Judgment N. N. Singh and J JJ. 1. This appeal has been directed against the order of conviction and sentence, dated 12-5-1994 passed in Sessions Trial No.108 of 1992 by Sri B. K. Sinha, Second Additional Sessions Judge, Chaibasa by which he has convicted the sole appellant, Pradhan Biruwa, under Sections 302 and 307 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life, and rigorous imprisonment for seven years respectively thereunder. 2. Briefly stated, the case of the prosecution as mentioned in the fard-beyan (Ext.2) of Jowati Biruwa (PW 1) is that on 14-10-1991 at about 8.00 p. m. when she, alongwith her children was sleeping after taking last meal, all of a sudden, her husbands elder brother Nirpati @ Labus (absconder) and her husbands younger brother - this appellant Pradhan Biruwa - with a Bhujali and a lathi in their hands entered in her house and Nirpati caught her hair and wanted to give Bhujali blow on her neck, which hit her right hand and started bleeding. Further case of the prosecution is that both of them also started assaulting the children and some-how, she escaped and went to her mothers place at Balandia, P. S. , Jhinkpani where her husband was employed and narrated the incident to him and in the morning, she along with her husband came to her house, but she did not find any of her child in the house, and on search, the deadbody of her son Pandu Birua, aged about six years with bleeding head injury was found and another son Mangal Birua was found injured and unconscious and the third son Begun Birua was also found in an injured condition. It was claimed that Munda and other villagers arrived there and saw them. The motive for the occurrence is said to be that this appellant suspected Jowati Birua to be a witch and for that they had come to kill her and they caused the death of Pandu Birua and injured the other children. 3. The fard-beyan of Jowati Birua was recorded by SI, D. N. Pandey, Officer Incharge, Manjhari P. S. on 16-10-1991 at 6.30 a. m. and on that basis, Manjhari P. S. Case No.31 of 1991 was registered against this appellant and Nirpati (absconder) under Sections 302/307/34 of Indian Penal Code and the police after investigation, submitted charge-sheet against this appellant showing Nirpati as absconder. As the case was exclusively triable by a Court of Sessions, after commitmentof the case, the appellant was charged under Sections 302 and 307 of the Indian Penal Code and was put on trial and thereafter, he was convicted, as aforesaid, against which this appeal has been preferred. 4. The defence of the appellant appears to be that he has been falsely implicated in this case. 5. The prosecution, in support of its case, has examined altogether 12 witnesses, out of whom PW 8 Rajendra birua and PW 9 Kiti Lohar were tendered for cross-examination. PW 12 uma Shankar Das is a formal witness, who proved the injury reports Exts.7, 7/1 and 7/2 in the pen of Dr. T. P. Singh, but in the absence of examination of the doctor who examined the injured, the contents of the injury reports cannot be looked into. PW 2 Karia Birua is a hearsay witness of the occurrence who stated about the recovery of the deadbody of pandu Birua and further stated that children Mangal and Bagun were injured, and Mangal was unconscious. There is nothing in his cross-examination to disbelieve him. PW 5 is Sidhesh-war Birua, the Mukhiya and PW 6 is hari Birua, the Munda of the village. They are not witnesses on the point of the alleged occurrence. However, PW 5 stated to have learnt about the occurrence from Rajendra Birua (PW 8) and devendra Birua PW 7. He further stated that this information was given by rajendra and Devendra in the midnight when they had brought Somari (PW 1), the daughter of the informant. He further stated that on the next day, he alongwith the Munda (PW 6) went to the place of the occurrence and at a distance of 400 metres from the house of the informant found the deadbody of pandu and the injured Mangal, who was in an unconscious condition. He is stated to have sent the information to the police station and further stated that when the Sub-Inspector arrived in the village, fardbeyan of Jowati was recorded in his presence and that of hari Birua. He proved his signature (Ext.6) on the fardbeyan. He further stated that the inquest report of the dead body of Pandu was prepared by the si and he put his signature thereon, which is Ext.6/1. He proved his signature (Ext.6) on the fardbeyan. He further stated that the inquest report of the dead body of Pandu was prepared by the si and he put his signature thereon, which is Ext.6/1. He also proved his signature (Ext.6/2) on the seizure list of the blood-stained earth seized by the police. He has been cross-examined at length, but nothing has come out to discredit his evidence. Similar is the evidence of Munda, Hari Birua, who proved his signature (Ext.6/3) on the fardbeyan of the informant Ext.6/4 and ext.6/5 on the seizure list. In cross-examination, he stated that he informed by the Mukhiya about the incident. He is also not an eye-witness of the occurrence. PW 7, Devendra Nath Birua stated that in the night of the occurrence while he was sleeping, Somari Kui (PW 11) came with Bagun and woke him up; Bagun had injury on his person and both the children informed that their uncle and Bada Baap (fathers elder brother) assaulted them and then he woke up Rajendra and both of them came to the Mukhiya. There is nothing in his cross-examination to discredit him. 6. Pw 10 is Lanka Birua, the husband of the informant who is also not an eye-witness of the occurrence. He stated to have learnt about the incident from his wife who went to him and in the morning, both of them returned to their house, where they found bleed on the ground and none of their children were in the house and then too on search, the dead body of Pandu and the injured and unconscious Mangal were found. He further stated that four children of this appellant had died of illness and he suspected Jowati to be a witch. He denied that he has implicated Narpati and this appellant in order to grab their property. 7. Pw 1 is the informant. In her evidence supporting her fardbeyan, that after taking last meal when she was sleeping in her house, this appellant and narpati came there and that this appellant had a bhujali in his hand. She further stated that Narpati caught her head while Pradhan Birua (appellant) gave a bhujali blow on her right hand. She stated that she fled away and went to balandia, where her husband was employed. She further stated that Narpati caught her head while Pradhan Birua (appellant) gave a bhujali blow on her right hand. She stated that she fled away and went to balandia, where her husband was employed. She further stated that in the morning she returned to her house alongwith her husband and found blood which had fallen on the earth, and her children absent and thereafter they searched and found the deadbody of her son pandu and two sons Begun and Mangal injured and unconscious. She further stated that her daughter had gone to the house of the Mukhiya. She stated to have giveji her fardbeyan to the Police. In her cross-examination, she was asked that the occurrence had taken place at 12-1 a. m. she replied in affirmative. It appears that being a rustic and illiterate lady, she could not realise the implications and replied in affirmative to the suggestion given by the defence. She further stated not to have informed any one in that village. The psychology behind this appears to be that in tribal villages, when any one is branded as a witch, the whole of the village goes against that woman and no help is expected from any villager. She has fully supported her fardbeyan. Another witness on the point of the occurrence is pw 11, the daughter of the informant, aged about 11 years; she stated that when they were sleeping, this appellant and Narpati entered in the house; this appellant had a Bhujali in his hand by which he tried to cut the head of her mother, but the injury was inflicted in her right hand and in the meantime, the dhibri which was burning put off and her mother escaped and she also went to the house of Devan (PW 7) and informed him about the incident, who reached her to the house of the Mukhiya and in the morning the dead body of Pandu was recovered near Dungri and Mangal was found unconscious. In cross-examination, she stated that the door planks were not bolted from inside. In course of arguments, Mr. Khatri, counsel for the appellant strenuously stressed that there was no source of light to identify this appellant; but from the evidence of this child witness, is clear that a dhibri was burning and in such a situation, it was possible to identify this appellant. In course of arguments, Mr. Khatri, counsel for the appellant strenuously stressed that there was no source of light to identify this appellant; but from the evidence of this child witness, is clear that a dhibri was burning and in such a situation, it was possible to identify this appellant. The attention of this witness was drawn to the. so-called contradictory statement, but those were not put to the investigating officer and in its absence, the defence cannot get its advantage. 8. Pw 3 is Dr. S. S. Birua, who stated to have held post mortem examination on the dead body of Pandu birua on 16-10-1991 at 4.45 p. m. He stated to have found the following ante-mortem injuries on the dead body of the deceased Pandu: - Ext. Examination : eyes: closed. Mouth : closed. Head : lacerated wound 3" x 3" x bone deep over the vertex area; on dissection of the head and neck, there was fracture of the vault of the skul in the vertex area, membranes ruptured and there was hae motoma under the skull in the area of 4" diameter. PW 3 opined that the cause of death was due to head injury caused within 72 hours by hard and blunt substance (lathi ). He proved the post mortem report, which is Ext.1. 9. Pw 4 SI Dinanath Pandey, the investigating officer of this case. He stated to have recorded the fardbeyan of jowati Birua (Ext.2 ). He proved the formal F. I. R. (Ext.3 ). He stated to have inspected the place of occurrence, an east-facing room belonging to the informant and he found blood (fallen on the earth near the entrance of that room) which he seized in presence of witness Hari Birua and Sidheshwar birua. He proved the seizure list (Ext.4 ). The deadbody of Pandu Birua was found near Dungri (parti land) and injured mangal Birua was lying there unconscious. He stated to have made the inquest report (Ext.5) in the presence of the witness. He further stated to have sent the injured for their medical examination and the deadbody for postmortem examination. In his cross-examination, he was asked about the certificate not appended to the fardbeyan, as the informant reported the matter in HO language. PW 4 stated that the fardbeyan of the informant was interpreted to him by the Munda. 10. Mr. He further stated to have sent the injured for their medical examination and the deadbody for postmortem examination. In his cross-examination, he was asked about the certificate not appended to the fardbeyan, as the informant reported the matter in HO language. PW 4 stated that the fardbeyan of the informant was interpreted to him by the Munda. 10. Mr. Khatri, counsel for the appellant, submitted that there is no evidence on the record to show that this appellant has committed the murder of pandu Birua (deceased) and that his identification in the dark night was doubtful. No doubt, there is no eye-witness, but the circumstances appearing in this case go to make out a case of commission of murder of the deceased in furtherance of the common intention of this appellant and Narpati. It has come in evidence that Narpati and this appellant Pradhan Birua with a Bhujali lathi had entered the house of the informant and had made attempt to kill the informant, who somehow escaped and that they had also assaulted the children, which has come in the evidence of PWs 1 and 11. PW 11 some how escaped and went to Devendra (PW 7) who took her to the house of the Mukhiya in the same night and in the morning, informant along with her husband returned and found blood on the earth near the entrance of the room of the informant and on search, dead body of Pandu was found, and another child Mangal was found injured and unconscious. These circumstances go to point out that the occurrence was committed by this appellant and Narpati in furtherance of their common intention. Though the trial Court has convicted this appellant under Sec.302 of the indian Penal Code, there is no hitch or hindrance in convicting him under Sec.302/34 of Indian Penal Code for commission of the murder of Pandu in furtherance of common intention of the appellant and the other (Narpati ). So far as conviction of the appellant under section 307 of Indian Penal CODe is concerned, as pointed out, the doctor has not been examined and the contents of injury report Ext.7 to 7/1 cannot be looked into. At best, a case under Sec.323/34 of Indian Penal Code can be made out against this appellant. 11. So far as conviction of the appellant under section 307 of Indian Penal CODe is concerned, as pointed out, the doctor has not been examined and the contents of injury report Ext.7 to 7/1 cannot be looked into. At best, a case under Sec.323/34 of Indian Penal Code can be made out against this appellant. 11. For the reasons stated above, the appellant is held guilty under Sections 302/34 and 323/34 of Indian Penal code and accordingly convicted and sentenced thereunder. While his sentence under Sections 302/34 of Indian penal Code to rigorous imprisonment is maintained, no separate sentence is awarded under Sections 323/34 of indian Penal Code. 12. I find no merit in this appeal. It is, accordingly, dismissed with the alteration, as aforesaid in the sentence of the appellant. Appeal Dismissed.