Judgment N. N. Singh and j. JJ. 1. Both these appeals have been preferred against the order of conviction and sentence, dated 15-5-1995 passed by Additional Judicial commissioner, Khunti in S. T. No.577 of 1989 and as such they have been heard together and are being disposed of by this single judgment. 2. In Criminal Appeal No.52 of 1955 (R) Jagarnath Oraon is the appellant and in Criminal Appeal No.68 of 1995 (R), the appellants are (1) Hinu oraon, (2) Pitu Oraon and (3) Birsa bhagat @ Panchkauri Bhagat alias oraon. By the aforesaid judgment dated 15-5-1995 passed in S. T. No.577 of 1989, appellants Pitu Oraon, Hinu oraon and Jagarnath Oraon were convicted under Sections 302/34 and 201 of indian Penal Code and were sentenced to undergo rigorous imprisonment for life and a fine of Rs.1000 (rupees one thousand) each and in default, to undergo rigorous imprisonment for six months under Sec.302/34 of the Indian Penal Code and to undergo rigorous imprisonment for four months under Sec.201 of Indian Penal Code. The appellant Birsa Oraon @ panchkauri was found guilty under Sec.302/120-B of Indian Penal Code and was sentenced to undergo rigorous imprisonment for life thereunder. Feeling aggrieved, they have preferred thesu appeals, as aforesaid. 3. The prosecution case as mentioned in the first information report (Ext.2) lodged by the PW 3 Nandia oraon is that on 1-8-1988 at about 6.00 p. m. when the informant, her husband gandur Oraon, and daughters Sukro (PW 1), Karmi (PW 2) and Charia were in their house, the appellants Pitu with a dagger in his hand, Hinu with a knife in his hand, and Jagarnath, bare handed, and Jatru (not tried in this case) with a lathi, came there and they caught her husband Gandura Oraon and dragged him assaulting and when the informant and her daughters protested, they were also threatened to be killed. Further case of the prosecution is that all the four persons took Gandura Oraon to the house of Fagua Oraon and when there was darkness, the informant with her daughter went to the house of Fagua oraon and inquired about her husband, but nobody told them anything and in the cow-shed of Fagua Oraon, they found some blood, but her husband was not there. The informant suspected that her husband had been done to death and the accused persons had removed the dead body for disposal. The informant suspected that her husband had been done to death and the accused persons had removed the dead body for disposal. The motive behind this occurrence was stated to be that the appellant Birsa Bhagat @ panchkauri Oraon used to tell the villagers for the last 2/3 days that Gandura was a witch and that he should be killed, otherwise there will be no peace in the village and that one day prior to the alleged dccurrence also, appellant panchkauri Bhagat and Sukra Oraon had instigated the villagers to kill her husband and on that instigation, these four persons abduc-ed husband of the informant. 4. First Information Report (FIR) (Ext.2) was lodged by Nandi Oraon (PW 3) in Karra P. S. on 2-9-1988 at 6.00 p. m. on the basis of which Karra P. S. Case No.36 of 1988 was registered against these appellants and Jatru oraon, Sukfa Oraon and Fagua Oraon under Sections 364/109/34 of Indian penal Code and after recovery of the deadbody of Gandura Oraon, Sections 302/201 of Indian Penal Code were also added. The police, after due investigations, submitted charge-sheet against these appellants and investigation was kept pending against Jatru Oraon, sukra Oraon and Fagua Oraon. After commitment, these appellants were charged under Sections 302/34 and 201 of Indian Penal Code and appellant birsa Bhagat @ Panchkauri Oraon was further charged under Sec.120-B of indian Penal Code and they were put on trial. 5. The defence, as gathered from the suggestions put to the PWs 3 statements of the appellants under Section 313 of the Code of Criminal Procedure, appears to be that they have been falseiy implicated in this case. 6. In support of its case, the prosecution examined altogether 7 witnesses, out of whom PWs 5 and 6 is banwari Lal Jaiswal. He is a formal witness who proved the post mortem report (Ext.1) and the first information report (Ext.2 ). This clearly indicates that the trial court was negligent in not even considering that the same witness was being examined twice. Proper course was that PW 5 should have been recalled for further examination in place of examining him (the said witness) as pw 6. PW 7 is Lado Oraon, Chaukidar of Chanda Para, who stated to have gone alongwith the informant to the police Station, where the first information report (FIR) was recorded. Proper course was that PW 5 should have been recalled for further examination in place of examining him (the said witness) as pw 6. PW 7 is Lado Oraon, Chaukidar of Chanda Para, who stated to have gone alongwith the informant to the police Station, where the first information report (FIR) was recorded. He further stated about the recovery of the deadbody of Gandur Oraon buried in the river-bed of river Tigga. He stated that the inquest report was prepared by the Investigating Officer Mithilesh singh and the same has been marked as ext.3. PW 4 is Bigul, brother of the informant, who stated that his sister Nan-dia came to him in the early morning of friday alongwith- her daughter Karmi and told him these appellants had killed her husband Gandur Oraon. He further stated to have gone to Chaukidar Lado and with him, he went to the police station, where the FIR recorded. 7. Pw|3 is Nandia (informant) who stated that these appellants had come to her house when she, her daughters and her husband were working inside the house and that the appellant Pitu had a knife, appellant Hinu had a dagger and appellant Panchkauri had a lathi in their hands. She further stated that they assaulted her husband Gandur and dragged him to the cow-shed of Fagua, where he was made to lie down. She further stated that when they protested, they threatened them also, on which they fled away and sat inside their house. PW 3 further stated that subsequently in the light of a torch, went in search of her husband. She stated that fagua and his wife were not present there and she had seen the dead body of her husband and blood fallen in the cow-shed on the earth. This part of the evidence of this witness is a development in the prosecution case. In her fir, she did no claim to have seen the deadbody of her husband, nor she stated that she was chased by the appellants. She stated to have gone to her brother (PW 4) and with him, she went to the chaukidar and from there, to the Police station, where her statement was recorded. She further stated about the recovery of the deadbody of her husband kept buried in the river bed of river Tigga. She stated to have gone to her brother (PW 4) and with him, she went to the chaukidar and from there, to the Police station, where her statement was recorded. She further stated about the recovery of the deadbody of her husband kept buried in the river bed of river Tigga. Regarding motive, she stated that the appellant Panchkauri used to call her husband a witch and he used to tell others to kill him and for that, her husband was killed. In her cross-examination, she admitted that she had not gone with her husband when these appellants were taking him away. In para 10 of her cross-examination, she admitted to have told the Investigating Officer that her husband was not present in the cow-shed of Fagua, but some blood was there. Thereafter, she explained that she had stated so as the dead body was removed. This clearly shows that this informant had not seen the dead body of Gandur, her husband, in the cow-shed of Fagua. In para 12 of her cross-examination, she had clearly stated that Jatru had not gone to her house along with these appellants. This is also not in conformity with the FIR. She clearly alleged the name of Jatru as one of the four persons who had gone there. Similarly, PW 1 Sukro the daughter of the informant stated about the arrival of Pitu, Hinu, Jagarnath and one another person with a lathi in his hand, who entered her house and assaulted her father. She also stated that kept her father in the cow-shed of fagua. She stated that subsequently when they went in search of her father, they found blood in the cow-shed. She has been cross-examined at length and she has supported the prosecution case. However, in paragraph 8 of her cross-examination, she named Panchkauri also as one of the persons who had gone to her house along with the other appellants. Such claim was not made in the fir. She developed the prosecution case by stating to be an eye-witness of the murder of her father. 8. Pw 2, Karmi Oraon is another daughter of the informant. She named these four appellants as the persons who had entered into her house and assaulted her father and dragged her to the cow-shed of Fagua. She developed the prosecution case by stating to be an eye-witness of the murder of her father. 8. Pw 2, Karmi Oraon is another daughter of the informant. She named these four appellants as the persons who had entered into her house and assaulted her father and dragged her to the cow-shed of Fagua. From the evidence of PWs 1, 2 and 3, it appears that the name of appellant panchkauri was subsequently inserted as a person who had gone with the other appellants to assault Gandur Oraon, who dragged to the cow-shed of Panchu. The story was also developed when these PWs claimed to have seen the dead body of Gandur Oraon inside the cow-shed. No such claim was made earlier in the FIR and as such this development in the prosecution story made by pws 1 to 3 cannot be believed. 9. In this case, the doctor who held post mortem examination (Ext.1) and the investigating officer have not been examined. Interestingly, the defence got the entire case-diary marked as Ext. A (vide order dated 24-4-1995 ). I find that besides being negligent, the trial court acted with undue haste in closing the prosecution case. From perusal of the order, it appears that on 6-6-1994, the case was fixed for evidence on 5th, 6th and 7th July, 1994. On 5th July, 1994 pws 1 and 2, on 6th July, 1994 PWs 3 and 4 and on 7th July, 1994 PW 5 were examined. The investigating officer was summoned on 25th July, 1994. On 1-9-1994, PW 6, a formal witness was examined. On 22-11-1994, the Presiding officer (PO) was on casual leave (CL)and on 20-12-1994 PW 7 was examined and the prosecution case was closed on the same day, though all the accused persons were not present and after six adjournments, on 17-4-95 only, the statements of accused persons could be recorded under Sec.313 of the Code of Criminal Procedure. Therefore, t during this period had the trial court made efforts, the investigating officer could have been examined. The doctor, as per the evidence of PW 6, is dead. 10. Mr. Dayal, counsel for the appellants argued that there could be no conviction on the basis of the evidence of last seen only. He relied upon the decisions reported at 1994 SCC (Cr.)1551. There is no doubt regarding it. The doctor, as per the evidence of PW 6, is dead. 10. Mr. Dayal, counsel for the appellants argued that there could be no conviction on the basis of the evidence of last seen only. He relied upon the decisions reported at 1994 SCC (Cr.)1551. There is no doubt regarding it. But this is not a case of last seen simpliciter, as the allegation is that the deceased was assaulted and dragged, and on the next day his dead body was found buried. Mr. Dayal further stressed that in the evidence of the informant, it has come that the dead body was recovered at 4.00 p. m. on Friday. The alleged date of the occurrence was thursday. He stressed that in that view of the matter, the dead body having been recovered in presence of the investigating officer, some other FIR, must have been lodged prior to the present fir, which has been withheld. I find no merit in this argument as the inquest report (Ext.3) is very clear that the dead body was recovered on 3-9-1988, whereas the first information report ~t (FIR) was lodged at 6.00 p. m. on 2-9-1988. Simply because witness made mistake in stating that day to be Friday, a third story cannot be introduced that some other FIR was lodged earlier. 11. No doubt, some developments were made in the prosecution case by the PWs.1 to 3 in their evidence, but from their evidence, this much is established that the appellants Pitu, Hinu and Jagarnath, alongwilh one other. entered in the house of the informant having made preparation to assault gandur on the instigation made by the appellant Panchkauf i and Birsa and that they assaulted Gandur Oraon, dragged him to the cow-shed of Fagua and thereafter, he was not seen by anybody, and on the next day, in the evening at 5.00 p. m. his dead body was found buried in the river-bed of Tigga. There is no eyewitness to the alleged murder. No. doubt, the injuries mentioned in the inquest report (Ext.3) go to show that gandur died a homicidal death, but in the case of circumstantial evidence, the entire chain is not complete to rope in these appellants and to make them responsible for the murder of the deceased. There is no eyewitness to the alleged murder. No. doubt, the injuries mentioned in the inquest report (Ext.3) go to show that gandur died a homicidal death, but in the case of circumstantial evidence, the entire chain is not complete to rope in these appellants and to make them responsible for the murder of the deceased. Even no question was asked to the appellants under Sec.313 of the Code of Criminal Procedure that they were responsible for the death of the deceased, Gandur oraon. The doctor who held post mortem examination on the dead body of the deceased has not been examined. He is reported to be dead. In that circumstance, proper way for the prosecution was to examine any other doctor in order to prove and opine as to whether the injuries mentioned in the post mortem report were sufficient in the ordinary course of nature to cause the death; but that has not been done. I have discussed above that some developments were made in the prosecution case, but the truth can be separated. This much is established that the appellants Pitu, Hinu and Jagarnath, as also one another person entered the house of the informant having made preparation to commit assault to Gandur Oraon and that he was assaulted and dragged by them from there. Thus, a case under Sections 452/34 of Indian penal Code, which is a minor offence of chapter XVI of Indian Penal Code, is clearly made out against appellants Pitu, hinu and Jagarnath Oraon. So far as the appellant Birsa Bhagat @ panchkauri is concerned, it is also established by the evidence of PWs that he instigated the other appellants branding gandur Oraon as a witch and suggested to kill him and consequently, the said occurrence did take place. As such, a case under Sections 452 and 120-B of indian Penal Code is made out against the appellant Panchkauri @ Birsa oraon. PW.1 to 3 are, no doubt, interested witnesses, but in case of witchcraft, whole village stands united against such person. 12. For the aforesaid reasons, the conviction of the appellants Pitu oraon, Hinu Oraon and Jagarnath oraon under Sections 302/34 is not maintainable, as the allegation of committing murder has not been proved for the reasons mentioned above ; but definitely, the offence under Sections 452/34 of Indian Penal Code as against these appellants are well proved. 12. For the aforesaid reasons, the conviction of the appellants Pitu oraon, Hinu Oraon and Jagarnath oraon under Sections 302/34 is not maintainable, as the allegation of committing murder has not been proved for the reasons mentioned above ; but definitely, the offence under Sections 452/34 of Indian Penal Code as against these appellants are well proved. So, their conviction under Sections 302/34 of Indian Penal Code is hereby modified and converted to only under sections 452/34 of Indian Penal Code and they are sentenced to undergo rigorous imprisonment for three years. Similarly, the appellant Panchkauri oraon alias Birsa Bhagat is held guilty under Sec.452 read with Section 120-B of Indian Penal Code. Accordingly, his conviction and sentence under sections 302/120-B of Indian Penal code is hereby converted and modified to that of Sections 452/120-B of Indian penal Code and he is also sentenced to undergo rigorous imprisonment for three years only, and the period of sentence and detention during trial, against these appellants, are to be set off under Sec.428 of the Code of criminal Procedure. In the result, this appeal is dismissed with the modification in the sentence (s) as mentioned above. Appeal dismissed after modification.