JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. A.K. Kashyap, learned senior counsel for the appellants and learned A.P.P. for the State. 2. Originally this appeal was preferred by 7 appellants, out of them, appellant No.1, Birsoo Oraon, son of Buda Oraon, appellant No.3, Somra Oraon, son of late Konda Oraon and Bandhan Oraon, son of late Konda Oraon have died and their appeal have been abated vide order dated 16.07.2025. The names of surviving appellants, namely, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon, son of late Konda Oraon, Mukund Oraon, son of Gigo Oraon and Lila Oraon, son of Gigo Oraon have been renumbered and the appeal is heard on behalf of the aforesaid alive appellants. 3. The present appeal is directed against the judgment and order of conviction and sentence dated 04.02.2003 and 05.02.2003 respectively passed by learned Additional District & Sessions Judge, FTC-II, Civil Court, Gumla in S.T. No.357 of 1993 whereby and whereunder, the appellants have been held guilty for the offences under Sections 302/34 and 323/34 of Indian Penal Code and sentenced to undergo R.I. of life for the offence under Section 302/34 of IPC and further sentenced to undergo R.I. for a period of 4 months for the offence under section 323/34 of IPC. Both the sentences were ordered to run concurrently. FACTUAL MATRIX 4. Factual matrix giving rise to this appeal is that on 15.10.1992 at about 3:00 pm, the informant Harihar Oraon along with his cousin, Bahura Oraon and his brother-in-law, Mangra Oraon were sitting in the house of his uncle, Jitrai Oraon. Meanwhile, all the accused appellants, namely, Birsoo Oraon, Somra Oraon, Aghnu Oraon, Bandhan Oraon, Birsoo Oraon, S/o- Bandhan Oraon, Mukund Oraon and Lila Oraon armed with lathi came to the place of occurrence in search of Jitrai Oraon to kill him. Meanwhile, Mangra Oraon came out to interrogate about the matter from the accused persons, then they got enraged and started shouting and indiscriminately assaulted with lathi to Mangra Oraon. It is further alleged that when the informant and other inmates came out from the house and tried to save Mangra Oraon, they were also assaulted. It is further alleged that due to injuries caused to Mangra Oraon, he became unconscious and other family members also sustained injuries. The injured, Mangra Oraon was brought to the hospital and later on in course of treatment, he died. It is further alleged that due to injuries caused to Mangra Oraon, he became unconscious and other family members also sustained injuries. The injured, Mangra Oraon was brought to the hospital and later on in course of treatment, he died. On the basis of above fardbayan of the informant, Ghaghra P.S. Case No.99 of 1992 dated 15.10.1992 was registered for the offences under sections 147, 148, 149, 323, 452 and 307 of Indian Penal Code and after death of Mangra Oraon, Section 302 of IPC was also added. After completion of investigation, charge-sheet was submitted against above seven named accused persons. The case was committed to the court of Sessions where S.T. No.357 of 1993 was registered. Charges were framed against the accused persons for the offences under Sections 307, 452 and 302 read with Section 34 of Indian Penal Code to which they pleaded not guilty and claimed to be tried. One of the accused persons, namely, Mohan Oraon was acquitted after conclusion of the trial and the present appellants have been held guilty and sentenced for the aforesaid offences. Submission on behalf of the appellants 5. Assailing the impugned judgment, learned senior counsel for the appellants has submitted that there are general and omnibus allegations against all the accused persons for causing injuries to the deceased as against it the post-mortem report of the deceased categorically goes to show that he has sustained only one head injury and no other injuries were found on his body. The above injury has been attributed by some prosecution witnesses exclusively against Lila Oraon. The allegation against other appellants is causing lathi blow injuries to other injured witnesses, out of them P.W.5 and P.W.7 have only been examined and their injuries were found simple in nature. Other three injured who have also got simple injuries have not been examined by the prosecution. The genesis and manner of the occurrence as depicted by the prosecution witnesses and also in FIR, which was initially registered for the offences under sections 147, 148, 149 of IPC does not suggest the application of provision of Section 34 of IPC. Other three injured who have also got simple injuries have not been examined by the prosecution. The genesis and manner of the occurrence as depicted by the prosecution witnesses and also in FIR, which was initially registered for the offences under sections 147, 148, 149 of IPC does not suggest the application of provision of Section 34 of IPC. The single blow injury caused by lathi is attributed against Lila Oraon therefore, it cannot be said that all other appellants have acted in furtherance of common intention to cause death of the deceased, Mangra Oraon rather they might be held guilty for their own individual acts in assaulting other witnesses, whose injuries are found in simple in nature. It is further submitted that genesis, manner and force of lathi blow given by the appellant, Lila Oraon to the deceased does not attract his intention/knowledge as required to constitute offences under section 302 of IPC rather it was unintentional homicide of the deceased after sustaining one lathi blow, which was not so mighty to cause instantaneous death or sufficient to cause death in ordinary course of nature. Admittedly, the deceased died during treatment because he was admitted to hospital after considerable delay. Therefore, the offence falls under section 304 part II of IPC against the appellant, Lila Oraon and other accused persons have rightly been held guilty for the offence under section 323 of IPC and sentenced to undergo for R.I. for 4 months. 6. So far quantum of sentence is concerned, learned counsel for the appellants has argued that the occurrence is of the year, 1992 at that time the appellant, Lila Oraon was about 35 years now he is reaching at the age of 70 years. During investigation and pendency of the trial and post-conviction, the appellant, Lila Oraon has remained in custody for a considerable period of time and other appellants have also remained in custody for about four months in respect of offence under section 323/34 of IPC. Since, the offence of murder is not applicable against the surviving appellants, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon and Mukund Oraon and they have sufficiently been punished for the offence under section 323/34 of IPC. Hence, the appellants may be punished to the extent of imprisonment already under gone by them. Since, the offence of murder is not applicable against the surviving appellants, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon and Mukund Oraon and they have sufficiently been punished for the offence under section 323/34 of IPC. Hence, the appellants may be punished to the extent of imprisonment already under gone by them. Accordingly, the impugned judgment and order of conviction and sentence of the appellants be modified and reduced. Submission on behalf of the State 7. On the other hand, learned Additional Public Prosecutor appearing for the State vehemently opposed the aforesaid contentions raised on behalf of the appellants and submitted that learned trial court has very wisely and aptly apprised and evaluating the prosecution evidence and arrived at right conclusion about the guilt of the appellants and passed adequate sentence. There is no reasonable ground to interfere with the impugned judgment and order in any manner as argued by the appellants. This appeal has no merits and fit to be dismissed. Analysis, Reasons and Decision:- 8. We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf both side. 9. First of all, we have to take brief resume of oral as well as documentary evidence lead by the prosecution to substantiate the charges levelled against the appellants. P.W.-7, Harihar Oraon is the informant-cum-eye-witness of the occurrence. According to his evidence, on the occasion of Karma festival, he was sitting at the house of Jitrai Oraon along with Mangra Oraon (since deceased), Bahura Oraon, Husani Orain, Tijni Orain, Sanichari Orain and Asari Orain. In the meantime, Birsu Oraon, Birsoo Oraon S/o- Bandhan Oraon, Somara Oraon, Aghnu Oraon, Bandhan Oraon, Lila Oraon and Mukund Oraon came there in search of Jitrai Oraon to kill him. Meanwhile Mangra Oraon came out then Birsoo Oraon caught hold of him and Lila Oraon gave a lathi blow on his head. Thereafter, Sanichari Oraien and others came out, they were also assaulted with lathi by the other accused persons. This witness along with Sanichari Oraien, Bahura and Husani has also sustained injuries. Thereafter, the accused persons fled away. He has further deposed that at about 6:00 pm, the police arrived at the place of occurrence and brought the injured persons to Ghaghra Hospital where in the next day of morning, Mangra Oraon died. His submission was recorded by the police. Thereafter, the accused persons fled away. He has further deposed that at about 6:00 pm, the police arrived at the place of occurrence and brought the injured persons to Ghaghra Hospital where in the next day of morning, Mangra Oraon died. His submission was recorded by the police. Accordingly, FIR was registered. In his cross-examination, he reiterates his earlier statement recorded before the police that Birsoo Oraon had caught hold of Mangra Oraon and Lila Oraon gave lathi blow to him. There is nothing else in his cross-examination to discredit his aforesaid testimony. P.W.2-Tijni Orain is also an injured witness. According to her evidence after hearing hullah of the accused persons, at first, Mangra Oraon came out of the house, then this witness along with Sanichari Orain, Husni and Asari Orain followed him but she saw that Lila Oraon had caught hold of Mangra Oraon and gave a lathi blow to him due to which, he fell down and become unconscious. She has also sustained injuries in this incident but has not stated the name of her assailants. She also admits that on the occasion Karma, all the persons and other family members were consuming haria and liquor. This witness has also not stated any overt act against other appellants in assaulting the deceased Mangra Oraon. P.W.5, Husni Devi is the wife of the informant, who has also claimed to be an eye-witness of the occurrence and stated that after hearing hulla raised by the accused persons, Mangra Oraon came out. In the meanwhile, Lila Oraon gave lathi blow on head to Mangra Oraon due to which he fell down and become unconscious. This witness along with her husband and Bahura Oraon, Sancharia Orain, Tijni Orain and Asari Orain attempted to save the deceased but in that course, they were also assaulted. This witness has also not stated any overt act against any other appellants. P.W.6-Bahura Oraon S/o Jitrai Oraon is also a witness of the occurrence, who was also present at the place of occurrence. According to his evidence, on the date of occurrence at about 3 pm, Mangra Oraon, Husni Orain, Tijni Orain, Asari Orain and Sancharia Orain and others were present at the house. Meanwhile, all the accused persons armed with lathi came in search of his father Jitrai Oraon for assaulting him. According to his evidence, on the date of occurrence at about 3 pm, Mangra Oraon, Husni Orain, Tijni Orain, Asari Orain and Sancharia Orain and others were present at the house. Meanwhile, all the accused persons armed with lathi came in search of his father Jitrai Oraon for assaulting him. Meanwhile, Mangra Oraon came out then Lila Oraon gave a lathi blow on his head due to which Mangra Oraon has become unconscious and in the course of treatment he died. In course of rescue, this witness was also assaulted by Birsoo Oraon by lathi. He has also deposed that Harihar, Husni, Tijni, Asari and Sanacharia have also sustained injuries in this occurrence. This witness has also not stated any specific overt act against any of accused persons. P.W.3-Hari Charan Oraon is a hearsay witness. According to his evidence, after hearing hulla, he came to the place of occurrence and saw Mangra Oraon was unconscious state in the courtyard of Jitrai Oraon. He also saw Harihar Oraon, Bahura Oraon, Sanicharia Orain, Asari Orain were in injured condition. P.W.4-Anndhan Oraon is a witness of inquest report, who has proved his signature on the inquest report as Ext.2 and another witness Bandhan Oraon as Ext.2/1. P.W.1-Dr. Mani Bhusan Prasad was M.O. of Sadar Hospital, Gumla, who had conducted autopsy on the dead body of Mangra Oraon and found following injuries: (i) Lacerated wound over right parietal region size 2”x 1/2” up to bone deep with fracture of right parietal bone and laceration of brain matter. The above injury is grievous in nature caused by hard and blunt substance like lathi blow. Cause of death- shock and hemorrhage due to above injury. He has proved the post-mortem report as Ext.1. P.W.8-Dr Yadu Nandan Prasad Singh is the medical officer at PHC, Ghaghra has examined the injured, Sanicharia Orain W/o-Karmali Oraon and found nothing abnormal except pain in back and proved the report as Ext.3. He has further examined the injured, Asari Oraon and also found nothing abnormal except pain on the back and the report was marked as Ext.3/A. He further examined Haria Oraon on the same date at 8 pm and found following injuries his person:- Swelling with abrasion over left forehead left side 2”x 2”. He has further examined the injured, Asari Oraon and also found nothing abnormal except pain on the back and the report was marked as Ext.3/A. He further examined Haria Oraon on the same date at 8 pm and found following injuries his person:- Swelling with abrasion over left forehead left side 2”x 2”. The injury is simple in nature caused by hard and blunt substance and proved the injury report as Ext.3/B. He further examined Mangra Oraon S/o-Charo Oraon at about 8:45 pm on the same day and found following injury:- Wound on frontal region 5” x 1” x 1” of margin irregular and due to unconscious state of Mangra Oraon, he was referred to Sadar Hospital, Gumla as the injury is dangerous to life caused by hard and blunt substance like lathi. The injury report was marked as Ext.3/C. On the same day at about 8:50 pm, this witness further examined Bahura Oraon S/o Jitray Oraon and found following injury:- Wound on occipital region 3”x1”x1” margin irregular. This injury was opined to be simple in nature caused by hard and blunt substance. This injury report has been marked as Ext.3/D. P.W.9- Vilas Sahu is an advocate clerk and formal witness, who has proved fardbayan of the informant as Ext.4 and formal FIR as Ext.5. Similarly, P.W.10-Ramlal Sahu is another advocate clerk, who has identified the handwriting of the Investigating Officer from page Nos.1 to 34 as Ext.6. The Investigating Officer was not examined in this case. 10. On the other hand, the defence has also examined 4 witnesses. D.W.1 Ragho Singh is an advocate of Civil Court, Gumla, who has verified the affidavit of Lila Oraon, which was certified by the notary advocate, J. Kujur at Serial No.444 dated 15.10.1952. D.W.2-Lal Madhusudan Nath Sahdeo has also proved that accused, Lila Oraon had come to Gumla for preparation of his affidavit on 15.10.1992 in between 2:30 to 3:00 pm, therefore, he was not present at the place of occurrence and he has falsely been implicated in this case. D.W.3-Bosna Oraon, who happens to be the neighbour of Jitrai Oraon but on the date of the occurrence he had heard no hulla about any occurrence of assault between the informant party and accused persons. D.W.3-Bosna Oraon, who happens to be the neighbour of Jitrai Oraon but on the date of the occurrence he had heard no hulla about any occurrence of assault between the informant party and accused persons. He further stated that Mangra Oraon and Harihar Oraon along with Bahura Oraon and Pelo Oraon have scuffled with each other wherein Mangra Oraon sustained injury and died during treatment. Therefore, it appears that this witness has no knowledge about the occurrence. D.W.4-Raghubir Singh. According to him, he has lodged a complaint case No.37 of 1990 against Officer-in- Charge, Gumla police station and Block Development Officer wherein, several villagers were witnesses. He has denied any occurrence of assault to Mangra Oraon by accused persons on 15.10.1992 and also stated that Lila Oraon had come to Gumla on the date of occurrence. Therefore, the evidence of this witness has no value in the facts and circumstances of the case. 11. From the evidence of the informant, Harihar Oraon and other injured witnesses P.W.-5 and P.W.7, it is crystal clear that the informant has not disclosed in the FIR about the specific role of any accused persons in assaulting the deceased and the injured persons. In his evidence during trial, he states that Birsu Oraon caught hold of Mangra Oraon as against it, other eye- witnesses, Sanicharia Orain, Asari Oraon, Haria Oraon, Husni Devi (P.W.5) and Bahura Oraon, who were injured, were also present at the time of occurrence and have specifically deposed that Mangra Oraon came out from the house and said to the accused persons as to why they are raising hulla then the surviving appellant, Lila Oraon gave a lathi blow on the head due to which, he fell down and become unconscious and other accused persons have assaulted to other injured persons including the informant. 12. In the aforementioned circumstances by no stretch of imagination it can be inferred that all the appellants have acted in concerted manner in assaulting the deceased. The injury report as well as the post-mortem report of the deceased clearly goes to show that the deceased has sustained single head injury and there was no mark of any other injury on his body. The main allegation has been attributed against only Lila Oraon for causing the above injury. The injury report as well as the post-mortem report of the deceased clearly goes to show that the deceased has sustained single head injury and there was no mark of any other injury on his body. The main allegation has been attributed against only Lila Oraon for causing the above injury. Other witnesses, who were also injured in this case, have been assaulted by other appellants, and have sustained simple injuries like back pain to Sanciharia Orain, Asari Orain and simple injuries to Haria Oraon and Bahura Oraon. 13. The genesis, manner and attending circumstances as well as force used for assaulting the deceased by the appellant, Lila Oraon alone clearly indicates that there was no such intention or knowledge to constitute the offence of murder as defined under section 300 of IPC rather the appellant, Lila Oraon has voluntarily caused head injury to the deceased, which was likely to cause his death. Hence, the offence committed by Lila Oraon comes under section 304 Part II of IPC. Other appellants appear to have voluntarily caused simple injuries to other witnesses and liable to be punished for their individual acts and not with aid of section 34 of IPC. 14. In view of the above discussion and reasons, the conviction and sentence of the appellants for the offence under section 302 read with section 34 of IPC is hereby set aside. Appellant, Lila Oraon is found guilty for committing the offence of culpable homicide not amounting to murder of the deceased punishable under section 304 part II of IPC. The surviving appellants, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon and Mukund Oraon are found guilty for the offences under section 323 of IPC only. 15. So far quantum of sentence against the surviving appellants, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon and Mukund Oraon is concerned, they have already sustained imprisonment for about 4 months during pendency of trial and post-conviction period and thus they have adequately been punished for their guilt, therefore, they are sentenced for the offence under section 323 of IPC to the extent of imprisonment already undergone by them. So far the punishment of the appellant, Lila Oraon is concerned, he is awarded 5 years R.I. for the offence under section 304 part II of IPC. 16. In the result, this appeal is dismissed on merits with modification in conviction and sentence as stated above. So far the punishment of the appellant, Lila Oraon is concerned, he is awarded 5 years R.I. for the offence under section 304 part II of IPC. 16. In the result, this appeal is dismissed on merits with modification in conviction and sentence as stated above. The surviving appellants, Birsoo Oraon, son of Bandhan Oraon, Aghnoo Oraon and Mukund Oraon are on bail, hence, they are discharged from liability of bail bonds. The sureties are also discharged. 17. So far as the appellant, Lila Oraon is concerned, his order for suspension of sentence during pendency of this appeal is vacated and he is directed to appear before the concerned trial court to receive the sentence as stated above awarded to him. The period of imprisonment already undergone by him in this case shall be set off. 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 trial court for information and needful.