Judgment Chandramauli Kr.Pd., J. 1. Both the appeals arise of the same judgment and as such they have heard together and are being disposed of by this common judgment. 2. Appellants being aggrieved by the judgment dated 3rd of August, 2001 passed by the Second Additional Sessions Judge, Katihar in Sessions Trial No. 270 of 1999 holding them guilty of offence under Sections 302/34, 427, 341 and 342 of the Indian Penal Code and sentence of rigorous imprisonment for life under Section 302/34 have preferred this appeal. No separate sentence has been awarded under Sections 427, 341 and 342 of the Indian Penal Code. 3. Prosecution story according to the first information report given by informant P. W. 16 Anandi Sah before the Assistant Sub-Inspector of Police on 18.3.1999 at.5 p.m. is that in the evening of 17.3.1999, his nephew Gurusaran Sah had gone to Durga Temple, where scuffle took place between him and the son of appellant Anirudh Sah. Appellant Anirudh Sahs son narrated the incident to his father at which Anirudh went to the house of P.W. 15, Bindeshwari Sah, the father of the deceased, in search of Gurusaran. On enquiry by Bindeshwaris wife, appellant Anirudh ran to assault her and threatened that whenever Gurusaran shall be apprehended, he shall be killed. 4. Further story, according to the first information report is that on the following day, i.e. 18.3.1999, the informants another nephew, namely, Om Prakash Sah, deceased, who plies horse-cart to earn livelihood went to Mirganj by cart and the informant also went alongwith him. It is alleged that after he had purchased articles from the market, he alongwith the deceased Om Prakash Sah alongwith five other passengers were returning and when the cart reached near the residence of appellant Naresh Yadav at about 2 p.m. on 18.3.1999, all the appellants besides two other accused persons stopped the cart and started abusing them. It has been further alleged that all the accused persons pulled Om Prakash Sah, assaulted him and took him inside the house. It is alleged that Om Prakash Sah cried and after sometime, it stopped and then the appellant and the other accused persons pulled him to a nearby Suryamukhi field, tied him in a mango tree and nailed him. It has been further alleged that after Om Prakash Sah was killed, the horse cart was set on fire. 5. It is alleged that Om Prakash Sah cried and after sometime, it stopped and then the appellant and the other accused persons pulled him to a nearby Suryamukhi field, tied him in a mango tree and nailed him. It has been further alleged that after Om Prakash Sah was killed, the horse cart was set on fire. 5. On the basis of the aforesaid information Falka P.S. Case No. 32 of 1999 was registered under Sections 341, 342, 427 and 302/34 of the Indian Penal Code. Police after investigation submitted charge sheet against all the accused persons, including the appellant under Sections 341, 342, 427 and 302/34 of the Indian Penal Code and ultimately these appellants were committed to the Court of Sessions to face the trial. Two of the accused persons have been charge sheeted, showing them to be absconder. All the appellants were charged for offence under Sections 302/34, 427, 341 and 342 of the Indian Penal Code. 6. Appellants denied to have committed any offence and pleaded false implication. From the trend of the cross-examination their defence further appears to be that the deceased accidentally came under the wheels of the cart and died. 7. In order to bring home the charge, prosecution examined altogether 17 witnesses, out of which P. W. 1 Upendra Prasad Mandal, P.W. 7 Raj Kumar Gupta, P.W. 8 Gaurishankar Gupta, P.W. 9 Bijay Kumar Chaudhary, P.W. 10 Nunu Prasad Gupta, P.W. 11 Asha Devi, P. W. 12 Bijay Kumar Jha and P.W. 15 Bindeshwari Sah are hearsay witnesses, who have been examined to corroborate the prosecution case. P.W. 2 Jull Kumari, P.W. 3 Malo Devi and P.W. 5 Putli Devi have been declared hostile. P.W. 4 Badruddin Ansari is a witness to the seizure and has proved his signature on the seizure list. PW. 6 Dr. Manindra Kumar Manish had conducted the post mortem examination of the deceased Om Prakash Sah, who had proved the post mortem report. P.W. 17 Chandeshwari Prasad Yadav is the Investigating Officer of the case. PW. 13 Nand Lal Sah, P.W. 14 Basudeo Sah and P.W. 16 Anandi Sah, the informant claim to be the eye witnesses to the occurrence. No defence witnesses has been examined. 8. P.W. 17 Chandeshwari Prasad Yadav is the Investigating Officer of the case. PW. 13 Nand Lal Sah, P.W. 14 Basudeo Sah and P.W. 16 Anandi Sah, the informant claim to be the eye witnesses to the occurrence. No defence witnesses has been examined. 8. P.W. 13 Nand Lal Sah has stated in his deposition that he was travelling in the horse cart of the deceased alongwith P. W. 14 Basudeo Sah and P.W. 16 Anandi Sah and when the cart reached village Rahata, it was surrounded by the appellants and they pulled down the passengers including Om Prakash Sah and started assaulting him and took him inside the courtyard. According to this witness, deceased cried for sometime, but later on it stopped and thereafter he found the dead body of. the deceased tied in the Suryamukhi field and nailed his leg on the mango tree. He has further stated that later on the cart was also set on fire. According to this witness thereafter the dead body was brought to the Chowk where the Deputy Superintendent of Police came, from there it was brought to the police station. 9. P.W. 14 Basudeo Sah is another passenger, who was travelling in the cart with other persons on the fateful day. He has stated in his evidence that while the cart reached near the place of occurrence, all the accused persons stopped the cart, pulled the deceased, assaulted him and took him inside the courtyard where he was killed and from there brought to the adjoining suryamukhi field and tied in the mango tree. 10. P.W. 16 Anandi Sah is the uncle of the deceased and the informant of the case. He has stated in his evidence that on the date of occurrence, he alongwith his nephew Om Prakash Sah had gone tp the Mirganj bazar by cart and while they were returning from the bazaar and reached near village Rahata, the appellants surrounded the cart and forcibly pulled the passengers. He has further stated that the appellants dragged deceased Om Prakash Sah from the cart, assaulted him by lathi and iron rod and dragged him towards the house. He heard Om Prakash crying, but after sometime it stopped and the dead body was thereafter brought in the nearby suryamukhi fieid and tied in the mango tree and nailed in leg. He has further stated that the appellants dragged deceased Om Prakash Sah from the cart, assaulted him by lathi and iron rod and dragged him towards the house. He heard Om Prakash crying, but after sometime it stopped and the dead body was thereafter brought in the nearby suryamukhi fieid and tied in the mango tree and nailed in leg. He has further stated that other accused persons, since absconding, set on fire the cart. According to this witness, a large number of people assembled and the dead body was brought to the chowk and from there it was taken to the police station where he gave the fardbeyan and on that basis the first information report was registered. 11. P.W. 1 Upendra Prasad Mandal in his evidence has stated that when he heard about the incident, he went to the place of occurrence and found burnt cart there. He had further stated that in his presence police seized parts of the burnt cart and prepared seizure list on which he had put his signature. P.W. 4 Badruddin is another witness to the seizure list of the burnt cart and he has stated that the parts of the cart were seized in his presence. P.W. 7 Raj Kumar Gupta has stated in his evidence that Bindeshwari Sah (P.W, 15) told him that his son, deceased Om Prakash Sah while returning to the village on the cart was assaulted by the appellants. P. W. 8 Gaurishankar Gupta deposed that P.W. 16 Anandi Sah told him that his nephew, the deceased Om Prakash went to Mirganj by the cart alongwith other persons and while he was returning alongwith other passengers, the appellants besides other accused persons stopped the cart, pulled down the deceased from the cart and assaulted the deceased with iron rod and dragged him towards the house, where he was assaulted. He had also stated that Anandi Sah (P. W. 16) told him that the deceased cried for sometime, but later on same stopped and thereafter his dead body was brought in nearby suryamukhi field, tied in the mango tree and nailed on the legs. This witness had further stated that Anandi Sah told him that the accused persons have broken the cart and set the same on fire. He is a witness to the fardbeyan and he has proved his signature on that. 12. This witness had further stated that Anandi Sah told him that the accused persons have broken the cart and set the same on fire. He is a witness to the fardbeyan and he has proved his signature on that. 12. P.W. 9 Bijay Kumar Chaudhary and P.W. 10 Nanu Prasad Gupta have stated in their evidence that when they learnt about the occurrence from P.W. 15 Bindeshwari Sah that the appellants have killed Om Prakash, they went to the place of occurrence and saw the dead body lying near the mango tree and sign of nailing on the leg and hand of the deceased. P.W. 11 Asha Devi is the mother of the deceased and she had stated in her deposition that when she knew about the occurrence from P.W. 8 Gaurishankar Gupta that her son was killed by the appellants, she went to the village and saw the dead body of her son near the house of appellant Naresh and the cart burnt. P.W. 12 Bijay Kumar Jha has stated that he learnt that the deceased was killed in the village Rahata. 13. P.W. 6 Dr. M.K. Manish had conducted post mortem on the dead body of the deceased and has proved the post mortem report, (Ex. 2). According to this witness, he conducted the post mortem on 19.3.1999 at 10 a.m. and found on the deceased the following external and internal anti mortem injuries: (i) A bruise 1 x 1/2" x 1/4" on the right side on the upper portion of the neck; (ii) A bruise 2" x 1/2" on the upper part of the mid portion (front) of the neck; (iii) A bruise 1" x 1 x 1/2" on the left side of the upper part of the neck. (iv) There were few tiny abrasions on the swollen neck with collapse of the upper most part of the airway; (v) An extensive traumatic swelling of the left forearm; (vi) A lacerated wound 1/2" x 1/4" x 1/4" on the middle front portion of the right leg. Internal: On further dissection of the neck found extravasation of blood under the formises of the neck and collection of blood tinged mucus mixed fluid in the trachea with congestion of the inner lining of the trachea. On opening the cranial cavity found that the brain and its membranes were intact and congested. Internal: On further dissection of the neck found extravasation of blood under the formises of the neck and collection of blood tinged mucus mixed fluid in the trachea with congestion of the inner lining of the trachea. On opening the cranial cavity found that the brain and its membranes were intact and congested. On opening the thoracic cavity found the corresponding viscerae were intact and in situ with congested both the lungs. On opening the abdominal cavity found that the corresponding viscerae were intact inside with congestion of liver and splin. Rigor mortis present only in the lower limbs on either side. 14 In the opinion of the Doctor, the cause of death is asphyxia caused by throttling and specifically stated in the cross-examination that the injuries 1 to 4 referred to above cannot be caused by wheel of the cart. 15. P.W. 17 Chandreshwari Prasad Yadav is the Investigating Officer of the case and he had stated that on the basis of the statement given by Anandi Sah he had recorded the first information report, investigated the case, seized burnt parts of the cart and after completing the investigation submitted the charge sheet. 16. Mr. Ajay, appearing on behalf of the appellants submits that the claim made by the eye witnesses is not fit to be accepted as the same is not supported by the Doctor, who had conducted the post mortem examination. He points out that according to the eye witnesses, they saw the appellants assaulting the deceased, but injuries have not been found on his dead body. He further points out that all the eye witnesses . have stated that the deceased was nailed but the Doctor has not found any such injury. 17. Mr. Lala Kailash Bihari Prasad, however, submits that the P.W. 6 Dr. Manindra Kumar Manish, who has conducted the post mortem examination, had found several injuries on the person of the deceased and had aiso found a lacerated wound on the front portion of the right leg and as such the evidence of the eye witnesses cannot be discarded only on the ground that no injury of nailing was found. 18. Having appreciated the rival submission, I do not find any substance in the submission of Mr. 18. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Ajay, P.W. 13 Nand Lal Sah, P.W. 14 Badudeo Sah and P.W. 16 Anandi Sah have clearly stated in their .evidence that the deceased was pulled down from the cart, assaulted, dragged inside the house where he cried for sometime, which later on stopped and the dead body was brought to the nearby suryamukhi field where it was tied. The Doctor conducting the post mortem examination not finding any nail-injury on the leg shall not itself be sufficient to discard the entire evidence of the prosecution witnesses. I am further of the opinion that when the witnesses have stated that deceased was nailed, same cannot be said to mean nailing by precision like crucifixion of the Christ. Lacerated wound has in fact been found on the right leg of the deceased by the Doctor conducting the post mortem examination. The cumulative effect of the aforesaid discussion leads me to conclude that the evidence of the eye witnesses is not fit to be discarded on the ground urged by Mr. Ajay. 19. Mr. Ajay, then contends that the presence of the informant Anandi Sah (P.W. 16) as aiso other witnesses at the place of occurrence is absolutely doubtful. In this connection he has drawn my attention to the first information report according to which informant alongwith the deceased had left for the market at 9 a.m. and in the cross-examination the informant has stated that they reached market at about 11-12 noon. He has also drawn my attention that the informant had gone to the market to purchase articles and according to his evidence, in the cross-examination, market is open between 2 p.m. to 5 p.m. and hence, the deceased, the informant and witnesses reaching at the place of occurrence at 2 p.m. is not possible. Mr. Ajay highlights that either the claim of the eye witnesses are false or the prosecution is not coming with the true story. 20. I do not find any substance in the submission of Mr. Ajay. True it is that this witness in the cross-examination had stated that market is held between 2 p.m. to 5 p.m., but he had clearly stated that he wanted to purchase Moong and Sakarkand, but he did not find Moong there. 20. I do not find any substance in the submission of Mr. Ajay. True it is that this witness in the cross-examination had stated that market is held between 2 p.m. to 5 p.m., but he had clearly stated that he wanted to purchase Moong and Sakarkand, but he did not find Moong there. He had specifically stated in the cross-examination that after having taken light refreshment, left the market at 1 p.m. Thus, the general statement of this witness that articles are sold in the market from 2 p.m. to 5 p.m. itself shall not mean that he left the market after 2 p.m. When this witness had categorically stated that he left the market at 1 p.m., his evidence that he reached the place of occurrence at 2 p.m. is not fit to be disbelieved. 21. Mr. Ajay, then contends that according to the informant, the deceased and he took food at the market before proceeding towards the place of occurrence and in that view of the matter, food ought to have been found in the stomach of the deceased, but the Doctor conducting the post mortem examination having not found so, the entire prosecution story is rendered doubtful and the appellants are, thus, entitled to be given the benefit of doubt. 22. I do not find any substance in this submission of the learned counsel. The informant in his evidence has not stated that the deceased and he had taken regular meal. What he has stated is that he and the deceased after taking the breakfast proceeded towards the place of occurrence. The expression breakfast in this part of the country means taking very little quantity of food. Hence, the case of the prosecution is not fit to be discarded on the ground urged by Mr. Ajay. 23. Mr. Ajay submits that the eye witnesses are relative of the deceased and, thus, not independent and their evidence is fit to be discarded on this ground alone. 24. I do not find any force in this submission of Mr. Ajay. It is relevant here to state that excepting P.W. 16 Anandi San, the informant of the case two other witnesses, namely, P.W. 13 Nand Lal Sah and P.W. 14 Basudeo Sah are not related to the deceased. Hence, the contention of the learned counsel for the appellants that independent witnesses have not been examined is unfounded on fact. Ajay. It is relevant here to state that excepting P.W. 16 Anandi San, the informant of the case two other witnesses, namely, P.W. 13 Nand Lal Sah and P.W. 14 Basudeo Sah are not related to the deceased. Hence, the contention of the learned counsel for the appellants that independent witnesses have not been examined is unfounded on fact. The eye witnesses have given graphic account of the manner in which the incident had taken place and other witnesses have clearly stated that when they heard about the incident, they went to the place of occurrence and found the dead body there. Such of the witnesses have heard about the occurrence and role played by the appellants from the witnesses, who had seen the occurrence and have been examined. The eye witnesses have narrated the incident to other witnesses immediately after the occurrence and as such the evidence of the eye witnesses have been corroborated by such witnesses. The eye witnesses have stated about setting on fire the cart and other witnesses have found burnt cart at the place of occurrence. The Investigating Officer had also seized the parts of the burnt cart, in my opinion the evidence of the eye witnesses have been corroborated by other witnesses and the prosecution has been able to prove its case beyond all reasonable doubt. 25. To put the record straight, I may state that Mr. Ajay had vaguely submitted that in fact the deceased died, when he accidently came under the wheels of the cart. It is relevant here to state that such a suggestion was given to the eye witnesses, which they have denied. Further the Doctor, who had conducted the post mortem examination has clearly stated in his evidence that injuries found on the person of the deceased, cannot be caused by cart-wheel. In the opinion of the Doctor, the cause of death was asphyxia caused by throttling. According to the prosecution, the deceased was assaulted and was dragged inside the house where he was strangulated. 26. I am of the opinion that the eye. witnesses account has been corroborated by other witnesses and is further fortified by the medical evidence. The seizure of parts of the burnt cart at the place of the occurrence also lends support to the case of prosecution. 26. I am of the opinion that the eye. witnesses account has been corroborated by other witnesses and is further fortified by the medical evidence. The seizure of parts of the burnt cart at the place of the occurrence also lends support to the case of prosecution. I am of the opinion that the prosecution has been able to bring home the charge against the appellants beyond all reasonable doubt. 27. in the result, 1 do not find any merit in the appeal and it is dismissed accordingly. Appellants are on bail, their bail bonds are cancelled and they are directed to surrender forthwith to serve the sentence. Syed Md.Mahfooz Alam, J. 28 I agree.