Judgment P.K.DEB and D.P.S.CHOUDHARY JJ. 1. These three appeals have been heard analogous as they arise out of the same and common judgment dated 28th May, 1990 passed by the 4th Additional Sessions Judge, Bettiah in Sessions Trial No. 330 of 1983. In Criminal Appeal No. 207 of 1990 there are five appellants namely, 1. Sautan Mishra, 2. Bhola Das, 3. Parshuram Mishra, 4. Nathuni Choudhary and 5. Shambhoo Choudhary. In Cr. Appeal No. 226 of 1990 there is sole appellant Baudhi Mishra. In Cr. Appeal No. 251 of 1990 there are, six appellants, namely, 1. Gauri Shanker Choudhary, 2. Mahatam Coudhary, 3. Prem Sagar Choudhary, 4. Babuni Coudhary, 5. Ram Chandra Coudhary and 6. Bhagwat Choudhary. 2. All the above name accused-appellants were charged under Section 302 read with Section 149 of the IPC for forming unlawful assembly with deadly weapon with an object of killing Paltu Yadav. All these accused have been further charged under Sections 307/149 of the IPC for causing injuries to Sundar Yadav and Banshi Yadav with an intention to kill them. Appellant Gauri Shankar Choudhary, Mahatam Coudhary, Babuni alias Bindhvasini Choudhary and Shambhu Coudhary have been further charged under Section 148 of the Indian Penal Code and the remaining eight appellants under Section 147 of the Indian Penal Code. 3. The prosecution case in brief is that Informant Sunday Yadavs fardbeyan was recorded in Patilar Hospital by the Officer Incharge of Chautarwa Police Station on 12-10-1979 at 12.15 p.m. In the fardbeyan he stated that in his field situated at the distance of about a mile south east corner of his house he had grown paddy crop. On 12-10-1979 about 10 a.m. 12 accused persons, named in the FIR after forming an unlawful assembly and armed with deadly weapons went to his field and started harvesting the paddy crop. The Informant got these message by one Parshuram, thereupon, he along with his brothers Banshi Yadav and Paltu Yadav went to his field and asked the accused persons not to cut his paddy crops but they did not listen to him. On the protest of the Informant they started assaulting him and his brother by means of farsa and lathi causing injuries to them. His further case is that appellant Gauri Shankar Choudhary, Mahatam Choudhary, Babuni Choudhary were armed with farsa, Shambhu Choudhary was armed with a gun and other appellants were armed with lathi. On the protest of the Informant they started assaulting him and his brother by means of farsa and lathi causing injuries to them. His further case is that appellant Gauri Shankar Choudhary, Mahatam Choudhary, Babuni Choudhary were armed with farsa, Shambhu Choudhary was armed with a gun and other appellants were armed with lathi. Informant and his two brothers after receiving injuries on their person fell down on the ground and on nulla when people assembled, all the accused persons fled away. Informant along with his two brothers was removed to Patilar Hospital on a bullock cart with the help of villagers including Sattan Ahir, Ramayan Ahir, Baharan Chamar and Jhakar. His two brothers namely Paltu and Banshi were unconscious due to their injuries. The motive alleged for the occurrence is that the is old enmity with the accused persons. On the basis of the fardbeyan of the Informant the case was instituted and FIR was drawn up. His two injured brothers were removed to Bettiah Sadar Hospital but in the way Paltu Yadav died, hence Section 302 of the IPC was added in the FIR. After cognizance, trial took place in the Court below. The accused persons pleaded not guilty and their further case is that due to animosity they have been implicated in this case, they further contended that the land in question is not in the possession of the Informant nor he had grown paddy over the same. 3-A. On behalf of the prosecution altogether seven witnesses have been examined out of which PW-1 Jhakkar Choudhary was declared hostile by the prosecution and he was cross examined in length by the APP PW-2 Parshuram Choudhary is vendor of the land in question who had sold it to Informant Sundar Yadav. He is an eye witness to the occurrence and stated that all the 12 accused appellant armed with deadly weapons were harvesting the paddy crop from the field of Informant. Sundar Yadav and his two brothers went to the field and on protest, appellant Shankar assaulted Sunder with farsa and other appellants with lathi, appellant Gauri Shankar assaulted Paltu with farsa and other appellants with lathi, appellant Gauri Shankar assaulted Paltu with farsa and appellant Sautan Mishra assaulted him with lathi, other accused also assaulted him. The Informants brother Banshi was also assaulted at the hands of accused persons. Paltu died due to injuries in the Hospital. The Informants brother Banshi was also assaulted at the hands of accused persons. Paltu died due to injuries in the Hospital. PW-3 Bansi Yadav is injured and brother of the Informant. He has named all the accused persons and has stated that they were harvesting paddy crops from his field and on protest they assaulted his brother Paltu on his head. They also assaulted him with lathi and farsa and also to his brother Sundar Yadav. He along with his two brother was removed to the hospital. He remained unconscious for about a month: The IO came to the hospital but because of his inability to speak, his statement could not be recorded. 4. PW-4 Sundar Yadav is the Informant. He has supported the case as made out in the fardheyan and named all the appellants and stated that they assaulted him and his two brothers when he protested them from harvesting paddy crop from his field. Due to assault his brother Paltu Yadav died. He along with his brother Banshi Yadav received grievous injuries. 5. Two doctors have been examined on behalf of the prosecution. They are PW-5 and PW-6 Dr. Guru Pratap Singh (PW-5) held postmortem on the dead body of Paltu Yadav on 13-10-1979 at Bettiah Hospital at 10 a.m. and found the following antemortem injuries : 1. One stitched incised wound 4" on scalp. 2. One stitched incised wound 1" x 1/4" bone deep on the scalp. 3. One lacerated stitched wound 1 1/2" x 1/2" x lower deep on the scalp. 4. Two contusion 3" x 1" each on the right side of the chest upper part. On dissection there was haematics in all the lower of scalp all over the head accompanied with communicated fracture of the frontal and parietal bone with depressipn. Mangles were torn and haemorrhage were present in all over the brain. Haematoma on the front of chest in right side with fracture of fourth and fifth ribs. Injury Nos. 1 and 2 were caused by sharp instrument such as farsa and rest by hard and blunt weapons such as lathi. Death in his opinion is due to shock and haemorrhage as a result of above injuries. Time since death was within 24 hours. Injury No.1 and 2 were sufficient to cause death in ordinary course of nature. His postmortem report is marked as Ext. 2. 6. Dr. Death in his opinion is due to shock and haemorrhage as a result of above injuries. Time since death was within 24 hours. Injury No.1 and 2 were sufficient to cause death in ordinary course of nature. His postmortem report is marked as Ext. 2. 6. Dr. K. Prasad, PW-6 had earlier examined paltu Yadav on 12-10-79 at 2 p.m. at Patilar State Dispensary where he along with his two brothers were first removed from the place of occurrence. He had also found the following injuries on his person : 1. One penetrating wound 1" x 1/4" x bone deep on right side of the front scalp. 2. One penetrating wound 1 1/2" x 1/2" x bone deep 2" posterior to the 1st injury. 3. Lacerated wound 4" x 1/2" x bone deep with concussion of the brain 1/2" posterior to injury Nos. 1 and 2 were caused by sharp pointed weapon. Injury No. 1 was grievous and 2 was simple. Injury No. 3 was caused by hard an blunt weapons. Injury No. 1 and 2 could be caused by corner of edge of farsa. He referred the injured to Bettiah Hospital. Injury No. 3 was grievous in his opinion. The doctor PW-6 opined that injury Nos. 1 and 2 were caused by sharp cutting weapon such as farsa. His injury rep6rt is almost consistent on the point of injuries received on the deceased Paltu Yadav with the post-mortem report. 7. On the same day at 2.30 p.m. the doctor examined Informant Sundar Yadav and found the following injuries : 1. One incised wound 9" x 1 1/2" x 1 104" on the poster lateral to the left thigh from lower 3/4" of the thigh, to the lateral side of the knee. 2. One penetrating wound 3/4" x 1/4" x 1/2" on the ulner side of the upper three fourth of the left forearm. 3. One penetrating wound 3/4" x 1/4" x 1/2" lateral to the injury No. 2. 4. Fracture of the left ulner knee bone. 5. Swelling 5" x 1 1/2" x 1/2" on the left side of the middle of the back. 6. Swelling 7" x 2" x 1/4" on the right side of the back just below the inferior border of right scapula. 7. Swelling 6" x 2" x 1/4" on the right side of the back just below the 6th injury. 8. 5. Swelling 5" x 1 1/2" x 1/2" on the left side of the middle of the back. 6. Swelling 7" x 2" x 1/4" on the right side of the back just below the inferior border of right scapula. 7. Swelling 6" x 2" x 1/4" on the right side of the back just below the 6th injury. 8. One lacerated wound 1" x 1/4" x 1/4" on the middle of the scalp. 9. One lacerated wound 1" x 1/2" x 1/4" on this left side of the scalp. 10. Scretch mark 1" x 1/2" skin deep on the left side of the scalp 2" below the ear. 8. In his opinion Injury No. 1 was caused by sharp cutting instrument and simple in nature. Injure Nos. 2, 3 were simple and caused by sharp pointed Weapon. Injury No. 4 was grievous and caused by hard and blunt weapon. Rest injuries were simple in nature and caused by hard and blunt weapon. The doctor referred him to Bettiah Hospital. 9. On the same day at 3 p.m. he examined Banshi Yadav and found one lacerated wound 2 1/2" x 1/2" x bone deep on the middle of scalp with concussion of brain. In his opinion this injury was grievous and caused by hard and blunt weapon. He referred the patient to Bettiah Hospital. 10. The IO of the case has not been examined. PW-6 a formal witness (Umasharan Choubey) has proved fardbeyan (Ext. 4), and the formal FIR (Ext. 5). 11. The Trial Court after scrutinising the evidences on record has come to the conclusion that prosecution has proved this case beyond all reasonable doubt that accused appellant assaulted Informant and his two brothers on the date and time of the occurrence resulting into the death of Paltu Yadav and caused several injuries on the person of Informant and his brother Banshi Yadav and convicted them accordingly. 12. The main contention raised on behalf of the appellants is that motive alleged by the prosecution is that accused persons were cutting paddy crops grown by the prosecution party and when objected to, the occurrence took place. But from the evidences on record the alleged motive is not sub-stantiated because there is no cogent and reliable evidence that the paddy on the land in question were grown by the prosecution party Ext. But from the evidences on record the alleged motive is not sub-stantiated because there is no cogent and reliable evidence that the paddy on the land in question were grown by the prosecution party Ext. C produced on behalf of the appellants shows that plot in question was the Khatiani land of the appellants. On the other hand, no paper has been filed on behalf of the prosecution to show that Informant Sundar Yadav was in possession over the disputed land bearing Plot No. 762 over which the occurrence took place. According to the Informant he has taken 8 Katha of Rehan land out of Plot No. 762 from Jhakkhar Choudhary which was subsequently redeemed and 3 Katha land was sold to him and he is in possession over the same but no paper of Rehan or sale has been produced on behalf of the Informant nor any reason has been assigned for non production of the same. There was an order under Section 145 of the Code of Criminal Procedure which has been filed by the prosecution to show that there was dispute between the accused persons on one hand and Jhakkhar Choudhary and others on the other, it discloses that entire land of Plot No. 762 was claimed by Jhakkhar Choudhary, as such this fact goes to show that Sunder Yadav was not in possession of an inch of the land. PW-2 Parashuram Choudhary has admitted in his cross examination that entire land was in his possession. It is admitted fact that in the proceeding under Section 145 of the Code of Criminal Procedure Sunder Yadav was not made party. These facts show that Sunder Yadav had no concern with this land, therefore the genesis of the case becomes doubtful and it adversly affects the prosecution case. Ext. C is the Khatian which mentions the name of the ancestors of the appellant but this Khatian was prepared long ago and it does not give the correct picture of the present possession of the land. It has come in the evidence that during this long period this land was rehanand some of its portion was sold by Parashuram Choudhary and his ancestors to Sunder Yadav and others. It has come in the evidence that during this long period this land was rehanand some of its portion was sold by Parashuram Choudhary and his ancestors to Sunder Yadav and others. PW-1 Jhakkhar Choudhary, father of PW-2 stated that 10 Katha land out of Plot No. 762 was earlier mortgaged to Sunder Yadav and subsequently 3 Katha of it was sold to him over which Sunder Yadav had grown up the paddy crop. Therefore, only on the ground that under Yadav has not produced the sale deed, it should not be inferred that evidence of PWs 1 and 2 regarding the possession of Sunder Yadav over the disputed land on the basis of the sale deed should be discarded. If accused-appellants side had peaceful possession over this land there was no occasion for them to go over the land for cutting paddy crops armed with deadly weapons. This is a circumstance to show that they had gone to the field in question for cutting the crop forcibly with an intention that if resisted by the prosecution party, they may have to use force as well. 13. It was further contended on behalf of the appellants that because of the old enmity they have been implicated in this case. On behalf of the defence some documents have been filed to show the long standing enmity. Ext. A is certified copy of judgment of Sessions Trial No. 206/76, Ext. A/1 is certified copy of judgment of Sessions Trial No. 172/85 of Sessions Court Bettiah and Ext. A/2 is another certified copy of judgment of ST No. 76/79 of Sessions Court, Bettiah. Ext. B is certified copy of order sheet of Misc. Case No. 70/63 of the Court of Munsif, Bettiah. Ext. D series are certified copies of the FIRs. of the year 1970 and 19/2. The appellants lawyer contended that these documents show that series of cases were fought between the prosecution party and the appellants and there was old enmity between them. In our opinion, these documents only show that parties were on litigating term and in the fardbeyan it is mentioned that the occurrence took place due to enmity in between the parties. Therefore, the enmity was the motive of the occurrence and it is also the case of the prosecution. 14. In our opinion, these documents only show that parties were on litigating term and in the fardbeyan it is mentioned that the occurrence took place due to enmity in between the parties. Therefore, the enmity was the motive of the occurrence and it is also the case of the prosecution. 14. Another point that has been raised on behalf of the appellants is that Investigating Officer of the case has not been examined which causes serious prejudice to the appellants and its benefit should be given to them. In support of this contention, the reliance was placed on a case law of this Court reported in 1987 BBCJ page-340. Brahmdeo Hdzra V/s. State of Bihar, 1987 East Cr C 726 (Pat). The learned APP submitted that it has come in the evidence that all steps were taken by the Court for examination of the Investigating Officer. After awaiting a long period the case was closed without his examination. He further submitted that unless it is shown by the defence that a serious prejudice has been caused to them for non examination of the Investigating Officer, this lacuna of the prosecution is not fatal. In this case no prejudice, whatsoever, has been caused to the appellant for the non examination of the Investigation Officer nor anyone has pointed out this during the course of argument. Therefore non examination of the Investigating Officer will not discredit the prosecution case if otherwise it is proved by cogent and reliable evidence. The learned APP placed reliance on a decision of the Apex Court reported in Ramdev V/s. State of UP, 1995 SCC (Cr.) page 402. There is no dispute to this legal proposition that if serious prejudice has been caused to the defence for non examination of the Investigation Officer its benefit must be given to them. But only on the ground that Investigating Officer has not been examined is no reason to discredit the prosecution case. The appellants lawyer have not pointed out any prejudice caused to the appellants due to non-examination of the Investigating Officer. 15. The appellants lawyer submitted that Banshi Yadav PW-3 was not examined by the Investigating Officer. For the first time he has deposed in the Court. Therefore, his evidence should not be considered at all. The appellants lawyer have not pointed out any prejudice caused to the appellants due to non-examination of the Investigating Officer. 15. The appellants lawyer submitted that Banshi Yadav PW-3 was not examined by the Investigating Officer. For the first time he has deposed in the Court. Therefore, his evidence should not be considered at all. PW-3 in paragraph 2 stated that when he was admitted in the Bettiah Hospital the Investigating Officer visited the Hospital but did not examine him. After discharge from the Hospital he was not examined by any Police Officer. PW-3 Banshi Yadav is an injured witness. As per prosecution case, on the date of occurrence on receipt of the information that appellants are cutting paddy crops, he along with Informant and the deceased Paltu Yadav went there. All are brothers. On their protest, accused appellant assaulted him and his two brothers. Due to injuries Paltu Yadav subsequently died. He became unconscious and was removed to Bettiah Hospital for about a month. He was not in a position to speak. He further stated that at the time of his deposition in the Court he was still not in a position to speak clearly. This witness was examined by PW-6 (Doctor) on 12-10-1979 who had found a bone deep injury on the middle of scalp with concussion of brain which was grievous in nature caused by hard blunt weapon. The doctor has referred him to Bettiah Hospital for better treatment. Therefore, the Investigating Officer who had visited Bettiah Hospital could not record his statement because he was not in a position to give the statement. The Investigating Officer could have examined him after some time when he was in a position to make statement but it was laches on the part of the Investigating Officer that he did not examine him at all. For these laches of the Investigating Officer or due to faully investigation on his part, it would not be safe not to rely on this witness who was injured in the course of the occurrence as such a very competent witness. In our view it would not be proper not to rely the evidence of this witness when otherwise, his evidence is consistent and truth worthy. From the evidences discussed above it is clear that PWs. 3 and 4 who were injured during the occurrence are very competent witnesses. In our view it would not be proper not to rely the evidence of this witness when otherwise, his evidence is consistent and truth worthy. From the evidences discussed above it is clear that PWs. 3 and 4 who were injured during the occurrence are very competent witnesses. Their evidences find corroboration from the medical evidences and the objective finding of the Investigating Officer referred to above. Their evidences are further corroborated from PW-2 who is an eye witness. As stated above, PW-2 is a very competent witness who has stated that he has sold the land in question to the Informant who planted paddy crops over the same. From their evidences it is proved beyond doubt that appellants had formed an unlawful assembly with the common object to commit the above offence and with that object they went to the field of the Informant and while cutting paddy crops they were protested by the prosecution party, on which the appellants assaulted them resulting into the death of Paltu Yadav and caused injuries to Informant and his another brother Banshi Yadav. As stated above Informant had received as many as ten injuries and some of them were grievous in nature. This shows that he was brutally assaulted at the hands of the appellants as stated by the eye witnesses. Banshi Yadav PW-3 had also a grievous injury on his head. After considering the facts and circumstances and submissions made on behalf of the appellants we do not find any reason to interfere with the judgment and order of the learned Trial Court who has found all the accused persons guilty under Sections 302/149, IPC and Sections 307/149 of the IPC, Sections 147, and 148, IPC and sentenced them, as mentioned above. We have found the evidences of the prosecution witnesses of sturling qualities and there is no reason to disbelieve them. The ocular evidences find full corroboration from the evidences of the doctor. 16. In the result, we do not find any merit in these appeals which are accordingly dismissed and the judgment and order of the Trial Court is hereby confirmed. The bail bonds of the appellants are cancelled and they are directed to surrender before the Trial Court to serve the remaining period of sentences. 17. I agree.