JUDGMENT R.N. PRASAD and A.K. SINHA, JJ. : - Both the appeals arise out of judgment and order dated 28.4.1994 passed by 1st. Addl. Sessions Judge, Darbhanga in S.T. No. 86/27 of 1993. They have been heard together and are being disposed of by the common judgment. 2. Rajeshwar Jha and Akhilesh Jha, appellants in Cr. Appeal No. 209/94 have been convicted for the offence under section 302/34 and 302 of the Indian Penal Code respectively and sentenced to undergo imprisonment for life. Akhilesh Jha has further been convicted for the offence under section 307 of the Indian Penal Code and sentenced to undergo imprisonment for 10 years. Appellants in Cr. Appeal No. 218/94 have been convicted for the offence under section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. 3. Informant Dinesh Jha gave his fardbeyan on 14.6.1992 at about 8 A.M. at the place of occurrence that at about 6.45 A.M. he, his father Lachhman Jha and his younger brother Ajay Kumar Jha came to their land of mohall Khaja sarai. His younger brother was levelling the land with spade. His uncle Rajeshwar Jha was passing through the nearby road. He came and asked them as to why they had come on the land. They replied that the land belonged to them, on which he became annoyed and returned to the 'Bathan' of Kameshwar Jha, from there he along with his son Akhilesh Jha, Kameshwar Jha and his son Umesh Jha armed with lathi and garasa came at the place of occurrence and immediately thereafter Rajeshwar Jha gave lathi blow on his head due to which he fell down. However, he got up but Akhilesh Jha hurled farsa blow which he tried to save but it hit on the wrist causing bleeding injury. His father and his younger brother tried to save but Akhilesh Jha hurled farsa blow on his younger brother. He tried to save himself but it hit on the left arm causing bleeding injury. His father also tried to save but Akhilesh Jha hurled farsa blow on his head which he saved with his hand but he repeated the farsa blow which hit on the head of his father causing injury and he fell down on the ground and died soon thereafter at the spot. 4. On the aforesaid fardbeyan, Ext. 3, a formal First Information Report, Ext. 4. On the aforesaid fardbeyan, Ext. 3, a formal First Information Report, Ext. 4, was drawn, investigation, was taken up, on completion of investigation, charge-sheet was submitted. The court on receipt of chargesheet took cognizance and committed the case to the court of Sessions for trial. The trial court convicted the appellants as indicated above. 5. The defence of the appellants was that the prosecution party was aggressor. They wanted to take forcible possession of the land in question. No occurrence took place in the manner as alleged by the prosecution. The appellants had also lodged a counter case with respect to the same occurrence. They were innocent and were falsely implicated in the case. 6. The prosecution in support of its case examined 12 witnesses. P. Ws. 1 & 4 are witnesses to the seizure of blood stained farsa from the house of Akhilesh Jha. P.Ws. 2 & 6 are witnesses to the inquest report. P.W.3 is an eye witness to the occurrence. P.W.8 is the informant and is also an eye witness to the occurrence. P.W.S had seen the Appellants running away with garasa and lathi. P.W.7 has been declared hostile. P.W.9 is Doctor who held postmortem over the dead body. P.W.10 is the Investigating Officer and P.W.11 took the dead body for postmortem. P.W.12 is also a Doctor who examined the injury of P.Ws.3 & 8. 7. The prosecution party and the appellants belong to the same family. P.Ws. 3 & 8 are sons of the deceased Lachhman Jha. Appellants Rajeshwar Jha and Kameshwar Jha are own brothers of deceased Lachhman Jha, the deceased. Akhilesh Jha is son of Rajeshwar Jha and Umesh Jha is son of Kameshwar Jha. There was dispute for the land. The prosecution party was claiming the land where the occurrence took place, whereas the appellants were also claiming the said land. P.Ws 3 & 8, who were own brothers, are only eye witnesses to the occurrence. The evidence of P.W.8. the informant, is that on the day of occurrence i.e. 14.6.1992 at about 6.45 A.M. he, his younger brother Ajay and his father Lachhman Jha were levelling the land. Rajeshwar Jha was passing through the nearby road. He came and asked why they had come to the said land. They told him that land belonged to them and they were levelling the land. Rajeshwar Jha was passing through the nearby road. He came and asked why they had come to the said land. They told him that land belonged to them and they were levelling the land. He became annoyed and returned to the 'Bathan' of Kameshwar Jha, from there he along with the other three appellants came armed with farsa and lathi. Rajeshwar Jha hurled farsa blow on his head due to which he fell down. He, however, got up but Akhilesh Jha gave another farsa blow which he tried to save but it hit on the wrist of his right hand causing injury. His younger brother ran to save him but Akhilesh Jha hurled farsa blow on his younger brother. He tried to save but it hit on the wrist of his left hand causing cut injury. His father also tried to save but Akhilesh Jha hurled farsa blow which he tried to save with his hand causing cut injury on his palm. Akhilesh Jha repeated farsa blow which hit on the head of his father Lachhman Jha due to which he fell down and died soon thereafter at the spot. Learned counsel for the appellants pointed out that in the First Information Report the informant stated that appellant Rajeshwar Jha gave a lathi blow but in evidence the witnesses stated that Rajeswhar Jha gave farsa blow. Specific question was put to P.W.8. P.W.8 in para 15 of his evidence explained the same and stated that Sub-Inspector of Police wrongly had written lathi. He pointed out to him to correct but he did not correct the same. Therefore, it is evident that P.W.8 himself explained the position. Except as aforesaid no comment was made by the learned counsel for the appellants with respect to the evidence of the witness. 8. P.W.3 is another eye witness who is younger brother of P.W.8. He stated in his evidence that on the day of occurrence at about 6.45 A.M. he, his brother P.w.8 and his father were levelling the land situated at Khaja Sarai. Rajeshwar Jha, who was driver of Sri Mohan Mishra, was passing through the nearby road. Rajeshwar Jha came at the place of occurrence and asked them as to why they had come to the land. His brother P.W.8 told that the land belonged to them so they were levelling the land. Rajeshwar Jha, who was driver of Sri Mohan Mishra, was passing through the nearby road. Rajeshwar Jha came at the place of occurrence and asked them as to why they had come to the land. His brother P.W.8 told that the land belonged to them so they were levelling the land. Rajeshwar Jha became annoyed and went to the 'Bathan' of Kameshwar Jha. He returned along with the three other appellants armed with farsa and lathi. Rajeshwar Jha and Akhilesh Jha had farsa and the rest two had lathi in their hands. Rajeshwar Jha hurled farsa blow on the head of his brother P.W.S causing injury on h s head. Akhilesh Jha also hurled farsa blow causing injury on the wrist. He and his father tried to save his brother but Akhilesh Jha hurled farsa blow on him which he saved with his left hand causing injury thereon. Akhilesh Jha hurled second farsa blow which hit on the head of his father causing injury. He repeated Farsa blow which caused injury on his palm He fell down and died at the spot. Other accused persons, namely, Kameshwar Jha and Umesh Jha assaulted them with lathi. 9. P.W.5 reached the place of occurrence soon after the occurrence. He stated in his evidence that at the relevant time he was going to pluck vegetables. He saw appellants Rajeshwar Jha and Akhilesh Jha with garasa, appellants Kameshwar Jha and Umesh Jha with lathi running away. He went to the place of occurrence. Dinesh Jha, P.W.8, disclosed about the occurrence that appellants had assaulted them. 10. The oral evidence as discussed above appears to be consistent on all material points, such as place of occurrence, time of occurrence, manner of occurrence and also use of weapon by the appellants. P.Ws.3 & 8 are injured witnesses. Their presence at the place of occurrence cannot be doubted. 11. P.W.9 is Doctor who held postmortem over the dead body of Lachhman Jha on 14.6.1992 at 12.45 A.M. He found incised wound on the middle of the head and also incised wound on hypothinner area of the left hand of the deceased the witness stated that injuries found on the person of the deceased were ante mortem caused by sharp cutting weapon. Time elapsed since death was 6 to 12 hours which fits in with the time of occurrence. Time elapsed since death was 6 to 12 hours which fits in with the time of occurrence. In cross-examination the witness stated that such injury can be caused by weapon having parallel blade. 12. P. W. 12 is another Doctor who examined P. WS.3 & 8. On 14.6.1992 he examined P.W.8 at 9.15 A.M. and found three injuries on his person, out of whom two were incised wound and one was defused swelling. The Doctor opined that injury nos.1 & 2 were caused by sharp cutting weapon such as farsa and injury no.3 was caused by hard blunt substance such as lathi. On the same day at 9.30 A.M. he examined P.W.3 and found two injuries on his person one was incised wound and the other was on his little finger. He opined that injury nO.1 was caused by sharp cutting weapon such as farsa and the other injury by hard blunt substance such as lathi. The evidence of the doctor as discussed above also corroborates oral evidence of the witness on the point of time of occurrence and also weapon used in the occurrence. 13. P.W.10 is the Investigating Officer. He got information about the occurrence and as such he recorded station diary entry no. 321. He reached the place of .occurrence and recorded fardbeyan of P.W.8 at 8 A.M. i.e. after one hour 15 minutes of the occurrence. He found P.Ws. 8 and 3 injured and as such he referred them to the hospital for treatment. He seized blood stained garasa from the house of Akhilesh Jha in presence of witnesses. He inspected the place of occurrence and found copious of blood at the place of occurrence. He seized the same. He sent blood stained garasa and the blood for examination. He examined the witnesses and after completion of investigation submitted charge-sheet. 14. The objective finding of the Investigating Officer at the place of occurrence also supports the prosecution case. He sent blood for examination to the Forensic Science Lab0rR.tory. The report was also received in which it was stated that blood was found. It was, however, stated that blood on the garasa was in small quantity and as such it could not be tested. Therefore, the report of Forensic Science Laboratory also corroborates the prosecution case. 15. He sent blood for examination to the Forensic Science Lab0rR.tory. The report was also received in which it was stated that blood was found. It was, however, stated that blood on the garasa was in small quantity and as such it could not be tested. Therefore, the report of Forensic Science Laboratory also corroborates the prosecution case. 15. Learned counsel for the appellants, however, contended that the Doctor, P.W.9, has stated that injury found on the deceased is possible by weapon having parallel blade. Farsa is a sharp cutting weapon and its two ends are convex and middle is concave. Therefore, injury found on the deceased is not possible by farsa which has been seized by the police from the house of appellant Akhilesh Jha i.e. Material Ext.1. The submission of learned counsel appears to be attractive but in fact it has no substance at all because of the fact that injury on the person depends upon portion of the weapon which hits. If convex portion of farsa hits the then such type of injury is possible. It appears that no question was put to the Doctor as to whether such injury is possible if convex portion of farsa hits the body. More-over, there is nothing on the record to show that farsa seized i.e. Material Ext.I was used for committing offence. Besides Rajeshwar Jha had also farsa and its shape has not come in evidence. Further-more, at the time of such type of occurrence minute observation is not• possible as to whether convex portion of Farsa hit the body or entire farsa hit the body causing injury. Thus we find no substance in the submission. 16. Learned counsel for the appellants next contended that prosecution party was aggressor. They wanted to take forcible possession over the land. No occurrence took place in the manner as alleged. In this regard it would be pertinent to mention herein that the appellants lodged a criminal case with respect to the same occurrence. First Information Report of the said case has been brought on the record by the prosecution party i.e. Ext.12. Investigation was made and final report was submitted stating that the case is false, Ext. 13. Therefore, it appears that the claim of the appellants that no occurrence took place in the manner as alleged was not found correct after investigation vide Ext.13. Investigation was made and final report was submitted stating that the case is false, Ext. 13. Therefore, it appears that the claim of the appellants that no occurrence took place in the manner as alleged was not found correct after investigation vide Ext.13. More-over, there is nothing on the record to show that prosecution party was armed rather evidence on the record is that they were levelling their land. In such a situation no body can claim to kill a person. Therefore, even if it is accepted for the sake or argument that prosecution party was aggressor in our view appellants had no right to kill him. 17. Learned counsel for the appellants next contended that conviction of the appellants under section 302/34 of the Indian Penal Code is bad in law as there was no preparation, meeting of mind prior to the occurrence to commit murder. In this regard it would not be out of place to mention herein that case of the prosecution is that they were levelling their land. Appellant Rajeshwar Jha came and asked why they had come on the land. P.W.8 told him that the land belonged to them and they were levelling the same. On this reply he got annoyed and returned to 'Bathan' of appellant Kameshwar Jha. He along with the other three appellants came armed with garasa and lath; and soon after coming they assaulted the deceased and his two sons, P.Ws.8 & 3. Intention is not a thing which can be seen rather it can be gathered from the act done by a person. From the facts stated above it becomes obvious that they had intention to kill and in pursuance of the said intention they committed murder of Lachhman Jha, the father of informant, PW.8. It is not the case that appellant Rajeshwar Jha came at the place of occurrence, altercation took place and during altercation assault took place, rather the case is that from the place of occurrence appellant Rajeshwar Jha returned to the 'bathan' of Kameshwar Jha and then came variously armed with other appellants which is indicative of the intention of the appellants. Thus we are of the view that there is no merit in the submission of learned counsel for the appellants. 18. In the circumstances as discussed above we find no merit in any of the appeals. Accordingly, both the appeals are dismissed. Thus we are of the view that there is no merit in the submission of learned counsel for the appellants. 18. In the circumstances as discussed above we find no merit in any of the appeals. Accordingly, both the appeals are dismissed. Appellants Rajeshwar Jha, Kameshwar Jha and Umesh Jha are on bail. Their bail bonds are cancelled and they are directed to surrender before the trial court to serve out the remaining period of sentence.