Judgment B.P.Sharma, J. 1. The sole appellant, Ganpat Tudu, stands convicted under Section 302 of the Indian Penal Code and he has been sentenced to R.I. for life for the said offence by the 6th Additional Sessions Judge, Dumka. The appellant was convicted by the judgment dated 18.1.1994 and by an order dated 20.1.1994 he was sentenced as stated above. He filed this appeal from the jail. His prayer for bail was, however, earlier refused and he continues to be in custody. 2. The prosecution story in short is that on 26th of October, 1988 at about 10.30 a.m., one Saheblal Tudu, son of Tikham Tudu of village Kashjor within the P.S. Jamtara, in the District of Dumka appeared at the Police Station, Jamtara and gave a statement which was recorded in fardbeyan (Ext. 3) by a Police Officer S.I. Ramdeo Prasad. The informant stated that an occurrence took place in the previous night, i.e., in the night between 25th and 26th of October, 1988 in his house. According to the informant (PW 7) while he was sleeping in his house with his family in the night, he heard some sound in the Angan and he got up and came out after opening the door of his room. As he came out in the Angan he saw in the moonlight that his cousin brother Gan-Eat Tudu was holding a Tangi in his and. The informant also found the door of the room opened in which his father was sleeping, and when he looked inside the room he found his father dead in pool of blood. There were serious injuries on his head. So immediately the informant came out and saw Ganpat Tudu running away with the said Tangi in his hand. The informant raised alarm and also tried to catch hold of the culprit, but he fled away as nobody arrived on his Hulla. Thereafter, he saw Rasmuni, wife of his cousin brother Dashrath Tudu, weeping and he also found injuries on the head of Dashrath Tudu, who was lying in the Angan in injured condition. He enquired from the said Rasmuni, who told him that Ganpat Tudu has assaulted her husband and thereafter he also went inside the room and killed the father of the informant and ran away. He enquired from the said Rasmuni, who told him that Ganpat Tudu has assaulted her husband and thereafter he also went inside the room and killed the father of the informant and ran away. He was also told by Rasmuni that she had got up as her child wanted to ease and at that very time the accused arrived and assaulted both the persons. The informant further stated that the occurrence had taken place because of the fact that the informant had some quarrel with the deceased about two-three days earlier regarding the construction of a wall. He stated that his father was already dead but his cousin brother Dashrath Tudu was injured and his condition was serious. So he had brought the said cousin brother of Dashrath Tudu to the hospital and Dashrath Tudu was not in a position to speak. On the basis of this fardbeyan a formal FIR was later drawn up in the P.S. and the case was registered under Sections 448, 526, 307 and 302 of the Indian Penal Code against the appellant Ganpat Tudu, and the investigation was taken up by the said S.I. Ramdeo Prasad, officer-in-charge of the Police Station. Later Dashrath Tudu also died in the hospital and the Police Officer prepared the inquest reports of the two dead persons, inspected the P.O. and recorded the statement of the witnesses. The accused Ganpat Tudu, the appellant was also produced in the Police Station by the Sarpanch of Gram Panchayat concerned, namely, Yasin Shekh (PW 2) and he was taken into custody. Ganpat Tudu made some confessional statement before the Police Officer and also pointed out the weapon of offence thrown in the field at some distance from the P.O. and also pointed out a portion of Dhoti hanging with a tree, where he had attempted to commit suicide after committing the double murder of his brother and uncle, but he could not succeed in committing suicide and then he met the Sarpanch, Yasin Shekh (PW 2), and told him that he had committed murder and had also tried to commit suicide but the Dhoti was torn which was hanging with the tree and he sought help of PW 2 to get him produced in the P.S. and accordingly, PW 2 took him to the Police Station. The Police Officer also sent the seized weapon which was a Katta and also come blood stained earth collected from the P.O. and the piece of Dhoti seized by him to Forensic Science Laboratory where the same were examined and the report was also received. On completing investigation the I.O. submitted charge-sheet in the case. Accordingly, the cognizance was taken and the case was committed to the Court of Sessions. The trial commenced before the 3rd Additional Sessions Judge and subsequently it was transferred to the 6th Additional Sessions Judge, Dumka where the trial concluded and the judgment and order as stated above, were passed. The appeal was preferred by the convict from the prison but a Counsel Sri Sunil Kumar Mandal appeared for the appellant as amicus curiae to assist the Court. 3. The accused did not adduce any evidence in this case and he simply Ndenied the charge when it was framed and read over to him and he also denied the allegation against him in his statement under Section 313, Cr PC. It was suggested on his behalf that he was falsely implicated in this case due to enmity. The learned Trial Court on being satisfied with the evidence adduced on behalf of the prosecution in the Trial Court held the appellant guilty and convicted and sentenced him as described above. 4. In order to bring home the charge against the accused the prosecution examined altogether 11 witnesses in this case; out of them PW 1 Dr. A.K. Chakervorty was the doctor who had performed the autopsy over the two dead bodies while he was posted in Sub-divisional Hospital, Jamtara as CAS PW 2 Yasin Shekh happened to be the Sarpanch of the Gram Kutchery, Supaidih and the P.O. village also lies within the jurisdiction of this Gram Kutchery. He is a witness on the point of extra judicial confession of the accused in the case and also on the point of recovery of the weapon of offence and the piece of Dhoti on being pointed out by him. PW 3 Rasmani Murmu is an eye-witness to the occurrence. She happens to be the wife of Dashrath Tudu, who was one of the two persons killed in this incident. PW 4 Jamani Soren and PW 6 Sokharam Marandi are tendered. PW 3 Rasmani Murmu is an eye-witness to the occurrence. She happens to be the wife of Dashrath Tudu, who was one of the two persons killed in this incident. PW 4 Jamani Soren and PW 6 Sokharam Marandi are tendered. PW 5 Munni Murmu is the wife of one Likhan Tudu, one of the deceased and she has stated that on hulla she got up in the night of occurrence and she also found the wife of Dashrath Tudu weeping and then she found injures on the deceased persons and also learnt about the occurrence. PW 7 Saheblal Tudu is the informant himself. PW 8 Rasik Hembram happens to be the village Chaukidar of the P.O. village and he had received information about the occurrence in the morning following the alleged night of occurrence and thereafter, he took the informant to the PS. where his statement was recorded by the Police Officer. PW 9 Kartik Murmu is formal witness, who has proved the inquest report and has stated that he has put his LTI on the same. PW 10 Balmiki Goswami is also a formal witness who had produced some documents and materials in the Court. He has proved the formal FIR (Ext. 4) and two inquest reports (Ext. 5 and 5/1) and also the seizure list (Ext. 6). PW 11 Satya Narain Singh is also a formal witness who produced the reports of Forensic Science Laboratory and proved the entry in the Malkhana register of the Court. The relevant entry is Ext. 7. Two reports of the Forensic Science Laboratory are Exts. 8 and 8/1. This PW 11 also produced and proved the materials, namely, the sword or Katta, a piece of Dhoti and blood stained earth as material Exts. I, II and III. 5. So far as the medical evidence is concerned, it appears that the doctor (PW 1) had examined the dead body of Dashrath Tudu on 26th of October, 1988 at p.m. and he found the following ante mortem injuries on the person of the deceased. (1) Echymosis of left eye-lids. (2) Incised wound 4" xl"x bone deep over left side of chin extending from lower lip to the left angle of mandable. (3) Fracture of mandable. (4) Transversed incised wound 6" x 1" bone deep from tip of nose to the left parital bone 2" above the left ear. (1) Echymosis of left eye-lids. (2) Incised wound 4" xl"x bone deep over left side of chin extending from lower lip to the left angle of mandable. (3) Fracture of mandable. (4) Transversed incised wound 6" x 1" bone deep from tip of nose to the left parital bone 2" above the left ear. (5) Incised wound 2" x 1/2" car-tiledge deep with absence of lobule of right ear. (6) Incised wound 5" x 1" muscle deep over right side neck extending from right angle of mandable to the back of neck. (7) Incised wound l"x 1/2" x muscle deep over middle of right forearm at its antorial lateral aspect. (8) Fracture of Nasal bone. According to the doctor on dissection of skull he found the fracture of the left parital and left side of frontal bone. There was a linear cut, tharax lungs pale, heart was empty. On dissection of abdomen, the doctor found that it was full of blood about 200 ml. In the opinion of the doctor, the death was caused due to haemorrhage and shock caused by the above-mentioned ante mortem injuries No. 2 and which were sufficient to cause death in usual course. In his opinion, injuries No. 2 and which were sufficient to cause death in usual course. In his opinion, injuries No. 2, 4,5, 6 and 7 were caused by sharp cutting substance such as Tangi, Katta or sword and injuries Nos. 1, 3 and 8 were caused by hard and blunt substance. The post mortem report is Ext. 1. On the same day the doctor held Post mortem Examination over the dead body of Likhan Tudu at 3.30 p.m. and he found the following ante mortem injuries on his person. (1) Incised wound 4" x 1" x scalp deep over occipital bone at its upper and left part. (2) Linear crack 3 x 1/8" of the occipital bone just below the injury No. 1. (3) Incised wound 2" x 1/2" x muscle deep over left side neck. (4) Incised wound 3" x 1/2" x muscle deep at the anterior aspect of lower third of right forearm. (5) Abrasion with swelling over left side of cheek. Further according to the doctor on dissection of skull, membrance and brain matter of occipital bone were found conjusted. The tharax lungs were normal and heart was full of blood. (4) Incised wound 3" x 1/2" x muscle deep at the anterior aspect of lower third of right forearm. (5) Abrasion with swelling over left side of cheek. Further according to the doctor on dissection of skull, membrance and brain matter of occipital bone were found conjusted. The tharax lungs were normal and heart was full of blood. On cut section of abdomen it was found empty but large and small intaliness were filled with fluid and gas. The cause of death in the opinion of doctor was infra cranial haemorrhage and shock caused by injuries with heavy and sharp cutting weapon; such as Tangi. Injuries No. 1, 2, 3, 4 and 5 were caused with sharp cutting substance and injuries No. 1 and 2 were sufficient to cause death in normal course. It is, therefore, clear from the evidence of the doctor that so far as the injuries on the person of the deceased Likhan Tudu is concerned, that injury No. 2 was as a result of injury 1 and it was not a separate injury. So far as injury No. 5 is concerned, doubt was raised about it as to now this injury was found on the person of this deceased when there was no use of hard and blunt substance for causing assault, but this injury appears to have been as a result of impact of left side of the face of the victim with earth on his falling on receiving injuries. Similarly, according to the doctor injuries No. 1,3 and 8 on the person of Dashrath Tudu have been described as caused with hard and blunt substance. So it was urged on behalf of the appellant as to how these injuries have been caused because there is no allegation that any hard and blunt weapon was used for assaulting the deceased. So far as injury No. 3 is concerned, it appears to be due to injury No. 2 which was on chin extending from lower lip to the left angle of mandable, as the Katta or Chopper happens to be heavy cutting weapons. It appears that because of heavy blow causing injury No. 2, injury No. 3 also resulted. So far as injury No. 3 is concerned, it appears to be due to injury No. 2 which was on chin extending from lower lip to the left angle of mandable, as the Katta or Chopper happens to be heavy cutting weapons. It appears that because of heavy blow causing injury No. 2, injury No. 3 also resulted. Similarly injury No. 8 also appears to be a result of impact of the heavy instrument on the nose which caused injury No. 4 and it does not appear that these two injuries have been caused by some independent blows inflicted by hard and blunt substance. So far as Echymosis of left eye-lids described as injury No. 1 on the person of this deceased Dashrath is concerned, it might have resulted either due to impact of the face with hard ground or caused by serious kind of injuries caused on the head. It is, therefore, clear that the medical report does not appear to be in conflict with the oral evidence. 6. From the medical evidence, it becomes clear that several injuries were inflicted on two deceased persons by the assailant and evidence of PW 3 is worth noting in this regard. As a matter, of fact, she is the only eye-witness to the occurrence in this case. She has stated that in the alleged night of occurrence she got up as her child wanted to ease and her husband also was awake at that very time. The appellant entered the house with a weapon like sword and he hit her husband thrice on his face. This description of the manner of assault by PW 3 gets support from the medical evidence also as described above. This witness has further stated that she was present there. It appears from the description of the P.O. given by PW 3 as well as PW 7 that there is a courtyard in front of the rooms in which these witnesses reside and on one side of the courtyard the appellant also resided. This witness has further stated that she was present there. It appears from the description of the P.O. given by PW 3 as well as PW 7 that there is a courtyard in front of the rooms in which these witnesses reside and on one side of the courtyard the appellant also resided. PW 3 has stated that after the child had eased she had washed him and had handed over the child to her husband and as she was washing her hand the blows were inflicted as a result of which the child had also fallen on the ground and she picked up the child and, therefore, the description of the occurrence given by PW 3 makes it very clear that she was present at the P.O. when the injuries were inflicted on her husband Dashrath Tudu and as the appellant was none else than the full brother of the deceased Dashrath Tudu and was residing in the same Angan also, in a moon-lit night the witness could not have any difficulty in identifying him. She has also stated that after assaulting her husband the appellant entered inside the room in which the father of informant was sleeping and he also caused injuries to him and then he came out and fled away. She also further stated that at that very time the informant emerged from his room and saw the culprit running away with weapon and when the informant saw his father dead he enquired from this witness and she stated that her husband was also injured by the appellant. There is nothing in her cross-examination to discredit her testimony in this case. It is obvious that while she happens to be the wife of one of the two deceased in this case, the appellant also is not a stranger; rather he was brother-in-law of this witness and the witnesses had no reason to falsely implicate the appellant. 7. There is nothing in her cross-examination to discredit her testimony in this case. It is obvious that while she happens to be the wife of one of the two deceased in this case, the appellant also is not a stranger; rather he was brother-in-law of this witness and the witnesses had no reason to falsely implicate the appellant. 7. Moreover, her evidence is fully supported by the informant (PW 7), who has stated that when he came out from his room on hearing some sound he saw the appellant coming out from the room in which his father was sleeping and then he found his father lying dead with injuries on his person and he also raised alarm and chased the appellant, but he escaped and then he was told by PW 3, the wife of one of the deceased Dashrath Tudu that the appellant had inflicted injuries on her husband also. Subsequently Dashrath Tudu was taken into hospital where he died. PW 5, who happens to be the mother of the informant (PW 7) and the wife of the deceased Likhan Tudu, has also supported the statements of PWs 3 and 7 by saying that while she was sleeping in a room with her grand children she heard the sound of weeping of wife of Dashrath Tudu meaning thereby PW 3 and she came out and saw injuries on the person of Dashrath Tudu. She also stated that in the meanwhile her son Saheblal Tudu (PW 7), the informant, also came out and said that his father was killed by the appellant. She also went inside the room and saw her husband badly injured and subsequently he died. She was also told by her son Saheblal Tudu (PW 7), the informant, that the appellant had killed him. The cross-examination of this witness is very short one and there is nothing to indicate that she has not stated the truth. In his cross-examination, a question was put regarding quarrel between the deceased Dashrath Tudu and the accused appellant. PW 7 has however, stated that there was no litigation in this regard. It is obvious that both the. deceased Dashrath Tudu and the appellant were brother and living also in the same Angan. In his cross-examination, a question was put regarding quarrel between the deceased Dashrath Tudu and the accused appellant. PW 7 has however, stated that there was no litigation in this regard. It is obvious that both the. deceased Dashrath Tudu and the appellant were brother and living also in the same Angan. Therefore, it was not surprising that they had some differences regarding construction of a wall and it is not always necessary that all such matters must be brought to Court, but the differences were there. There is no doubt about it. 8. Another witness, who is very important in this case is PW 2 Yasin Shekh. He has stated that on the day following the night of occurrence the appellant came to him and told that he wanted to leave the village as he had committed murder of uncle and his own brother Dashrath. This witness had told him that his family will be ruined and on being asked he advised him that he should surrender in the Police Station and the appellant also told this witness that he had thrown away the weapon of offence in a field near Bagdhara. The appellant also informed this witness that he had tried to commit suicide by hanging to a tree with the help of a Dhoti, but as the Dhoti was torn he could not succeed in killing himself and so he sought his advise. Later he had gone to that place along with the Police Officer and this appellant where he had thrown the weapon of offence and it ws recovered and a portion of Dhoti hanging with a plastic was also recovered. The Police Officer had also seized some blood-stained earth from the P.O. during investigation and three articles were sent to Forensic Science Laboratory from where the reports were also received. Ext. 8/1 is the report of Forensic Science Laboratory which indicates that there was blood stained earth marked A and there was also blood over Katta marked D on small portion. However, the blood could not be detected on the piece of Dhoti marked C. The report of Serologist in this regard is Ext. 8 and from Ext. 8, it appears that the blood found on the soil was human blood but the group however could not be ascertained. However, the blood on Katta could not be determined due to disintegration. However, the blood could not be detected on the piece of Dhoti marked C. The report of Serologist in this regard is Ext. 8 and from Ext. 8, it appears that the blood found on the soil was human blood but the group however could not be ascertained. However, the blood on Katta could not be determined due to disintegration. The materials have also been produced in Court in this case and the inquest reports (Exts. 5 and 5/1) and seizure list (Ext. 6) have also been admitted into evidence in this case. However, the I.O. could not be examined in this case, but non-examination of the I.O. does not appear to have caused any prejudice to the defence as all the relevant materials have been brought on the record and there is no aspect of the case which could not be classified by the evidence adduced in Court in absence of the Investigating Officer, even contradictions have also not been taken from the witnesses. It is, therefore, obvious that non-examination of the I.O. for whatever reason may be, has not caused any prejudice to the defence in this case and the case stands proved otherwise. 9. Learned counsel for the appellant submitted that because it is admitted that there was some difference between the informant and the deceased Dashrath on the one hand and the appellant on the other hand, he appears to have been falsely implicated and, therefore, he deserves to be acquitted, but on consideration of the entire evidence on record, as discussed above, there does not appear to be any doubt about the correctness of the prosecution case and therefore, does not appear to be any reason to disagree with the findings of the trial Court in this case. The prosecution story has been presented in Court in such a manner that there is no scope for doubt about the guilt of the accused in this case. The accused is proved to have committed double murder without any serious kind of provocation. However, the trial Court has refrained from passing the order of sentence of death against the appellant and the case was also not one of the rarest of rare kind. Therefore, the sentence awarded by the Court also appears to be proper. There is no question of interfering with the order of sentence. However, the trial Court has refrained from passing the order of sentence of death against the appellant and the case was also not one of the rarest of rare kind. Therefore, the sentence awarded by the Court also appears to be proper. There is no question of interfering with the order of sentence. The appeal is, therefore, dismissed, and the judgment and order of the trial Court are hereby confirmed. R.N.Prasad, J. 10 I agree.