JUDGMENT : RAJESH KUMAR, J. 1. The captioned appeals arise out of a common judgment, hence the same have been clubbed and heard together and disposed of with a common judgment. 2. Heard Mr. Vijay Kumar Sharma, learned Amicus Curiae (In Cr. Appeal No.1211/ 2004), Mr. Shree Nivas Roy, learned counsel for the appellant (In Cr. Appeal No.1313/ 2004) and Mr. Bishwambhar Shastri & Mr. Shiv Shankar Kumar, learned A.P.Ps. 3. Both the appeals have directed against the Judgment of conviction dated 06.07.2004 and order of sentence dated 08.07.2004, passed by learned Additional Sessions Judge, Fast Track Court – IV, Giridih, in Sessions Trial No.267 of 2003, arising out of Dhanwar P.S. Case No.13 of 2003, whereby the appellant namely, Mantu Tiwary has been convicted for the offence under Sections 341/ 304 of the Indian Penal Code and has been directed to undergo rigorous imprisonment for five years with fine of Rs.500/- for the offence under Section 304 IPC and one month simple imprisonment under Section 341 IPC whereas the appellant namely, Ashok Tiwari has been convicted for the offence under Section 341, 323 & 304/ 34 of the Indian Penal Code and has been directed to undergo rigorous imprisonment for three years with fine of Rs.500/- under Sections 304/ 34 IPC and one month simple imprisonment under Section 341 IPC. All the sentences were directed to run concurrently. 4. The criminal law has been put into motion by lodging an F.I.R being Dhanwar P.S. Case No.13 of 2003 against three persons including the presents appellants under Sections 341/ 323/ 324/ 307/ 34 I.PC. The F.I.R has been lodged on the fardbeyan of informant namely, Arath Tiwary (since deceased). Lateron, Section 302 IPC has also been added. The brief facts of the case, as stated in the F.I.R., is that on 26.01.2003 at about 05:00 p.m., the informant Arath Tiwari alongwith Pradeep Tiwari returned to his house from village Kathwara where they had gone for 'Jajmanika'. Thereafter, Pradeep Tiwari went to the house of Ashok Tiwari and Mantu Tiwari and told them to take their share in the articles receive in 'Jajmanika'. Thereafter, Ashok Tiwari, Mantu Tiwari and Paramshila Devi (wife of Ashok Tiwari) came to the house of the informant and showed their resentment as to why the informant had gone for 'Jajmanika'. Thereafter, they scattered the things which were received in 'Jajmanika' and went back. Thereafter, Ashok Tiwari, Mantu Tiwari and Paramshila Devi (wife of Ashok Tiwari) came to the house of the informant and showed their resentment as to why the informant had gone for 'Jajmanika'. Thereafter, they scattered the things which were received in 'Jajmanika' and went back. After sometime, at about 8:00 p.m. all the three accused persons again came back. They were armed with lathi and 'tangi'. They assaulted the informant. Paramshila Devi pulled his leg by the handle of umbrella due to which he fell down, Ashok Tiwari brutally assaulted him by lathi and Mantu Tiwari gave 'tangi' blow on his head with an intention to kill him. Thereafter, the informant became senseless and the accused persons fled away. On regaining his senses, the informant alongwith his family members went to police station and lodged F.I.R. Later on the informant died due to the said assault. 5. On the basis of the said fardbeyan, the police, after investigation, has submitted charge-sheet against three accused persons. Upon which cognizance has been taken and charge has been framed against the appellants under Section 341/ 323/ 302/34 IPC and the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried. 6. To substantiate the prosecution story, altogether eight witnesses have been examined. 7. P.W.-1, Dr. Rajesh Kumar, is the doctor, who has conducted post-mortem over the dead body of the deceased. All the injuries were found ante-mortem in nature caused by hard and blunt substance. In cross-examination, he has stated that the injuries may not be sufficient in ordinary course of nature to cause death. 8. P.W.-2, Dharamshila Devi, has stated that she does not know anything about the occurrence. She has been declared hostile. 9. P.W.-3, Munni Devi, has stated that she does not know anything about the occurrence. She has also been declared hostile. 10. P.W.-4, Renu Kumari, has stated that she does not know anything about the occurrence. She has also been declared hostile. 11. P.W.-5, Wazir Tiwari, is the father of the deceased/ informant. He has supported the prosecution case. In his cross-examination, he has stated that in 'Jajmanika', about 5 kg. rice, 3 kg. 'Chuda' and 1kg. potato was received and each of the parties had got 1/8 th share in it. 12 . P.W.-6, Most. Kalpana Devi, is wife of the deceased. P.W.-5, Wazir Tiwari, is the father of the deceased/ informant. He has supported the prosecution case. In his cross-examination, he has stated that in 'Jajmanika', about 5 kg. rice, 3 kg. 'Chuda' and 1kg. potato was received and each of the parties had got 1/8 th share in it. 12 . P.W.-6, Most. Kalpana Devi, is wife of the deceased. She has stated that the accused persons have killed her husband for rice and chuda received in 'Jajmanika' and has supported the prosecution story. 13. P.W.-7, Dr. Ramratan Singh, is the doctor, who had examined the informant, Arath Tiwari after the assault. He has opined that the injuries were simple in nature, caused by hard and blunt substance. 14. P.W.-8, Shivpujan Bahelia, is the Investigating Officer, who has proved the re-statement of the informant, recorded under Section 161 Cr.P.C. 15. The trial Court, after evaluating the evidence and the material available on record, has convicted all the three accused persons including the present appellants by the impugned judgment. 16. It has been submitted by the learned Amicus and learned counsel for the appellants that the medical evidence and the deposition of the doctor clearly suggest that :- (I) the injury was simple in nature, caused by hard and blunt substance. (ii) whether the injury was capable of triggering death in ordinary course of nature or not, the doctor is not sure on that point, as has been deposed in the cross-examination. (iii) it was a sudden scuffle between the parties on distribution of the 'Jajmanika' about 5 kgs. rice, 3 kgs. 'Chuda' and 1kg. Potato. (iv) further, the trial court has not clarified as to whether the conviction is under Section 304(I) IPC or 304(II) IPC and as such the sentencing is also without proper judicial consideration. On the above basis, it has been submitted that since the intention and enough knowledge, regarding triggering of death injury caused, is missing, the appellants cannot be convicted under Section 304(I) IPC rather they should be under Section 304(II) IPC. Further, it has been submitted that there was simple scuffle between the parties and neither any deadly weapon has been used nor there is repetition of blow. Further, it has been submitted that there was simple scuffle between the parties and neither any deadly weapon has been used nor there is repetition of blow. It was an unfortunate incident of the year 2003 and the appellant namely, Mantu Tiwary @ Manoj Tiwary, has remained in custody for about one year five months fifteen days whereas the appellant namely, Ashok Tiwary, has remained in custody for about one year four months fifteen days and as such, the sentencing part may be reduced to the period already undergone. 17. On the other hand, learned counsel for the State has supported the judgment of conviction, but has conceded on the point that the court below has not specified as to whether the conviction is under Section 304(I) IPC or 304(II) IPC. 18. Having heard learned counsel for the parties and on going through the materials available on record, it appears that :- (a) the court below has committed a judicial error, by not specifying whether the conviction is under Section 304(I) or 304(II) IPC. (b) the material brought on record by the prosecution, is not capable of convicting the appellants under Section 304(I) IPC as neither intention has been brought on record nor the injury caused is sufficient in ordinary course of nature to cause death. (c) it was a sudden scuffle, which took place on account of distribution of 'Jajmanika' and no deadly weapon has been used. 19. In view of above discussions, this Court finds that the Judgment of conviction dated 06.07.2004 and order of sentence dated 08.07.2004, passed by the trial court, requires interference and accordingly, it is, hereby, interfered. The appellants are convicted under Section 304(II) IPC and further, the sentencing part is reduced to the period already undergone by the appellants. 20. With above modification, the present appeals are hereby, partly allowed. 21. Since appellants are on bail, hence, they are discharged from the liability of bail bond. 22. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. 23. Services rendered by Mr. Vijay Kumar Sharma, learned Amicus Curiae, is highly appreciable. 24 . The Secretary, Jharkhand High Court Legal Services Committee, shall pay the remuneration, as admissible, to the learned Amicus, on submission of bill(s).