JUDGMENT : B.P. Das, J. - The Appellant has challenged the judgment and order dated 24.12.1987 passed by the learned 2nd Additional Sessions Judge, Cuttack in S.T. No. 49 of 1987 convicting him u/s 326, I.P.C. and sentencing him to undergo rigorous imprisonment for five years. 2. The case of the prosecution is that on 15.9.1986 at about 3 P.M. in village Balipur while the deceased Chaitan Rout was coming from Railway line side to house the accused-appellant followed him and when the deceased looked back, the accused death a 'Farsa' blow which hit on his left hand on the lower end of the fore-arm; as a result he "MARGALI MARIGALI". Immediately hearing the sound of the deceased, P.W. 1 rushed to the spot and found profuse bleeding from the left hand of the deceased and the accused running away with' the 'Farsa'. On query by P.W. 1, the deceased said that while he was returning home from the side of Mangala Chhak, the accused dealt the 'Farsa' blow on his person. Immediately the deceased was removed to his house and a Sari was wrapped around the place of injury and he was removed to Gurudijhatia hospital in a bullock cart being accompanied by P.W. 3, P.W. 7, Rambha Dei and P.W. 1. Thereafter, he was removed to S.C.B. Medical College and Hospital, Cuttack, but on the way the deceased succumbed to the injury at village Pithakhai. P.W. 1 lodged an F.I.R. which is marked as Ext. 4 at Gurudijhatia P.S. and accordingly a case awas registered u/s 326/307 read with Section 34 I.P.C. against the present accused-appellant and the investigation was taken up. After completion of investigation, charge-sheet was filed against the present Appellant for commission of offence u/s 302 I.P.C. for having intentionally caused the murder of Chaitan Rout. 3. In order to bring home the charge, the prosecution has examined as many as 11 witnesses. Likewise, witnesses were examined from the side of the defence. Several documents and material objects were exhibited before the trial Court. The case of the defence is that of total denial of the prosecution case. 3. In order to bring home the charge, the prosecution has examined as many as 11 witnesses. Likewise, witnesses were examined from the side of the defence. Several documents and material objects were exhibited before the trial Court. The case of the defence is that of total denial of the prosecution case. Further plea of the defence was that on the date of occurrence at about 3 P.M. while D.W. 3 was returning to his house through the village lane, the deceased, his son Sarat Rout and Karunakar Rout came in a body being armed with iron Katua, Parsa respectively and assaulted D.W. 3 who raised hullah and hearing his hullah D.W. 1 and Ors. went running to D.W. 3 for his rescue, as a result of which D.W. 3 sustained bleeding injuries on the left side head and right side shoulder. Thereafter about 15 persons from SABARANA and ADIBASI people assembled there. There was a free fight between the parties. P.W. 1 is the informant and the brother of the deceased, who is the immediate post-occurrence witness and took the deceased to hospital. P. Ws. 2 and 4 have their residence nearer to the place of occurrence and they are the eye-witnesses. P.W. 3 is a post-occurrence witness and is the witness to inquest. P.W. 5 is the Medical Officer who conducted post mortem over the dead body of the deceased. P.W. 6 is the Revenue Inspector. P.W. 7 is the witness to the seizure of the blood-stained earth from the house of Gandharb Mallik and also a witness to the seizure of 'Farsa', M.O.I, i.e., the weapon of offence. P.W. 8 is the witness who has stated before the police that he had seen the son of the present Appellant throwing a 'Farsa' to the corn field of Gandharb Mallik. But she did not support her statement during her examination in Court for which she was cross-examined. P.W. 9 and P.W. 10 are the witnesses to the seizure of blood-stained Sari, M.O.II, which was wrapped around the place of injury of the deceased. P.W. 10 identified the dead body of the deceased before the Medical Officer. P.W. 11 is the Investigating Officer. D.W. 1 mostly speaks about the case of the defence and also claims to be the injured in the alleged incident narrated by him. P.W. 10 identified the dead body of the deceased before the Medical Officer. P.W. 11 is the Investigating Officer. D.W. 1 mostly speaks about the case of the defence and also claims to be the injured in the alleged incident narrated by him. D.W. 2 narrates the circumstances under which D.W. 1 sustained injury at the instance of the deceased and his friends. D.W. 3 is the injured and D.W. 4 is witness to the alleged occurrence as, unfolded by the defence. D.W. 5 is the Doctor who examined the defence witnesses. 4. At is appers, the F.I.R. has been lodged by P.W. 1 who is the brother of the deceased. Upon hearing the hullah "MARIGALI MARIGALI", he rushed to the Mangala crossing and saw his brother i.e. the deceased with bleeding injury on his left hand. On his query the deceased disclosed that while he was returning home, he heard the sound of somebody following him and when he looked back, the accused Pratap Mallik gave a 'Farsa' blow on his left hand causing injury and bleeding. P.W.1 further states that he saw Pratap running from the place of where Chiatan was lying and he was holding a 'Farsa' in his right hand while running away and Basanta Mallik i.e. D.W. 3 was standing as a distance and was instigating accused Pratap to give a blow on the neck of the deceased. Thereafter this witness narrates in detail how the injured was removed to hospital and further narrates that prior to the occurrence there was ill-feeling between the two factions at the village over a dispute regarding installation of a tube-well which was proposed by the Block Development Officer to be installed adjacent to Harijan Sahi. As there are already tube wells in the Harijan Sahi, the 'Sabarnas' and Adibasis of the village decided to instal the same near the village school. This matter was informed to the Block Development Officer and S.D.O. and Chaitan i.e. the deceased had taken active part in mobilising the villagers and drafting the representation in Ext. 6 requesting the authorities to change the site of the tube-well. P.W. I has specifically stated that the deceased has named the accused to be the assailant and he himself had seen the accused holding a 'Farsa' running away from the spot. P.W.2 is one of the eye-witnesses. 6 requesting the authorities to change the site of the tube-well. P.W. I has specifically stated that the deceased has named the accused to be the assailant and he himself had seen the accused holding a 'Farsa' running away from the spot. P.W.2 is one of the eye-witnesses. He has deposed that on the date of occurrence he was sitting on the outer Verandah of his house. At that time the deceased Chaitan Rout was returning to his house from the northern direction whereas the accused was running behind him with a 'Farsa' in his hand and when the deceased turned and looked back, the accused dealt a 'Farsa' blow on the !eft hand of the deceased as a result of which his left hand was almost cut and bleeding profusely. After raising alarm saying "MARIGALI MARIGALI", Chaitan sat down on the ground when P.W. 2 reached the spot so also Arjun Sarnal. Thereafter, P.W. 1 arrived. Then the deceased was removed to his house. Thereafter the injured was removed to hospital and at about 8 P.M. he got the information about the death of Chait an.He has also corroborated the statement of P.W. 1 regarding the dispute between the Harijans and Sabarna's regarding the site selection for installation of a tube-well. During his cross-examination nothing has been brought out by the defence to disturb the statements made in his examination in chief. On the question of counter case, P.W.1 has flatly denied the suggestion that Basanta Mallik i.e. D.W. 3 sustained injuries on his head and shoulder with 'Farsa' on the same day, i.e., on the date of occurrence, and in course of a free fight, Chaitan Rout sustained injuries on his left hand. P.W. 3 is another post-occurrence witness who accompanied deceased Chaitan to the dispensary. P.W. 3 is another post-occurrence witness who accompanied deceased Chaitan to the dispensary. But P.W. 4, another witness of the prosecution who claims to be an eyewitness to the occurrence, has stated in his examination in chief that as he was taking the bullock in the front of his house, he saw that the deceased Chitan was coming from the side of Railway line and was proceeding towards his house, the accused came running from his behind and the moment Chaitan looked back, the accused gave a 'Farsa' blow on the left hand of the deceased as a result of which the left hand of Chait an was almost cut and kept hanging causing frofuse bleeding. He has stated that P.W. 2 had also seen the occurrence. 5. The accused, according.to him, was running away from the spot towards his house holding a 'Farsa'. Thereafter he narrates regarding the fact of the deceased's removal to dispensary as well as corroborates the statement of P.W. 2. that there was dispute between the 'Sabarnas' and 'Abibasis' on one side and Harijans on the other side over the installation of a tube-well in which Chaitan was taking the leading part from the side of Adibasis and Sabarnas. During the cross-examination, nothing was brought out to disbelieve the story as narrated in his examination in chief. 6. An objection was raised by the Learned Counsel,for the Appellant that there is no possibility of P.W. 2 and P.W. 3 witnessing the occurrence in view of the evidence of the Investigating Officer (P.W. 11) that there are trees in the garden of Mangala deity. A person standing on the place of occurrence may not be able to see "the back side of the temple for which it is impossible for P.W. 4 to see the accused running towards the deceased from Harijanan Basti. 7. On a perusal of the judgment of the trial Court, I find that the trial Court looking at Exts. 11 and 18 found that the house of both these witnesses situated on either side of the intervening land facing each other and the occurrence took place in front of their houses i.e. at a little distance from the Mangala Chhak. On a perusal of the judgment of the trial Court, I find that the trial Court looking at Exts. 11 and 18 found that the house of both these witnesses situated on either side of the intervening land facing each other and the occurrence took place in front of their houses i.e. at a little distance from the Mangala Chhak. According to trial Court, the Harijan street proceeds towards eastern side from the Mangala Chhak and by the side of the house of P.W. 4, there is Mangala Kotha Ghar intervened by a little space and after Mangala Kotha Ghar there is Mangala Chhak from where the road leads towards Harijan street. After looking at Exts. 11 and 18, I am of the same opinion that there was no obstruction on the part of P.W. 2 and P.W. 4 to witness the occurrence as the same occurred in front of their house. P.W. 2 in his cross-examination has stated that the accused was coming behind the deceased with a 'Farsa'. P.W. 4 has also stated that the deceased Chiatan was coming from Railway line side and proceeding towards his house and when Chaitan was in front of his house, the accused came running from his behind and gave a blow. But in his cross-examination he has stated that he same near Chaitan after he was assaulted. 8. Learned Counsel for the Appellant wants to take advantage of the above statement of P.W. 4 and says that he was not an eye witness to the occurrence. But the entire statement taken together shows that he has categorically stated that he had seen the occurrence and he reached near Chaitan after he was already assaulted. Hence, there is nothing to say that the evidence of P.W. 2 and P.W. 4 is suspicious. On the other hand, the same is natural and believable and reliance can be placed on the statements of said witnesses. Then Learned Counsel for the Appellant draws my attention to the evidence of Investigating Officer (P.W. 11). During cross-examination, he has stated that on 17.9.1986 he examined D.W. 3, but not on the date of occurrence i.e. on 15.9.1986. The reason for not examining him on 15.9.1986. is not mentioned in the case diary. Then Learned Counsel for the Appellant draws my attention to the evidence of Investigating Officer (P.W. 11). During cross-examination, he has stated that on 17.9.1986 he examined D.W. 3, but not on the date of occurrence i.e. on 15.9.1986. The reason for not examining him on 15.9.1986. is not mentioned in the case diary. Taking a cue from this, Learned Counsel for the Appellant submits that there was a free fight between the two groups of people the fact of which was suppressed by the prosecution and as the prosecution has not come with clean hands, the evidence of P.W. 2 and P.W. 4 should not be accepted because they have suppressed the genesis and origin of the prosecution case. This aspect was also taken care of by the trial Court and on a reading the evidence of P.W. 11, it cannot be said that the occurrence in the case at hand (G.R. Case No. 223 of 1986) did not take place as per the F.I.R. of P.W. 1 and the information lodged by the defence party in G.R. Case No. 225 of 1986 can be said to be arisising out of the same occurrence. The Medical evidence i.e. the post-mortem report (Ext. 9) shows that there is an incised injury on the lower end of the left forearm I above the writst joint, cutting through the skin all around except for a poster on the poster medial aspect which is in tact. Cutting transversely through all the muscles both bones radius and ulna, lower end, all the vessels and nerves present in the lower end of left fore-arm. The medical opinion is that this injury is ante-mortem in nature and is caused by a sharp cutting heavy weapon. P.W. 5 conducted the post mortem examination on the dead body of the deceased and opined that the injury on the dead body of the deceased was possible with the weapon of offence and injury on the deceased was sufficient in ordinary course of nature to cause death of the deceased unless the bleeding was controlled. During cross-examination, he has also stated that the patient might have survived had the bleeding been controlled within half an hour of the injury. The medical evidence as well as the ocular evidence both go along together and strengthen the evidence of P. Ws. During cross-examination, he has also stated that the patient might have survived had the bleeding been controlled within half an hour of the injury. The medical evidence as well as the ocular evidence both go along together and strengthen the evidence of P. Ws. 1, 2, 3 and 4 that due to the blow given by 'Farsa', the left hand of the deceased was almost cut and it was hanging. Apart from this, the weapon of offence was discovered on the basis of the statement of P.W. 8 who later on turned hostile. 9. For the reason stated above, I have already discarded the plea of the counter case taken by the defence so also the plea of a free fight between the parties. Taking note of the medical as well as ocular evidence on record, I do not find any illegality committed by the learned 2nd Additional Sessions Judge, Cuttack. Rather, he has taken a lenient view by convicting the Appellant for the offence u/s 326 I.P.C which has not been challenged by the State. The Criminal Appeal is accordingly dismissed. The order of conviction and sentence is hereby confirmed. The Appellant is directed to surrender to serve out the sentence. If he does not surrender, steps be taken for forfeiture of the bail bond and apprehension of the Appellant including proceeding against the bailor. Final Result : Dismissed