Judgment 1. The appellants have preferred the appeal against the judgment and order dated 8.9.1994/16.9.1994 passed by the Sessions Judge. Madhubani in Sessions Trial No. 268 of 1992 whereby the appellant, Nakaha Sahni, has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. Rest of the appellants have been convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. They have further been convicted for the offence under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. However, the sentences were ordered to run concurrently. 2. Sibu Sahni, the informant, gave his fardbeyan on 12.7.1992 at about 7 a.m. that on 11.7.1992 at about 8/9 p.m. his son Mahesh Sahni was sitting in the courtyard of the house. Nakaha Sahni came and told him that Saran Sahni and Bahadur Sahni were calling him. He accompanied him. When he reached near the house of Ghuran Sahni the accused persons/appellants caught him and started assaulting with fists and slaps. His son raised alarm. He went there. Vijay Sahni son of Ghuran Sahni came from his house and tried to save him but Saran Sahni and Bahadur Sahni pressed the neck of his son. Vijay Sahni tried to catch them but Nakaha Sahni inflicted dagger injury on his person. He fell down. Nakaha Sahni also gave dagger blow on the back of his son. He (informant) tried to intervene but he was chased. He ran away raising alarm. The villagers came and the appellants ran away. The motive of the occurrence was old enmity. 3. On the aforesaid fardbeyan, Ext. 2, a formal first information report, Ext. 3, was drawn. Investigation was taken up and on completion of the investigation charge-sheet was submitted in the court. The court took cognizance and committed the case to the Court of Session for trial. The trial Court convicted the appellants, as indicated above. 4. The defence of the appellants was that the deceased, Mahesh Sahni, and Vijay Sahni were men of bad character. Investigation was taken up and on completion of the investigation charge-sheet was submitted in the court. The court took cognizance and committed the case to the Court of Session for trial. The trial Court convicted the appellants, as indicated above. 4. The defence of the appellants was that the deceased, Mahesh Sahni, and Vijay Sahni were men of bad character. They were assaulted at some other place by unknown persons because of their bad character and in the morning false case had been concocted implicating the appellants. They were innocent and had falsely been implicated in the case. 5. The prosecution in support of its case examined eight witnesses out whom PW 2, PW 3, PW 4 and PW 5 have claimed to be eye-witnesses to the occurrence, PW 1 has been declared hostile. PW 6 is a doctor, who examined PW 2 and PW 4. PW 7 is Investigating Officer and PW 8 is also a doctor, who held post- mortem over the dead-body. 6. Four witnesses claimed to have seen the occurrence out of whom PW 2 and PW 4 are injured witnesses. PW 3 is wife of the deceased and PW 5 is father of the deceased PW 3 claimed to have seen the occurrence and stated that Nakaha Sahni came and told her husband that Saran Sahni and Bahadur Sahni were calling him. Her husband accompanied him. When he reached near the house of Ghuran Sahni her husband raised alarm. She, her father-in-law and mother-in-law went there. Saran Sahni and Bahadur Sahni pressed the neck of her husband and thereafter the other accused persons assaulted him with fists and slaps. Nakaha Sahni gave dagger blow to her husband. When Sibu Sahni, father-in-law, tried to save him he was chased by Nakaha Sahni. The attention of the witness was drawn to the statement made before the police PW 7, the investigating officer, has categorically stated in bis evidence that PW 3 did not say before him that on hearing alarm her father-in-law, Sibu Sahni, ran to save. She did not say that her mother-in-law had also gone to the place of occurrence. She did not say before him that the accused persons were assaulting with fists and slaps and Nakaha Sahni gave dagger blow to her husband. She did not say before him that when her father-in-law tried to save, the appellant Nakaha Sahni ran to assault. She did not say that her mother-in-law had also gone to the place of occurrence. She did not say before him that the accused persons were assaulting with fists and slaps and Nakaha Sahni gave dagger blow to her husband. She did not say before him that when her father-in-law tried to save, the appellant Nakaha Sahni ran to assault. From the evidence, as indicated above, it appears that PW 3 was not an eye-witness to the occurrence but in the court she claimed to be any eye-witness. In such a situation, her evidence, in our view, is not worthy of reliance. 7. PW 5 is informant. He is an eye-witness to the occurrence. His evidence is that the deceased, Mahesh Sahni, is his son. On the day of occurrence at about 8/9 p.m. his son was sitting in the courtyard. Nakaha Sahni came and told Mahesh Sahni that Bahadur Sahni and Saran Sahni were calling him. His son accompanied him. Soon thereafter his son raised alarm. On hearing alarm he, his daughter-in-law and his wife went there. He found that the appellants were assaulting the deceased with fists and slaps. Bahadur Sahni and Saran Sahni pressed the neck of the deceased. Vijay Sahni, PW 4, tried to save him but Nakaha Sahni gave dagger blow on the person of Vijay Sahni. Nakaha Sahni also gave dagger blow on the back of the deceased. Mahesh Sahni died then and there. Jamun Sahni, PW 2, tried to catch hold of him. He was assaulted by Ramdhani Sahni and Bhogi Sahni with lathi. It was moonlit night and he had also a torch in his hand. He identified the appellants in the light of the torch. Due to the rain and flood he could not go to the police station in the night. The police came at his house and he gave his fardbeyan before him. In cross-examination the witness stated that the appellants were of one family. He reached the place of occurrence first, his daughter-in-law and his wife also reached the place of occurrence. Bahadur Sahni and Saran Sahni pressed the neck of his son causing injury on the neck. Nakaha Sahni was hidding the dagger in the pocket of his kurta. Blood had fallen at the place of occurrence. He did not inform the chaukidar and dafadar. Bahadur Sahni and Saran Sahni pressed the neck of his son causing injury on the neck. Nakaha Sahni was hidding the dagger in the pocket of his kurta. Blood had fallen at the place of occurrence. He did not inform the chaukidar and dafadar. Blood had also fallen from the injury on the person of Vijay Sahni. He had given three thousand rupees to Bahadur Sahni. He promised to return the money within two months. He did not return and as such he and his son made demand from him and due to the aforesaid reason his son was killed. 8. PW 4 is a injured witness. His presence at the place of occurrence, in the circumstances, cannot be doubted. The witness deposed that on hearing alarm he came out from his house and saw the appellants assaulting Mahesh Sahni with fists and slaps. Mahesh Sahni fell down. Saran Sahni and Bahadur Sahni pressed his neck. He tried to save him but he was assaulted by Nakaha Sahni with dagger. Nakaha Sahni also gave dagger blow on the back of the deceased, Mahesh Sahni. Mahesh Sahni died. The witness in cross-examination stated that he was knowing Mahesh Sahni from his childhood. He was sitting in his house after taking meal. Sibu Sahni, his daughter-in-law, his wife and Jamun Sahni were also there. They were raising alarm. Blood had fallen on the ground. Police came in the morning, the next day. He was treated in the hospital and regained his sense there. 9. The oral evidence of the witnesses, as discussed above, is consistent on the material points, specially on the point of manner of occurrence. They have categorically stated the participation and commission of specific act by the appellants. 10. PW 2 also claimed to be an eye-witness. However, his evidence is that he was going to see Maharram. When he reached near the house of Ghuran Sahni, Sibu Sahni was raising alarm that his son had been killed. He was naming the appellants as assailants of his son. When he reached there Ramdhani Sahni, Mogal Sahni (dead), and Bhogi Sahni were running away. He tried to catch hold of them but Ramdhani Sahni and Saran Sahni threatened to kill. Bhogi Sahni and Ramdhani Sahni assaulted him with lathi. In the meantime, villagers came and the appellants ran away. He was naming the appellants as assailants of his son. When he reached there Ramdhani Sahni, Mogal Sahni (dead), and Bhogi Sahni were running away. He tried to catch hold of them but Ramdhani Sahni and Saran Sahni threatened to kill. Bhogi Sahni and Ramdhani Sahni assaulted him with lathi. In the meantime, villagers came and the appellants ran away. When he reached near the house of Ghuran Sahni, he found Mahesh Sahni, son of Sibu Sahni, dead. The witness was cross-examined at length but nothing could be elicited to doubt his evidence. However, from the evidence, as discussed above, it is evident that the witness is not an eye-witness on the point of the assault to the deceased, rather he learnt the name of the assailants of the deceased from Sibu Sahani, PW 5, but the witness categorically stated that when he reached the place of occurrence, he was assaulted by Bhogi Sahni and Ramdhani Sahni with lathi. Therefore, the evidence of the witness discloses that he reached the place of occurrence while offence was being committed and when he tried to catch hold of the appellants he was assaulted with lathi causing injury on his person. 11. PW 6 is a doctor, who examined PW 2 and PW 4. The doctor had found injuries on the person of PW 2. Injuries were swelling on the right hand and also on the chest. He also found four incised wounds on the person of Vijay Sahni, PW 4, PW 8 is also a doctor, who held postmortem over the dead body. He found bruise and swelling injury on the neck of the deceased and also sharp penetrating wound chest cavity deep over the back of the chest left side at the level of 8th under postal space on the person of the deceased. Thus, the evidence of the doctor also corroborates the oral evidence of the witnesses on the point of use of weapon by the appellants. 12. PW 7 is investigating officer. His evidence is that he heard rumour about the occurrence. He went to the place of occurrence and recorded fardbeyan of PW 5. He also found injuries on the person of PW 2 and PW 4 and sent them to the hospital. He prepared inquest report in presence of the witnesses. 12. PW 7 is investigating officer. His evidence is that he heard rumour about the occurrence. He went to the place of occurrence and recorded fardbeyan of PW 5. He also found injuries on the person of PW 2 and PW 4 and sent them to the hospital. He prepared inquest report in presence of the witnesses. He gave vivid picture of the place of occurrence and found blood at the place of occurrence. He seized blood stained earth in presence of the witnesses. He found dead body at the Verandah of the informant. In cross-examination the witness stated that he found hole on the shirt of the deceased suggesting injury caused by dagger. However, he admitted that he did not send blood stained shirt for examination. The evidence of the investigating officer also corroborates the prosecution case and establishes place of occurrence as he found blood at the place of occurrence. 13. Learned counsel for the appellants, however, contended that there was no intention and as such conviction of the appellants under Section 302 of the Indian Penal Code is bad in law. Intention is not a thing which can be visualised rather it can be gathered from the act done by the person. It is evident from the discussion of the evidence that all the appellants assaulted initially with fists and slaps. Appellants Saran Sahni and Bahadur Sahni subsequently pressed the neck of the deceased. Nakaha Sahni gave dagger blow on the back of the deceased. The doctor has found injury on the neck and also on the back caused dagger and has opined that cause of death was throttling and also injury on the back of the deceased. Therefore, from the acts done by the appellants it can safely be said that contention of the learned counsel for the appellants has no leg to stand rather the evidence on the record clearly establishes that prosecution has succeeded in establishing its case against the appellants for the offence under Sections 302/149 and 307/149 of the Indian Penal Code. 14. Thus, on consideration we find no merit in this appeal. Accordingly, the appeal is dismissed. All the appellants except Nakaha Sahni are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial Court to serve the remaining period of sentence.