Judgment 1. Both the appeals arise out of same judgment dated 7th of March, 2002 passed by learned 4th Additional Sessions Judge, Sitamarhi in Sessions Trial No. 18/1999/13/2000. Both the appellants of Cr. Appeal No. 321 of 2002 have been convicted under Sec.302 read with Sec.34 of the IPC and sentenced to RI for life and a fine of Rs. 10,000.00 each or in default to further RI for two years. The sole appellant of the other appeal namely. Prabhu Mahto has been convicted under Sec.302, IPC and awarded the same sentence. 2. The prosecution case as contained in fardbeyan of Ram Sunder Prasad Sah (P.W. 11) recorded by Sub Inspector of Police, Anil Kumar (P.W. 13) at 5.00 a.m. on 25-9-1998 at the door of the informant is to the effect that in the previous night i.e. the night between 24 and 25th September, 1998 at about 1.30 accused Shambhoo Mahto, son of accused Ram Chandra Mahto, a co-villager came to informants Darwaza for hiring a jeep vehicle and for that he called son of the informant. Ajay Kumar, (deceased), Ajay while talking to accused, Shambhoo went towards south of the house and from that direction, after some time there came sound of shouting of the deceased, Ajay Kumar. The informant proceeded towards south and saw that Ajay Kumar had been caught by accused, Shambhoo and his father, accused Ramchandra Mahto and accused, Prabhu Mahto was stabbing Ajay Kumar with Chhura (dagger). When they saw the informant coming that side they dragged the dead body towards south, away from their Darwaza and when they saw other villagers collecting there they fled away. Allegedly in the past deceased, Ajay Kumar had been abused by accused Shambhoo Mahto and threatened because Ajay Kumar had expressed his inability to rent out a generator to Shambhoo Mahto on the occasion of a celebration relating to birth of a son of Shambhoo Mahto. Allegedly there was also a litigation in the past in respect of right of way to the house of Ramchandra Mahto. 3. After recording Riga PS Case No. 68/1998 dated 25-9-1998 on the basis of aforesaid fardbeyan the police investigated the offence. Allegedly there was also a litigation in the past in respect of right of way to the house of Ramchandra Mahto. 3. After recording Riga PS Case No. 68/1998 dated 25-9-1998 on the basis of aforesaid fardbeyan the police investigated the offence. P.W. 13, Anil Kumar as Investigating Officer has claimed that after recording the fardbeyan he inspected the place of occurrence, seized certain articles which appeared to have blood marks including blood stained earth, prepared seizure list, inquest report and sent the dead body for postmortem examination to hospital at Sitamarhi. He recorded the statement of other witnesses and submitted charge-sheet against all the three named accused persons who are the appellants in these two appeals. In course of trial the accused persons pleaded not guilty to the charge for which they were tried and convicted as noticed earlier. In order to prove its case the prosecution has examined altogether 14 witnesses. P.W. 1, Birendra Thakur, P.W. 2, Ram Narayan Mahto, P.W. 3, Nagendra Singh, P.W. 4, Chunni Devi (wife of the deceased), and P.W. 11, Ram Sunder Pd. Sah (informant and father of the deceased) have claimed to be eye-witness of the occurrence. P.W. 5, Ramji Thakur, P.W. 6, Bijay Kumar, P.W. 7, Abhinay Kumar, P.W. 9, Bam Sah and P.W. 10, Shambhu Sah have claimed to have heard about the occurrence and then they came to the place of occurrence and saw the dead body and other things as stated by them. 4. P.W. 8, Kameshwar Jha has simply denied to have known anything about the occurrence and has been declared hostile. P.W. 12, Dr. Ashok Kumar Singh is the doctor who performed autopsy and prepared the post-mortem report which has been exhibited as"Exhibit-3. P.W. 13, Sub Inspector of Police, Anil Kumar is the Investigating Officer as noticed earlier. P.W. 14, Madan Uraon, a constable is a formal witness who has proved station diary entry No. 524 dated 25-9-1998 as Exhibit-8. 5. P.Ws. 1, 2 and 3 have claimed to be eye-witnesses of the occurrence. Their houses are located near the alleged place of occurrence. They are independent and they claimed to have come out of their houses on hulla and have claimed to see the accused persons committing the offence as alleged by the prosecution. 5. P.Ws. 1, 2 and 3 have claimed to be eye-witnesses of the occurrence. Their houses are located near the alleged place of occurrence. They are independent and they claimed to have come out of their houses on hulla and have claimed to see the accused persons committing the offence as alleged by the prosecution. P.W. 1, Birendra Thakur has claimed to be an eye-witness of seizure list also and has further claimed that he rushed to the village Chaukidar so that information of occurrence may be sent to the police station. P.W. 4, Chunni Devi has also supported the occurrence in all material particulars as alleged by her father-in-law, the informant (P.W. 11). A contradiction has been pointed out in her statement in cross-examination that when she saw the deceased being assaulted he was in sitting position facing west vis-a-vis the claim of the P.W. 3 that he saw the deceased being assaulted while he was in standing position and was facing south. In our view such difference cannot have much impact upon the prosecution case. At the time of assault by dagger, although the deceased was allegedly caught by two of the accused persons, he was not expected to remain in one posture throughout and in the observation of one witness or the other there may be some differences depending upon time when the witness arrived near the P.O., his location and also upon the capacity of the witness to observe direction etc. with minute details of the time of such ghastly sight. The informant P.W. 11 has stuck to his version in the fardbeyan and nothing material has been elicited in his cross-examination so as to discredit his testimony. From the evidence of hearsay witnesses noticed above it is found that near about the alleged time the witnesses arrived on hulla and they were given details of the occurrence. So the finding of the dead body at the alleged place of occurrence is supported by the deposition of such witnesses. 6. P.W. 12, the doctor has found three incised injuries on the chest area, on the right side, on the left side and on the right interromedial region of right nipple. Those injuries in the chest region appear to have caused puncturing of both the lungs. The plural cavity of lungs were full of blood and right side of heart was punctured. Those injuries in the chest region appear to have caused puncturing of both the lungs. The plural cavity of lungs were full of blood and right side of heart was punctured. In opinion of the doctor the injuries had been caused by sharp pointed instrument like Chhura and were sufficient to cause death. Doctor further opined that spontaneous death may be caused due to puncture of heart. However, when the points raised by the learned counsel for the appellants shall be considered later, it will have to be kept in mind that doctor found that the stomach contained gastric juice only and in his opinion time elapsed since death was within 48 hours. 7. The Investigating Officer. P.W. 13 has proved the fardbeyan which has been marked as Exhibit-2. He has proved the endorsement on the fardbeyan as Exhibit-4 and the FIR as Exhibit-5. He has stated that he had prepared the inquest report and has proved the carbon copy of the same as Ex-hibit-6. He has deposed that as pointed out by the informant he inspected the place of occurrence which was village road (footpath) in front of house of accused, Ramchandra Mahto which was made of bricks with tiles on the roof and was situated in village, Ramnagragor. He has claimed that near the said place of occurrence he found a wooden chair and on the legs of the said chair there were blood like marks. He found a pair of hawai-chappal (footwear) with blood like marks and another chappal only of one of the feet made of plastic. In the verandah in front of house of accused Ramchandra Mahto, stuck to a bamboo piece he found a plastic sheet on which also there were blood like marks. After describing these findings at or near the house of the accused, Ramchandra Mahto and on the village road, in paragraph-5 of the deposition, the I.O. has deposed that he prepared comprehensive seizure list of one pair of plastic chappal, one pair of hawai chappal, plastic sheet and blood stained earth. That seizure list was proved by him as Exhibit-7. In the next paragraph he claimed that he found the electric blub in the verandah of the accused persons lighted and in the verandah of the house of accused he found a Chauki. That seizure list was proved by him as Exhibit-7. In the next paragraph he claimed that he found the electric blub in the verandah of the accused persons lighted and in the verandah of the house of accused he found a Chauki. From there at a distance of about 7/8 steps towards west south he found the dead body of the deceased with injuries on the chest which appeared to be caused by sharp cutting weapon. There were marks of blood spread on the sides of the dead body. A vest and underwear on the body of the deceased was also stained with blood. Near the feet of the dead body he found one plastic chappal and on the right side of the dead body he found a lungi having check prints. 8. In paragraph-15 of his deposition the Investigating Officer has replied in cross-examination that the place of occurrence consisted of two spots as shown to him. One was where the deceased was assaulted and the other was nearby where the dead body was found. He has stated that from one spot to another he did not find any trail of blood or any marks of dragging. He has also stated that at the first spot he did not find marks of blood on the earth but on the legs of the chair, a pair of hawai chappal and a single plastic chappal he saw blood marks and these were found at the first spot. 9. The aforementioned details of the place of occurrence as found by the Investigating Officer have been noted in some detail because on behalf of the appellants it was seriously argued that the prosecution has failed to fix and prove the alleged place of occurrence. No doubt, the I.O., as noted above did not find blood mark on the earth at the first place where the assault allegedly took place nor he found marks of dragging till the second spot where the dead body was found lying. However, these facts alone cannot disprove the alleged place of occurrence when according to the same I.O. blood marks were seen by him on items like chair and slippers found at or near the first spot. It is also relevant to keep in mind that the two spots are at a short distance from each other situated on a village road. It is also relevant to keep in mind that the two spots are at a short distance from each other situated on a village road. According to statement of witnesses, when the news of such crime spread in the night, hundreds of persons gradually came near the dead body. In such circumstances, some mark of blood at the first spot which was a few steps away from the dead body as well as the mark of dragging could have been obliterated and therefore we do not see any material in the statement of the I.O. in respect of place of occurrence which may disprove the alleged place of occurrence rather his evidence and objective findings go to support the prosecution case. 10. The next serious submission advanced on behalf of the appellants was that the doctor did not find any food particles, digested or semi digested in the stomach and therefore the prosecution case that the deceased was called out late in the night at about 1.30 and assaulted thereafter is fit to be rejected because by such late hours usually people take their dinner and retire to bed. Ordinarily, people take dinner much before 1.30 in the night but there may be special reasons such as festivals or unsoundness of body on account of which a person may decide to skip his dinner. It is not safe to hazard a guess that the deceased must have taken his dinner before the alleged occurrence. In order to the advantage of findings of the doctor regarding contents of the stomach of the deceased, the defence was required to put questions to the family members of the deceased, particularly his wife, P.W. 4. But on a careful examination of the deposition of P.W. 4 one finds that no question has been put to her as to whether the deceased had taken his food that evening or night or not. Any guess on this issue is rendered more hazardous because it has come in evidence of witnesses that festivities on account of Dussehra festival had already commenced. Sometimes devotees take to fasting during festivals also. Hence in absence of any cross-examination on the relevant issue, the point noticed above as raised by learned counsel for the appellants cannot be accepted in favour of the defence so as to discredit the entire prosecution case. 11. Sometimes devotees take to fasting during festivals also. Hence in absence of any cross-examination on the relevant issue, the point noticed above as raised by learned counsel for the appellants cannot be accepted in favour of the defence so as to discredit the entire prosecution case. 11. The doctor P.W. 12 has given the time of death since post-mortem examination as 48 hours, learned counsel for the appellants has submitted that post-mortem examination was conducted on 26-9-1998 at 8.15 a.m. and therefore according to prosecution case the time elapsed should have been within 36 hours and not within 48 hours. Hence, it has been submitted that death must have taken place earlier than 1.30 in the night between 24th and 25th of September, 1998 as alleged by the prosecution. The aforesaid opinion of the doctor, in appropriate circumstances could have raised doubt about the prosecution case but in the present case there is no earthly reason why the prosecution would make any attempt to shift the time of occurrence say from 8.00 in the night of 24th September, 1998 to 1.30 in the night between 24th and 25th September. Shifting of the time of occurrence by such short time is of no conceivable help to the prosecution and no suggestion has been made on that point to the witnesses. Hence, in the circumstances, we find safe to rely upon oral testimony of the witnesses regarding the time of the alleged occurrence and are not persuaded to hold that the occurrence must have taken place at a different time only because the doctor has opined that time elapsed between death and postmortem was within 48 hours. 12. On behalf of the appellants it was argued with emphasis that the prosecution has not been able to prove the alleged motive that there were any differences between the deceased and the accused persons and particularly on account of non supply of a generator set by the deceased to accused, Shambhoo on hire or on account of land dispute between the parties. On a careful analysis of the evidence on this point, it is found that oral evidence of the witnesses is available to support the prosecution claim that there was a party on account of birth of a child to accused, Shambhoo Mahto and on that occasion he wanted to hire the generator set of the deceased but the deceased was unable to provide the same because the generator set had been hired by P.W. 5 Ramjee Thakur. Between co-villagers letting out of generator set on hire in rural areas is not a regular and sophisticated business requiring preparation of documentary agreement or receipts etc. hence non production of any documentary evidence to support plea of enmity or differences on account of non-supply of generator set does not appear to be significant. It must be noticed here that so far as enmity on account of land dispute as alleged by the prosecution is concerned, neither any document has been produced to show any litigation on account of land nor the details of any specific plot of land etc. has come to show land dispute. In fact, some of the witnesses including wife and a brother of the deceased have stated frankly that the deceased and accused, Shambhoo were on friendly terms. It appears that it was on account of such friendly terms that deceased, when called by Shambhoo in the late hours of night had no hesitation in going out to consider his request for providing a jeep to Shambhoo which allegedly was required for taking his ailing child to a doctor. It further appears that after the occurrence the prosecution was not confident as to what motive had led to the occurrence and therefore insignificant looking incident of recent past when the deceased had failed to provide the accused with his generator set because it had been already booked by P.W. 5, was cited in the FIR as one of the possible motives. 13. On a careful consideration of evidence as well as facts and circumstances relating to motive of the offence, it is found that in this case it is difficult to give any finding regarding motive. The killing of the deceased by the accused persons at late hours of night may have been occasioned by something which is in the mind of the accused persons but not known to the prosecution. The killing of the deceased by the accused persons at late hours of night may have been occasioned by something which is in the mind of the accused persons but not known to the prosecution. However, since the occurrence has been witnessed by many persons who have been found reliable, in such circumstances lack of adequate motive alone cannot play an important role. Had the case been based upon circumstantial evidence only, the motive could have acquired a higher relevance. But in the facts of the case, since we have found the witnesses reliable, we find no good reasons to throw the prosecution case out only because the motive alleged by the prosecution has been proved only in part and to many it may not appear to be a very substantial motive. Having given our anxious consideration to all the submissions raised on behalf of the appellants. We are unable to accept the submission that the alleged eye-witneses in this case are not reliable and that appellants are entitled to benefit because station diary entry made on the disclosure of the Chaukidar bearing No. 524 dated 25-9-1998 (Exhibit-8) has not been treated as an FIR. That station diary entry (Exbhibit-8) discloses that the Chaukidar had gone to the police station at about 4.30 a.m. on 26-9-1998 and disclosed that the deceased had been murdered by Prabhu Mahto (sole appellant of Cr. Appeal No. 332 of 2002) and others. Apparently, the Officer-in-Charge of the police station was not satisfied that the Chaukidars version was correct and therefore after recording such a report as a station diary entry he proceeded to verify the same and when he saw the dead body and the verification was done, he recorded the fardbeyan of the informant at 5.00 a.m. at his door. A perusal of the Exhibit-8 further shows that place of occurrence and other necessary details are also not clearly mentioned and being a hearsay version of the occurrence the Officer-in-charge of the police station cannot be faulted if he decided to treat that information as a rumour and proceeded to village of the occurrence for its verification. In the facts of the case, we do not find any substance in the plea that prosecution case should be disbelieved because the Officer-in-charge did not treat Exhibit-8 as the FIR. 14. There is no other point of substance to be considered in this appeal. In the facts of the case, we do not find any substance in the plea that prosecution case should be disbelieved because the Officer-in-charge did not treat Exhibit-8 as the FIR. 14. There is no other point of substance to be considered in this appeal. In view of the aforesaid discussion and findings, we find no infirmity in the impugned judgment of conviction and sentence. Hence the impugned judgment is confirmed and both the appeals are dismissed. 15. It appears that both the appellants of Cr. Appeal No. 321 of 2002 are on bail. Their bail bonds shall be cancelled and they shall be taken into custody forthwith so that they may serve the sentence awarded to them in accordance with law.