Judgment B.P.Singh and Radha Mohan Prasad JJ. 1. The appellants in this appeal have been convicted of the offence under Sections 302/34, IPC and sentenced to undergo rigorous imprisonment for life by judgment and oreder dated 8th September, 1988 of the 2nd Addl. Sessions Judge, Dumka in Sessions Case No. 204/ 1986/91/1986. Appellant No. 1 Dhena Murmu is the father of appellants No. 2 and 3, namely Bhalu Murmu and Kati Murmu. 2. The case of the prosecution is that at Simal Tuddu, deceased, was married to Fulin Hansda, PW-4. The mother of Fulin Hansda after the death of her first husband had married Matal Tuddu, PW-6 and they lived together in village Shaharpur. Since, the brother of Fulin Hansda did not keep good health and was unable to assist them, Simal Tuddu, deceased, was requested to live with them as a Gharjamai. It also not in dispute that appellant No. 1 Dhena Murmu is the husband of the cousin of Fulin Hansda, PW The deceased was, therefore, the co-brother of appellant No. 1 Dhena Murmu. It is also not in dispute that the two families lived in a house with a common angan which was divided and demarcated by a Tati which was about 21/2-3 feet in height. The case of the prosecution is that at about 6 p.m. on 17th of April, 1985, the three appellants came to the house of Simal Tuddu and questioned him as to why he was living there and why he should not go away. Simal Tuddu retorted by saying that he was living because the head of the family permitted him to live there. Upon this, the appellants forcibly carried away Simal Tuddu to their angan. This was witnessed by the wife of the deceased, namely, Fulin Hansda, PW-4, who was helpless because she was carrying a child hardly 5-6 days old in her lap. However, the appellants assaulted the deceased and while appellant Ncs. 1 and 3 caught hold of the deceased, appellant No. 2 Bhalu Murmu gave a bhala blow on the deceased on his abdomen causing a deep wound. Seeing this, Fulin Hansda, PW-4, wife of the deceased ran to the angan of the appellants and somehow or other managed to bring her husband to her house. 1 and 3 caught hold of the deceased, appellant No. 2 Bhalu Murmu gave a bhala blow on the deceased on his abdomen causing a deep wound. Seeing this, Fulin Hansda, PW-4, wife of the deceased ran to the angan of the appellants and somehow or other managed to bring her husband to her house. Some villagers assembled on being called including PW-1 Jewel @ Jai Hembram and Kabiraj Murmu (wrongly described as Kuwraj Murmu in the judgment of the Sessions Judge. The prosecution case is that Simal Tuddu made a dying declaration before PW-1 and stated the manner in which he had been assaulted by the appellants. Simal Tuddu was removed to the Pakuria Hospital with the help of villagers and was given medical aid. The Investigating Officer, PW-7 reached the Pakuria Hospital at 11 p.m. and recorded the fardbeyan of Simal Tuddu (deceased) which was scribed by a literate. Contable A.K.Verma and witnessed by Kabiraj Murmu, PW-3 and Jewel @ Jai Hembram, PW-1. On the requisition of the Investigating Officer, the Block Development Officer PW-9 came to the Pakuria Hospital and recorded the dying declaration of Simal Tuddu which was witnessed by the 2nd Medical Officer posted at the said hospital, PW-8. On the following day, Simal Tuddu was removed to Dumka Hospital for treatment, but it appears that he died two three days later. The post-mortem on the dead body of the deceased Simal Tuddu was conducted by Dr. Bimal Kumar, PW-10, at 1 p.m. on 22-4-1985. After investigation, the appellants were put up for trial charged of the offence under Section 302 read with Section 34, IPC. 3. In his fardbeyan recorded at 11 p.m. on the date of occurrence itself, Simal Tuddu stated that at about 6 p.m. he was at the house of his father-in-law Matal Tuddu sitting in the angan. At that time, the appellants herein came and dragged him to their angan. Appellant No. 2 Bhalu Murmu was armed with a spear and he attempted to assault him with his spear twice or thrice, but he somehow or other managed to ward off the blows. Thereafter, the appellants caught hold of him and Bhalu Murmu, appellant No. 2, pierced his bhala in his abdomen. The other two assaulted him on his head with lathis. On alarm being raised by him, his wife Fulin Hansda came and took him to her house. Thereafter, the appellants caught hold of him and Bhalu Murmu, appellant No. 2, pierced his bhala in his abdomen. The other two assaulted him on his head with lathis. On alarm being raised by him, his wife Fulin Hansda came and took him to her house. He stated that the cause for the incident was that the three appellants had come to the house of his father-in-law and were asking him to go away. The First Information Report has been witnessed by PW-1 Jewel Hembram and PW-3 Kabiraj Murmu. 4. The dying declaration of Simal Tuddu was recorded at 11.40 p.m.i.e., about 40 minutes after the recording of the fardbeyan. It appears that the Block Development Officer was requisitioned by the Investigating Officer to record the dying declaration and accordingly he came to the Primary Health Centre, Pakuria and recorded the dying declaration. In his dying declaration, Simal Tuddu stated that at 6 p.m. on 17-4-1985 he was sitting in the house of his angan in village Shaharpur. At that time, appellant Dhena Murmu and his two sons Bhalu Murmu and Kati came and dragged him to their angan whereafter Bhalu Murmu pierced his bhala in his abdomen. Bhalu Murmu made two or three attempts to pierce the bhala, but he managed to save himself. Thereafter all of them caught hold of him and Bhalu pierced the bhala in his abdomen. He was also assaulted on his head with lathis. Thereafter, he became unconscious. There is an endorsement on the dying declaration that Jewel Hembram, PW-1 translated the statement of Simla Tuddu made in Santhali into Hindi. 5. PW-1 Jewel Hembram deposed at the trial that the occurrence took place at about 6.30 p.m. on 17-4-1985. He was called by Matal Tuddu. PW-6 and he saw that Simal Tuddu was lying on the floor. He had injuries on his head and abdomen and a little blood was also coming out. On being asked Simal Tuddu stated that Dhena Murmu, Bhalu Murmu and Kati Murmu had dragged him to their angan and they had assaulted him with bhala on his abdomen. Dhena and Kati Murmu had assaulted him with lathis on his head and on alarm being raised his wife brought him to her house. The same story was narrated to him by Fulin Hansda, PW-4. Dhena and Kati Murmu had assaulted him with lathis on his head and on alarm being raised his wife brought him to her house. The same story was narrated to him by Fulin Hansda, PW-4. Thereafter, Simla Tuddu was taken on a cot to Pakuria Police Station where the Police Officer directed them to take him to the hospital. Simal Tuddu was brought to the hospital where some medicine was administered to him and Simal Tuddu regained consciousness. The Police Officer came there and recorded the statement of Simal Tuddu. Other villagers were also present. The statement was read over to Simal Tuddu who put his thumb impression on it. This witness also admitted that he had signed on the fardbeyan as a witness. The Police Officer then called the Block Development Officer who also recorded the statement of Simal Tuddu. Simal Tuddu used to speak in Santhali which was translated by him. Simal Tuddu put his thumb impression on the statement which was also witnessed by this witness. On the following day, Simal Tuddu was taken to Dumka for treatment, but he later died at Dumka. He asserted in his cross-examination that he had told the Investigating Officer that Simal Tuddu told him that the three appellants had dragged him to their angan and caused injuries on his abdomen with bhala and that his wife came and raised alarm and took him back to her house. He also stated that when the fardbeyan was being recorded he was translating the statement made in Santhali into Hindi. The Block Development Officer had come to the hospital after about half an hour of their reaching the hospital. This witness admitted that his wife is a cousin of Fulin Hansda, wife of the deceased. He also admitted that there were some disputes between the accused, deceased Simal Tuddu and himself relating to the property of Matal. 6. The tesimony of PW-1 establishes the fact that a dying declaration was made by the deceased at his house in the first instance, and after being removed to the Primary Health Centre at Pakuria he gave his fardbeyan in the presence of the Investigating Officer. Later, the Block Development Officer recorded his dying declaration. 6. The tesimony of PW-1 establishes the fact that a dying declaration was made by the deceased at his house in the first instance, and after being removed to the Primary Health Centre at Pakuria he gave his fardbeyan in the presence of the Investigating Officer. Later, the Block Development Officer recorded his dying declaration. This witness knew Santhali and assisted the Investigating Officer as well as the Block Development Officer in recording the fardbeyan and the dying declaration respectively by translating the same in their presence. 7. PW-2 is a tendered witness and there is nothing in his statement worth noticing. 8. PW-3 Kabiraj Murmu deposed that on the date of occurrence, he was called by Matal Tuddu. He went with Matal Tuddu and found Simal Tuddu in an injured condition with injuries on his head and abdomen. Matal told him that Simal had a fight with the appellants. Simal Tuddu was then taken to Pakuria Hospital where the Investigating Officer had come and recorded his fardbeyan in his presence which was also witnessed by this witness. This witness has admitted in his cross-examination that the Investigating Officer did not make any inquiry from him and therefore he did not make any statement before the Investigating Officer. There is nothing in the cross-examination of this witness worthnoticing. 9. Fulin Hansda, PW-4 was the wife of the deceased and also claimed to be an eye-witness. She stated that on account of her elder brother not keeping well as he was a T. B. patient, her husband was invited to live with her father as a Gharjamai and thereafter, she and her husband Simal Tuddu started living with her father. They had lived together for the last five to six years and cultivated the lands. On the date of occurrence while Simal Tuddu was sitting in the angan, the appellants came and questioned him as to why he was sitting there and threatened him to go away otherwise they will assault him. Simal Tuddu replied by saying that he was living with the permission of the Malik. Thereafter, the appellants forcibly took the deceased to their angan. There was only a Tati which separated the two angans. Bhalu Murmu gave a bhala blow on the abdomen of Simal Tuddu while the other two assaulted him with lathis. Simal Tuddu replied by saying that he was living with the permission of the Malik. Thereafter, the appellants forcibly took the deceased to their angan. There was only a Tati which separated the two angans. Bhalu Murmu gave a bhala blow on the abdomen of Simal Tuddu while the other two assaulted him with lathis. She was then carrying a child 5 to 6 days old but she managed to go to the angan of the appellants and thereafter bring back her husband. She also raised an alarm. Kabiraj, Chandra and some came to the place of occurrence and removed her husband to the hospital and Police Station. She could not accompany them as she was nursing a small child. Her husband later died in Dumka Hospital. In cross-examination, she admitted that she had made a statement before the Investigating Officer and that she had mentioned about her brother remaining unwell. Though this witness has been cross-examined at length, there is hardly anything in her cross-examination which may cast a doubt about the truthfulness of her statement in Court. She denied the suggestion that her husband had fallen on an iron stump and had injured himself. Her testimony despite long cross-examination remains unchallenged. 10. PW-5 Sanat Hansda is the brother of Fulin Hansda, PW-4, but his evidence is not of much significance since he only stated that on the date of occurrence he was told by his sister about the assault by the appellants on the deceased. Similarly PW-6 Matal Tuddu who was tendered for cross-examination has not made any significant statement. 11. Sohan Prasad, PW-7 was the Officer-in-charge of Police Station Pakuria who had recorded the fardbeyan of the deceased at the Pakuria Primary Health Centre. He has deposed that on the date of occurrence the fardbeyan was recorded in his presence by literate Constable A. K.Verma. The fardbeyan was read to the Informant who put his thumb impression on the same. After recording the fardbeyan, he sent a requisition to the BDO for recording the dying declaration of the Informant and the BDO came and recorded the dying declaration of the Informant. He further examined the Informant and also recorded the statement of other witnesses. He inspected the place of occurrence and found that both the house i.e., the house of the accused and the house of the deceased had a common angan separated by a tatti. He further examined the Informant and also recorded the statement of other witnesses. He inspected the place of occurrence and found that both the house i.e., the house of the accused and the house of the deceased had a common angan separated by a tatti. He stated that he was not present when the Block Developoment Officer recorded the dying declaration. In his cross-examination he stated that Jewel Hembram had not told him that the three appellants came to the angan of the deceased and took away the deceased and that thereafter Bhalu pierced his bhala in the abdomen of the deceased while the others assaulted him with lathies. He had also not stated before him that his wife raised an alarm and that she some how or other managed to take him back to her angan. 12. We may here notice that counsel for the appellant submitted that the testimony of PW-1 becomes doubtful because he had not stated before the Investigating Officer that the appellants had taken the deceased to their angan and assaulted him with bhala and lathi. The submission cannot be accepted because it is not the case of PW-1 that he had seen the appellants taking away the deceased to their angan and assaulting him PW-1 has stated that he was told by the deceased that the occurrence had taken place in that manner. Since such a suggestion was not made to the Investigation Officer, the answer given by him does not contradict the witness. 13. Dr. Raj Kumar Choudhary, PW-8 was posted as the 2nd Block Medical Officer and was a witness to the dying declaration recorded by the Block Development Officer. He was also the Medical Officer who had sent a requisition to the Officer-in-charge from the Primary Health Centre. This witness has fully supported the prosecution case that the dying declaration of the injured was recorded in his presence by the Block Development Officer. This witness claimed that he knew Santhali and the injured was speaking in that language. 14. Ravi Shankar Jaipuria, PW-9 was the Block Development Officer who recorded the dying declaration of the deceased. He deposed that he came to the Primary Health Centre, Pakuria on the requisition of the Officer-in-charge. He recorded the dying declaration of Simal Tuddu whose statement was being translated into Hindi by Jewel Hembram. He proved the dying declaration which was in his hand-writing. He deposed that he came to the Primary Health Centre, Pakuria on the requisition of the Officer-in-charge. He recorded the dying declaration of Simal Tuddu whose statement was being translated into Hindi by Jewel Hembram. He proved the dying declaration which was in his hand-writing. The condition of the patient was bad when he recorded the dying declaration and he had questioned the injured as to whether he would be able to give statement. Dr.Choudhary, PW-8 was present when he recorded the dying declaration. The witness admitted that he knew a little of Santhali. but he was not very proficient in that language. 15. The last witness examined by the prosecution is PW-10 who performed the post-mortem examination on the dead body of Simal Tuddu on the 24th of April, 1985 at 1 p.m. He found the following ante-mortem injuries on the dead body of the deceased. 1. Stitched wound 6" x 1" long left to the middle line of the abdomen. 2. Stitched wound 1" left 4" left of middle line of abdomen. On dissection, he found that the mes entry of small intestine was reparied. Injury No. 1 was operative and injury No. 2 was a penetrating wound which was stitched in course of operation. Inside the abdomen, there was sign of peritonitis. In his opinion, the death was due to shock and peritonitis caused by injury No. 2. Time elapsed since death was assessed as within 12 hours. 16. From the evidence on record, it cannot be disputed that the death of Simal Tuddu was homicidal. The medical evidence on record establishes the fact that it could have been caused by bhala. The injury was such that it ultimately resulted in the death of the deceased since the injury was inflicted on a vital part of the body. 17. Counsel for the appellants submitted that the defence case was that the deceased had come drunk on the evening of the date of occurrence and had fallen on an iron stump with the result that he had suffered an injury. DW-1 and DW-2 have been examined by the defence, but the Trial Court has given good and cogent reasons to disbelieve them. DW-1 and DW-2 have been examined by the defence, but the Trial Court has given good and cogent reasons to disbelieve them. Though DW-1 stated that the deceased had received injuries by falling on an iron stump, he himself admitted that he had not gone to the house of the deceased and that he remained sitting in his own house. The Trial Court rightly disbelieved him since he could not have witnessed the occurrence sitting in his own house when the occurrence took place in the angan of the appellants. Similarly, the evidence of DW-2 Ram Kisku was also found to be unreliable. He claimed that he had gone with Simal Tuddu up to his door but came back when Simal Tuddu fell down and injured himself. He did not try to either lift him or make an effort to provide him medical aid. He did not tell anyone in the village about the manner in which Simal Tuddu had sustained injury. We are satisfied that the defence witnesses examined in this case cannot be relied upon. The mere fact that such an injury could be caused by falling on an iron stump is no ground for us to hold that the injury was caused in that manner particularly when there is direct evidence on record as also the dying declarations of the deceased to establish that the injury was caused by bhala. 18. In this case, there are as many as three dying declarations, the first made before Jewel Hembram, PW-1, second being the fardbeyan and the 3rd a formal dying declaration recorded by the Block Development Officer. There is no reason for us to discard the testimony of PW-1 who stated that on being questioned, Simal Tuddu had told him that the appellants had dragged him to their house and had assaulted him with bhala and while Bhalu Murmu had assaulted him with bhala, the others had assulated him with lathis. Even if we ignore the dying declaration, there is no reason for us to discard the second dying declaration which is in the form of fardbeyan recorded in the presentce of the Investigating Officer and scribed by a literate Constable Verma. The fardbeyan was recorded in the presence of PW-1 and PW-3 and both of them have consistently deposed that they were present when the statement was recorded. The fardbeyan was recorded in the presence of PW-1 and PW-3 and both of them have consistently deposed that they were present when the statement was recorded. PW-1 who knew Santhali functioned as a translator and with his help, the statement was recorded. The version given out in the fardbeyan is the same as that in the first dying declaraion made before PW-1. There is no reason why we should discard the fardbeyan which was duly recorded by the Investigating Officer and witnessed by two witnesses who undoubtedly had accomanied the deceased to the Pakuria Primary Health Centre. What is even more significant is the dying declaration recorded by the Block Development Officer who was requisitioned by the Investigating Officer. The said dying declaration has been witnessed by PW-1 as also by Dr. Choudhary, PW-8. PW-8 has stated that he knew Santhali. PW-9, BDO who recorded the dying declaration stated that he knew a little Santhali but was not proficient in that language, but the consistent evidence on record is that Jewel Hembram, PW-1 translated the statement made by the deceased. We have, therefore, no hesitation in relying upon the dying declaration formally recorded by the Block Development Officer. The presence of the doctor himself while the dying declaration was being recorded is a sufficient guarantee of the fact that the injured was in a position to make a dying declaration. The Medical Officer knew Santhali and therefore, there can be no suspicion that the statement of the injured was not correctly translated into Hindi. The Block Development Officer also knew a little Santhali and therefore, he could have followed simple sentences uttered by the injured. The presence of the Medical Officer who knew Santhali rules out any possibility of the statement being incorrectly recorded. 19. In the facts and circumstances of the case, we are inclined to place implicit reliance upon the dying declaration recorded by the Block Development Officer which is consistent with the fardbeyan recorded by the Investigating Officer earlier. 20. Apart from the dying declaration which we find to be truthful and reliable, there is also direct evidence of PW-4 Fulin Hansda, the wife of the deceased. Her statement in her examination-in-chief has remained unchallenged. She is a natural witness and her presence cannot be disputed. 20. Apart from the dying declaration which we find to be truthful and reliable, there is also direct evidence of PW-4 Fulin Hansda, the wife of the deceased. Her statement in her examination-in-chief has remained unchallenged. She is a natural witness and her presence cannot be disputed. Moreover, she has no reason to depose falsely because even appellant Dhena Murmu is her cousins husband and there appears to be no reason why she should falsely implicate her cousins husband and sons if her husband really fell on an iron stump and caused an injury to himself. Though there is no evidence on the record to suggest that there was any dispute or litigation pending between the parties, it does appear from the record that the appellants did not like the presence of the deceased in the house of Matal Tuddu. The Gharjamai in Santhal parganas also acquire valuable property rights and it is the common practice in that part of the State to keep a Gharjamai to look after the cultivation of land, etc. Though there is some indication in the evidence of PW-1 of the fact that there was dispute between PW-1, the deceased and the appellant Dhena Murmu with regard to the property of Matal Tuddu, the material is not sufficient for us to hold that this was the motive for the commission of the crime. The proving of motive is not essential in all cases, particularly, in a case like the present where the prosecution has established its case beyond reasonable doubt on the basis of ocular testimony of PW-4 and the two dying declarations, one recorded by the Investigating Officer and the other by the Block Development Officer. 21. Counsel for the appellants then submitted that only one bhala injury was caused to the deceased by Bhalu Murmu. So far as the other two appellants are concerned, though it is alleged that they had assaulted with lathi on the head of the deceased, no such injury has been found. Unfortunately, the doctor who initially examined the injured has not been examined as a witness and the injury report has not been brought on record, but even so from the dying declaration of the deceased, it is apparant that all the three appellants dragged him forcibly to their angan. Unfortunately, the doctor who initially examined the injured has not been examined as a witness and the injury report has not been brought on record, but even so from the dying declaration of the deceased, it is apparant that all the three appellants dragged him forcibly to their angan. Two or three attempts made by Bhalu Murmu on the deceased were warded off by him and thereafter, all of them caught hold of the deceased whereafter Bhalu Murmu pierced his bhala in the abdomen of the deceased. The piercing of bhala in the abdomen is consistent only with hypothesis that the aggressor wanted to commit the murder of the deceased. Counsel submitted that the bhala blow was not repeated. In our view, it is not necessary that unless a bhala blow is repeated, a case of murder cannot be said to have been established, particularly if the blow is aimed at a vital part of the body. The evidence on record also estbalishes that all the three appellants acted in concert while one of them was armed with bhala. In the facts and circumstances of the case, the only inference that can be drawn from the facts proved is that all of them shared the common intention of causing the death of the deceased, particularly when all of them caught hold of the deceased to facilitate the infliction of injury by Bhalu Murmu when the deceased successfully warded off two or three attempts made by Bhalu. 22. We, therefore, hold in agreement with the Trial Court that the appellants are guilty of the offence under Section 302 read with Section 34, IPC. 23. In the result, this appeal is dismissed. It is stated that appellant No. 2 has remained in custody for a very long period. The Jail authority shall calculate the sentence undergone by him and thereafter act in accordance with law. So far as appellants 1 and 3 are concerned, they are on bail. Their bail-bonds are cancelled and they are directed to be taken into custody to serve out the remaining part of the sentence.