JUDGMENT Vikramaditya Prasad, J.-The appellants on their being convicted on trial for offences under sections 302/34 and 201/34 of the Indian Penal Code and being sentenced for life imprisonment and 7 years R.I. respectively for both the offences have preferred this appeal. However, both the sentences were to run concurrently. 2. The prosecution case starts on the basis of an F.I.R. (Ext. 5) of Lalji Hembrom (P.W. 7) lodged on 12.8.1994 at 11.30 hours at Manoharpur police station, which discloses that his brother Bhagu Hembrom (aged about 35 years) had gone to Konaina Primary School on 10.8.1994 on a bicycle to teach and he did not return on that day. Thereafter, the informant thought that due to rain he had not come but he did not return even on next day i.e. Thursday during the time of returning from the school then he became anxious and started making enquiry from the teachers in the village and also tried to locate him at different places. On the day of filing the F.I.R. in the morning at about 7 A.M. he along with his cousin Gomia Hembrom (P.W. 11), Budhlal Hembrom (P.W. 10), Suresh Hembrom (not examined) and one villager Chandra Mohan Topno went in search and in course of searching out of his brother they reached about 200 Metres away from Posaita 'HAT' and noticed blood spots on the leaves that had fallen on the road as also on the earth then on search about 540 Metres. South on a hill from the place he found the bicycle, one pair of Chappal, Umbrella hidden. Seeing this the" informant was convinced that his brother had been killed. His brother Bhagu Hembrom had informed him about one week ago that Shyam Charan Hembrom, son of Ramu Hembrom, Limbu Hembrom. Butan Hembrom and Dadu @ Kirani @ Vijay Hembrom son of Durga Hembrom, all residents of Sonpokhari, police station Manoharpur, District Singhbhum (West), had demanded Rs. 5000/- from his brother as Rangdari and on his refusal they had threatened him to kill and his brother never wanted to pay money. Butan Hembrom and Dadu @ Kirani @ Vijay Hembrom son of Durga Hembrom, all residents of Sonpokhari, police station Manoharpur, District Singhbhum (West), had demanded Rs. 5000/- from his brother as Rangdari and on his refusal they had threatened him to kill and his brother never wanted to pay money. Then all these three above mentioned were searched out in the village but from the date of the occurrence, they were found absent from their respective houses and all the three on 10.8.1994 at 5 to 5.30 hours were seen by some persons coming from the side of Posaiya hat and again about 7 they were seen going towards HAT Therefore, the informant had believed that these three persons had killed his brother for non-paying of the Rangdari tax and had concealed the dead body of his brother some-where else. The signature of the informant appears on the fardbeyan, which is marked as Ext. 4/2. 3. It appears that the police on 12.8.1994 at about 14.30 hours had seized one black colour Hercules cycle bearing no. R.H. 88449, one black colour folding umbrella and one pair of Hawai Chappal of blue colour kept concealed in a bush away from the place, which was about 200 Mtrs. east to 50 Metres up on hillock of Posaiya hat vide Ext. 6 in presence of Shashi Bhushan Mahto, who put his signature thereon (Ext. 1/1). These all materials were handed over to the informant on Jimanama vide Ext. 6. 4. It transpires that thereafter a confessional statement of one of the accused, namely, Dadu @ Kirani @ Vijay Hembrom was recorded by the police vide Ext. 8, on 13.8.1994 at 6.30 hours at Tumsai Manoharpur. According to him he has four brothers, eldest is Damu then Dandu then himself and youngest is Suresh Hembrom. He had two sisters, namely, Hema and Balia and they were married and he is illiterate. He had Maidhiya lands. He had land in Hipihoda in the State of Orissa. His father lives there to look after the cultivation. Shyam Charan and Limbu of his village were always roaming in the village and were spending money. Shyam Charan Hembrom and Limbu Hembrom are his cousin and uncle respectively and two months ago he had developed friendship with them. He had land in Hipihoda in the State of Orissa. His father lives there to look after the cultivation. Shyam Charan and Limbu of his village were always roaming in the village and were spending money. Shyam Charan Hembrom and Limbu Hembrom are his cousin and uncle respectively and two months ago he had developed friendship with them. Thereafter, he alongwith Limbu Hembrom and Shyam Charan Hembrom was roaming here and there and extorting money from different persons for taking Hadia and people out of fear did pay them money because Shyam Charan Hembrom also used to keep a pistol and he had contact with the criminals of out side. About 10 days ago when these three persons were in Posaita HAT, they met Magu Hembrom, the deceased of this case, who was his cousin in relation, they demanded Rs. 5000/- from him then he expressed his unwillingness. Even thereafter they met him twice and demanded Rs. 5000/- but he was making different excuses and was disclosing this fact of demand of money to others. Thereafter, Shyam Charan Hembrom made a proposal to kill Magu Hembrom (a teacher) on which he and Limbu Hembrom agreed. Then Shyam Charan Hembrom brought two Bhujali, he brought two arrows and one bow from his house and at about 3.30 P.M. went to the house of Sini Kui (P.W. 2) and drank Hadia heavily there and, thereafter, at about 4 P.M. they went on the Kucha road and sat under a tree waiting for Bhagu Hembrom who had to return from Konaina School. Magu Hembrom came at about 5.30 P.M. on his cycle and one umbrella was hanging on the cycle and as he came near them Shyam Charan Hembrom taking out the arrow from his hand shot on the teacher which did not hit him then they all three ran towards the teacher and caught him on the Kuchhi road. Shyam Charan Hembrom caught the hair of the teacher and then told 'BACHA UNJAI UDI'. In the meanwhile Limbu Hembrom gave him two Bujali blows and he also gave him two Mujali blows. Bhagi Hembrom fell down and died instantaneously. Shyam Charan Hembrom caught the hair of the teacher and then told 'BACHA UNJAI UDI'. In the meanwhile Limbu Hembrom gave him two Bujali blows and he also gave him two Mujali blows. Bhagi Hembrom fell down and died instantaneously. Thereafter, Shyam Charan Hembrom taking Bhujali from his hand severed his head from his trunk and, thereafter, about 25 feet away threw his dead body and also concealed the cycle, umbrella and Chappal at about 250 Metres away in the South of the hillock. Thereafter, all the three went to the house of Shyam Charan Hembrom at Sonpokhari and Shyam Charan Hembrom took a two cell torch from his house and thereafter they went to the shop of Budhu Sao (P.W. 4) and demanded two big sacks from him and on the saying of Shyam Charan Hembrom Budhu Sao emptied the sacks and gave him two sacks alongwith Sutali. Thereafter, all the three accused persons went towards Hat carrying sack and Sutali to a place where there was a temporary shop under the shed of Bar tree and from that shop they uprooted 6 feet long Danda of Asan wood and again went to the dead body and then all the three put the trunk of the body of Magu Hembrom into a sack and carried it to the tank of Somra Oraon, which was about 1 K.M. east from there and put the dead body in the centre of the tank where there was about 5 feet deep water and also put an iron slipper of railway line taking it from the railway on that sack and while returning they carried the head of Magu Hembrom and dropped it into the well situated at Posaiya hat, so that no body could discover the dead body. He further stated in his confessional statement that he would show the trunk of the dead body of Magu Hembrom, his head and also arrows left at the place of occurrence. 5. Beheaded body of Bhagu Hembrom was recovered from the tank of one Samra Oraon, vide inquest report Ext. 9/1. This inquest report was prepared on 13.8.1994 at 12.00 hours. Then it transpires that during investigation post mortem of the headless body that was recovered was done by P.W. 5 on 14.8.1994 at 11.25 A.M. The body was identified by the constable no. 519 Cherwa Khes and constable ,no. 739 Ramashish Paswan. 9/1. This inquest report was prepared on 13.8.1994 at 12.00 hours. Then it transpires that during investigation post mortem of the headless body that was recovered was done by P.W. 5 on 14.8.1994 at 11.25 A.M. The body was identified by the constable no. 519 Cherwa Khes and constable ,no. 739 Ramashish Paswan. The doctor found the following ante mortem injuries; On external examination : Rigor mortis present, Headless body. Head severed from the neck level margine sharp. Skin : Sodden. On dissection of the chest : Fracture of all the ribs on both sides. Both lungs' ruptured. Heart : Ruptured Chest cavity : Clotted blood. On dissection of abdomen : Spleen and Liver : Intact; Stomach: Empty, Urinary bladder: Empty. Cause of death : Above injuries leading to haemorrhage and shock. Nature of weapon : sharp cutting weapon such as Bhujali and the time of death within 48 hours. The postmortem report was prepared by the said Doctor, which has been proved and marked as Ext. 3. One line cross examination was made and the reply of the doctor was that the injury caused by Farsa. It appears that the postmortem of the head that was recovered, has not been done. 6. To prove charge prosecution relied on (1) Ocular account of the occurrence by P.Ws. 8 and 9. (2) Confession of accused Dadu Hembrom leading to recovery of trunk and head of dead body and recovery of bow and arrow (Ext. 1). (3) Demand of Rangdari Tax by the three appellants as motive for the occurrence as proved by the P.Ws. (4) Proof of preparation of crime as appearing in the evidence in 164 statement of P.Ws. 2 and 4, who though turned hostile but the Magistrate who recorded their statement (P.W. 6) proved that they had made such statement. (5) Corroborative evidence (i) P.M. Report (Ext. 3) (ii) Seizure list of Hawai Chappal bicycle and Umbrella. (iii) Blood Stains. 7. I now proceed to examine these evidences 1. Ocular evidence: (A) P.W. 8 Duka @ Pradhan Surin, son of Adhiram Surin, is resident of Kaida and he has been examined as an eye witness of the occurrence. (5) Corroborative evidence (i) P.M. Report (Ext. 3) (ii) Seizure list of Hawai Chappal bicycle and Umbrella. (iii) Blood Stains. 7. I now proceed to examine these evidences 1. Ocular evidence: (A) P.W. 8 Duka @ Pradhan Surin, son of Adhiram Surin, is resident of Kaida and he has been examined as an eye witness of the occurrence. He has stated in his examination in chief that he was chopping wood in the forest along with Pandu Surin when he heard the sound of Magu Master "MAT KARO-MAT KARO" then he saw that Shyam Charan had caught hold of the head of master and Limbu and Dadu were cutting his neck then out of fear he went to field of the HAT, and half an hour they went away then these two witnesses also went to their house. He identified three accused persons by name in the Court. In his cross-examination, he said that Pandu Surin and he was chopping wood at a close distance and from where the sound had come. The distance was at about 350 yards and that place is known as Posaiya Buru. There was none in the HAT on that day and there was no shop in the HAT. He did not say anything to any body. In further cross-examination he said that he had not made any statement before the police and whatever statement he was giving, he was giving for the first time before the court. He further stated that the place where the occurrence took place is a hillock. He cannot say the boundary of that place. He further said that he and Pandu did not sell wood but they chopped it for their own purposes. One suggestion was given by the defence that as the accused persons prohibited them from chopping woods in jungle so he has falsely implicated the accused persons. This witness has said that the place of occurrence is at a distance of 2 K.M. from his village and there is no forest in his village. Ponaina Village is nearest to his village. (B) Before I proceed further I wish to discuss an interesting aspect that has occurred during the trial. One Pandu Surin, son of Ghosa Surin, of Village Kamada was examined as witness No. 3 and he was declared hostile. Ponaina Village is nearest to his village. (B) Before I proceed further I wish to discuss an interesting aspect that has occurred during the trial. One Pandu Surin, son of Ghosa Surin, of Village Kamada was examined as witness No. 3 and he was declared hostile. Now a witness of the same name and same parentage and of same village was examined as P.W. 9 and he did not turn hostile. Earlier witness, P.W 3 has given the same statement as has been given by P.W 8 but P.W 3 has become hostile and his contradiction has been taken. The earlier witness, i.e., P.W•3 signed his deposition in Hindi whereas this witness P.W 8 gave his L.T.I. on his deposition. P.W. 3 was examined on 28.11.1995. Order sheet of 28.11.1995 shows that on that date P.W. 2 and P.W. 3 were examined. Regarding P.W 2 it was categorically stated in the order sheet that he was permitted to be cross-examined by the prosecution but he was declared hostile but with regard to P.W 3 no such recording has been made that he had become hostile. The only recording is that P.W. 3 Pandu Surin is examined, cross-examined and discharged. P.W. 9 was examined on 25.3.1996 and the order sheet of that date shows that Pandu Surin was examined. Thus, the trial Court has not taken note of this peculiarity, i.e., the same witness being examined on two different dates and on one date he turns hostile and on another date he supports the prosecution. The trial Court did not try to verify as to which of the witness whether Pandu Surin examined earlier or Pandu Surin, who was examined later was the real witness Pandu Surin. (C) The defence argued that though P.W. 9 has stated as an eye witness but in view of the aforesaid peculiarities, it is difficult to say as to who is the real witness, who has been examined in the name of Pandu Surin. Therefore, there is some weight in this argument. So that the defence is not prejudiced, I discard the evidence of P.W 3 as well as P.W 9. Then the evidence of P.W. 8 is of great importance. The defence wants that this witness be disbelieved as he deposes before the Court for the first time. Therefore, there is some weight in this argument. So that the defence is not prejudiced, I discard the evidence of P.W 3 as well as P.W 9. Then the evidence of P.W. 8 is of great importance. The defence wants that this witness be disbelieved as he deposes before the Court for the first time. hearing of cry from such distance of 250 Metres and seeing the occurrence in a forest from such a distance and non-disclosure of the occurrence soon thereafter to anyone. This man has no enmity whatsoever with the appellants and no interestedness with the informant or the deceased. Though he had said that no question was put by the police earlier and he was making his statement before the court for the first time, but in my opinion this is not a circumstance to discard his evidence, as his name is found in the charge sheet, so, it is not a case that he was brought before the court from air, rather, as his name is appearing in the charge sheet, his statement that he has given statement for the first time in the Court does not appear to be acceptable. Now this witness deposed as eye witness. No cross-examination was done that the distance of 250 metres in a forest would be a big distance from which occurrence could not have been seen and the human voice could not have been heard. I cannot loss sight of the fact that this witness is a tribal witness and chopping wood is his general profession and in that context his going to the forest is not improbable. The silence prevails in the forest and any sound. However, feeble can attract the attention of a tribal whose ears are generally tuned for that than the people of city. Therefore, when he says that he heard the sound of the master and then he saw them there appears to be no exaggeration because nothing has been brought on record that the place where he was and the place where the occurrence was being committed was obstructed by thick bushes and trees. The reaction of the witness was very natural as seeing the occurrence he fled away, out of fear. This is very natural reaction. He did not disclose to anyone because according to him there was no HAT on that day. The reaction of the witness was very natural as seeing the occurrence he fled away, out of fear. This is very natural reaction. He did not disclose to anyone because according to him there was no HAT on that day. There is no reason to disbelieve the evidence of this witness. 2. Confession : Evidences against accused Dadu @ Vijay Hembrom are his own confessional statement before the police which led to the recovery of bow and arrows and dead body. He had confessed before the police about the killing of the deceased by three accused persons including himself but that confession made before the police is 110t admissible. The only part of the confession, that is admissible, is that while returning they all put the trunk of the deceased in a sack in the tank of Somra Oraon and while returning the head of the deceased was thrown in a well near Pauseta HAT and that he would show the trunk of the body of the deceased Bhagu Hembrom. place of occurrence, the arrows and bows. The I.O. recovered all these things vide Exts.6. 6/1.9 and 9/1. I.O. P.W. 13 (vide Para 4) had stated that he made these recoveries on the confessional statement of Dadu. 3. Demand of Rangdari Tax and Motive: P.W. 7 and 10 are the brothers and cousin brother of the informant. Both have no enmity with the accused persons. Both are the witness on demand of Rangdari from deceased by the appellants. P.W. 7 is the informant of the case. He has made same statement, which he made in the F.I.A. before the Court in his examination. In examination in Chief he has categorically stated that the deceased about 7 days prior to his death had told him that Rangdari tax was demanded by three accused persons named above. In his examination he has stated that he does not know whether his elder brother had given (this information) in writing any where or not. In paragraph 8 he has stated that he had gone to the residence of the accused persons along with the police on 12.8.1994 and he had also enquired from the neighbourers besides the father of the accused Shyam Charan. He has categorically stated that first he made enquiry and then the police had made such enquiry. In paragraph 8 he has stated that he had gone to the residence of the accused persons along with the police on 12.8.1994 and he had also enquired from the neighbourers besides the father of the accused Shyam Charan. He has categorically stated that first he made enquiry and then the police had made such enquiry. From his evidence only this much is/proved that his brother had told him regarding demand of Rangdari by the accused persons and on this point he has not been cross-examined. He is not a witness on the recovery of dead body nor on the identification of the dead body. 4. Proof of Preoaration for Crime as appearing in the statements vis 164 Cr. P.W. 2 Sini Kui is the resident of Gaunmor. Her statement was recorded under Section 164 Cr. P.C. as prosecution witness but in the court she was declared hostile and said that she has no knowledge of the occurrence and even she did not identify the appellant-accused. In her statement under section 164 Cr.P.C. she had stated that on 10th of the month (August 1994) at about 3.30 Shyam Charan Hembrom, Limbu Hembrom and Dadu Hembrom had gone to her to take Haria. a local liquor. She had further stated that what they talked among themselves, she could not hear but they had gone away after taking Haria. P.W. 4 Budhu Sao, is another witness whose statement was recorded under section 164 Cr.P.C. In his examination in chief he says that he sells rice, pulse, flour etc. and one accused had taken one sack from him whose name he does not know. Surprisingly, the prosecution did not consider it proper to ask him as to which of the three accused had taken the sack. From the order sheet of 6.12.1995 of the trial Court on which date this witness was examined, it appears that all the three accused were present in the dock, so, when such an evidence had come, it was the duty of the prosecution to ask as to which of the accused standing in the dock had taken the sack. The prosecution left a serious lacuna. The prosecution left a serious lacuna. This witness was also declared hostile, but in his cross-examination he admitted that he had stated before the police on 10.8.1994 that Shyam Charan, Limbu and Dadu had gone to his shop at 6 P.M. they appeared to be worried, they asked for one empty sack but he had no empty sack then Shyam Charan told him that there is need for that so he gave two sacks. He further stated that Shyam Charan was of criminal character, therefore, he emptied two sacks and gave him. He had denied to have stated before the police that he went to the tank and there he identified the dead body of the master and also sack on the basis of something written in red ink. He admits that he had made his statement before the Magistrate at Chaibassa. Surprisingly he was not contradicted from his earlier statement before the Magistrate, but this witness despite being declared hostile has admitted this much that he made statement before a Magistrate. It also transpires that this witness has not stated before the Magistrate that he had identified the sacks. Before the Magistrate he only said that after 3 days of taking of sack he heard that master had been killed and his dead body has been found concealed in sack. Therefore, when he said that he did not say before the Police regarding identification of the sacks this statement is not against the statement made before the Magistrate. Even though, they turned hostile to prosecution, but in face of evidence of Magistrate their statements recorded u/s 164 is admissible and can be used in favour of the prosecution. P.W. 6 Shri Vishwanath Choudhary, the Judicial Magistrate, who recorded the statements of P.Ws. 2 and 4 has proved certificates (Ext. 4 and 4/1) said that the statements were voluntarily recorded and the contents of her/his statement so recorded were read over to the witnesses. In his cross examination he said that he did not consider it necessary to warn that the statements can be used against them as they were not obliged to make any statement. 5. Corroborative Evidence: (i) P.M. Report, (ii) Seizure list of Hawai chappal, bicycle and umbrella (iii) Blood stains. Inquest and reports. All these corroborate the factum of crime. In his cross examination he said that he did not consider it necessary to warn that the statements can be used against them as they were not obliged to make any statement. 5. Corroborative Evidence: (i) P.M. Report, (ii) Seizure list of Hawai chappal, bicycle and umbrella (iii) Blood stains. Inquest and reports. All these corroborate the factum of crime. The P.M. of trunk of the deceased was done and the trunk was identified by two constables but no cross-examination has been done on the point that trunk was not that of deceased Magu Hembrom. Therefore, in absence of any such dispute raised by the defence, it has to be said that it was the trunk of deceased Magu Hembrom. One aspect that also attracts attention is that according to the Doctor the death occurred within 48 hours from the time of post mortem and when the time of death is calculated from the time of this post mortem then the evidence of eye witness and other circumstantial witness is belied, but in view of the eye witness, I hold that this discrepancy is insignificant and of no consequence. P.W. 13 is the I.O. In his statement has admitted that he made recovery of dead body, the Chappal etc. Arrow and bow on the confessional statement of one accused Vijay Hembrom. The I.O. proved such seizures. These seizures corroborate the occurrence. 8. I find that in the statement of accused appellant recorded under section 313 of the Code of Criminal Procedure on all the aforesaid circumstances they were not meticulously examined by the Trial Judge, but as no specific prejudice has been canvassed by defence on this score, therefore, non examination on each aspect has not caused prejudice to appellant in their defence and has not resulted in failure of justice. 9. Thus, considering the ocular evidence of P.W. 8 which is against all the three appellants, the motive established against all the three appellants and the corroborative evidence I find that the prosecution has succeeded in establishing the charge u/ss. 302 and 201 I.P.C. beyond all reasonable doubts. 9. In the result I find no merit in this appeal. Accordingly, the conviction and sentence awarded to the appellant, under both the charges are hereby confirmed. Appeal is dismissed. Vishnudeo Narayan, J.-I agree.