentenced for imprisonment already undergone. 16. Accordingly, this appeal is dismissed on merits with modification in conviction and sentence of the appellants as stated above. 17. The appellants are on bail, hence, they are discharged from liability of bail bonds. The sureties are also discharged. 18. Pending I.A(s), if any, is also disposed of accordingly. 19. Let a copy of this judgment along with Trial Court Records be sent back to the concerned trial court for information and needful. 20. We take this opportunity to appreciate the assistance rendered by Mrs. Rashmi Kumar, learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to process fees of Rs.7,500/- (Rs. Seven Thousand and Five Hundred) to Mrs. Rashmi Kumar within a period of four weeks from the date of receipt/production of a copy of this order. 21. Office is directed to ensure that a copy of this order be served to Member Secretary, High Court Legal Services Committee.