JUDGMENT : Pradeep Kumar Srivastava, J. 1. The instant criminal appeal is directed against the Judgment of conviction and Order of sentence dated 25.03.2004 and 01.04.2004 respectively passed by learned 1st Addl. Sessions Judge, Giridih in Sessions Trial No. 280 of 2002, arising out of Jamua P.S. Case No. 73 of 2002, whereby and whereunder the appellants have been convicted for the offences under sections 302/34 of the IPC and sentenced to undergo imprisonment for life. 2. We have already heard the arguments of Mr. Navneet Sahaya, Amicus Curiae for the appellants and learned APP for the State. Factual Matrix:- 3. The factual matrix giving rise to this appeal is that informant’s daughter-Sunita Kumari was married on 28.04.2002 in presence of several villagers and relatives. It is alleged that in the night of 01.05.2002, present appellants namely Bhuneshwar Rabidas and Rajendra Rabidas came to the house of informant- Baldeo Rabidas and complained as to why, they were not given Feast. The informant consoled them assuring to organize Feast later, but they became furious and went to their house and again Rajendra Rabidas armed with iron rod and Bhuneshwar Rabidas armed with Lathi accompanied with his wife Jubli Devi and daughter Rajkumari Devi came to the house of the informant. It is further alleged that Rajendra Rabidas hit on the head of Horil Rabids (brother of the informant) by iron rod. In the meantime, Surendra Rabidas came to rescue him, then, he was also assaulted by iron rod. It is further alleged that accused Bhuneshwar Rabidas has assaulted the informant by Lathi and when Yubraj Das came to rescue them, then, he was also assaulted by Lathi. Hearing alarm of injured persons, several villagers assembled, then, accused persons fled away. It is alleged that in the night, due to want of communication facility, report could not be lodged, as such, written report was lodged on 02.05.2002 at Jamua Police Station Accordingly, Jamua P.S. Case No. 73 of 2002 was registered for the offence under Sections 341, 323, 324, 448, 504, 506 and 307/34 of the IPC against the above named accused persons. Later on, in the course of investigation, Horil Rabidas died. After completion of investigation, charge-sheet was submitted for the offences under Sections 341, 323, 302, 504 and 506 read with section 34 of the IPC. Investigation against female accused persons kept continued. 4. Later on, in the course of investigation, Horil Rabidas died. After completion of investigation, charge-sheet was submitted for the offences under Sections 341, 323, 302, 504 and 506 read with section 34 of the IPC. Investigation against female accused persons kept continued. 4. The case was committed to the Court of Sessions, where S.T. No. 280 of 2002 was registered. After conclusion of trial, impugned judgment and order was passed, which has been assailed in this appeal. 5. In the course of trial, altogether 11 witnesses were examined by the prosecution. P.W.-1 Saro Devi P.W.-2 Most. Kalwa Devi P.W.-3 Surendra Rabidas (injured witness) P.W.-4 Yubraj Rabidas (injured witness) P.W.-5 Baldeo Rabidas (Informant) P.W.-6 Dr. Rajendra Choudhary P.W.-7 Dr.Kamleshwar Prasad P.W.-8 Bhutak Rabidas P.W.-9 Khemchand Das P.W.-10 Radhika Devi P.W.-11 Shyamdeo Singh (The investigating Officer) 6. Apart from oral testimony of the witnesses, following documentary evidence has also been adduced by the prosecution: - Ext.1 & 1/A- Injury Report of Baldeo Rabidas and Surendra Rabidas Ext.2- Post-Mortem Report of Deceased Ext.3-Formal F.I.R. Ext.4- Endorsement on the written Report Submissions on behalf of appellants: - 7. Learned counsel for the appellants has extraneously argued that admittedly genesis of occurrence lies in not giving Feast to the appellants on the occasion of marriage of daughter of the informant but there was no intention or knowledge as required to constitute the offence under Section 302 IPC, rather, the occurrence has taken place in a sudden manner and the death of the deceased was also caused by shock and hemorrhage due to injury sustained by him. The injury sustained by the deceased was not opined to be sufficient to cause death in ordinary course of nature. Therefore, as regards, intention and knowledge (Mens ria) is concerned, the provision of Section 299 IPC is attracted in this case. Therefore, the offence falls under Section 304 Part-II of IPC and it is not a case under Section 302 IPC. It is further submitted that the appellant No. 2 was armed with Iron rod and the injury sustained by the deceased Horil Rabidas is described in his P.M. Report. There was a single injury over the middle of skull causing fracture of frontal bones and no any other injury was sustained by the deceased. Therefore, the assault can be attributed only against appellant No. 2 and appellant No. 1 is absolutely innocent. There was a single injury over the middle of skull causing fracture of frontal bones and no any other injury was sustained by the deceased. Therefore, the assault can be attributed only against appellant No. 2 and appellant No. 1 is absolutely innocent. It is further submitted that in the course of trial and post- conviction, the appellant No. 2 has remained in custody around 10 years and appellant No. 1 for two and half years. Both the appellants have sufficiently been punished for their guilt. Accordingly, their conviction and sentence deserve to be altered and modified allowing this appeal. Submissions on behalf of the State 8. On the other hand, learned A.P.P. appearing for the State has submitted that the learned trial Court has very wisely and aptly appreciated and analyzed the evidence available on record and rightly convicted the appellants. The impugned judgment of conviction and sentence of the appellants does not suffer from illegality or infirmity, calling for any interference. There is no legal substance in the grounds raised on behalf of the appellants and it is a serious offence of murder committed by the appellants. Therefore, this appeal is devoid of merits and fit to be dismissed. 9. We have gone through the record along with the impugned judgment in the light of rival contentions raised on behalf of the parties. 10.The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellants suffers from any error of law, which requires any interference in this appeal?” Analysis, reasons and decision 11. It appears that altogether 11 witnesses were examined in this case by the prosecution: The sole eye witness of the occurrence is informant-cum- injured i.e. Baldeo Rabidas (P.W.-5). According to his evidence, he solemnized marriage of his daughter and on the very next day, the accused persons who were not invited in the marriage, were asking for Feast. The quarrel took place and Panchayati was also convened. He has further submitted that during the Panchyati, suddenly assault took place wherein his brother Horil Rabidas (Deceased) fell down sustaining injuries and this witness started lifting him in order to save his brother. Then, he was also assaulted. The quarrel took place and Panchayati was also convened. He has further submitted that during the Panchyati, suddenly assault took place wherein his brother Horil Rabidas (Deceased) fell down sustaining injuries and this witness started lifting him in order to save his brother. Then, he was also assaulted. Later on, his brother died and he lodged F.I.R. This witness has been declared hostile because he has not disclosed the name of any assailants in his evidence and no specific overt act has been attributed against any of the accused persons. He has been controverted with the statement under Section 161 Cr.P.C., which he denied. P.W.-1 , Saro Devi is the wife of the informant. She has categorically deposed that on the date of occurrence, the accused persons were insisting for a Feast in connection with marriage of daughter and son of this witness. A Panchayati was also called and her husband was undertaking to give Feast, later on. The accused Rajendra Rabidas and Bhuneshwar Rabidas went to their house and returned with iron rod and lathi, respectively. Rajendra Rabidas gave a rod blow on the head of the deceased Horil Rabidas and Bhuneshwar Rabidas gave Lathi blow to her husband. Surendra Rabidas went to rescue them, then, Bhuneshwar Rabidas also gave Lathi blow to him. Both the injured were sent to the Sadar Hospital, Giridih where Horil died. In her cross-examination, she has remained intact and nothing has been elicited to discredit her evidence. P.W.-2, Most. Kalwa Devi , P.W.-3 Surendra Rabidas , P.W.4 Yubraj Rabidas, P.W.-8 , Bhutak Rabidas , P.W.-9, Khemchand Das and P.W.-10, Radhika Devi , all have been declared hostile having no personal knowledge of occurrence. Yubraj Rabidas (P.W.4) has claimed to be present at Kolkata on the date of the occurrence and Radhika Devi stated that on the date of occurrence, she was not present and returned to her home after 8 days, then came to know that Horil Rabidas has been died. She does not know as to who has killed the deceased. P.W.-11, Shyamdeo Singh, is the Investigating Officer who has proved the formal FIR as exhibit-3 and endorsement on the written report as Ex.-4. He also visited the place of occurrence which is situated in village Madnutand in the Bari of Bhutari Rabidas. He also recorded the statement of witness Radhika, Khemchand, Matuk and also arrested the accused Rajendra Rabidas. P.W.-11, Shyamdeo Singh, is the Investigating Officer who has proved the formal FIR as exhibit-3 and endorsement on the written report as Ex.-4. He also visited the place of occurrence which is situated in village Madnutand in the Bari of Bhutari Rabidas. He also recorded the statement of witness Radhika, Khemchand, Matuk and also arrested the accused Rajendra Rabidas. He prepared inquest report of the deceased, which is not available at present. The injured persons were sent to hospital, Jamua for treatment and after death of Horil Rabidas, his dead body was sent to Sadar Hospital, Giridih for Post- Mortem. He also received P.M. Report of the deceased and finding sufficient evidence, submitted chargesheet against the accused persons Bhuneshwar Rabidas and Rajendra Rabidas, continuing the investigation against the female accused persons. The attention has been drawn to this witness towards the statement of evidence of hostile witnesses namely Kalwa Devi, Surendra Rabidas, Yubraj Rabidas, Baldeo Rabidas, Mutak Rabidas, Khemchand Rabidas and Radhika Devi, etc. but has supported the prosecution story in their statement under Section 161 Cr.P.C. Contradiction has also been drawn from the evidence of witness, Saro Devi. 12. We have meticulously examined the evidence of witnesses as discussed above. 13. It appears that the informant has also become hostile but his wife P.W.-1 Saro Devi has categorically supported the prosecution version as an eye witness of the occurrence and her testimony has not been rebutted by the defence to disbelieve or discredit her testimony. The informant and his brother are also injured persons and their injury reports are also proved as Exhibit-1 and 1/A, respectively. There is specific allegation against appellant No. 2 namely Rajendra Rabidas that he gave mighty rod blow to the deceased Horil Rabidas on his head which resulted in his death and the appellant No. 1 has only caused Lathi Blow causing simple injuries to the informant and his brother. The deceased has sustained solitary injury caused by rod blow. There is no concrete evidence that both the accused persons have acted in a concerted manner, intending to commit the murder of the deceased. No participation has been proved against the appellant No. 1 in causing injury to the deceased. Therefore, both the accused persons can be held guilty for their individual act. There is no concrete evidence that both the accused persons have acted in a concerted manner, intending to commit the murder of the deceased. No participation has been proved against the appellant No. 1 in causing injury to the deceased. Therefore, both the accused persons can be held guilty for their individual act. There is no doubt that the scuffle took place in a sudden manner on the point of giving Feast in connection with marriage of informant’s son and daughter. A Panchayati was also convened but the dispute and scuffle turned into exchange of assault. The injury sustained by the deceased was also not found to be sufficient in ordinary course of nature to cause death. 14. In the given factual background, we find that the requisite intention and knowledge to constitute offence under Section 302 IPC is absolutely lacking in this case rather case falls under Section 304 Part-II of the IPC. The sole responsibility for causing death of the deceased is attributable only against appellant No. 2-Rajendra Rabidas. We are also of the view that this is a case of culpable homicide not amounting to murder which was never intended by the appellants and the occurrence took place in a sudden manner without any pre- meditation or taking any undue advantage of situation. Therefore, the conviction of appellants for the offence under Section 302 read with Section 34 of IPC is not justifiable under law. 15. Accordingly, the conviction of appellant No. 2 is reduced to the offence under Section 304 Part-II IPC. Since the appellant No. 1 has not been attributed with any overt act in causing any injury to the deceased and it is also not proved that he has acted in a concerted manner in furtherance of common intention with appellant No. 2, therefore, he deserves acquittal from the charge under Section 302 /34 of IPC. But at the same time, there is specific allegation against appellant No. 1 for causing lathi blow injury to the informant and his brother, which finds corroboration from the injury report, therefore, we hold the appellant No. 1 guilty for the offence under Section 323 IPC. But at the same time, there is specific allegation against appellant No. 1 for causing lathi blow injury to the informant and his brother, which finds corroboration from the injury report, therefore, we hold the appellant No. 1 guilty for the offence under Section 323 IPC. We further find that appellant No. 2 has already undergone around 10 years imprisonment and appellant No. 1 about two and half years imprisonment during pendency of this case, therefore, both have sufficiently been punished for their respective offence committed by them as discussed above. 16. In result, this appeal is dismissed on merits with modification in conviction and sentence of the appellants as stated above. The appellant No. 1 is held guilty for the offence under Section 323 of the IPC and sentenced to imprisonment already undergone by him. Similarly, appellant No. 2 is held guilty for the offence under Section 304 Part-II IPC and sentenced to imprisonment already undergone by him. 17. Both the appellants are on bail, hence, they are discharged from the liabilities of their respective 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 court concerned for information and needful. 20. We take this opportunity to appreciate the assistance rendered by Mr. Navneet Sahaya, learned amicus curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to him 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 is served upon Member Secretary, High Court Legal Services Committee.