Judgment I. P. Singh, J. 1. This is the criminal appeal against the judgment and order of the Session Judge, Sitamarhi dated 26th April, 1988 in Sessions trial No.34 of 1986, where the trial Judge held this accused-appellant Rajendra Thakur guilty for the commission of offences punishable under Sections 302 and 201 i. P. C. , and awarded the sentence of rigorous imprisonment for life and for a period of five years respectively; and both the sentences to run concurrently. 2. The other co-accused Yogendra thakur and Janak Thakur had been acquitted by the trial Court. 3. The relevant family branches of the parties are that one Luxman Thakur had two sons Awadhi Thakur and Jagat thakur. Accused Janak Thakur (aged 84 years) is son of late Awadh Thakur. The deceased who had been murdered was tejendra Thakur aged 45 years and son of the accused Janak Thakur. Smt. Sushila Devi (PW 1) is the second wife of the deceased, and Lokesh P. W.7 and ranju Kumari daughter (tendered witness P. W.9) are the issues of the deceased Tejendra from Smt. Sushila. The deceased had no issue from his first wife who died within a couple of the years of marriage. Smt. Anandi Devi p. W.5 is the second wife of the accused janak Thakur and is the mother of the deceased Tejendra Thakur. She was more than 60 years of age on the date of occurrence. Janak Thakur had no issue from first wife who died after a short stay after the marriage. 4. Jagat Thakur was the other son of Luxman. Ram Kumar was son of jagat. The accused-appellant Rajendra thakur aged 46 years and the co-accused Yogendra Thakur aged 56 years on the date of occurrence are sons of late Ram Kumar. These accused rajendra and Yogendra are thus nephews of the accused Janak Thakur. The accused Yogendra has been the sarpanch of the village and the accused-appellant Rajendra has been the district level Wrestler (Pahalwan ). These accused Yogendra and Rajendra have been the bright descendants in the family clan while the prosecution evidence shows that the deceased Tejendra thakur was the spoiled child of his mother and the deceased was not even looking after the cultivation; and the two accused Rajendra and Yogendra were looking after all the family cultivation. These accused Yogendra and Rajendra have been the bright descendants in the family clan while the prosecution evidence shows that the deceased Tejendra thakur was the spoiled child of his mother and the deceased was not even looking after the cultivation; and the two accused Rajendra and Yogendra were looking after all the family cultivation. Both the accused persons and the deceased Tejendra Thakur alongwith their wives and children have been living in the same house having a number of rooms on three sides and a big inner court-yard, and a cattle shed, and covered enclosure shed for keeping cowdung cakes and other fuel etc. (Goitha and a Baithak outer room by the side of the main road of this residential house. In the month of Baisakh (April 1985) families separated from mess, and the elder Janak Thakur started living with his nephews rajendra and Yogendra. Tejendra thakur (deceased) started living alongwith his mother Anandi Devi, his wife Sushila and his children including lokesh separately. There was separation in mess. But the cultivation and the immovable properties including the house etc. were not separated/divided. The deceased Tejendra Thakur was pressing that half share in the ancestral properties be allotted to him by carrying partition whereas this accused-appellant rajendra Thakur was asking Tejendra to take l/3rd share, and this Rajendra thakur gave threats to Tejendra Thakur that he should not claim half share in the properties. 5. It appears with separation in mess partition wall 6 feet and 6 inch high was raised in the inner courtyard from the side of the rooms to an extent so as the separated families might conveniently use a part of the inner courtyard for their bath, open kitchen and rest etc. The other end of this partition wall was 15 feet away from the main door of the house. 6. The other end of this partition wall was 15 feet away from the main door of the house. 6. The prosecution case is that on 5th October, 1985 at about 5 P. M. Sushila Devi-informant P. W.1 was sitting in the court-yard, and her husband tejendra Thakur (deceased) came inside the courtyard rushing inside, and the accused-appellant Rajendra Thakur @ vidharthi Pahalwan was following him uttering abuses to him; and the accused rajendra Thakur picked up the palm (wooden) Mushal fitted with iron socket at one end (cast iron rings for more weight at that end and to avoid cracking of that end while pounding out husk from the paddy) and with this Mushal rajendra Thakur gave the blow on the head of Tejendra Thakur and Tejendra thakur fell down receiving head injuries by the side of the partition wall; this informant Sushila Devi P. W.1 and the mother Anandi Devi P. W.5 who were also there in the courtyard rushed forward to give a cover to the injured tejendra Thakur and they asked rajendra not to inflict any blow further; but the accused Rajendra Thakur gave the second Mushal blow on the neck of tejendra Thakur; these ladies took bleeding head of Tejendra Thakur in their hands and they found that lejendra Thakur was dead; that the ac-cused Rajendra Thakur gave the third mushal blow on the leg of the deceased tejendra Thakur and the Mushal was broken into two pieces. There after this accused Raiendra Thakur threw water of the bucket over the body of the deceased Tejendra Thakur. On alarm raised by these ladies Ram Chandra P. W 2, Shyam Chandra P. W.3, Nageshwar thakur P. W.6 and other neighbours and village men arrived there. The accused rajendra Thakur picked up both the broken pieces of Mushal (which broke due to the heavy assaults made by accused Rajendra Thakur) and kept them inside his Gothla (covered enclosure with that roof on the outer chabutra,)and left the place along with his wife and children. 7. According to the prosecution case, co-accused Janak Thakur and yogendra Thakur were standing at the ! outer door of the court-yard, and they indulge in preventing the witnesses from entering inside the court-yard. 8. 7. According to the prosecution case, co-accused Janak Thakur and yogendra Thakur were standing at the ! outer door of the court-yard, and they indulge in preventing the witnesses from entering inside the court-yard. 8. On receiving little information that a man had been seriously injured in village Majhaur, the incharge police sub-Inspector of the area Police Station abdul Bari recorded the information in the Police diary at 6.30 P. M. at No.81 dated 5th October, 1985, and reached the house of Rajendra Thakur @ Vidharthi Pahalwan at 6.55 P. M. and he found that a dead-body of Tejendra thakur @ lej Narain Thakur was lying inside the court-yard of the house, and the pool of blood was there on the floor of the Angand at the distance of five feet from the dead-body. Sushila Devi P. W 1 gave the information of the occurrence to this Police Officer, and on the statement of Sushila Devi P. W.1, fardbeyan (Exhibit-2) was prepared by Abdul Bari which was read to Smt. Sushila Devi in presence of the witnesses and Sushila devi finding it to be the correct narration put her signature on it in presence of the witnesses; and in pursuance of this statement of Sushila Devi formal first information report (Exhibit-6) was prepared in the records of the Police station. 9. Abdul Bari started investigationn in the case and in presence of the witness prepared the inquest report relating the dead-body of Tejendra Thakur. This inquest report is Exhibit-3. The deadbody was sent alongwith police constables to Sitamarhi Hospital for post-mortem. The Investigation Officer records the statement of Sushila Devi in the case diary and on her pointing out prepared the inspection report in the case diary. The Investigation Officer collected the blood-stained mud, the bucket and a sandow baniyan of a child stained with blood in presence of the witness from this site, where the dead-body was lying. The memo is Exhibit-4. This baniyan of a child might be lying on the floor of the court-yard from before. 10. The Investigation Officer recorded the statements of other witness, and thereafter the Investigation officer in presence of the witnesses searched inside Gotha and recovered two broken parts of the Mushal, and one part seemed to be having human blood stained. The memo relating this recovery is Exhibit-4/1. 10. The Investigation Officer recorded the statements of other witness, and thereafter the Investigation officer in presence of the witnesses searched inside Gotha and recovered two broken parts of the Mushal, and one part seemed to be having human blood stained. The memo relating this recovery is Exhibit-4/1. The Investigation Officer searched the village habitation to secure the presence of the accused persons but they were not there. Again next day in the morning the Investigation Officer proceeded further with the investigation in the case. He recorded the statement of some other witness and also made a search in the village to secure attendance of the accused persons but the accused persons were found absconding. 11. Later on Ram Chandra Singh p. W.11 started Investigation of the case further from 6th October, 1985 at 9 p. M. and he came to the village and he also found that the accused persons were absconding. He sent Smt. Shanti devi to the Court of area Magistrate for recording her statement under Sec.164 of the Code of criminal Procedure. Ramchandra Singh P. W.11 sent the part of the Mushal to the Chemical examiner for his report relating the stain. The report of the Chemical Examiner was not received and was not produced in the trial Court. Ram chandra Singh P. W.11 gave charge sheet against the accused persons. 12. Dr. Tej Narain Singh P. W.10 carried the post-mortem on the dead-body of Tejendra Thakur on 6th of October, 1985. He found the following ante-mortem injuries: (i) Lacerated wound on scalp left side deep to the bone with fracture of the skull i. e of parietal bone diameter 2-1/2 inch x 1/3 inch. (ii) Subdural haematoma below the above injury No. (1); (iii) Swelling of the left side of the neck extending from intra clavicular region to the left ear dimension 6 inch x 5 inch x 1-1/2"; (iv) On dissection of the neck at the site of the swelling subcutaneous tissue was filled with blood and upper three bronchial rings were fractured. This is internal injury due to injury No. (III ). (v) Abrasion on left upper arm 3/4 inch x 1/2; (vi) Fractures on the left leg above ankle joint. Both tibia and fibula were found fractured. 13. Dr. This is internal injury due to injury No. (III ). (v) Abrasion on left upper arm 3/4 inch x 1/2; (vi) Fractures on the left leg above ankle joint. Both tibia and fibula were found fractured. 13. Dr. Tej Narain Singh P. W.10 expressed his opinion that injury No.1 on the scalp and the other injuries on the left side of the neck were independently sufficient to cause death in the ordinary course of nature. A suggestion had been given to Dr. Tej Narain singh while running a man dashed, his head with force on a hard and blunt substance, Injury No. (ii) and (i) might be caused. The post-mortem report is ex-hibit-5. 14. The prosecution has examined smt. Sushila Devi (wife) P. W.1, Ram chandra Thakur P. W.2, Shayam chandra Thakur P. W.3, Shanti Devi (maid servant) P. W.4, Anandi Devi (mother) P. W.5, Nageshwar Thakur p. W.6, Lokesh Thakur (minor son aged seven years) P. W.7, Ram Bhujawan thakur (tendered witness) P. W.8, Ranju kumari (daughter-tendered witness)P. W.9, Dr. Tej Narain Singh (who conducted the post-mortem) P. W.10, Ram chandra Singh (who carried the latter part of the investigation and gave charge-sheet) P. W.11, Abdul Bari (first investigation Officer) P. W.12, Binoy kumar Singh P. W.13 and Ramadhar thakur P. W.14. 15. The defence of the accused-appellant is that all the accused persons have been falsely implicated in the case, and further the plea of alibi has been raised by this accused appellant that he had gone to his father-in-laws house alongwith his wife and children, situated in Nepal, and he was lying ill there at his father-in-laws house, and he was not in his parental village on the date of the occurrence. In defence the accused janak Thakur examined himself as D. W.1. Further Durga Prasad D. W.2 has been examined by the accused. 16. The trial Court found that the prosecution witness had not stated a word about the actual participation of the accused Janak Thakur and the accused Yogendra Thakur in the commission of the murder of the deceased tejendra Thakur and thus the trial court awarded them acquittal. 17. Ramadhar Thakur P. W.14 is younger brother of Smt. Sushila Devi wife of the deceased. 17. Ramadhar Thakur P. W.14 is younger brother of Smt. Sushila Devi wife of the deceased. He stated that hearing that his brother-in-law has been murdered he covered the distance of four kilometers and arrived at his brother-in-laws house at about 6 P. M. in the evening and he found the dead body of his brother-in-law lying inside the court-yard and in his presence the police Officer was told about the occurrence by his sister Sushila Devi and he also signed the fardbeyan (Exhibit-2 ). This witness also signed the inquest report (Exhibit-3) as a witness. He went to Sitamarhi Hospital alongwith the dead body. This witness stated further that he was aware that his brother-in-law Tejendra Thakur (deceased and the accused Rajendra Thakur (cousin brother of the deceased brother-in-law)were disputing the shares in the family land and properties. 18. Binoy Kumar Singh P. W.13 is a constable who carried the broken parts of the Mushal to the Chemical Examiner. 19. The witnesses relating the occurrence are the family members who were inside the courtyard, namely, sushila Devi P. W.1, Anandi Devi P. W.5 and Lokesh Thakur P. W.7 and Shanti devi (maid servant) P. W 4; and the other set of prosecution witnesses are ram Chandra Thakur P. W.2, Shyam chandra Thakur P. W.3 and Nageshwar thakur P. W.6 (the neighbours and village men who arrived at the place of occurrence inside the courtyard hearing the noise and cries. 20. Learned Advocate for the appellant urged that the motive attributed for the crime has not been proved, and was not sufficient motive for the commission of such heinous crime; It seems some part of the occurrence happened outside the house and the same has not been proved by the prosecution and all possible benefit should go to the accused-appellant, and the prosecution evidence on record is not reliable and does not prove the prosecution case; that the defence witnesses established the alibi of the accused-appellant and that in any case the case of this accused-appellant falls under Part II of Sec.304 IPC. 21. The depositions of Sushila devi P. W.1, Anandi Devi P. W.5, ramadhar Thakur P. W.14 proves that rajendra Thakur (deceased) on one side and his cousins the accused-appellant and his brother on the other sidewere disputing regarding partition in the family. 21. The depositions of Sushila devi P. W.1, Anandi Devi P. W.5, ramadhar Thakur P. W.14 proves that rajendra Thakur (deceased) on one side and his cousins the accused-appellant and his brother on the other sidewere disputing regarding partition in the family. Further the deposition of sushila Devi P. W.1 proves that her late husband was claiming half share while his cousin brothers were giving him 1/3rd share. The depositions of Sushila devi P. W.1, Anandi Devi P. W.5 and shyam Chandra Thakur P. W.3 prove further that father Janak Thakur was supporting his nephews relating the claims and partition. Janak Thakur defence witness D. W.1 did not make any specific statement on oath that no dispute was there between his son and his nephews, relating the share and partition of the properties. The prosecution has proved sufficiently that there was dispute regarding the share and the partition of the properties. Though it may be said that it could not be a strong motive for the commission of murder yet it would be a sufficient motive for the commission of murder. It might be taken supportive to the prosecution case. 22. The prosecution has proved sufficiently that there was dispute regarding the share and the partition of the properties. Though it may be said that it could not be a strong motive for the commission of murder yet it would be a sufficient motive for the commission of murder. It might be taken supportive to the prosecution case. 22. The eye-witnesses Sushila Devi (wife of the deceased) P. W.1, Anandi devi (mother of the deceased) P. W.5 and Lokesh Thakur (son of the deceased) P. W.7 were inside the inner court-yard of the house at 5 P. M. The prosecution witness Sushila Devi P. W.1 and Anandi Devi P. W.5 have stated on oath that Tejendra Thakur came rushing inside the courtyard and the accused-appellant Vidharthi Thakur @ Rajendra thakur came behind abusing him and rajendra Thakur picked up the Mushal from the inner courtyard and Rajendra thakur made the assaults with Mushal on the head of Tejendra Thakur who fell down by the side of the wall, and Sushila devi and the mother Anandi Devi both got up and tried to cover Tejendra thakur, and in the meantime the accused Rajendra Thakur assaulted with mushal on the neck of Tejendra Thakur, and Rajendra Thakur made the third assault with Mushal on the leg of Tejendra thakur, and the Mushal itself broke in two pieces and Rajendra Thakur took the water filled bucket and threw all the water over the fallen injured immobile body of Tejendra Thakur who was dead, and Rajendra Thakur picked up the broken parts of the Mushal and went outside the house alongwith his wife and children. This witness stated that seeing that Tejendra Thakur was being assaulted they cried for help and the villagemen arrived there and they also saw the occurrence. These witnesses stated further that the elder Janak Thakur and yogendra Thakur remained standing at the door of the house and they tried to obstruct the village men to come inside the courtyard. 23. Lokesh Thakur P. W.7 then aged seven years was found by the trial court to be a boy of sharp intelligence and sufficient understanding. This witness Lokesh Thakur stated that his father was assaulted by the father of sarita with the Mushal and his father was injured on fore-head, neck and left leg, and his father bleeded. 23. Lokesh Thakur P. W.7 then aged seven years was found by the trial court to be a boy of sharp intelligence and sufficient understanding. This witness Lokesh Thakur stated that his father was assaulted by the father of sarita with the Mushal and his father was injured on fore-head, neck and left leg, and his father bleeded. Further this witness told that the name of the father of Sarita is Rajendra Thakur and he was standing in the dock in the Court. This witness stated that the father of Sarita threw the water of bucket on his injured father. This witness stated that his father died at the place of assault in the courtyard. In cross-examination this witness stated that he gave this statement in Court of his own accord and what he saw with his own eyes, and he has not made any statement on the instigation of his maternal uncle. The statement of this witness Lokesh Thakur was recorded promptly after interrogation by the Investigation Officer in the case diary. There is nothing in the statement of this witness Lokesh Thakur to suggest that he made any variation or improvement in his statement on oath in the Court. A perusal of the whole statement of this witness Lokesh Thakur p. W.7 shows inherently that he is not a tutored witness. 24. Learned Advocate for the appellant urged that the evidence of a child witness is notoriously dangerous. Reference has also been to the decision brahmdeo V/s. State of Bihar reported in 1979 BBCJ 701 . In this reported case the court found that the child witness aged five years received serious injuries on vital parts of his body, and the same would have ordinarily incapacitated him and thus the version given by him that he awoke his sleeping mother inside the courtyard to enable her to come to the Darwaja is doubtful. Further the court found that there was nothing to indicate that the Court found that this child witness was of sufficient understanding to know what was truth and false. In the present case it is borne out that the Investigation Officer recorded the statement of this minor son Lokesh during investigation soon after the occurrence. There is no improvement or variation in the statement of Lokesh p. W.7 in the trial Court as compared to his statement taken down by the Investigation Officer. In the present case it is borne out that the Investigation Officer recorded the statement of this minor son Lokesh during investigation soon after the occurrence. There is no improvement or variation in the statement of Lokesh p. W.7 in the trial Court as compared to his statement taken down by the Investigation Officer. Because the statement is of a child in itself is no ground to reject the statement holding it will be a tutored statement. The careful examination of the whole statement of Lokesh p. W 7 shows that it is not a tutored statement. The deposition of Lokesh p. W 7 is safely acceptable for proving the charge. 25. It was a day time occurrence, where murder took place inside the inner court-yard of the house. The dead body of Tejendra Thakur was found inside the innercourtyard and the pool of blood was also found at a distance of five feet by the Investigation Officer. Janak Thakur-defence witness D. W 1 who stated that he came inside the house hearing that Tejendra had been murdered so the dead-body of Tejendra lying inside the inner courtyard. This sushila Devi P. W 1, Anandi Devi PW 5 and Lokesh Thakur P. W.7 are the natural and probable witness and their depositions prove fully that this accused appellant Rajendra Thakur @ Vidhar-thi Thakur caused fatal assaults on tejendra Thakur. Smt. Anandi Devi p. W.5, though mother of the deceased tejendra Thakur, was living with the accused-appellant and his family and his parental family for the last fifty years. Her son Tejendra Thakur was dead. This witness Smt. Anandi Devi P. W 5 would not have implicated accused-appellant rajendra Thakur on the charge of murder unless it was true. Equally this prosecution witness would not have screened the real culprit if there was any other one. 26. Shanti Devi P. W 4 who was working as maid-servant cleaning the utensil etc. This witness Smt. Anandi Devi P. W 5 would not have implicated accused-appellant rajendra Thakur on the charge of murder unless it was true. Equally this prosecution witness would not have screened the real culprit if there was any other one. 26. Shanti Devi P. W 4 who was working as maid-servant cleaning the utensil etc. of both the kitchens has stated on oath that that evening she was working inside the house and she saw tejendra Thakur coming inside the house giving the call Mai-Mai mother mother and the accused Rajendra Babu came behind him and Rajendra Babu picked up the Mushal and assaulted tejendra Babu with Mushal on his head and Tejendra Babu fell down and by the time the wife and mother of Tejendra arrived to cover the injured Tejendra babu, Rajendra Babu gave another mushal assaauit on theneck and later rajendra Babu gave another assault with the Mushal on the leg of Tejendra babu. The witness stated further that rajendra Babu threw the water of the bucket on the injured Tejendra Babu " and Rajendra Babu went out of the house picking up the Mushal and his family. She stated that Tejendra Babu died. This witness also stated that shyam Chandra Thakur and Ram chandra Thakur arrived inside the court-yard. Learned Advocate for the appellant has drawn attention to her statement that she was getting Rupees ten per mensum jointly from the two families and this shows that there was hardly any bad blood between the , deceased and the accused. The deceased and the accused belong to a respectable family and thus they might be handing over rupees ten per mensum to the maid-servant at one place. This payment of rupees ten jointly is not a factor for consideration that the claim for the share in the property was not being disputed. There is nothing to discredit the testimony of this witness Shanti Devi p. W 4. The defence witnesses Janak thakur D. W 1 too has not stated that shanti Devi P. W.4 was not the maid-servant in his house. The deposition of shanti Devi P. W.4 is accepted safely. This deposition of Shanti Devi P. W 4 also establishes beyond doubt that rajendra Thakur @ Vidharthi Thakur made the fatal assaults on Tejendra thakur. 27. The defence witnesses Janak thakur D. W 1 too has not stated that shanti Devi P. W.4 was not the maid-servant in his house. The deposition of shanti Devi P. W.4 is accepted safely. This deposition of Shanti Devi P. W 4 also establishes beyond doubt that rajendra Thakur @ Vidharthi Thakur made the fatal assaults on Tejendra thakur. 27. Relating the statement of other set of witnesses, namely, the neighbours and the village men Ram Chandra thakur P. W 2, Shyam Chandra Thakur p. W 3 and Nageshwar Thakur P. W 6, learned Advocate for the appellant has drawn attention to the judgment of the trial Court where the trial Court held that it was unsafe to place reliance on the testimony of these witnesses P. W.2, p. W.3 and P. W 6 on the point of actual assault on the deceased Tejendra thakur by the accused Rajendra thakur. On examination of their depositions, I find that the name of ram Chandra Thakur P. W.2 was not mentioned in the first information report specifically as a witness to the occurrence. Further the Investigation Officer Abdul Bari P. W.12 stated in the court that Ram Chandra Thakur did not make any statement to him relating the scene of the actual occurrence. Accordingly the deposition of Ram chandra Thakur cannot be accepted. The witness Nageshwar Thakur P. W.6 has old enmity with the accused appellant and his family. His name does not find mention specifically in the first information report who had seen the occurrence. Thus the deposition of nageshwar Thakur P. W.6 cannot be safely taken into consideration. Accordingly the deposition of Ram chandra Thakur cannot be accepted. The witness Nageshwar Thakur P. W.6 has old enmity with the accused appellant and his family. His name does not find mention specifically in the first information report who had seen the occurrence. Thus the deposition of nageshwar Thakur P. W.6 cannot be safely taken into consideration. Shyam chandra Thakur P. W.3 has stated on oath that he was at the door of his house and hearing the cries and the noise he rushed to the door of the house of Janak Thakur and there Janak thakur and Yogendra Thakur tried to obstruct him uttering abuses and he forced himself inside the courtyard and he saw with his own eyes that Tejendra thakur was lying injured inside the courtyard and the accused Rajendra thakur made assaults in his presence though the wife and mother of Tejendra thakur were making efforts to raise the injured head of Tejendra Thakur and were trying to give a cover to the injured tejendra Thakur and that Rajendra thakur made these assaults in his presence on the neck and on the leg of tejendra Thakur, and the leg of tejendra Thakur was broken and the wooden Mushal too broke into two pieces. This witness stated further that rajendra Thakur threw the water of the bucket on the dead-body of Tejendra thakur and Rajendra Thakur picked up both parts of broken Mushal and carried his wife and children outside the house hurriedly. 28. Learned Advocate for the appellant has drawn attention to the fact that this witness Shyam Chandra thakur P. W.3 did not make statement before the Investigation Officer that he was talking with his cousin brother ram Chandra Thakur at the door of his house at 5 P. M. and he rushed fast hearing the cries, and that he did not tell the investigation Officer that Janak Thakur was also there to obstruct his neighbours in the courtyard, and that the accused Rajendra Thakur picked up the broken parts of the Mushal and carried them with his wife and children leaving the residence; and contended that the presence of Shyam Chandra Thakur at the time of occurrence was doubtful. These alleged improvements in the statement in the Court, or these omissions in the statement to the Investigation Officer are not material enough to discard the testimony of Shyam Chandra thakur P. W.3. These alleged improvements in the statement in the Court, or these omissions in the statement to the Investigation Officer are not material enough to discard the testimony of Shyam Chandra thakur P. W.3. In the first information report Sushila Devi P. W.1 has mentioned the name of this witness Shyam chandra Thakur specifically who arrived there and saw the occurrence. The presence of Shyam Chandra Thakur p. W.3 at the time of occurrence cannot be doubted. The objective of the Investigation Officer is to collect the witnesses. The Investigation Officer shall prepare the record of all material statement relating the occurrence given by the witnesses making the record in the case diary. But this recording and the statement in the case diary does not conceive all detailed possible interrogation and recording of the statement. The presence of this witness Shyam chandra Thakur P. W.3 cannot be doubted because he made the alleged improvement in his statement in the court. This witness Shyam Chandra thakur told the Investigation Officer in his statement that he came there inside the courtyard and he saw this accused rajendra Thakur making assaults with mushal, on Tejendra Thakur. The deposition of Shyam Chandra Thakur p. W.3 may also be taken safely under consideration in support of the prosecution case. 29. Learned Advocate for the appellant urged that in the prosecution case Tejendra Thakur (deceased) was coming rushing inside the house and uttering Mai-Mai mother-mother and this accused-appellant Rajendra Thakur came inside the courtyard following him and abusing him shows that there was an earlier part of the occurrence outside the house, and the prosecution has not proved it, and that there might be some unhealthy gesture by Janak thakur towards his Bhabhi (mother of the accused Rajendra Thakur), and that would have prompted Tejendra Thakur and Rajendra Thakur an exchange of words and Tejendra Thakur was chased by Rajendra Thakur. Advocate for the appellant has drawn attention to the statement of Anandi Devi P. W.5 who stated in paragraph 2 of her statement that her husband Janak Thakur was more friendly to his Bhabhi than to her. The elder son of this Bhabhi Yogendra thakur was 57 years of age then. Obviously this Bhabhi should be reaching the age of 75 years or more. The elder son of this Bhabhi Yogendra thakur was 57 years of age then. Obviously this Bhabhi should be reaching the age of 75 years or more. Janak thakur might be speaking with his bhabhi with more politeness and with regard, and the same had been taken to be a more friendly behaviour by this witness Anandi Devi P. W.5. Had it been that Janak Thakur made any unhealthy gesture towards his Bhabhi, obviously the Bhabhi would have entered the witness box to tell that truth in the Court to save her son (accused-appellant ). The suggestion by the Advocate for the accused-appellant that Janak Thakur misbehaved with his Bhabhi and that resulted in this chase of Tejendra thakur by Rajendra Thakur is a far fetched imagination. The accused-appellant Rajendra Thakur did not tell any such alleged misbehaviour of Janak thakur with his mother in his statement under Sec.313 of the Code of criminal Procedure. None was injured by Tejendra Thakur and no property was destroyed by Tejendra Thakur and thus the accused-appellant had no occasion to make assaults on Tejendra Thakur. 30. If something other than the dispute regarding the shares in the property was the cause outside the house between Tejendra Thakur and his cousin Rajendra Thakur, the same could be easily disclosed by the accused rajendra Thakur in his statement to the Court under Sec.313 of the code of Criminal Procedure and the same would have been weighed by the court. I hold that there was no justification for the accused-appellant rajendra Thakur to make fatal assaults on Tejendra Thakur. 31. As discussed the prosecution evidence on record established beyond doubt that this accused-appellant rajendra Thakur @ Vidharthi Pahal-wan voluntarily made the fatal assaults on Tejendra Thakur without any sufficient cause. 32. Relating the alibi Durga Prasad p. W.2 proved the signatures of Dr. Anup Kumar Das (Yadav) on the medical prescriptions. This witness stated that these prescriptions were not prepared in his presence. This prescription shows it itself that on 1st October, 1985 the Doctor found that this rajendra Thakur had complained of some pain in lever and the colour of the urine was yellow, accordingly he prescribed the treatment for his bad lever. This witness stated that these prescriptions were not prepared in his presence. This prescription shows it itself that on 1st October, 1985 the Doctor found that this rajendra Thakur had complained of some pain in lever and the colour of the urine was yellow, accordingly he prescribed the treatment for his bad lever. Later this accused-appellant came to this Doctor on 10th October, 1985 and the Doctor made the note that he should continue the same treatment and later this Doctor gave a mild treatment further on 20th October, 1985. Neither the nature of the illness nor any evidence on record shows that this accused-appellant was confined to bed and was prevented from moving about. This occurrence took place on 5th October, 1985. This district Sitamarhi is adjacent to the Nepal border. Learned Advocate for the appellant has drawn attention to the statement of Janak Thakur D. W.1 who stated that on the date of occurrence Rajendra Thakur was not at the house and he had gone to his father-in-laws house eight or ten days earlier, and urged why Janak Thakur father of the deceased would be shielding the real culprit. The prosecution witnesses disclosed in evidence on oath and also in the first information report that Janak thakur was residing with his nephews and Janak Thakur was siding his nephews in the claim of the shares in the properties. Often Hindu males prefer progeny of the family who bring name and fame than their own unwor-thy son/sons. In absence of other evidence in support of the alleged plea of alibi this statement of Janak Thakur d. W 1 who is interested and biased witness, is not acceptable. The alleged plea of alibi does not stand proved. 33. Lastly the learned Advocate for the appellant urged that prosecution evidence does not show that there was an intention from before to commit this murder, as Rajendra came unarmed inside the house and as a chance he picked up the Mushal (which is not an usual weapon for making assaults on human beings) and thus the case of the accused-appellant be treated where the assaults attribute simply the knowledge to rajendra Thakur that his act was likely to cause death; and he had no intention of any kind to cause death. The reference has been made to a reported decision Madhusudan Satpati V/s. State of orissa reported in AIR 1994 Supreme court 474 where the apex Court took the view that the appellants be held guilty for the offence punishable under section 304 Part II IPC. In this Madhusudan case each appellant gave one blow only and thus the appellants had no intention to cause such injuries which would likely to cause death. Here this accused-appellant made assaults with heavy wooden Mushal twice on the upper part of the body where with the first assault on the head the victim tejendra Thakur fell down on the ground with bleeding injury on the head, and again this accused-appellant gave another blow on the neck of this injured Tejendra Thakur by Mushal. Both these blows on the head and the neck were given with force by this accused-appellant Rajendra Thakur. The post-mortem report shows that there was fracture of the parietal bone of the skull of the dimension of 2 1/2" x 1/3", and there was fracture of trachea (three trechial rings were fractured ). The thick wood has lesser elasticity as compared to Lathi or stick and that is how a forcible assaults by this Mushal resulted in its breaking. Advocate for the appellant pointed out that the conduct of the accused-appellant that he left the broken parts of the mushal in the outer room of the house be taken to be a fairness on the part of the accused-appellant and probably he would not have intended to commit murder. It was the mind of this accused-appellant to leave the broken parts of the Mushal inside the outer room than to carry them with him and thus to undergo the risk of queries by the person who would be meeting him in the way. 34. The repeated injuries on the upper part of the body - head and neck established that the accused-appellant intended to commit the murder of tejendra Thakur. These were the intended injuries on the part of this accused-appellant Rajendra Thakur and accused-appellant knew that these injuries were likely to cause the death. 35. The charge of murder is established against this accused-appellant rajendra Thakur @ Vidharthi Pahalwan @ Vidharthi Thakur. The accused-appellant is guilty for the commission of offence punishable under Sec.302 ipc. These were the intended injuries on the part of this accused-appellant Rajendra Thakur and accused-appellant knew that these injuries were likely to cause the death. 35. The charge of murder is established against this accused-appellant rajendra Thakur @ Vidharthi Pahalwan @ Vidharthi Thakur. The accused-appellant is guilty for the commission of offence punishable under Sec.302 ipc. Accused-appellant shall be undergoing the sentence of rigorous imprisonment for life as awarded by the trial Court. 36. Appeal is dismissed. 37. Accused-appellant is on bail from this Court. His bail bond is cancelled. The accused-appellant shall surrender before the trial Court within two weeks from this date of judgment to undergo the sentence. 38. A copy of the judgment be sent to the trial Court for the compliance. If this accused-appellant did not surrender within two weeks from the date of the judgment, the trial Court shall be issuing warrant of arrest to take into custody this accused-appellant Rajendra thakur @ Vidharthi Pahalwan @ Vidharthi Thakur and lodge him in jail to undergo the sentence. Appeal Dismissed.