JUDGMENT : 1. Heard further argument. Hearing is concluded and the judgment is as follows: 2. Khadal Biswal has preferred Jail Criminal Appeal No. 142 of 2004 and Pankaj Ku. Nahak has preferred Criminal Appeal No. 331 of 2004 respectively challenging the common judgment and order of conviction u/s 302/34 Indian Penal Code recorded against them by Learned Addl. Sessions Judge, Berhampur in Sessions Case No. 6 of 2001 (S.C.15/2001 GDC) arising out of G.R. Case No. 237 of 1999 of the Court of J.M.F.C., Kodala. Therefore, both the appeals are taken up for analogous hearing and this common judgment shall abide the result of both the appeals. 3. Accused persons, three in numbers, were alleged for the offence u/s 302/34 Indian Penal Code. Amongst them, accused Babulu being an absconder trial of the Sessions case was taken up only against the present Appellants. 4. According to the case of the prosecution, accused persons belong to village, Sialia and the deceased-Panchu Jena and eye witnesses to the occurrence belong to village, Rampudi. Both the villages situate at a distance of about 11 k.ms from each other, but come under the same Gram Panchayat. By the date of occurrence, Kalpan Nahak, P.W. 7 was the Ward Member of village, Rampudi. 5. According to the case of the prosecution, in the night of 13.11.1999 accused persons knocked at the door of the house of Bidesi Nahak, P.W. 8 as well as house of Kalpana Nahak, P.W. 7. Sensing danger from the accused persons, P. Ws.7 and 8 did not open their doors. On the following day morning, i.e., on 14.11.1999, P.W. 8 requested Tuna Jena, P.W. 2 and Lobo Parida, P.W. 3 to intervene as Bhadralok to make amicable settlement with the accused persons. Kalpana Nahak, P.W. 7 and her mother also reported the incident to P. Ws. 2 and 3 and requested for their intervention. By then, the accused persons, who were sleeping in the house of Mahesh Nahak, responded violently to the request of P. Ws 2 and 3 for amicable discussion. Not only the accused persons abused P. Ws.2 and 3 but also threatened to assault them. P. Ws. 2 and 3 returned from that place but because of the reaction of the villagers all the accused persons immediately left the village (Rampudi). Not only the accused persons abused P. Ws.2 and 3 but also threatened to assault them. P. Ws. 2 and 3 returned from that place but because of the reaction of the villagers all the accused persons immediately left the village (Rampudi). In view of such high handed behaviour and reactions of the accused persons, the prosecution party decided to proceed to Kabisurjya Nagar Police Station and to report the incident. Accordingly, Tuna Jena (P.W. 2), Lobo Parida (P.W. 3) and Arun Mohanty with bicycles and Bidesi Nahak (P.W. 8), Bipra Nahak arid Kalpana Nahak (P.W. 7), as pedestrians proceeded to the Police Station. The deceased was not there in their group. He overtook them on the way, inasmuch as, he was going to market to purchase vegetables. At Kaithbanda Huda near an Electric Sub-Station the accused persons being armed with Khanda-kati attacked and assaulted the deceased. This could be seen by P.W. 2 and the party (above named persons), who were proceeded towards the Police Station. On sustaining the blow when the deceased fell down and was further assaulted by accused persons, P.W. 2 went to rescue his father, i.e., deceased and in that process as alleged there was a scuffle with accused Pankaj Nahak. On hearing the commotion from the spot people taking bath on the nearby bathingghat came upon and on seeing such persons the accused persons fled away from that spot. Since the deceased died at the spot, therefore, P.W. 2 lodged the F.I.R., Ext. 4/3. After routine investigation charge sheet was submitted showing accused Babula as absconder. 6. Accused persons denied to the allegation of committing murder of the deceased. They have taken the defence plea that it is the prosecution party who were the aggressor and assaulted accused Pankaj Nahak in connection with the distribution of B.P.L. rice and in conveyance to the local police they have engineered a false case against the innocent accused persons. 7. To substantiate the charge, prosecution examined nine witnesses besides, relying on the document marked Exts.1 to 32 and the materials, i.e., M. Os. I to VI. Amongst the witnesses P.W. 2 is the son of the deceased. He is an eye witness to the occurrence and also sustained injury. Similarly P. Ws.3, 7 and 8 are the witnesses to the occurrence. I to VI. Amongst the witnesses P.W. 2 is the son of the deceased. He is an eye witness to the occurrence and also sustained injury. Similarly P. Ws.3, 7 and 8 are the witnesses to the occurrence. P.W. 4 is the doctor who conducted autopsy on the dead body of the deceased and proved the post-mortem report, Ext. 10 and the opinion report (an examination of the seized weapons), Ext.11. P.W. 5 is a photographer and on police requisition, he took snaps. Exts. 12 to 18 are the negatives and Exts. 12/1 to 18/1 are the positives. He is also a witness to seizure of the said exhibits under Ext.19. P.W. 6 is a police constable, who as per the command certificate Ext.20, guarded the spot, escorted and identified the dead body to P.W. 4 and after the post-mortem carried the wearing apparels of the deceased marked Mos. III to V and witnessed seizure of the same under Ext.21. P.W. 1 is the doctor who examined accused Pankaj Nahak and on police requisition supplied the injury report Ext.1 and answered to the querry in opinion report Ext.2. He also examined P.W. 2 and proved the injury certificate Ext.3. P.W. 9 is Investigating Officer. M. Os. I and II are two Khanda Kati (swords). In reply the defence has examined only one witness namely, Maheswar Nahak. 8. Referring to the evidence of Doctor, P.WA and the post-mortem report Ext. 10, Learned Addl. Sessions Judge recorded the findings that the deceased suffered homicidal death. Referring to the evidence of P.W. s.2, 3, 7 & 8, he held that evidence of such witnesses are not only corroborating each other but also their credit worthy and accordingly such evidence proved that the accused persons are the author of homicidal death of the deceased. In the above context, Learned Addl. Sessions Judge rejected the argument of the defence on the delay in dispatch of the F.I.R. to the Court and not to accept Ext.4 as the genuine F.I.R. He also rejected the contention of defence that P. Ws.7 and 8 being not named in the F.I.R. are not genuine eyewitnesses to the occurrence and that evidence of the eyewitnesses are discrepant. For reasons recorded together with the ratio followed from citations, Learned Addl. For reasons recorded together with the ratio followed from citations, Learned Addl. Sessions Judge rejected all the aforesaid contentions of the Appellants and recorded the findings that charge leveled against the accused person is proved. Accordingly, Learned Addl. Sessions Judge found the Appellants guilty for the offence u/s 302/34 Indian Penal Code and sentenced each of them for imprisonment of life. 9. Learned Counsel arguing for the Appellants reiterates the same contention as was raised in the Trial Court so also the grounds "C" to "G" stated in the Appeal Memo. 10. It may be noted here that in course of post-mortem examination of the dead body of the deceased, P.WA found one incised wounds of the size 5" x 2" x 4" on the left side of the scalp damaging the brain matter, incised wound of the size of 7 " x 3 " x "6" staring from the angle of left eye to posterior surface of the scalp also damaging the brain matter and incised wound of the size 4" x 2" x 3" over the posterior surface of the scalp 1" away from the left ear, incised wounds dissecting each of the right and left wrists. The opinion of the doctor is that such anti-mortem injuries result in the death of the deceased within 24 hours from the time of post-mortem examination which was conducted at 4.30 P.M. on 14.11.1999. That fact is also bone out post-mortem report, Ext. 10. P.W. 4 also opined that such injuries are possible by Khanda-kati, like M. Os. I and II. There is nothing in the cross-examination so as to discredit the aforesaid version and the opinion of P. Ws.4 and 6. Therefore, we find that Learned Add!. Sessions Judge has rightly recorded the findings that deceased suffered homicidal death due to anti-mortem injuries. 11. Learned Counsel for the Appellants argues that evidence of P. Ws.7 and 8 shall not have been accepted by the Trial Court for the reasons that their names were not mentioned in the F.I.R. as eyewitnesses to the occurrence. In that respect the discussion made by the Learned Addl. Sessions Judge is fair enough to reject such a contention. Apart from that, Appellants do not show any authority contrary to the findings recorded by the Learned Add!. Sessions Judge on the position of law in the above context. In that respect the discussion made by the Learned Addl. Sessions Judge is fair enough to reject such a contention. Apart from that, Appellants do not show any authority contrary to the findings recorded by the Learned Add!. Sessions Judge on the position of law in the above context. It is true that in the F.I.R. names of P. Ws.7 and 8 and Bipra Nahak is not mentioned, but in their evidence P. Ws. 2 and 3 both have stated that all of them were going together while proceeding to the Kabisurjya Nagar Police Station. Such evidence of these witnesses (P. Ws.2 and 3) in their examination-in-chief was not at all challenged in Court during cross-examination. The obvious reason for that may be that P.W. 2 in his examination-in-chief explained that besides himself P.W. 3 and the other persons Arun Mohanty were moving in bicycle in slow motion and P. Ws 7 and 8 and Bipra Nahak were going by walk. Apart from that, on looking to the statement of P. Ws. 2 and 3, we find that similar statement have been made. Therefore, there is no reason for the defence for not to cross-examine P. Ws. 2 and 3 on the aforesaid aspect. Factually, it, thus, remains unchallenged to the evidence of P. Ws 2, and 3 that P. Ws. 7 and 8 besides two others were moving with them while proceeding to Kabisurjya Nagar Police Station. Under such circumstance, non-mentioning the names of P. Ws.7 and 8 in the F.I.R. does not make any difference. 12. Appellants argue that evidence of P. Ws. 2, 3, 7 and 8 remain contrary to each other in narrating the occurrence of assault and in the above context the evidence of P. Ws.3, 7 and 8 are not acceptable because they did not try to intervene at the time of assault. The aforesaid argument does not hold water, inasmuch as, each of the witnesses have described by stating that they witnessed the occurrence from a short distance. The deceased over took them and proceeded ahead and the accused persons attacked and assaulted him and on seeing that when P.W. 2 rushed to the spot there was a scuffle and at the same time on seeing the person coming out from the bathingghat the accused persons fled away. The deceased over took them and proceeded ahead and the accused persons attacked and assaulted him and on seeing that when P.W. 2 rushed to the spot there was a scuffle and at the same time on seeing the person coming out from the bathingghat the accused persons fled away. Under such circumstance, non-intervention by the other witnesses does not lead to improbable conduct, nor that leads to hold that they were not eyewitness to the occurrence. 13. Appellants argue that the injury on accused-Pankaj Nahak has not been explained by the prosecution and therefore the prosecution is guilty of suppression of fact and consequence thereof should be in granting benefit to the accused persons. Learned Addl. Government Advocate strongly denies to that argument and submits that according to the evidence of D.W.1 and the statement of the accused Pankaj Nahak u/s 313 Code of Criminal Procedure, he sustained the injury at another place and once, i.e., defence plea, the prosecution is not duty bound to explain that injury. Accepting such contention of the prosecution, the Trial Court declined to take adverse view against the prosecution. this Court also finds sufficient reasons advanced by the State for non-explanation of the injury of Pankaj Nahak by the witness. 14. Appellants further argue that delay in dispatching the F.I.R. to Court goes a long away to substantiate the criticism of the Appellants that F.I.R. was a post created one. In that aspect, a further deliberation is not necessary, inasmuch as, the findings of the Trial Court is sufficient enough to reject such a contention. Learned Addl. Sessions Judge has specifically recorded that the F.I.R. was received in time. The presiding officer, i.e., JMFC put his signature on the following day and, therefore, delay in putting signature by JMFC cannot be a ground to doubt genuineness of the F.I.R. 15. Learned Addl. Government Advocate states that the other evidence on record such as the recovery of weapon of offence, absconding of the accused persons and finding human blood group-A in the wearing apparels of accused Pankaj Nahak and the deceased substantially strengthens the prosecution case. The Appellants do not reply to that argument. 16. Regard being had to the aforesaid fact and submission, we do not find any merit in this appeal so as to intervene with the order of conviction, accordingly both the appeals are dismissed. 17. Appeal dismissed. The Appellants do not reply to that argument. 16. Regard being had to the aforesaid fact and submission, we do not find any merit in this appeal so as to intervene with the order of conviction, accordingly both the appeals are dismissed. 17. Appeal dismissed. Final Result : Dismissed