Judgment Prasun Kumar Deb, J. 1. In Session Trial No. 314 of 1980 in the file of Sessions Judge, Gumla, five persons were put on trial having been charged under Section 302/34 of the Indian Penal Code for the murder of one Etwa Oraon. The occurrence having taken place in village Bargaon, P. S. Sisai on 7th March, 1978 at 6.30 hours. The trial court found the present two appellants guilty for the offence charged as against them and the remaining three accused persons who were acquitted for lack of evidence. The appellants have been sentenced for imprisonment of life and they have been appealed against the conviction and sentence. 2. The learned Sessions Judge, Gumla, has stated the prosecution case in para-2 of the Judgment with sufficient clarity. It is not necessary to narrate in detail the facts which led to the prosecution and conviction of the appellants. The story is that on the date of occurrence i. e. 7th March, 1978, the deceased Etwa Oraon had gone to Sisai for some work which is not clear from evidence. It is evident that a Bank pass book was found lying near the deadbody of the deceased. The other version is that he had gone there on account of Shiv Ratri Puja. He was seen returning from Sisai in the evening time. Although he had a bicycle he was seen by his wife coming on foot pushing the bicycle. He was attacked and killod near his house ; case of which has come in the evidence of the sole witness, namely, widow of the deceased and in the F. I. R, which was lodged on the same day at 21.30 hours by Chamo Oraon Who is sisters son of Bisni Orain, widow of the deceased. 3. Chamo Oraon had lodged an F. I. R. at Sisai P. S. and the fardbeyan based on the version given by the widow, of the deceased, Chamo Oraon and other villagers about the occurrence, Five persons were named in the F. I. R. who had seen the occurrence. The appellant Prahlad Oraon is the own brother of the deceased while appellant Bilgu Oraon is nephew of appellant No. 1 as well as the deceased. The prosecution case is that the deceased and his other brother were in extreme hostile term because of certain lands disputes. Howeuer, there is no clear evidence on this point. The appellant Prahlad Oraon is the own brother of the deceased while appellant Bilgu Oraon is nephew of appellant No. 1 as well as the deceased. The prosecution case is that the deceased and his other brother were in extreme hostile term because of certain lands disputes. Howeuer, there is no clear evidence on this point. Out of the three acquitted accused two were own brothers of the deceased while third was nephew of the deceased. 4. It is well established from the medical evidence that the deceased was severely inflicted injuries with the object of do away his life and it was a case of homicide. The deceased was murdered on 7-3-1978 at about 6.30 p. m. and the postmortem on the deadbody was conducted on 9-3-1978. The body had started decomposing. 5. The following injuries were detected on the person of the deceased by Dr. Basant Lal, PW 1 who had performed autopsy : "(1) Lacerated injury 2 1/2"X 13/4" X" on the left side of head (sic); (2) Lacerated injury 2 1/4" x l1/4"x 1/5 (sic) on the right side of head: (3) Lacerated injury 2 1/2" x 11/2" X 1" (sic) on the back of head ; (4) Incised injury 1 1/2" X 1 1/2" x 1" (sic) backward and medially; (5) Incised injury 4|" X 1 1/2" x 2 1/4" on the upper part of left leg; On dissection it was found to have cut through skin, both tebia and febula bone and leving a flap of skin only left leg ; (6) Incised injury 2 1/4" X 1 1/4" X 13/4" on the back of right leg lower portion on above the aucler joint Injuries had chopped off the leg leaving a flap of skin. On dissection of the head, injury Nos. 2 and 3 were found to have cut and lacerated through the scalp and fractured skull bone beneath it almost of the same size, and piece of skull bone had depressed into the brain matters, lacerating it about 3/4 deep. Injury Nos.1, 2 and 3 had been caused by hard blunt substance and each of them was sufficient to cause death in ordinary course of nature. Other injury were caused by sharp cutting weapon. Timing since death with two days. Injury Nos.1, 2 and 3 had been caused by hard blunt substance and each of them was sufficient to cause death in ordinary course of nature. Other injury were caused by sharp cutting weapon. Timing since death with two days. 6 It will be necessary to record the evidence of Bisni Orain in detail since conviction of the appellants based primarily on the basis of this solitary witness. Bisni Orain has testified that about 6 p. m. her husband was returning from Sisai and had almost reached near his house when he was attacked by appellant Prahlad Orsaon. He was concealing himself behind Karang tree. Prahlad Oraon assaulted the deceased with a lathi on the head. The deceased was able to snatch the lathi from the hand of Prahlad and fell him but Prahlad managed to get up and throw the deceased on the ground. He thereafter produced a small tangi and inflicted a tangi blow on the leg. Prahlad shouted for Bilgu for who arrived with balua and started cutting the deceased saying that he was cutting a goat. Bisni Orain wanted to rescue her husband but she was threatened. It may be stated that this witness at that time was offering feed to the cattle in front of her house. Her mother was also there. The place of occurrence was near the Angan of the house of the deceased There can not be doubt that she was present there and she would have seen the occurrence. There is no doubt that she is the natural witness and not a chance witness. But we have examined the evidence of this witness with very caution. Considering the facts that there prevailed serious enemity between the deceased and the appellants and other brothers of the deceased. 7. Bisni Orain in perplexed state first went to the Chowkidar and narrated him the occurrence. This witness has stated that Chowkidar sent her along with his son Chunia at Chattitola. Gandur Oraon is sisters husband of this witness and father of the informant, Chamo Oraon. Gandur Oraon has not been examined. She also narrated to him as to how her husband was murdered. In the meantime, a large number of villagers assembled there. This witness returned to the place of occurrence along with the villagers and found her husband absolutely chopped. He was dead. Gandur Oraon has not been examined. She also narrated to him as to how her husband was murdered. In the meantime, a large number of villagers assembled there. This witness returned to the place of occurrence along with the villagers and found her husband absolutely chopped. He was dead. She sent Chamo to the police station to lodge the report of the occurrence. The police came. 8. In her cross-examination, this witness emphatically asserted that it was not dark at the time of occurrence and there was no wall in front of her house to obstruct her vision. She has stated that the house of the accused persons is adjacent to her house. This witness has clarified that the dead body of her husband was found lying some distance away from the Karang tree where Prahlad Oraon had concealed himself. She further stated that the deadbody was between the Karang tree and Angan of her house. She stated before the Investigating Officer that Prahlad Oraon first assaulted with lathi and then with a tangi on the leg. 9. Before adverting to the argument of the counsel for the appellants who has attacked the evidence of this witness it would be proper to bring to our records the evidence of other witnesses. Bimla Kumari, aged 19 years, has been examined as PW 3 in this case. She has supported her mother PW 2 Bisni Orain in all material particulars, although according to the evidence of PW 2, Bisni Orain, her presence was not there in the scene of occurrence, rather Bisni Orain stated that her mother was present by her side at the time of occurrence. Be it what it may, the fact remains that Bimla Kumari has also posed herself to be an eye-witness of the occurrence and on scrutiny of her evidence it can be found that she might also be present at the house while the occurrence took place and when the place of occurrence is just ahead of the Aangan of their house, she might have also seen some part of the occurrence. Except these two witnesses, none other came forward to support the prosecution case on the basis of occular evidence. PW 6 Chamu Oraon is the informant who has been reported to the occurrence by Bisni Orain. He bas not seen the occurrence. Except these two witnesses, none other came forward to support the prosecution case on the basis of occular evidence. PW 6 Chamu Oraon is the informant who has been reported to the occurrence by Bisni Orain. He bas not seen the occurrence. Similarly PW 7 Buduram Oraon and PW 10 Budhnath Oraon have also supported the prosecution case regarding assault on the person of the deceased by his brother and nephew as reported by PW 2 Bisni Orain. PW 12 Ram Lakhan Sao is a witness of inquest. PW 4 Bandhwa Oraon and PW 5 Jhari Orain are the nephew and niece of the deceased and tne accused persons. They are the son and daughter of the deceased brother of both the deceased and the accused Prahlad Oraon. They might have also seen some part of the occurrence but they have only been tendered. From the records it appears that one Khario Oraon, servant of accused Prahlad Oraon was an eye-witness of the occurrence and accordingly his statement was recorded under Section 164 of the Code of Criminal Procedure but he has not been examined from the side of the prosecution. 10. Learned Counsel for the accused appellant has vehemently argued that the prosecution case cannot stand on the deposition of most partisan witness PW 2 and her daughter when the mother of the deceased who admittedly was the eye-witness of the occurrence have not been examined. His further submission is that Choukidar Gandhur Oraon to whom the first reporting was made by Bishni Orain have also not been examined and for their non-examination, the prosecution case cannot stand. 11. On the other hand, Mr. Rajgarhia, learned Counsl appearing for and on behalf of the State has strenuously argued that non-examination of some witnesses cannot shatter the prosecution case. However, it could be seen that cogent and reliable evidence adduced by the witnesses during the trial stage supported by the medical evidence could be able to prove the charge against the accused persons beyond all reasonable doubt or not. According to him, the s sole evidence of Bisni Orain supported by the medical evidence is sufficient to bring book the charges against the accused appellants and they have been convicted rightly by the impugned judgment. 12. According to him, the s sole evidence of Bisni Orain supported by the medical evidence is sufficient to bring book the charges against the accused appellants and they have been convicted rightly by the impugned judgment. 12. There seems to be some sort of exaggeration from the very begining of the case when other three accused persons, two of whom happened to be the brother of the deceased and another one Nephew were also tried along with the present accused appellant for the same charge under Section 302/34 of the Indian Penal Code but against them, but no specific attribution have been made rather there was allegation to the effect that they being armed with weapon threatened Bishni Orain on dire consequences if she come out from the house at the time of occurrence to raise alarm or to report any body. That allegation has not been supported in course of trial and as such rightly they have been acquitted by the learned trial court. 13. From the evidence of the witnesses who have been examined during the trial it could be established that Etwa Oraon died of injuries some distance ahead of his Aagan of his house near Karanj tree due to severe injury caused on his person. Now it is necessary as to how such injuries were caused on his person. 14. As per the evidence of PWs 2 and 3, accused appellant Prahlad Oraon assaulted Etwa Oraon by means of lathi and also by tangi on the leg and after his assault, accused appellant Bilgu Oraon chopped off both the leg of the deceased by means of Balua and Etwa Oraon died instantaneously at the spot itself. There was marks of blood at the place of occurrence. Bishni Orain being the natural witness, the learned court below has rightly relied on her deposition to base conviction against the accused appellant. Bisni Orain and her daughter Bimla Kumari stated that while Etwa Oraon was returning home by dragging his bicycle on foot. Prahlad Oraon came out from his concealment place behind Karanj tree and gave a lathi blow on his head. Bisni Orain and her daughter Bimla Kumari stated that while Etwa Oraon was returning home by dragging his bicycle on foot. Prahlad Oraon came out from his concealment place behind Karanj tree and gave a lathi blow on his head. Then Etwa could be able to snatch away the lathi from his hand and fell on him down on the ground, but in course of scuffle, accused appellant Prahlad Oraon could raise him up and then fell Etwa Oraon down and gave a small tangi blow on his neck and then asked Bilgu to come out and assault the deceased. Accordingly, Bilgu came out and he started cutting Etwa Oraon saying that he was cutting a goat and in course thereof, both the legs of the deceased were chopped off. As such attribution against the accused-appellant Prahlad Oraon is a lathi blow on the head of the deceased end also a tangi blow on his leg, but as tangi blow could be found in the post mortem examination as mentioned earlier. There are three lathi blows on the head region, of the deceased. Definitely, the first lathi blow given by the accused appellant Prahlad Orson was not so serious or a fatal one on the face of it as on receipt of that blow also the deceased could be able to scuffle with the accused appellant and snatch away his lathi. From the evidence of doctor it is found that two other lacerated wounds on the head region had caused lacerations and brain matters damaged inside and it has been casually stated by the doctor that all the lacerated injuries on the head regions are individually sufficient enough to cause death of the deceased but injury No. 1 has got no external injury as is revealed from the post-mortem report itself, hence that injury cannot be said to be fatal one. The other two lacerated injuries on the head region had not been attributed on Prahlad Oraon and it is not known as to who caused those two lacerated injuries. The opinion of the doctor is also not based on proper appreciation of the injury on the person of the deceased. The other two lacerated injuries on the head region had not been attributed on Prahlad Oraon and it is not known as to who caused those two lacerated injuries. The opinion of the doctor is also not based on proper appreciation of the injury on the person of the deceased. Chopping of legs must have caused much oozing and that must also be direct cause for the death off the deceased even if there were no head injuries on the person of the deceased and the way those injuries were caused by the accused appellant Bilgu Oraon is sufficient to show that he has caused those injuries with the very intention to culpable homicide amounting to murder. 15. Thus the conviction of the accused appellant Bilgu Oraon under Section 302 of the Indian Penal Code is proper and justified but regarding accused Prahlad Oraon who found that he gave only one lathi blow although in the head region causing laceration wound can only be convicted under Section 325 of the Indian Penal Code and not more than that. 16. In the result, the appeal is allowed in part and the impugned judgment of conviction and sentence imposed against appellant Bilgu Oraon under Section 302 of the Indian Penal Code is hereby maintained, but the conviction and sentence against accused appellant Prahlad Oraon is hereby modified to the extent that Section 325 of the Indian Penal Code and he be punished for the period for which he had already undergone imprisonment. The appellant Prahlad Oraon had been granted bail by this Court vide order dated 2-3-1990 and as such he is discharged from the liability of his bail bond. In respect of accused appellant Bilgu Oraon, the period of imprisonment already undergone by him should be set off from the award of sentence. Ravi Nandan Sahay, J. 17 I agree.