Judgment R.N.Sahay, J. 1. Appellant No. 3 Ramji Singh is the father of appellant Nos. 1 and 2. These appellants were charged, tried and convicted for the murder of Inderdeo Singh, the own brother of appellant No. 3, Ramji Singh and have been sentenced to imprisonment for life. 2. Appellants No. 1 and 2 have also been convicted under Sec. 323, I.P.C. for causing hurt Rajpati Devi, the widow of Inderdeo Singh. Appellant Ved Prakash Singh was also charged and convicted under Sec. 324, I.P.C. for causing hurt Rajpati Devi by Chhura. 3. The incident which culminated in the trial and conviction of the appellants happened on 28-9-83 at village Bareja, P.S. Kopa in the district of Sarah. The time of occurrence was 7 a.m. Inderdeo had gone to answer call of nature near his house in the village, Rajpati Devi, wife of Inderdeo Singh was brooming her house. She was in Angan when her daughter Meera Kumari shouted. Rajpati came out of her house and found in the back side of her house towards west in front of Darwaja of Bachcha Pandey her husband being assaulted after he was felled down by Bhanu Singh by catching his waist, Bhanu Singh assaulted Inderdeo Singh by lathi. Ved Prakash Singh and Ramji Singh assaulted Inderdeo Singh by lathi and Chhura Ramji Singh was shouting "Jan Se Mar Do". He was also shouting "Jo Hoga So Dekh Lenge". Rajpati Devi went near her husband to rescue him, Bhanu Singh and Ved Prakash Singh assaulted her by lathi. Inderdeo became unconscious. The occurrence was seen by Duilarchand Rai and Hira Lal Singh. Rajpati Devi found her husband dead. Rajpati Devi gave the version of the occurrence to the officer incharge of Kopa which was recorded at 10 a.m. on the same day at her house. She attributed family dispute behind the occurrence. 4. Autopsy on the deceased was performed on the same day at 4.10 p.m. by Dr. Suresh Prasad, Civil Assistant Surgeon, Sadar Hospital, Chapra. The following ante-mortem injuries were noticed on the deceased: (i) Lacerated wound 1 x 4" x bone deep over left side of forehead with surrounding swelling and under lying clinical fracture. On dissection, there was fracture of left side of frontal wound with laceration of brain tissue and haemotoma. (ii) Bruise 1/2" x 1/2" x over left temporal bone. The following ante-mortem injuries were noticed on the deceased: (i) Lacerated wound 1 x 4" x bone deep over left side of forehead with surrounding swelling and under lying clinical fracture. On dissection, there was fracture of left side of frontal wound with laceration of brain tissue and haemotoma. (ii) Bruise 1/2" x 1/2" x over left temporal bone. (iii) Bruise l" x l/2" x and l/4" x 1/2" over left cheek. (iv) Multiple bruises 1/4" x 1/4" to 4" x 1/2" over whole of right upper limb with diffused swelling. (v) Multiple bruise 1/10" x 1/10" to 3 1/2" x 1/2" with diffused swelling of whole left upper limb with dislocation of left thumb. (vi) Lacerated wound 1" x 1/10" x 1/4" over finger web between index and middle. (vii) Bruise 4 1/2" x 1/4" over middle of left leg. (viii) Bruise 2" x 1/2" with swelling over outer part of left leg. (ix) Lacerated wound 1/4" x 1/4" x 1" with compound fracture and dislocation of right ankle. (x) Bruise 1/2" x 1/2" and 1/4" x 4" over front of right knee. (xi) Bruise 2" x 1/2" and 3 1/2" x 1/2" over middle of back of right side of back. 5. Rigor mortis was present in all the four limbs. Opinion of the Surgeon was that the death was due to shock and haemorrhage. Injuries were sufficient in the ordinary course of nature to cause the death. The time elapsed since death within 12 hours. Stomach of the deceased was empty and the small intestines and large intestines contained gas and faces. The deceased was aged 40 years. All the injuries except injury Nos. 1 and 9 were simple. Injury Nos. 1 and 9 could be caused if a person is thrown on a hard blunt substance. 6. Rajpati Devi (P.W. 4) in her evidence in Court reiterated the version given by her in the fardbeyan. She has stated that, on hearing alarm of her daughter she went near the house of Bachcha Pandey which is west of her house. Mira Devi and Kabutri Devi accompanied her, She saw ail the three appellants assaulting Inderdeo by lathi. She covered the body of her husband. Ved Prakash assaulted her by Chhura. Bhanu also assaulted her by lathi. She received injuries by Chhura at her hand and leg. Ramji Singh also assaulted her with lathi, Inderdeo Singh was dead. Mira Devi and Kabutri Devi accompanied her, She saw ail the three appellants assaulting Inderdeo by lathi. She covered the body of her husband. Ved Prakash assaulted her by Chhura. Bhanu also assaulted her by lathi. She received injuries by Chhura at her hand and leg. Ramji Singh also assaulted her with lathi, Inderdeo Singh was dead. She and her Gotani brought Inderdeo Singh on a cot to her house. In her fardbeyan she has not stated that Ved Prakash Singh had assaulted her with Chhura. She did not say that her husband was also assaulted with Chura. 7. Dr. Nawal Kishore Saha examined Rajpati Devi on the same day and found following: (i) incised wound 2 l/2" x l/2" x 1" on the palm of left hand between thumb and index finger. (ii) incised wound 2" x 1/2" x 1" on left leg. (iii) Red abrasion 3" x 1" on the right ankle. (iv) Red abrasion 3" x 1" on the right palm. The age of injuries were within 12 hours. Injury Nos. 1 and 2 were caused by sharp-cutting weapon like dagger. 8 The trial Court accepted the evidence that Rajpati Devi. She had received the injuries in the manner spoken by her. Her evidence that she was injuries by Chhura by Ved Prakash Singh was corroborated by medical evidence. 9. It will be useful to quote para 14 of the judgment which contains the discussion of the evidence of Rajpati Devi: P.W. 4 Rajpati Devi age 40 years is wife of deceased Inderdeo Singh. She is informant. She claims to receive injury also when she went to save her husband who was receiving shooting that her father is being assaulted whereupon she (P.W. 4) run out from her house and went near house of Bachcha Pandey which is in the west of her house. She was accompanied with Mira Devi and Kabutri Devi also. She saw Ved Prakash, Bhanu Singh and Ramjee assaulting her husband by lathi. Ved Prakash had chhura also. She covered her husband for saving him whereupon Ved Prakash assaulted her by Chhura and lathi. Bhanu also assaulted her by lathi. She received injuries by Chhura at her hand and leg. She received assault by lathi at her right hand and leg. Her husband demanded water upon which Ramjee Singh assaulted him by lathi. At that time he died on the spot. Bhanu also assaulted her by lathi. She received injuries by Chhura at her hand and leg. She received assault by lathi at her right hand and leg. Her husband demanded water upon which Ramjee Singh assaulted him by lathi. At that time he died on the spot. She and her Gotani brought Inderdeo Singh persons washed the blood from place of occurrence. Ramjee Singh is elder brother of her husband. Bhanu and Ved Prakash are nephew of her husband. She identifies accused-persons in Court. She further says that this occurrence took place for quarrel for partition for which there was panchayati also. She says that she gave statement to Darogajee who read over and explained to her after writing, then, she put her L.T.I. It is submitted that her statement is developed after thought because in her fardbeyan Ext. 4. She did not say that Ved Prakash assaulted her by Chhura. She rather said that her husband was assaulted by Chhura also. She does not say in Court that her husband was assaulted by Chhura also P.W. 7 doctor Nawal Kishore Prasad Saha examined her injuries on the same date and found (i) incised wound 2 1/ 2" x 1/ 2" x 1" on the palm left hand between thumb and index finger (ii) incised wound 2" x 1/2" x 1" on left leg (iii) Red abrasion 3" x 1" on the right ankle (iv) Red abrasion 3" x 1" on the right palm. The age of injuries were within 12 hours. Injury Nos. I and II were caused by sharp-cutting weapon such as dagger. Injury Nos. III and IV by hard and blunt object such as lathi. He proves his injury report Ext. 2. P.W. 7 was examined on 28-6-85. His cross-examination was declined. Subsequently, when the charge was amended on 15-2-86 by adding charge under Sec. 324, I.P.C. against Ved Prakash, accused-persons were given opportunity to recall witnesses for further cross-examination and the accused-persons took the opportunity and cross-examined P.W. 7 on 22-2-86 when P.W. 7 said that injury No. 1 may be caused by sharp broken angles of bangles and injury No. II may be caused by sharp-edge of khunti of Rahar crop. P.W. 4 was cross-examined at length but it is not suggested to her that injury between left thumb and index finger on her was by breaking bangles. P.W. 4 was cross-examined at length but it is not suggested to her that injury between left thumb and index finger on her was by breaking bangles. It is also not suggested to her that there was any khunti of Rahar crop at the P.O. nor it is suggested that she received cut injury on her left ; leg by sharp edge of khunti of Rahar Crop. The statement of P.W. 4 that she was injured by Chhura also by Ved Prakash, therefore, finds corroboration by medical evidence of P.W. 7 and Ext. 2. It is consistent evidence of P.W. 4 that Ved Prakash had Chhura also. She also says that Ved Prakash used the Chhura, The non consistency however is to the extent that in Ext. 4 she says infliction of Chhura blow on her husband but she does not say so in Court and she does not say in Ext. 4 that she was assaulted by Chhura whereas she says in Court that she received Chhura blows by Ved Prakash. The mental agony of P.W. 4 is a relevant fact for appreciating her statement. In Ext. 4 she says about receiving assault by lathi blow inflicted by accused-persons. In such mental agony when her husband was battered by lathi blows and she also received a few lathi blows when she was covering her husband, she visualises the dagger blows but she is not giving attention that the dagger blows also hit her and that she visualises that the dagger blows hit her husband. In that crutial moment, her testimony is to be appreciated in broad probabilities. Therefore, the contradiction aforesaid in my opinion must be held as minor contradiction not at all affecting the merit of the case. 10. Dularchand Rai P.W. 6 was produced by the prosecution as an eye-witness. This witness, however, was not found reliable by the trial Court for the reasons mentioned in para 17 of the Judgment. Similarly, the evidence of Hira Lal Rai was held to be not reliable because he was convicted on the basis of statement of Ramji Singh. The evidence of Lal Mohar Rai (P.W. 10) was also not accepted. 11. Radha Kumari, daughter of the deceased, was held not to be a reliable witness because she was not named as an eye-witness in the F.I.R. the important witness of the prosecution was Kabutri Devi. The evidence of Lal Mohar Rai (P.W. 10) was also not accepted. 11. Radha Kumari, daughter of the deceased, was held not to be a reliable witness because she was not named as an eye-witness in the F.I.R. the important witness of the prosecution was Kabutri Devi. She is the wife of Ramsagar Singh. The evidence of this witness was also not found reliable for the reasons mentioned in para 20 of the judgment. 12. Arjun Kumar Singh is the nephew of the deceased. The evidence of this witness was not accepted by the trial Court. Hira Lal Singh was examined as an eye-witness. The evidence of this witness has been discussed in para 22 of the judgment. The trial Judge found him to be an impartial evidence. 13. In para 24 of the judgment, the learned Addl. Sessions Judge has considered the defence argument at length that, actually the place of occurrence was not near the darwaja of Bachha Pandey but the darwaja of the deceased. This argument was not held to be tenable. 14. I.O. of the case was not examined. The learned Judge has held that non-examination of I.O. did not prejudice the accused-persons, because the prosecution case is that the blood from actual place of occurrence Was washed by water by the accused-persons. 15. The learned judge has taken pains to examine the evidence of the witnesses which is evident from the fact that he rejected the testimony of four eye-witnesses. 16. The moot question for consideration is whether the learned trial Judge was right in convicting the appellants on the evidence of Rajpathi Devi, the widow of the deceased. 17. It was argued before the trial Judge that the time of death of the deceased could not be 7 a.m. as is the prosecution case. The finding of Surgeon was that large and small intestines was not empty and the rigor mortis was present in all the four limbs. It was argued on the basis of Modi Jurisprudence, 20th Edn. pages 125 and 139 that the medical opinion is clear that the death had occurred much earlier post-mortem was held on the same day. The learned Judge has observed that rigor mortis might be due to several factors. Therefore, it is not safe to judge the time of death on the above score. pages 125 and 139 that the medical opinion is clear that the death had occurred much earlier post-mortem was held on the same day. The learned Judge has observed that rigor mortis might be due to several factors. Therefore, it is not safe to judge the time of death on the above score. The learned Judge referred to Modis Jurisprudence and observed: ...a vegetable diet takes more than than 6-7 hours for leaving stomach completely Modi has not said about time taken in intestine being empty. He has quoted example that if large intestine is empty it may be that the deceased got up in the morning. It means thereby that the person had opportunity to ease out, but he does not mentions about constipative person. Therefore, the medical evidence by P.W. 5 indicating that time elapsed since within 12 hours does not in the present case contradict prosecution case because post-mortem is held at 4.10 p.m. We have to, therefore, fall back upon occular evidence on this point also. 18. It cannot be disputed that Rajpati Devi and received injuries in the same occurrence and this fact is corroborated by injury report and medical evidence. The learned Judge in para 15 of his judgment has considered the criticism levelled against this witness. The first criticism was that she being the wife of the deceased should not have been accepted as fruitful witness because admittedly the deceased was involved in a family dispute with his brother and nephew. It was further argued that appellant Ramji Singh had no grievance against his brother. The motive alleged by the prosecutrix was not credible. The learned Judge has answered this argument with the following comments: The prosecution has merely introduced a quarrel for partition. There is no fact on record that there was already partition by mets and bounds. The very fact that land was given in lieu of business at Calcutta and that the land was snatched also by Ramji indicates that the quarrel for partition was in existence. Therefore, the prosecution case cannot be held as affected adversely by the aforesaid quarrel for partition. 19. It was argued before the learned trial Judge that fardbeyan of Rajpati Devi could not be treated as FIR since the information has reached to the police about the occurrence before the fardbeyan of Rajpati was recorded. 20. Therefore, the prosecution case cannot be held as affected adversely by the aforesaid quarrel for partition. 19. It was argued before the learned trial Judge that fardbeyan of Rajpati Devi could not be treated as FIR since the information has reached to the police about the occurrence before the fardbeyan of Rajpati was recorded. 20. Arjun Kumar Singh, P.W. 9., is the nephew of the deceased, who was examined as an eye-witness. He deposed that he went to Choukidar and narrated the incident. The choukidar did not turn up. The choukidar must have given information about the occurrence to the police station. The Choukidar was not examined. The trial Court found that the Choukidar had not, gone to the police station. The learned Judge has held as follows: The aforesaid scrutiny of statement of P.W. 4 indicates that P.W. 4 may be held reliable in respect of being eye-witness that the accused-persons battered her husband to death by lathi blow and that she was also injured by the accused-persons in the manner as she said that when she went to save her husband she had covered her husband who was fallen down. 21. About the place of occurrence, the learned Judge held that actual place of occurrence was the darwaja of Bachcha Pandey. The dead-body was carried from actual place of occurrence to the darwaja of the deceased. It was not the prosecution case that the occurrence was taken place at the darwaja of the deceased. It was suggested to Rajpati Devi was that her husband was daughter which committing immoral act and was assaulted there. The learned Judge held that there is no evidence that there was any other place of occurrence or any Rahri field. 22. I have examined the evidence in the light of the finding of the trial Court. In my opinion, there appears no valid reason to differ from the opinion of the learned trial Judge. The very fact that Rajpati had received injuries in the occurrence in the manner as alleged. She must be held to be a trustworthy witness. There may some minor contradiction in her evidence which can be ignored. 23. The next question for consideration is whether the appellants are guilty of murder punishable under Secs. 302/34, I.P.C. or culpable homicide not amounting to murder. As many as 12 injuries were found on the deceased. Injury Nos. She must be held to be a trustworthy witness. There may some minor contradiction in her evidence which can be ignored. 23. The next question for consideration is whether the appellants are guilty of murder punishable under Secs. 302/34, I.P.C. or culpable homicide not amounting to murder. As many as 12 injuries were found on the deceased. Injury Nos. 1 and II were the cause of the death. These injuries were sufficient to cause of death in ordinary course. The conviction of the appellants under Sections 302/34 appears to be valid. 24. For the reasons stated above, we find no merit in this appeal. The appeal is accordingly dismissed. The appellants are on bail. They shall surrender before the trial Court to serve out the remaining part of sentence. 25. Ashish N. Trivedi, J. I agree.