JUDGMENT : Pradeep Kumar Srivastava, J. 1. We have already heard the arguments of Mrs. Ragini Kumari, learned counsel for the appellant and Mr. S.K. Srivastava, learned A.P.P. for the State. 2. The instant criminal appeal is preferred by above named sole appellant for setting aside the judgment of conviction dated 11.07.2018 and order of sentence dated 12.07.2018 passed by the learned Additional Sessions Judge-II, Dumka in S.T. Case No.173 of 2012 arising out of Gopikandar P.S. Case No.31 of 2011, corresponding to G.R. No.1450 of 2011, whereby and whereunder the appellant has been held guilty for the offences under sections 302 and 307 of Indian Penal Code and sentenced to undergo R.I. for life along with fine of Rs.10,000/- (Ten Thousand) for the offence under section 302 of IPC and R.I. for 7 years along with fine of Rs.1,000/-(One thousand) for the offence under section 307 of Indian Penal Code with default stipulation. Both the sentences are directed to run concurrently. Other co-accused persons, namely, Kollen Dehri, Budhini Maharani and Samanti Maharani have been extended benefit of doubt and acquitted from the charges under sections 302/34 and 307/34 of IPC. Factual Matrix:- 3. The factual matrix giving rise to this appeal is that on 14.11.2011 at about 10:00 pm, the accused person, Ram Lal Dehri (appellant) along with Kollen Dehri, Budhani Maharani and Samanti Maharani arrived at the house of the informant, Sundarmuni Maharani. It is alleged that Ram Lal Dehri(appellant) told the informant’s husband that your wife is searching another husband, which was protested by Surendra Dehri(since deceased) and there was exchange of hot words between both the parties. Meanwhile, Ram Lal Dehri gave lathi blow on the head of the informant’s husband causing injury on left side of the head with intention to kill him. Due to sustaining head injuries, the informant’s husband fell down and died on spot. It is further alleged that the informant rushed to rescue her husband, she was also assaulted by Ram Lal Dehri on her head with intention to kill her. She has also sustained fracture injury on head. The informant raised alarm “bachao-bachao” then her daughter Nilmuni Kumari (P.W.1) rushed and has seen the occurrence. It is further alleged that after hearing the screams of the informant, several villagers assembled at the place of occurrence, then the accused persons fled away. 4. She has also sustained fracture injury on head. The informant raised alarm “bachao-bachao” then her daughter Nilmuni Kumari (P.W.1) rushed and has seen the occurrence. It is further alleged that after hearing the screams of the informant, several villagers assembled at the place of occurrence, then the accused persons fled away. 4. On the basis of above information, FIR was registered for the offences under sections 302, 323, 307/34 of Indian Penal Code . After completion of the investigation, charge-sheet was submitted for the offences under sections 302, 323, 307, 109, 120-B/34 of Indian Penal Code . After taking cognizance, the case was committed to the court of Sessions and S.T. No.173 of 2012 was registered. The appellant has denied the charges leveled against him and claimed to be tried. After conclusion of the trial, the impugned judgment of conviction and sentence of the appellant was passed, which has been assailed in this appeal. 5. In course of trial, altogether 9 witnesses have been examined by the prosecution namely:- P.W.1-Nilmuni Kumar(Daughter of the informant and deceased) P.W.2-Dukhi Maharani P.W.3-Nimita Kumari P.W.4-Rubin Kisku P.W.5-Yogesh Kisku @ Yogendra P.W.6-Harendra Dehir P.W.7-Dr. Nishit Kumar Jha P.W.8-Sundarmuni Maharani(informant) P.W.9-Baiju Baraik(Investigating Officer) 6. Apart from oral testimony of witnesses, following documentary evidence has been adduced:- EXt.1-Memo of arrest of Budhni Devi Ext.1/1-Memo of arrest of Samanti Maharani Ext.2-Postmoretem report Ext.3.-Signature of informant on fardbeyan Ext.4-Fardbeyan Ext.5.Inquest report Ext.6.Requestioned for injury report Ext.7-Injury report of Sundarmuni Maharani Ext.8.Formal FIR Ext.9-Sketch Map. 7. On the other hand, no oral or documentary evidence has been adduced by the defence. The case of defence is denial from the occurrence and false implication and plea of innocence. 8. Learned trial court after appreciating the evidence available on record arrived at conclusion that the appellant, Ram Lal Dehri has assaulted to the deceased with a thick lathi with an intention to kill him as a result of which he sustained fracture injury on head and died on spot. He has also attempted to kill the wife of the deceased-cum-informant of this case and accusations against other co-accused persons are general and omnibus in nature. Accordingly, held the appellant guilty and sentenced for the offences as stated above and other accused persons were acquitted. Submission on behalf of Appellant:- 9. He has also attempted to kill the wife of the deceased-cum-informant of this case and accusations against other co-accused persons are general and omnibus in nature. Accordingly, held the appellant guilty and sentenced for the offences as stated above and other accused persons were acquitted. Submission on behalf of Appellant:- 9. Learned counsel for the appellant has contended that the eye-witness of this case is only alleged to be P.W.1-Nilmuni Kumari, who is the daughter of the deceased and the informant-Sundarmuni Maharani (P.W.8) and other witnesses of facts are hearsay witnesses. It is admitted fact that the dispute arose between the parties in a sudden manner without any premeditation and a single blow of lathi is alleged to be given by the appellant to the deceased and his wife. The injury sustained by the deceased although on vital part of the body like head but the death was due to shock and hemorrhage due to head injury. P.W.7-Dr. Nishit Kumar Jha, who has conducted autopsy on the dead body of the deceased, has found a single injury i.e. abraded wound 3” x 2”x 1/4" on left side of scalp. It is not opined that the said injury was sufficient in ordinary course of nature to cause death. Therefore, the ingredients of murder as defined under section 300 of IPC is not attracted in this case. Moreover, the case falls under Exception 4 appended to section 300 of IPC. Therefore, it is a case of culpable homicide not amounting to murder, which has happened at spur of moment without any premeditation or taking any undue advantage of the situation. 10. It is further argued that even if, it may be assumed, for the sake of argument that appellant has intentionally caused injury on the vital part of the body to the deceased resulting in his death, the injury was not found sufficient in the ordinary course of nature to cause death. Therefore, the injury intended to be caused was likely to cause death. Accordingly, the offence committed by the appellant falls under section 304 Part 1 of Indian Penal Code . The appellant is in custody for more than 10 years and has been sufficiently punished for his guilt.Therefore, this appeal is fit to be allowed with modification in conviction and sentence passed against the appellant. Submission on behalf of the State:- 11. Accordingly, the offence committed by the appellant falls under section 304 Part 1 of Indian Penal Code . The appellant is in custody for more than 10 years and has been sufficiently punished for his guilt.Therefore, this appeal is fit to be allowed with modification in conviction and sentence passed against the appellant. Submission on behalf of the State:- 11. On the other hand, learned A.P.P. for the State has opposed the contentions raised on behalf of the appellant and submitted that it is technical error in the post-mortem report that the doctor has not mentioned that injury sustained by the deceased was sufficient in ordinary course of nature to cause death but there was multiple fracture and brain hemorrhage. The appellant not only assaulted to the deceased but also similar blow was given on the head of the informant. Hence, conviction and sentence of the appellant is absolutely justified under law for the offence of murder. There is no legal substance in the contentions raised on behalf of the appellant and no merits in this appeal, which is fit to be dismissed. Analysis, Reasons and Decision:- 12. We have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf both side. 13. It appears that in order to substantiate the charges leveled against the appellant, altogether 9 witnesses were examined by the prosecution. P.W.1-Nilmuni Kumari is the daughter of the informant. According to her evidence, the accused Ram Lal Dehri was labeling imputation of chastity against her mother that she is in search of another husband, which was protested by her father then all the four accused persons surrounded her father and gave lathi blow on his head due to which, he fell down and died on spot. She raised alarm then other villagers assembled. She has further deposed that her mother came to rescue her father then she was also assaulted by lathi on her head. In her cross-examination, she specifically admits that at the time of occurrence, she was inside the house and her father was outside and she was seeing the occurrence from the house. P.W.8-Sundarmuni Maharani is the informant.According to her evidence, at the time of occurrence, it was 8:00 pm, and she was inside the house. In her cross-examination, she specifically admits that at the time of occurrence, she was inside the house and her father was outside and she was seeing the occurrence from the house. P.W.8-Sundarmuni Maharani is the informant.According to her evidence, at the time of occurrence, it was 8:00 pm, and she was inside the house. Her husband was in the street where Budhni Maharani, Ramlal Dehri, Samanti and Kollen Dehri killed her husband. She went to rescue her husband, then, accused persons also assaulted on her head by iron rod. She has proved her signature on fardbeyan. In her cross-examination, she categorically admits that none of the villagers have seen the occurrence of assault given to her husband by the accused persons. She also reiterates that all four accused persons assaulted to her husband in the street near her house. She also reiterates that all four accused persons have assaulted to her and caused head injury to her. P.W.2-Dukhi Maharani came out from the house after hearing hulla and saw that Surendra Dehri lying on road in injured condition sustaining injuries on his head and he died on the spot. She has also stated that both parties were under inimical terms and there was previous dispute between them. Admittedly, this witness is not an eye-witness of the occurrence. P.W.3, Nimita Kumari went to the place of occurrence in the next day of morning and saw the dead body of the deceased, as such declared hostile by the prosecution. P.W.4, Rubin Kisku is a resident at a distance of one kilometer from the place of occurrence. He came to know from Sundarmuni Maharani (informant) about the occurrence, who went to his house and informed. He has made telephonic call at police station at about 2:00 am but no response was received but the police arrived in the next day morning. Therefore, this witness is also not eye-witness of the occurrence. P.W.5-Yogesh Kisku @ Yogendra has stated that on the date of occurrence in the night, the informant came to his house and told that her husband has been assaulted. He went to place of occurrence and saw Surendra Dehri was lying dead. Thereafter, the police came and sent the dead body of the deceased to Sadar Hospital, Dumka for post-mortem. P.W.6-Harendra Dehri is elder brother of the deceased. He went to place of occurrence and saw Surendra Dehri was lying dead. Thereafter, the police came and sent the dead body of the deceased to Sadar Hospital, Dumka for post-mortem. P.W.6-Harendra Dehri is elder brother of the deceased. He was also present at his house and he came to know about the occurrence from Gram-Pradhan. His house is situated about a distance of one kilometer from the place of occurrence. P.W.7-Dr. Nishit Kumar Jha has conducted autopsy on the dead body of the deceased, Surendra Dehri and found following injuries:- External Injuries:- Rigor mortis present in all four limbs, eyes were closed, mouth was closed, blood drizzling left nostril. An abraded wound having dimension 3” x 2” x ¼” was found on left side of scalp. Dissection:- Bone under the over line tissue also fractures i.e. frontal bone at left frontoparietal suture. Further dissection of meninges shows inside the brain hemorrhage were present. Opinion:- The death caused due to brain hemorrhage after head injury as a result of hard and blunt object. Time lapse since death less than 24 hours. This witness has proved his signature on the post-mortem report, which is marked as Ext.2. P.W.9–S.I. Baiju Baraik is the Investigating Officer of this case. According to his evidence, on 15.11.2011 at about 5:30 am, he received telephonic information that in village- Dundhawa, some incident of assault has taken place due to which one person has died. He made S.D. Entry No.217 dated 15.11.2011 and informed the superior police officer, then along with other police personnel went to the place of occurrence and reached there at about 6:30 am, where he recorded the fardbeyan (Ext.4) of the informant, Sundarmuni Maharani and prepared the inquest report (Ext.5) of the deceased, Surendra Dehri in presence of witnesses. He has also prepared the chalan of dead body of the deceased and sent for postmortem and the informant, Sundarmuni Maharani was sent to Primary Health Centre, Gopikandar for treatment of her injury. The requisition slip for injury report is Ext.6 and the injury report mentioned on the backside of the requisition of injured, Sundarmuni Maharani is marked as Ext.7. He has proved the Formal FIR as Ext.8. He has also visited the place of occurrence and inspected in presence of informant and recorded the statement of other villagers and also prepared sketch map (Ext.9) of the place of occurrence. He has proved the Formal FIR as Ext.8. He has also visited the place of occurrence and inspected in presence of informant and recorded the statement of other villagers and also prepared sketch map (Ext.9) of the place of occurrence. He found sufficient evidence against all four accused persons and submitted charge-sheet against them for the offences under sections 302, 323, 307, 109, 120B/34 of IPC. In his cross-examination, he admits that he has not seized bloodstained clothes of the deceased. He has also not collected bloodstained soil from the place of occurrence. He has denied the suggestion of defence that his investigation is defective and without sufficient evidence, he has submitted charge-sheet against the accused persons. 14. Aforesaid evidence of ocular witnesses clearly goes to show that only P.W.1 and P.W.8 are alleged to be eye-witnesses of the occurrence. It is also admitted that the incident took place in a sudden scuffle between the parties. There was a single blow caused by lathi to the deceased and the informant. The post-mortem report of the deceased also shows a single injury caused on the head to deceased resulting in his death due to shock and hemorrhage. It is also obvious that there was no repetition of blow by the appellant, which indicates that there was no intention of the appellant to commit murder of the deceased. The injury report of the informant, Sundarmuni Maharani shows that she has sustained one lacerated wound 2”x 4”x Muscle Deep on forehead, which is opined to be simple in nature caused by hard blunt object. The above injury also falls under section 323 of IPC in absence of required intention and knowledge to constitute the offence under section 307 of IPC. 15. We have considered the overall aspect of the case, genesis and manner of occurrence as well as force used for causing injury to the deceased through a single lathi blow and arrive at conclusion that the injuries were not opined to be sufficient to cause death in ordinary course of nature and it was not intended to cause death rather at the time of inflicting the injuries, the appellant was having knowledge that inflicting such injuries is likely to cause death. Therefore, the offence committed by the appellant falls under section 304 part (ii) of the IPC. Therefore, the offence committed by the appellant falls under section 304 part (ii) of the IPC. It further transpires that the appellant has already undergone more than 10 years of imprisonment during pendency of trial and this appeal. Therefore, it appears that appellant has been sufficiently punished for his guilt. 16. In view of the above discussion and reasons, conviction and sentence of the appellant for the offence under section 302 of IPC is, hereby, set aside and the same is altered/modified for the offence under section 304 Part (ii) of IPC instead of life imprisonment as awarded by the learned trial court, the appellant is sentenced to imprisonment already undergone by him. 17. Accordingly, this appeal is dismissed on merits with modification of conviction and sentence of appellant to the extent modified above. 18. The appellant is in custody, hence, he is directed to be released forthwith, if not, required in any other case. 19. Pending I.A(s), if any, is also disposed of accordingly. 20. Let the copy of this order along with record of trial court be sent back to concerned trial court for information and needful. 21. The operating portion of the order be immediately communicated to the concerned trial court for facilitating the release of the appellant from custody.