Judgment M.L.Visa, J. 1. Both these appeals are directed against the same judgment dated 03.09.2001 and order dated 10.9.2001 passed by Vlth Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No. 512 of 1996 convicting and sentencing Sudhakar Rai, appellant of Criminal Appeal No. 502 of 2001 to undergo rigorous imprisonment for life u/s. 302 of Indian Penal Code (In short "IPC") and Basudeo Rai, Prabhakar Rai and Rajesh Kumar Rai, appellants of Criminal Appeal No. 472 of 2001 to undergo rigorous imprisonment for life u/s. 302 read with Sec. 34 of the Indian Penal Code and further convicting appellant Rajesh Kumar Rai to undergo rigorous imprisonment for seven years u/s. 307 of the Indian Penal Code and appellant Basudao Rai to undergo rigorous imprisonment for six months u/s. 379 of the Indian Penal Code, have been heard together and are being disposed of by this common judgment. 2. The case of prosecution, in short, is that on 19.6.1996, informant Devendra Rai (PW 6) with his father was in his field where his labourers were sowing seeds when appellant Basudeo Rai alongwith his sons who are appellants Rajesh Kumar, Prabhakar Rai and Sudhakar Rai came there. Appellant Rajesh Kumar Rai was armed with a dagger, appellant Prabhakar Rai with Bhala and appellant Sudhakar Rai with Garasa and appellant Basudeo Rai started abusing the informant and ordered his sons to kill the informant and his father on which appellant Rajesh Kumar Rai assaulted the informant with dagger causing injuries on his left knee, on the extreme left side of his chest below the abdomen and thigh and appellant Basudeo Rai snatched his Titan watch. When father of informant tried to rescue him appellant Sudhakar Rai assaulted him with Garasa on his head and appellant Prabhakar Rai assaulted him with lathi. Informant became unconscious. Bengali Manjhi (not examined) who was working in the field of informant raised nulla on which a number of persons cams there and appellants fled away. Informant was taken to MJK Hospital, Bettiah where his Fard-e-bayan was recorded by Assistant Sub-Inspector B.N. Sharma (P W 7). Old enmity is said to be motive of occurrence. A case under Ss. 307, 324, 323 and 379 read with Sec. 34 of the Indian Penal Code was registered against all the appellants and investigation was taken up. Informant was taken to MJK Hospital, Bettiah where his Fard-e-bayan was recorded by Assistant Sub-Inspector B.N. Sharma (P W 7). Old enmity is said to be motive of occurrence. A case under Ss. 307, 324, 323 and 379 read with Sec. 34 of the Indian Penal Code was registered against all the appellants and investigation was taken up. The father of informant was also taken to the same MJK Hospital at Bettiah and from there on 20.6.1996, he was referred to Patna Medical College and Hospital (in short "P M C H") at Patna where, during treatment on 21.6.1996, he died. Section 302 of the Indian Penal Code was added in this case and police, after investigation, submitted charge-sheet under Ss. 302, 307, 323, 324 and 379 read with Sec. 34 of the Indian Penal Code. Cognizance of the case was taken and the case was committed to the Court of Session where charge u/s. 302 of Indian Penal Code against appellant Sudhakar and charge under Ss. 302/34 of IPC against remaining three appellants, namely, Basudeo Rai, Rajesh Rai and Prabhakar Rai and additional charge u/s. 307 of the Indian Penal Code against appellant Rajesh Kumar Rai and u/s. 379 of the Indian Penal Code against Basudeo Rai were framed. After trial, appellants were found guilty and were convicted and sentenced, as indicated above. 3. The case of appellants, as it appears from witnesses examined on their behalf and from the trend of cross-examination of prosecution witnesses is that the informant and his party on the basis of forged document, wanted to capture the land of appellants and on protest, the informant and his party badly assaulted appellant Sudhakar Rai and other appel- ants and, thereafter, got the appellants implicated in this case which is false. Two witnesses have been examined on behalf of appellants. 4. Prosecution has examined eleven witnesses. Devendra Rai (P W 6) is the informant. Dr. Madhu Sudan Shukla (P W 1) is the doctor who had examined informant. Dr. Ashok Kumar Singh (PW 2) is the doctor who had examined the deceased on the day of occurrence. Dr. Arun Kumar Singh (P W 8) is the doctor who had held post mortem examination on 21.6.1996 on the dead body of Shiv Nath Sharma, father of informant. Raghunath Prasad (PW 11) is the deed writer who has proved some sale deeds marked Exhibits-10, 10/1 and 10/2. Dr. Arun Kumar Singh (P W 8) is the doctor who had held post mortem examination on 21.6.1996 on the dead body of Shiv Nath Sharma, father of informant. Raghunath Prasad (PW 11) is the deed writer who has proved some sale deeds marked Exhibits-10, 10/1 and 10/2. Satendra Rajak (PW 10) is the Judicial Magistrate who had recorded statement of some witnesses u/s. 164 of Criminal Procedure Code. Badri Nath Sharma (PW 7) and Md. Khalil (P W 9) are Investigating Officers. Surendra Kumar Tiwary (PW 4) is a formal witness who has proved station diary entry No. 451 which is marked Exhibit-3 and signature of Officer-in-charge (Exhibit-3/1 ) on the station diary. Ashok Kumar Rai (PW 3) is an eye-witness to the occurrence. Lalan Kumar Rai (PW 5) had accompanied the deceased from Bettiah Hospital to P M C H and after the death of deceased had brought his dead body to Bettiah and participated in the cremation and was present in P M C H when postmortem examination on dead body was held and had earlier informed all these facts to Bettiah Mufassil Police Station where his information was noted down as Exhibit-3 and his signature which is Ex-hibit-3/2 was obtained. 5. Dr. Ashok Kumar Singh (PW2), the doctor who had examined the deceased when deceased was alive on the day of occurrence, in his evidence, has said that on 19.6.1996 at 12.45 PM, he examined the deceased and found one incised wound 5-1/2" x 1/2" x bone cut on scalp and one another incised wound 4" x 1/2" x bone cut which was also on scalp and both the injuries were 1" apart from each other and both were grievous in nature caused by sharp cutting weapon which may be a Garasa and time of injury was within six hours. He has proved injury report which is marked Exhibit-1/1. In cross-examination, he has said that he was on emergency duty when he examined the injured. 6. Dr. Arun Kumar Singh (PW 8) is the doctor who had held post mortem examination on the dead body of deceased Shiv Nath Sharma. He has proved injury report which is marked Exhibit-1/1. In cross-examination, he has said that he was on emergency duty when he examined the injured. 6. Dr. Arun Kumar Singh (PW 8) is the doctor who had held post mortem examination on the dead body of deceased Shiv Nath Sharma. He, in his evidence, has said that on 21.6.1996, he was posted in FMT Department, PMCH at Patna as tutor and on that date at 11.15 A M, he conducted post mortem examination on the dead body of deceased Shiv Nath Sharma and found following ante mortem external and internal injuries: (1) One stitched wound antro-posteriorly of 2-2/2" length on the vertex of head and 1/4" right from mid line and 5-1/2" above from right ear. (2) One stitched wound antro-posteriorly of 2" length on the vertex of head and 1-1/4" right from mid line and 4-1/2" above from right ear. On dissection, haerpatoma was found under scalp in all the regions. One linear fracture of 6-1/2" length extending from left ear to vertex involving left temporal and left parietal bone, one linear fracture of 2" length antro-posteriorly on right parietal bone and 3/4" right from mid line were also found. One communicated fracture of 5-1/2" x 2-1/2" on right side of scalp including right parietal and right temporal bone was found and extradural haematoma was found in both temporal regions and inoccipital region. Subdural haematoma was found in all the regions of the brain. Intra-cerebral haemorrhage in left temporal region was also found. According to him in general, all the viscera were found congested and stomach contrained 100 ml. of yellow colour fluid and bladder was found empty. He has further said that time sines death was six to twenty four hours approximately from the time of post mortem examination and cause of death was head injury. About the nature of weapon, he has said that opinion regarding injuries No.(i) and (ii) can be obtained from the surgeon concerned but has said that injuries were sufficient to cause death in ordinary course of nature. He has proved his post mortem examination report which is marked as Exhibit-6. About the nature of weapon, he has said that opinion regarding injuries No.(i) and (ii) can be obtained from the surgeon concerned but has said that injuries were sufficient to cause death in ordinary course of nature. He has proved his post mortem examination report which is marked as Exhibit-6. In cross-examination, he has said that besides the stitched wounds, he did not find any injury externally and the fracture that he found had caused the massive damage of the brain matter and fractures are possible by impact of hard and blunt substances. The evidence of doctor Ashok Kumar Singh (PW 2) and Dr.Arun Kumar Singh (PW 8) proves that death of deceased Shiv Nath Sharma was homicidal. 7. Dr.Madhusudan Shukla is the doctor who had examined Devendra Rai (PW 6), the informant and son of deceased and he, in his evidence, has said that on 19.5.1996 at 11.55 A M, he examined Devendra Rai and found following injuries on his person: (1) Bleeding incised penetrating wound 1" x 1/2" x 3/4" on the left lower side of chest obliquely placed. (2) Bleeding penetrating incised wound of 3/4" x 1/4." x 1/2" deep on the left lower side of the chest near first wound. (3) Bleeding incised wound of 1-1/ 3" x 1/3" x 1/2" deep on left elbow anterior surface. (4) Bleeding incised wound of 1-1/ 2" x 1/2" x 1/2" on front of right thigh. (5) Bleeding incised penetrating wound of 1" x 1/2" x 1" deep on left inguinal region. According to him, injuries No.1, 2 and 5 were caused by sharp penetrating substance and rest were by sharp cutting substance and all injuries were simple in nature and duration was within three hours. He has proved his injury report which is marked Exhibit-1 and he has further said that injuries No.1, 2 and 5 may be caused by dagger. 8 Devendra Rai (P W 6) informant, in his evidence, has stated that at the time of occurrence when he alongwith his father and a labourer Bengali Manjhi was in his field in Agarwaliya Sareh and his labourer, after throwing seeds, was mixing the seeds with soil, all the appellants, variously armed with weapons, came there abusing them. Appellant Sudhakar Rai was armed with Garasa, appellant Prabhakar Rai with Bhala and appellant Rajesh Rai with dagger. Appellant Sudhakar Rai was armed with Garasa, appellant Prabhakar Rai with Bhala and appellant Rajesh Rai with dagger. At the order of appellant Basudeo Rai for killing both father and son, appellant Rajesh Rai attacked informant with dagger causing injuries on upper and lower portions of his arm, on left Panjra and on left side below the abdomen and on his right side. Appellant Basudeo Rai snatched a Titan watch from his hand and when his father wanted to rescue him, appellant Sudhakar Rai gave two Garasa blows on the head of his father causing bleeding injuries and appellant Prabhakar Rai assaulted his father with the lathi portion of Bhala causing injuries on his head and abdomen. His father fell down and became unconscious. Occurrence was seen by Bengali Manjhi (not examined), Ashok Rai (P W 3), Rajesh Srivastava (not examined), Kedar Rai (not examined) and others and when witnesses came there, appellants fled away. About the motive, he has said that there was old enmity on account of land dispute. He has further added that he and his father were taken to MJK Hospital, Bettiah and he was taken to hospital in unconscious condition and he regained consciousness in the hospital where his Fard-e-bayan was recorded by police which, after recording, was read over to him and he then put his signature (Exhibit-3/3) on Fard-e-bayan. He has also said that when he regained consciousness, he found his father also lying on the bed beside him in the hospital and on 20.6.1996, observing the critical condition of his father, he was referred to PMCH where his father, during treatment, died on 21.6.1996. According to him, his father died of injuries inflicted on him by appellants. In para-2 of his examination-in-chiaf, he has said that witnesses Bengali Manjhi, Krishna Mohan, Awadh Bihari Rai and Brij Mohan Rai have been gained over by the appellants for which he filed a petition before the Court below. About the place of occurrence, he has said that the land was purchased by his family in the year. 1994 by two sale deeds executed by Mosemat Jhalhi and one sale deed is in respect of 1-1/2 katha and another in respect of one katha and after purchase, his family came in possession of the lands. He has also proved rent receipts in respect of his lands which are marked Exhibits-4/2 and 4/3. 1994 by two sale deeds executed by Mosemat Jhalhi and one sale deed is in respect of 1-1/2 katha and another in respect of one katha and after purchase, his family came in possession of the lands. He has also proved rent receipts in respect of his lands which are marked Exhibits-4/2 and 4/3. In para-7 of his examination-in-chief, he has stated that a proceeding u/s. 144 of Code of Criminal Procedure between his family on one side and appellant Basudeo Rai on other side was initiated in respect of land of place of occurrence which was decided in favour of his family. He has further said that on 30.11.1986, appellant Sudhakar Rai had entered his house for committing theft and he was caught but no case was instituted and a Panchayati was held in which appellant Sudhakar Rai was admonished and his father appellant Basudeo Rai had given a written undertaking (Exhibit-5) before the Mukhiya of Panchayat. In para-11, he has admitted that appellant Sudhakar Rai had filed a case against him for an occurrence of the same day showing the time of occurrence as 12-12.30 PM but on the day of occurrence at 12 oclock in the day, he was not in his village and was admitted in hospital. In para-17 of cross-examination, he has admitted that before police, he had not stated that on 30.11.1986, appellant Sudhakar Rai had entered his house for committing theft and he was caught and a Panchayati was held in which he was admonished and his father appellant Basudeo Rai had submitted a written undertaking before the Mukhiya. He has denied the suggestion of defence that on the day of occurrence, he and his men wanted to dispossess the appellant from his land and he had assaulted appellant Sudhakar Rai. 9. Ashok Kumar Rai (PW 3) is said to be an eye witness to this occurrence. He has denied the suggestion of defence that on the day of occurrence, he and his men wanted to dispossess the appellant from his land and he had assaulted appellant Sudhakar Rai. 9. Ashok Kumar Rai (PW 3) is said to be an eye witness to this occurrence. In his evidence, he has said that on the day of occurrence at about 10-10.30 A M, he was sitting at his Darwaza alongwith Rajesh Srivastava, Nawal Kishore Rai and Bipin Bihari Rai (none of them examined) when wife of deceased Shiv Nath Rai came there and informed him that appellant Basudeo Rai and his three sons, variously armed with weapons, had gone to land of Agarwalia Sareh and she further told that they had gone for assault and hearing this, he alongwith Rajesh Srivastava on motorcycle went to land and saw all the four appellants entering the field after crossing the road. He has further said that he saw appellant Sudhakar Rai was carrying a Garasa, appellant Prabhakar Rai a Bhala and Rajesh Rai, a dagger and after going to his field, appellant Basudeo Rai ordered to assault father and son and by father and son, he was meaning deceased Shiv Nath Sharma and informant Devendra Rai and on his order, appellant Rajesh Rai assaulted him with Chura causing injuries on different parts of his body and when his father went to rescue him, appellant Sudhakar Rai assaulted him with Garasa and appellant Prabhakar Rai also assaulted him with lathi and deceased fell down and became unconscious. Appellant Basudeo Rai snatched a Titan watch from the hand of informant. He has said that Bengali Manjhi at that time was digging the earth of the field and he raised hulla on which a number of persons came there and seeing them, appellants fled away. He has added that he and Rajesh Shrivastava brought both the injured persons to MJK Hospital, Bettiah and on the next day when condition of deceased Shiv Nath Sharma deteriorated, he was referred to PMCH and, thereafter, on the next day, he died at PMCH, a fact which he came to know. According to him, dead body of deceased was brought from Patna. According to him, dead body of deceased was brought from Patna. About the land of place of occurrence, he has said that deceased had purchased this land in the name of his son and the same land was purchased by appellant Basudeo Rai from somebody else and on account of this land dispute, the occurrence took place. He has said that the land which the deceased had purchased, came in possession of deceased. He has proved hie signature (Exhibit-2) put by him on his statement recorded u/s. 164 of Criminal Procedure. In para-2 of his cross-axamination, he has said that when he received information about the occurrence, at that time he was sitting st his Darwaza and was playing cards alongwith Nawal Kishore Rai, Bipin Bihari Rai and Rajesh Srivastava. In para-6 of his cross-examination, he has admitted that deceased was his Pattidar. In para-16 of his cross-examination, he has said that the distance between Agarwalia Sareh and his house is 1-1/2 kilometres. In para-33 of his cross-examination, he has said that by the time he reached the place of occurrence, occurrence had not taken place and in para-34., he has said that he saw assault on informant and he tried to intervene but before that deceased and his son both had already fallen down after receiving injuries and it took about 1-1/2 minutes in receiving injuries by both injured and on his hulla, witnesses, namely, Awadh Bihari Rai, Kedar Rai, Krishna Mohan Rai and others came there to whom he told about the occurrence. In para-35, he has said that he had seen two injuries on the head of deceased and both injuries were side by side and at the time of receiving injuries, deceased was facing towards east and his assailant was also standing in front of him facing east and he- saw two blows by Farsa on deceased from a distance of about 1-1/2 metres. He has further said that besides head, he had seen a swollen injury on the abdomen of deceased. In para-36, he has said that both injured were taken on two motorcycles, one belonging to him and othsr of Nawal Kishore Rai to MJK Hospital. Bettiah which is situate six to seven kilometres from place of occurrence. He has further said that besides head, he had seen a swollen injury on the abdomen of deceased. In para-36, he has said that both injured were taken on two motorcycles, one belonging to him and othsr of Nawal Kishore Rai to MJK Hospital. Bettiah which is situate six to seven kilometres from place of occurrence. He has denied the suggestion of defence that no occurrence, as stated by him, ever took place and land of place of occurrence is in possession of appellants and prosecution party, on the basis of a forged document, wanted to take possession of land of place of occurrence and on protest, prosecution party brutally assaulted appellant Sudhakar Rai and by going to his house also assaulted his other family members and looted articles for which a counter case had been lodged and he deposed falsely because he happens to be a supporter of informant. 10. Lalan Kumar (PW 5) is Sarhu of informant and has said that after receiving injuries, deceased and informant were admitted in Bettiah Hospital for treatment and he was looking after them there and because condition of deceased was critical so he was referred to PMCH and he then took the deceased to Patna where he remained in PMCH for whole night for treatment of deceased who died and, thereafter, he brought the dead body to Bettiah and took part in the cremation of dead body of deceased. He has further said that post mortem examination of deceased was held in his presence and he verbally gave the aforesaid information to Mufassil Police Station and his information was recorded in writing. He has proved his signature (Exhibit-2) on Exhibit-3. Exhibit-3 is a station diary entry No.45 which has bean proved by Surendra Kumar Tiwary (PW 4), a Constable who has also proved signature of Officer-in-charge on Exhibit-3 which is marked Exhibit-3/1. This witness, in para-5 of his cross-examination, has said that he had not given any written information to Bettiah Mufassil Police Station. Exhibit-3 is a station diary entry No.45 which has bean proved by Surendra Kumar Tiwary (PW 4), a Constable who has also proved signature of Officer-in-charge on Exhibit-3 which is marked Exhibit-3/1. This witness, in para-5 of his cross-examination, has said that he had not given any written information to Bettiah Mufassil Police Station. Md.Khalil (PW 9) has said that on 22.6.1998, he was posted as Officer-in-charge of Bettiah Mufassil Police Station and on that date, he took charge of investigation of Bettiah Mufassil Police Station Case No.118 of 1996 and on that date, this witness Lalan Kumar Rai (PW 5) appeared before him and, by submitting a written application, informed him that deceased died at PMCH, Patna and ha then filed a petition in the Court of Chief Judicial Magistrate, Bettiah for adding Sec. 302 of the Indian Penal Code in this case. He has further said that after completing investigation, he submitted chargesheet. He has proved forma! first information report with his signature and endorsement of Surendra Kumar and this formal first information report is marked Exhibit-8 and his signature and signature of Surendra Kumar on formal first information report are marked Exhibits-3/4 and 3/5. So the only contradiction in the evidence of PW 5 is that in evidence, he has said that he had verbally informed the Bettiah Mufassil Police Station about the death of deceased whereas P W 9, who was Officer-in-charge of Bettiah Mufassil Police Station, has said that this witness had informed the fact of death of deceased at Patna in writing. Badri Nath Sharma (PW 7) is the Police Officer who was first given the job of investigation of this case and has said that he had recorded the Fard-e-bayan of informant at MJK Hospital and has proved his Fard-e-bayan which is marked Exhibit-5. He has said that he recorded the further statement of informant and also tried to record statement of deceased but because of injuries, he was unconscious and was not in a position to give statement. About place of occurrence, he has said that he visited the place of occurrence which, according to him, is in Agarwalia Sarah and situate towards west of Pipra-Ganoli pitch road. About place of occurrence, he has said that he visited the place of occurrence which, according to him, is in Agarwalia Sarah and situate towards west of Pipra-Ganoli pitch road. He has given the boundary of place of occurrence according to which in the east, there is pitch road, in the west, there is island of appellant Basudeo Rai, in the north, land of deceased and in the south, lands of appellant Basudeo Rai and deceased also. He has further said that he found the footprints of place of occurrence. He has further proved injury report of deceased and informant marked Exhibits-1/2 and 1/3. In para-21, he has said that he handed over the charge of investigation to Officer-in-charge. In para-23 of his evidence, he has said that Ashok Kumar Rai (PW 3) had not stated before him that he and Rajesh Srivastava on a motorcycle went to place of occurrence and had also not stated that when they reached there, they saw appellants entering the field after crossing road. He has further said that this witness had not stated in a manner that appellant Basudeo Rai was empty handed, appellant Sudhakar Rai was armed with Garasa, appellant Prabhakar Rai with Bhala and appellant Rajesh Rai with dagger and has further said that this witness has not statsd in the manner that the informant received two dagger injuries on his hand, one on his Panjra on the left side one on below the abdomen and one on his thigh but he has not made it clear in any other manner, this witness had stated the occurrence of assault on informant. Besides this, we find that PW 3 has stated that he saw appellant Sudhakar Rai giving two Garasa blows on deceased. Defence has neither drawn any attention of this witness on this piece of evidence nor there is any corroboration by Investigating Officer on any contradiction on this point. Even if evidence of this witness is not considered because of the reason of aforesaid contradiction, there is evidence of informant who has given the details of occurrence and his evidence has been fully supported by the medical evidence. 11. Satyendra Rajak (PW 10) is a Judicial Magistrate who had recorded the statement of PW 3, Bengali Manjhi (not examined). Kedar Rai (not examined) and Surendra Kumar Tiwary (PW 4). 11. Satyendra Rajak (PW 10) is a Judicial Magistrate who had recorded the statement of PW 3, Bengali Manjhi (not examined). Kedar Rai (not examined) and Surendra Kumar Tiwary (PW 4). He has proved the statements of these witnesses which are marked Exhibits-9/1, 9/2 and 9/ 3. Raghunath Prasad (PW 11) is a formal witness who has proved some sale deeds which are marked Exhibit-10. 12. Two witnesses on behalf of appellants have been examined. Krishna Mohan Rai (DW 2), in his evidence, has said that in the Emergency Ward of PMCH, Fard-e-bayan of Manoj Kumar Singh was recorded by Sub Inspector Ramesh Prasad Singh of Pirbahore Police Station. He has proved the Fard-e-bayan, his signature as witness-and signature of Manoj Kumar Singh on the Fard-e-bayan. This Fard-e-bayan is marked Exhibit-B. In cross-examination, he has said that he is not an eye witness to the occurrence and he came to know about the occurrence in the evening of 13.6.1996 at Bettiah from Rajesh Srivastava (not examined). According to the case of defence, Manoj Kumar is Bahnoi (brother-in-law) of informant and this Manoj Kumar, after the death of deceased, had got his Fard-e-bayan recorded by Pirbahore Police in which he gave a totally different account of the occurrence. Informant, in para-27 of his evidence, has said that he had not met his Bahnoi Manoj Kumar Singh on the day of occurrence but he saw him in the hospital on the next day of occurrence and he had a talk for four to five minutes then but that talk was for going to Patna and he had no talk with him about the occurrence. He has further admitted that alongwith his father, his Bahnoi Manoj and his cousin Krishna Mohan Rai and his Sarhu Lalan Kumar Rai (PW 5) had gone to Patna but in para-26, he has denied the suggestion of defence that after the death of his father, Manoj Kumar Singh got his Fard-e-bayan recorded by Pirbahore Police Station which is against his case. The defence has examined Manoj Kumar Singh as DW 1 who, in his evidence, has said that after the death of his father-in-law at PMCH, he and his Chachera (cousin) Sala Krishna Mohan Rai had not gone to Pirbahore Police Station but police himself had come to hospital where his Fard-e-bayan was recorded but he does not know the name of Police Officer who recorded his Fard-e-bayan. He has proved his signature (Exhibit-A) on his Fard-e-bayan but in para-6 of his evidence, he has said that his Fard-e-bayan was not recorded in his presence although it was recorded at hospital. He has been declared hostile by defence and in para-10 of his evidence, he has said that he had not given any account of witnessing the occurrence in his Fard-e-bayan. In para-12, he has said that he does not know the name of person who told him about the occurrence and in para-13, he has said that after the occurrence, he came to know who had killed his father-in-law and hs want to give his statement to police and his statement was recorded but now he has come to know that in case diary, his statement is not there. Fard-e-bayan of Manoj Kumar has been marked Exhibit-5/2 on the admission of defence when Md.Khalil, one of the two Investigating Officers of this case in para-2 of his evidence stated that alongwith inquest report, he had received the Fard-e-bayan of Manoj Kumar Singh from Pirbahora Police Station. In this Fard-e-bayan also, Manoj Kumar Singh has levelled the allegation of assault on deceased and informant by appellants. According to this Fard-e-bayan, it was appellant Basudeo Rai who, taking Garasa from appellant Sudhakar Rai, gave two blows of Garasa on the head of deceased and when informant went to rescue him, appellant Rajesh Kumar Rai and Prabhakar Rai assaulted the informant with dagger and Bhala. Admittedly, this Fard-e-bayan was recorded on 21.6.1996 in the Emergency Ward of PMCH at 9.15 hours and after the death of deceased which is mentioned in this Fard-e-bayan. Much prior to it, Fard-e-bayan of informant Devendra Rai (Exhibit-5A/1) had already been recorded on 19.06.1996 on the day of occurrence itself at 2 P M in MJK Hospital, Bettiah and investigation of the case had already been taken up. Much prior to it, Fard-e-bayan of informant Devendra Rai (Exhibit-5A/1) had already been recorded on 19.06.1996 on the day of occurrence itself at 2 P M in MJK Hospital, Bettiah and investigation of the case had already been taken up. So subsequent Fard-e-bayan by Manoj Kumar Singh recorded on 21.6.1996 after the death of deceased is hit by Sec. 162 of Code of Criminal Procedure. Besides this, author of this Fard-e-bayan has already baen examined as DW 1 and he has clearly said that he is not an eye witness to the occurrence. On this accoount also the manner of occurrence, as given by him in his Fard-e-bayan, carries no meaning. 13. The defence has much argued on the point of place of occurrence. According to informant Devendra Rai (PW 6), place of occurrence is the land which was purchased by his family in the year, 1994 by two sale deeds from Mosamat Jhalhi, wife of Sitaram Nonia, one sale deed for one and half katha and another for one katha. These two sale deeds have been proved by PW 11 and have been marked Exhibits-10 and 10/2. According to informant, after purchase of the land of place of occurrence, his family came in possession of this land and mutation was affected in favour of his family and his family started paying rent for this land. He has further stated that Kanti Devi, wife of appellant Basudeo Rai, had also purchased two kathas of land out of plot No. 4401 of khata No.122, on which place of occurrence is situate, from Hiralal Mahto by a registered sale deed. PW 11 has proved this sale deed which is marked Exhibit-10/1 and informant has said that in this map, in the northern boundary of land purchased by Kanti Devi, land of Jhalhi Devi has been shown which was purchased by his family. Me has further said that a proceeding u/s. 144 of Code of Criminal Procedure was initiated in respect of land of place of occurrence which was decided in his favour and appellants did not take any action against that finding. Me has further said that a proceeding u/s. 144 of Code of Criminal Procedure was initiated in respect of land of place of occurrence which was decided in his favour and appellants did not take any action against that finding. The appellants, during their examination u/s. 313 of Criminal Procedure Code, have admitted that in respect of land said to be purchased by informant from Jhalhi Devi, a proceeding u/s. 144 of Criminal Procedure Code was initiated between informant and them which was decided in favour of informant against which they did not prefer any appeal. According to defence, place of occurrence is not the land which has been pointed out by prosecution. Their case is that on another land purchased by them, the prosecution party put claim on the basis of purchase of the same land by it and on the day of occurrence wanted to forcibly capture that land and on protest by appellants, the prosecution party assaulted the appellants brutally for which a counter case has already been filed and occurrence of assault on them had taken place on that land. Their case is that the informant, in para-20 of his evidence has admitted that besides the two plots of land which is said to have been purchased from Mosemat Jhalhi, he is also claiming another land measuring ten dhurs which according to him is situate in the northern boundary of place of occurrence and about this ten dhurs of land of said plot No.4401, he, in para-21 of his evidence, has said that he purchased this land on 3.10.1991 from Jokhu by a registered sale deed. The case of defence is that the occurrence of assault on them took place on this ten dhurs of land which belongs to them because prior to" 3.10.1991 which by informant is said to be the date of sale deed in his favour for this ten dhurs of land, Jokhu on 4.3.1931 had already sold one katha fifteen dhurs of land in favour of Kanti Devi, wife of appellant Basudeo Rai and, thereafter, he had no land left for sale to informant and informant purposely purchased this ten dhurs of land on 2.10.1991 for giving rise to dispute between the parties. The learned counsel of appellants has drawn my attention towards the evidence of informant in paras-19 and 20 giving the background of the ownership of land purchased by parties. The learned counsel of appellants has drawn my attention towards the evidence of informant in paras-19 and 20 giving the background of the ownership of land purchased by parties. According to him, informant admitted that land of place of occurrence is in plot No. 4401 under khata No. 122 and the total area of this plot is sixteen kathas ten dhurs which was shared equally by Khedu, Nakched and Sukhari who have been shown in khatiyan having equal shares each one of them got five kathas 7-1/2 dhurs in his share not at one place but at two places in the same plot. It is argued that informant has further admitted that the plot is a long plot from north to south and east-west part towards northern side of this plot fell in the share of Sukhari who sold it to Jugal Kishore and adjacent south to the share of Sukhari, Nakched got his share. Khedu got share adjacent south to the share of Nakched. Khedu had two sons Lagan and Sitaram who divided the share of their father and each one got 2 kathas 13-1/2 dhurs of land. Jhalhi was the wife of Sitaram from whom the informant is said to have purchased the land which is said to be place of occurrence. The learned counsel of appellants has submitted that Kanti Devi wife of appellant Basudeo Rai purchased one katha fifteen dhurs of land by a registered sale deed dated 4.3.1991 (Exhibit-B) from Jokhu son of Nakched. According to him, Nakched, father of Jokhu, admittedly, had received five kathas seven and half dhurs of land out of which Kanti Devi, as stated above, purchased one katha fifteen dhurs of land from Jokhu and remaining about four kathas of land, Nakched had already sold in the year, 1968 in favour of one Mohan Mahto who sold this land to Hiralal and his wife Kailashi (Exhibit-G) and Kailashi sold two kathas of her share to Abha Devi by registered sale deed (Ex-hibit-C) and Hiralal sold his two kathas share to Kanti Devi by registered sale deed (Exhibit-F). In this way, the argument of appellants is that the branch of Nakched, father of Jokhu was not left with any share in their land and the purchase of ten dhurs of land by informant from Jokhu was only paper transaction and informant wanted to capture ten dhurs of land of appellants and on protest, appellants were assaulted by the informant party. Tho case of informant is that out of two plots, one measuring one katha and another one and half katha for which a proceeding u/s. 144 of Criminal Procedure Code was initiated between the parties which was decided in favour of informant, the appellants are claiming the plot measuring one and half katha. Informant has said that the land measuring ton dhurs which was subsequently purchased by him from Jokhu is situate towards north of place of occurrence and is intervened by land measuring one katha which also he had purchased from Mosemat Jhalhi. The learned counsel of appellants has argued that the description given by informant of shares between the branches, Khedu, Nakched and Sukhari, do not tally with the description of boundaries of different portions of sale and purchase of land of plot of khata No. 4401 as shown in sale deeds. The learned counsel of informant has submitted that Sukhari got share in the extreme north and towards west of extreme south of plot, Nakched got first part towards the south boundary of Sukharis extreme northern land and in the middle of extreme south of plot. Khedu got land towards south of first plot of Nakched and in the extreme south on eastern part of plot. From Jokhu, son of Nakched, informant purchased ten dhurs of land which is in the extreme south of the first part of land of Nakched and remaining area in this part was purchased by Kanti Devi. Out of first plot of Khedu towards western side, land of Khedu was purchased by Kanti Devi and towards eastern side by informant by two sale deeds and:, part of one and half katha purchased in the transaction is the place of occurrence. Out of first plot of Khedu towards western side, land of Khedu was purchased by Kanti Devi and towards eastern side by informant by two sale deeds and:, part of one and half katha purchased in the transaction is the place of occurrence. The Investigating Officer (PW 7), in para-3, has given the description of place of occurrence and has said that there is a pitch road in the eastern boundary of place of occurrence, in the western boundary, there is land of appellant Basudeo Rai, in the northern boundary, there is land of informant himself and in the southern boundary, there is land of appellant Basudeo Rai. This description fully tallies with the description of place of occurrence given by informant in paras-19, 20 and 21 of his evidence. The learned counsel of appellants submitted that in the reply of show cause filed by-informant in a proceeding u/s. 144. of Code of Criminal Procedure, informant had stated that Sukhari got his share in the plot, on which place of occurrence is situate, towards east and west in extreme north and adjacent south to it. Sitaram Nonia, son of Khedu, got his share of two kathas thirty nine dhurs of land and if this statement of informant is accepted then the case of informant that he purchased ten dhurs of land from Jokhu, son of Nakched which is situate in the northern boundary of his another land which he purchased from Jhalhi does not arise because if Nakched had not got any share just adjacent south to the share of Sukhari, this ten dhurs of land, by no stretch of imagination, can fall in the northern boundary of those lands which were purchased by informant from Jhalhi, I fail to accept this argument because it is the own case of appellants that Kanti Devi purchased the land from Jokhu Mahto and Hiralal. Admittedly, Jokhu is son and Hiralal is grandson of Nakched Mahto. Admittedly, Jokhu is son and Hiralal is grandson of Nakched Mahto. From sale deeds (Exhibits-B and F) by which Kanti Devi purchased lands from Jokhu Mahto and Hiralal Mahto, I find that in the sale deed (Exhibit-B) which is executed by Jokhu Mahto in favour of Kanti Devi in respect of one katha fifteen dhurs of land in the northern boundary, land of Jugal Kishore Rai is shown meaning thereby Jokhu sold his first part which was adjacent south of the land of Sukhari which was in the extreme north of plot, to Kanti Devi. Remaining portion of Nakchad, as suggested by defence, was in the middle of extreme south which was sold by Hiralal, grandson of Nakched to Kanti Devi by a registered sale deed (Exhibit-F). In this sale deed in the south, land of Jugal Kishore Rai has been shown and in the eastern side, road has been shown adjacent. According to suggestion of defence when Hiralal sold the extreme south portion of his share, then question of remaining any land in the share of Nakched towards south of this plot does not arise. In the sale dead (Exhibit-F) which is in respect of sale of two kathas of land by Hiralal Mahto to Kanti Devi, in the eastern side, road has been shown. According to case of defence towards eastern side of second part of land of Nakched which was sold by Hiralal to Kanti Devi, remaining portion of land of Nakched which was sold by Kailashi Devi, wife of Hiralal to Abha Kumari is there and not the road. So, I find that in the reply of show cause filed in the proceeding u/s. 144 of Code of Criminal Procedure, if informant has not given the correct description of boundary of land which was the subject matter of that dispute, at the same time in the sale deed (Exhibit-F), for the land purchased by Kanti Devi from Hiralal, boundary of the purchased land does not tally with the boundary as suggested by defence here. I, therefore, find that the place of occurrence has to be ascertained from the evidence of informant and Investigating Officer and as stated above, I find that the location of place of occurrence as given by Investigating Officer tallies with the location given by informant. I, therefore, find that the place of occurrence has to be ascertained from the evidence of informant and Investigating Officer and as stated above, I find that the location of place of occurrence as given by Investigating Officer tallies with the location given by informant. Notwithstanding these facts, the ten dhurs of land which, according to appellants, was the place of occurrence is towards north of the land which is described as place of occurrence by informant is intervened by a land measuring about one katha as has been deposed by informant. It means that the place of occurrence, as stated by informant and the place of occurrence land, as suggested by defence, are quite close to each other. I, therefore, find no inconsistency in respect of location of place of occurrence. 14. In this case, appellant Sudhakar Rai has been found guilty u/s. 302 of the Indian Penal Code and appellant Basudeo Rai. Prabhakar Rai and Rajesh Kumar Rai have been found guilty u/s. 302 read with Sec. 34 of the Indian Penal Code and they all have been sentenced to undergo rigorous imprisonrnant for life. Appellant Raiesh Kumar Rai has been further sentenced to undergo rigorous imprisonment for seven years u/s. 307 of the Indian Penal Code and appellant Basudeo Rai has been further found guilty u/s. 379 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months making sentences passed against latter two appellants to run concurrently. 15. In the Fard-e-bayan as well as in his evidence, the informant has stated that when he alongwith his father was working in the field, the appellants came there and at the order of appellant Basudeo Rai, who happens to be father of remaining appellants, to kill the informant and his father, assault on him was made. About the weapons of assault, he has said that appellant Rajesh Kumar Rai assaulted him with Chura inflicting injuries on different parts of his body and appellant Basudeo Rai snatched his Titan wrist watch from his possession. He does not say that except appellant Rajesh Kumar Rai, even any attempt to assault him was made by any of the remaining appellants. He does not say that except appellant Rajesh Kumar Rai, even any attempt to assault him was made by any of the remaining appellants. Land dispute between the parties is admitted and place of occurrence is the land over which there was dispute between the parties and occurrence, as admitted by prosecution, took place when informant and his father alongwith their labourer had gone to work on this land. This fact, coupled with the fact that except appellant Rajesh Kumar Rai no other appellant made any attempt to assault the informant, indicates that there was no premeditation among the appellants for killing the informant and, therefore, it cannot be said that all the appellants had a common intention to commit the murder of informant. For the death of deceased Shiv Nath Rai, father of informant, same reasoning is applicable because it is the own case of prosecution that when deceased tried to rescue informant, appellant Sudhakar Rai gave Garasa blows on his head and appellant Prabhakar Rai gave a lathi blow on his head. It is true that Dr.Ashok Kumar Singh (PW2) who, on the day of occurrence at about 12.45 PM. examined the deceased found two incised wounds on the scalp of deceased which were grievous in nature supporting the case of prosecution against appellant Sudhakar Rai for inflicting Garasa injuries on the head of deceased but he did not find any other injury on the head of deceased. Same is the evidence of Dr.Arun Kumar Singh (PW 8) who had held post mortem examination on the dead body of deceased and who, in his evidence, has said that except two stitched wounds on the vertex of head, he did not find any injury externally beyond the stitches. The two stitched wounds, which he has referred, were the same wounds which were found by PW 2 when deceased, who was alive then, was examined and incised wounds were stiched by PW 2, as admitted by him in para-14 of his evidence that after stitching the wounds and after dressing, the deceased was referred to Surgical Ward for onward treatment. Informant, in his evidence, has said that appellant Prabhakar Rai assaulted the deceased with lathi on his head as well as on his abdomen and PW 3, in para-35 of his evidence, has said that he, besides head injuries, had seen a swollen wound on the abdomen of deceased. Informant, in his evidence, has said that appellant Prabhakar Rai assaulted the deceased with lathi on his head as well as on his abdomen and PW 3, in para-35 of his evidence, has said that he, besides head injuries, had seen a swollen wound on the abdomen of deceased. The case of prosecution is that appellant Prabhakar Rai at the time of occurrence was armed with bhala but he assaulted the deceased with the lathi portion of the bhala. Absence of any lathi injury on the head of deceased and being armed with bhala but not using the main portion of bhala by appellant Prabhakar Rai in assaulting the deceased, are the circumstances showing that appellants had no common intention to commit the murder of deceased. 16. The learned Additional Public Prosecuter has argued that PW 9 who held post mortem examination on the dead body of deceased has said that on dissection, he found hamatoma under scalp in ail the regions aiongwith two linear fractures one extending from left ear to vertex involving left temporal and left parietal bone and another antro-posteriorly on right parietal bone and a communicated fracture of 5-1/2" x 2-1/2" on right side of scalp including right parietal and right temporal bone and extra dural haematoma in both temporal regions and in occipital region and subdural haematoma was found in all the regions of brain with intra-cerebral haemorrhage in left temporal region and this doctor has said that Fractures are possible by the impact of hard and blunt substances. It is the own case of prosecution that deceased had received two severe blows by Garasa causing incised wounds and both were of bone cut deep and were grievous in nature. The length and depth of these two blows given on head can cause the haemorrhage and fracture inside the scalp as found by PW 9. Since prosecution has been able to prove that informant and his deceased father were assaulted and it has also proved the manner of assault, I find that in this case because there is no evidence that all the appellants shared a common intention to kill the deceased, they are responsible for their individual acts. 17. Since prosecution has been able to prove that informant and his deceased father were assaulted and it has also proved the manner of assault, I find that in this case because there is no evidence that all the appellants shared a common intention to kill the deceased, they are responsible for their individual acts. 17. In the result, the conviction and sentence of appellant Sudhakar Rai to undergo rigorous imprisonment for life u/s. 302 of the Indian Penal Code for intentionally committing the murder of deceased Shiv Nath Rai is upheld and his Appeal No.503 of 2001 is dismissed. As he is on bail, his bail bonds are cancel lad and he is directed to surrender before the Court below to serve out the remaining sentences passed against him. 18. So far Appeal No.472 of 2001 is concerned, appellant Prabhakar Rai is held not guilty and he is acquitted. He is in jail, therefore, he is directed to be released from jail forthwith, if not required in any other case. So far appellant Rajesh Kumar Rai is concerned, he is acquitted for the charge u/s. 302 read with Sec. 34 of the Indian Penal Code but his conviction and sentence u/s. 307 of the Indian Penal Code for making an attempt to commit murder of informant is upheld. For appellant Basudao Rai, his conviction and sentence u/s. 302 read with Sec. 34 of the Indian Penal Code is set aside and he is acquitted for the charge but so far his conviction and sentence u/s. 379 of the Indian Penal Code is concerned, those are upheld. Thus, criminal appeal No.472 of 2001 is allowed in part in ths manner indicated above. 19. As appellants Basudeo Rai and Rajesh Kumar Rai @ Rajesh Rai are on bail, Their bail bonds ara cancelled and they are directed to surrender before the Court below for serving out remaining period of their sentence passed against them. Mridula Mishra, J. 20 I agree.