By Court:

1. Heard the Parties.

2. The appellant has been charged and convicted under Section 304 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years with a fine of Rs.2,000/-and in default of payment of fine, further R.I. for three months.

3. Poraiyahat P.S. Case No.136 of 2003 has been registered on the information given by the informant at about 8.00 p.m on 29.08.2003. As per the F.I.R, husband of the deceased namely Gyandeo Rai went to collect lime (chuna) to the house of Purli Devi (P.W.-3). The appellant/accused had given a lathi blow on his head. The deceased fell down and there was bleeding but no medical help could be extended to the deceased and due to excessive blooding, he succumbed to the injury.

F.I.R has been registered on 30.08.2003 at 13.30 hours. On completion of investigation, the appellant has been charge-sheeted under Section 302 of the Indian Penal Code. The cognizance has been taken and the case committed to the Court of Sessions and thereafter charge has been framed under Section 302 of Indian Penal Code. The accused in his statement recorded under Section 313 of Cr.P.C has claimed to be innocent, accordingly trial has commenced and he has been convicted under Section 304 and sentenced to undergo R.I. for five years. He has remained in custody for about two years and seven months.

To substantiate the prosecution story altogether seven witnesses have been examined.

P.W.-1, Dr. Narendra Kumar, who has conducted the post-mortem on the dead body of the deceased. He has found following injury:-

(i) Lacerated would 2”x1” into the cranial cavity over the left frontal are of the scalp with fracture of the left frontal bone.

(ii) Abrasion 2”x1” over front of the left leg (middle).

(iii) Abrasion 1”x1” over the front of the left leg (lower part). He has further stated that injury no.-1 was grievous while other injuries were simple in nature. P.W.-2, Dinesh Rai, is an independent witness but he has been declared hostile.

P.W.-3, Purli Devi, has testified that when he went inside her house for collecting lime (chuna), she heard the sound of scuffle. When she came out, she saw the lathi blow given to the deceased by the appellant, due to which he fell down and subsequently in the night, he died.

P.W.-4, Chandra Mohan Rai, has testified that he has reached at the place of occurrence, on hearing shouting, he saw the deceased Gyandeo on the ground and the blood was oozing from his head.

P.W.-5, Bengiya Devi, is the informant and wife of the deceased. She has supported the story as disclosed in the F.I.R.

P.W.-6, is the Investigating Officer, has testified that he has received information from the Choukidar. Accordingly he reached at place of occurrence and after taking fardbeyan, F.I.R has been registered and the case has been investigated. No seizure list has been prepared.

P.W.-7, Sabita Kumari, daughter of the deceased, has testified that on shouting she reached at the place of occurrence and saw the appellant assaulting her father with lathi blow.

4. It is submitted by learned counsel for the appellant that there is material contradiction in the testimonies of the witnesses. From bare perusal of their testimonies it is clear that no body has seen the occurrence. All reached at the place of occurrence after incident. Further the cause of death has been disclosed in the medical opinion. Rather the cause of death is not providing medical treatment to the deceased. Further there are three injuries, one at head and two at legs. The gravity of head injury has not been proved by the Doctor. Considering the above factual matrix of the present case, the appellant may either be discharged from the charge or sentence may be reduced to the period already undergone i.e., two years seven months.

5. Per contra, learned APP has opposed the prayer. She has submitted that there is an injury on the head and this factum has been supported by the eye witnesses. Cause of death is head injury caused