Judgment : Samapti Chatterjee, J. (1) The instant appeal is directed against the Judgment and Order of conviction passed in Sessions Trial being No. 29 of 2005 and Sessions Case No.179 of 2005 passed by the learned Additional Sessions Judge, Fast Track Court-I, Purulia on 18th January, 2006 and 19th January, 2006 holding the accused persons/appellants guilty of offence punishable under Sections 302/323/34 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.1000/- each in default of which shall suffer simple imprisonment for four months for the charge under Section 302/34 of the Indian Penal Code. And also sentenced to pay fine of Rs.1000/- in default of which shall suffer simple imprisonment for four months for the charge under Section 323/34 of the Indian Penal Code. (2) Put in a short frame, the prosecution case runs as under: (3) On 11th January, 2001 at about 9:05 A.M. Jakir Ansary of Pokhuria village lodged a verbal complaint regarding the incident at Purulia Muffosil Police Station which was written by S.I. Narayan Chandra Mahato who accordingly registered Purulia Muffosil P.S. Case No.6 dated 11.01.2001 under Section 302/34 of the Indian Penal Code against the two accused persons. Prosecution version in brief as stated in the F.I.R is that on 10.01.2001 there was quarrel and assault between the parties over the issue of raising a wall behind the Shiv Mandir. In order to evade arrest by the Police deceased Mukti Sattar Ansary, his son Samim Ansary as well as complainant Jakir Ansary left their house at Pokhuria village for Purulia on 11.01.2001 at about 4:45 A.M.. On the way in between Kolbandh and Jaleswar at about 6 A.M. they were intercepted by accused Lalu and Bikash Mahato who were armed with ‘dang’ (lathi) and ‘Kural’ (axe) respectively. The first named accused assaulted Jakir Ansary with ‘lathi’ on his legs while accused Bikash Mahato dealt ‘kural’ blow on the head of deceased who fell down in consequence thereof whereupon he was subjected to successive blows with ‘lathi’ and ‘kural’ by both the accused persons which resulted in his death. Complainant Jakir Ansary and Samim Ansary fled towards Jalewswar and reported the incident to Masuruddin Ansary of Jaleswar as well as to Sariful Kadri the Imam of Purulia Bara Masjid. Complainant Jakir Ansary and Samim Ansary fled towards Jalewswar and reported the incident to Masuruddin Ansary of Jaleswar as well as to Sariful Kadri the Imam of Purulia Bara Masjid. On the basis of the F.I.R. lodged by the complainant Jakir Ansary S.I. Narayan Chandra Mahato started the case which was entrusted for investigation to S.I. Radhakanta Pati. Investigation into the case was finally concluded by S.I. Probodh Chandra Patra who laid the charge-sheet under Sections 302/323/34 of the Indian Penal Code against the two accused persons. Thereafter charges under Sections 302/323/34 were framed against the accused persons and they pleaded not guilty for the offences. Accordingly trial started and after completion of trial the learned Additional Sessions Judge, FTC-I Purulia held the appellants guilty and convicted him as aforesaid. (4) In order to prove its’ case the prosecution has examined as many as eighteen witnesses (19) in this regard. (5) The P.W.1` nephew of the deceased stated in his evidence that on 11th January, 2001 he and his uncle Sattar Ansari and Sattar’s son Samim Raja left their house at about 4:45 /5 A.M. for Purulia via Kolbandh through the Relif Road. After crossing Kolbandh when they approached a field at that time accused Bikash Mahato and Lalu Mahato came from the eastern side with an ‘axe’ and ‘dang of kancha kath’. They obstructed them and Lalu started assaulting the P.W.1 with dang on his right leg and thereafter on his left leg also. Bikash inflicted a blow on his uncle (deceased) with axe. Thereafter Bikash and Lalu struck the deceased with axe and dang respectively. The deceased fell down then and started shouting “Save Me, Save Me”. When the deceased fell down the accused persons struck him at random with ‘axe’ and ‘dang’. Thereafter when deceased stop shouting then the P.W.1 and P.W.2 realised that the deceased had succumbed to his injuries. P.W.1 in his evidence further submitted that he and the deceased’s son then proceeded towards Jaleswar village leaving behind the deceased and went to the house of Masuruddin Ansari and narrated the entire incident to him. After hearing the same from the P.W.1 and deceased’s son Masuruddin Ansari along with some other went to the place of occurrence and reported that Mukti Sattar Ansari had died. After hearing the same from the P.W.1 and deceased’s son Masuruddin Ansari along with some other went to the place of occurrence and reported that Mukti Sattar Ansari had died. Thereafter when Masuruddin took the P.W.1 to Purulia, on the way they met Haffiza Sariful Kadri and he advised them to lodge a complaint at the police station. After being advised P.W.1 and Samim Raja then went to Purulia (M) P.S and lodged complaint verbally and the same was written as per his advice by the duty officer. The police took them to the place of occurrence and seized one Almairah key, one wrist watch on spot from the deceased and prepared the seizure list. The P.W.1 signed the seizure list. P.W.1 also stated that he was admitted for three days in Sadar Hospital for treatment. The P.W.1 further stated that on 10th January, 2001 there was an altercation between Mahato Community of their village and the Mohammedan Community of the same village and P.W.1 and deceased took leading part in the said altercation. P.W.2, son of the deceased also stated in his evidence that he and P.W.1 and his father (deceased) on 11th January 2001 about 6 A.M. went for Purulia via Kolbandh . At that time Lalu and Bikash Mahato came from the eastern side and obstructed them. Lalu first assaulted Jakir Ansary with ‘lathi’ on his right leg and then on his left leg. The P.W.2 stated that he and P.W.1 moved away about 10/15 cubits from the scene of occurrence. Then he heard that his father shouting “Save Me, Save Me”. Then he turned around and saw Bikash Mahato assaulting on his father’s head. As a result his father fell down. Then accused Lalu and Bikash both started assaulting the deceased. After proceeding to some distance P.W.2 saw some ladies returning from the pond who were the residents of Jaleswar village. They narrated the incident to those ladies. P.W.2 further stated that next day i.e. on 12th January, 2001 he narrated the incident to the police and the police came to their house in Pokhuria village. He further stated that he cannot recollect whether he stated to the police officer that after Jakir (P.W.1) was assaulted then P.W.1 and he started fleeing towards Jaleswar out of fear. P.W.2 further stated that next day i.e. on 12th January, 2001 he narrated the incident to the police and the police came to their house in Pokhuria village. He further stated that he cannot recollect whether he stated to the police officer that after Jakir (P.W.1) was assaulted then P.W.1 and he started fleeing towards Jaleswar out of fear. He further stated that there was a dispute between Mahato Community and Mohammedan Community of their village regarding erection of boundary wall at Shiv Mandir. (6) Mr. Pal, learned Counsel appearing for the appellant submitted that it is clear from the evidence of P.W.1 and P.W.2 that there was a communal rivalry in that area between Mahato Community and Mohammedan Community and on 10th January, 2001 in respect of erection of some boundary wall near the Shiv Mandir some altercation took place between the 2 rival communities. Since Lalu and Bikash took leading part in that altercation therefore they have been targeted by the prosecution to connect them with the alleged offence. (7) Mr. Pal further contended that accused Lalu only gave blow to the deceased with ‘lathi’ and doctor stated that by ‘lathi’ murder could not be caused. Not only that the doctor also stated in his evidence that there was no use of ‘lathi’. Injury could be done by stone because he was running and fell down. Mr. Pal further contended that doctor demolished the case of Ansari by stating that wound could have occurred either by stone or by ‘lathi’. Mr. Pal submitted that blood stained ‘lathi’ was not sent for FSL examination. Not only that finger print of the accused was also not been taken for FSL examination. Mr. Pal further urged that doctor in his deposition stated that the patient (P.W.1) told him that he was assaulted by the local people but he never mentioned the name of the accused persons before the Doctor. (8) P.W.3 the nephew of the deceased was a hearsay witness and he heard about the incident from other. The P.W.4 was also a hearsay witness being the resident of that village. P.W.5 was also a hearsay witness and the signatory of Inquest Report. P.W.6 was a signatory of Inquest Report. P.W.7 became hostile and P.W.8 is the doctor who examined Jakir Ansari, P.W.1. The Doctor in his evidence stated that in the X-Ray Report no fracture was mentioned. The P.W.4 was also a hearsay witness being the resident of that village. P.W.5 was also a hearsay witness and the signatory of Inquest Report. P.W.6 was a signatory of Inquest Report. P.W.7 became hostile and P.W.8 is the doctor who examined Jakir Ansari, P.W.1. The Doctor in his evidence stated that in the X-Ray Report no fracture was mentioned. In respect of the Injury Report of Jakir Ansari, P.W.8 stated that there are 2 X-Ray plates. The Doctor stated that injuries may have been caused due to assault by ‘lathi’, but regarding history of assault patient stated that he was beaten by his neighbour but he did not disclose the name of his assailants. The Doctor in his report stated such haematoma may be caused due to contact with hard blunt object such as stone. Such type of rounded haematoma is unlikely to be caused due to longitudinal blow of ‘lathi’ but may be caused if the blow is inflicted by the rounded end of ‘lathi’ by poking. The Doctor P.W.8 further stated that from the bed ticket-cuminjury report of the patient it is not possible for him to say the age of the injury. (9) P.W.9, the Autopsy Surgeon held post mortem of the deceased on 11th January, 2001 at about 2:35 P.M. He described the injuries in his evidence : 1. One lacerated wound over right side of post aspect of skull measuring 3” behind right ear of about 1” x 1/6” x brain deep with fracture of adjacent occipital bone. 2. One lacerated wound over mid part of vault of skull ½” to the left of mid line of about 21/2” x 1/3” upto bone deep with ragged margin and post aspect of which was bifurcated. 3. One lacerated cut wound over and along left eyebrow measuring 2 1/2” and ½” cutting adjacent bone upto brain. 4. One small lacerated wound over left zygomatic region measuring ½” x ¼” with fracture of left side of mandible. 5. One incised cut wound longitudinally placed over left angle of mouth measuring 1"”x 1/6"”cutting upper jaw with dislocation of adjacent teeth with fracture of mandible. 6. One incised cut wound just below left side of lower lip transversely placed measuring ½” x ¼”. 7. Another same type of wound just to the left of number six wound. 5. One incised cut wound longitudinally placed over left angle of mouth measuring 1"”x 1/6"”cutting upper jaw with dislocation of adjacent teeth with fracture of mandible. 6. One incised cut wound just below left side of lower lip transversely placed measuring ½” x ¼”. 7. Another same type of wound just to the left of number six wound. He further stated in his deposition that in his opinion death was caused due to the effects of ante mortem wounds described homicidal in nature. Incised or cut wounds found by him on the person of deceased may be caused by sharp cutting weapon like ‘axe’(kural). Lacerated cut injury also may be caused by sharp cutting weapon like ‘axe’ (Kural). Only lacerated wound as found by me on the person of deceased may be caused due to assault by ‘lathi’. Incised cut injuries referred to by him as well as the lacerated cut injuries referred in his post-mortem examination report may be caused by this ‘Kural” (axe). In his cross examination P.W.9 stated that lacerated wounds are generally caused by hard and blunt substance. Injury no. 2 by itself may cause the death of a person in the ordinary course. (Volunteers):- Injury no.1 is more grievous than injury no. 2 and in his opinion injury no.1 itself was sufficient to cause the death of a person in the ordinary course. Injury no.3 was also grievous sufficient to cause the death. All the injuries (lacerated) found by me on the person of deceased are concentrated on the head which is a vital part. All the incised wounds were concentrated on the face of deceased and round the face. Injury nos.3 and 4 if caused by a sharp cutting weapon, some hair of the head near the site of injury may be cut if the victim has hair on his head (near the site of injury). (10) Mr. Pal urged that from the evidence of P.W.9 it can be gathered that wounds are concentrated on the face of the deceased but not on the backside of the head of the deceased. He further contended that those wounds could have occurred due to fall facing towards the ground which was full of stone and pebbles. Therefore, from the evidence of P.W.9 it is possible to draw conclusion that death was due to blow with ‘lathi’. (11) P.W.10 was the constable who prepared the Inquest Report. He further contended that those wounds could have occurred due to fall facing towards the ground which was full of stone and pebbles. Therefore, from the evidence of P.W.9 it is possible to draw conclusion that death was due to blow with ‘lathi’. (11) P.W.10 was the constable who prepared the Inquest Report. P.W.11, wife of the deceased was a hearsay witness. She stated in her evidence that Abdul Ansari returned about 8:30 A.M. and informed her that the dead body of her husband Sattar Ansary was lying in injured condition between Jaleswar and Kolbandh. (12) P.W.12 was a resident of Jaleswar. He is also a hearsay witness. He was informed by Jakir Ansari and Samim Raja that about 5 A.M. three of them namely Jakir Ansari, Samim Raja and Mukti Sattar Ansari were proceeding to Purulia via Kolbandh, at that time in between Kolbandh and Jaleswar accused Lalu and Bikash Mahato obstructed them and thereafter accused Lalu assaulted Jakir Ansari with ‘lathi’ on his leg while accused Bikash Mahato inflicted ‘Kural’ (axe) blow over the body of Sattar Ansari. He also found ‘lathi’ with blood-stained there. (13) P.W.14 was the S.I of police who in his evidence stated that he drew up the formal F.I.R. On the basis of that F.I.R he started Purulia (M) P.S. Case No.6 dated 12th January, 2001 under Sections 302/323/34 of Indian Penal Code against accused Lalu Mahato and Bikash Mahato. P.W.15 was S.I of police. He signed on the seizure list as witness ( marked as Exbt.9/2). P.W.16 and P.W.17 were constable of police. P.W.18 was O.C Purulia (M) P.S. who sent some seized alamats to the FSL. He sent the blood stained ‘lathi’, blood-stained earth and wearing apparels of deceased as well as the sample of blood to the FSL for chemical analysis through SDJM, Purulia. (14) P.W.19, was the Investigating Officer who stated in his evidence that at about 9:30 A.M. he along with police personnel reached Kolbandh Mouza and visited the place of occurrence with some local people. They found that on the eastern side of the Relif Road a dead body was lying. They also found that there was blood-stained earth near the deadbody. They found that on the eastern side of the Relif Road a dead body was lying. They also found that there was blood-stained earth near the deadbody. He further stated that on the same date at about 10:25 hours he seized one ‘lathi’ stained with blood as well as bloodstained earth from the place of occurrence and prepared a seizure list on spot in presence of witnesses (marked as Exbt.4). He also prepared sketch map with index of the place of occurrence (marked as Exbt.12). On 12th January, 2001 he examined some witnesses on the same date he seized wearing apparels of deceased as produced by Constable No.287 and he prepared a seizure list in presence of witnesses. On 15th January, 2001 he visited Dumdumi village and further stated that he arrested two accused persons on 18th January, 2001 and he interrogated them. During course of interrogation the said two accused persons confessed their guilt. They disclosed that they could identify the place of occurrence as well as the place where they concealed the weapon of offence i.e. the ‘axe’ (Kural). He recorded the statements of the accused persons before they led them to the place of occurrence where the weapon of the offence was concealed. He further stated that pursuant to their statements the accused persons led them to Pukhoria Mouza about 1 k.m. west from Pukhoria village and accused Bikash Mahato brought out from a ‘Jhop’ (bush) a ‘Kural’ (axe) and produced the same before him. In his cross examination he stated that at about 9:30 A.M. they first went to the place where the dead body was lying. At that time no one was present there. After seeing them the resident of Jaleswar and Kolbandh immediately came to that place. On seeing the dead body in injured condition and the blood-stained ‘lathi’ lying near the dead body it appeared to them that it was a case of murder and they confirmed that it was the place of occurrence on 15th January, 2001. The Investigating Officer examined Masuruddin Ansari at Jaleswar village. It was not mentioned in the Case Diary why there was delay of ¾ days in examining Masuruddin Ansari. The Investigating Officer further in his deposition stated that exact time of recording the statements of accused persons had not been mentioned in the case diary but it was after 1:30 A.M. (night). It was not mentioned in the Case Diary why there was delay of ¾ days in examining Masuruddin Ansari. The Investigating Officer further in his deposition stated that exact time of recording the statements of accused persons had not been mentioned in the case diary but it was after 1:30 A.M. (night). He first recorded the statement of accused Lalu Mahato for about 1 hour but this fact has not been mentioned in the case diary that he interrogated accused Lalu Mahato and recorded the statement with the help of searchlight. After about 1 hour he started recording the statement of accused Bikash Mahato in the same process and in the same manner. He further stated that these two accused persons identified the same place of occurrence where the police personnel had been earlier. He further stated in his deposition that he sent the ‘axe’ to the FSL. There was no note given by him in the case diary that the ‘axe’ should be sent to the FSL. He did not find any blood-stain on the seized ‘axe’. (15) Mr. Pal urged that from the evidence of P.W.19, Investigating Officer, it is clear that the prosecution to create a chain of circumstances, cooked up a story that during interrogation the accused persons confessed that they would take the police personnel to the place of occurrence as well as to the place where they concealed the offending weapon i.e. ‘axe’ and thus they took the Investigating Officer and other police men to said place and produced the ‘axe’ from the ‘bush’ and handed over the same to the police men which, as per Mr. Pal, cannot connect that appellants murdered the deceased. (16) In conclusion Mr. Pal submitted that the ‘axe’, the blood-stained ‘lathi’, wearing apparels of the deceased were not sent for FSL Examination. He further contended that the entire prosecution case is full of discrepancies, contradictions, loosends, lacunae, absurdities and untold stories. Furthermore, the prosecution in all respect failed to prove its case to convict the appellants with the offences punishable under Sections 302/323/34 of the Indian Penal Code. (17) On the other hand Mr. Saswata Gopal Mukherjee, learned Counsel appearing for the State contended that evidence of P.W.1 and P.W.2 corroborated with the FIR. He further contended that factum of assault has been proved from the evidence of P.W.1. (17) On the other hand Mr. Saswata Gopal Mukherjee, learned Counsel appearing for the State contended that evidence of P.W.1 and P.W.2 corroborated with the FIR. He further contended that factum of assault has been proved from the evidence of P.W.1. Therefore, the evidence of P.W.1 and P.W.2 should not be disbelieved. Mr. Mukherjee further urged that the prosecution case is based on the evidence of P.W.1 and P.W.2 which was also supported by the Doctor’s report. He further submitted that Exbt.4 was ‘Lathi” and Exbt.10 was ‘axe’ and the seizure list witnesses were P.W.15, P.W.16 and P.W.17. Not only that P.W.12 found that ‘Lathi’. Mr. Mukherjee further argued that it is proved from the evidence of Doctor P.W.9 that the victim sustained 7 injuries and out of seven injuries most of the injuries were lacerated in nature and could cause death. He further contended that it is clear that out of 7 injuries injury no.5, injury no.6 and injury no.7 could be caused by axe. He further contended that the P.W.9 Doctor in his cross examination stated that each and every injuries could cause death. Mr. Mukhejee further contended that non-disclosure of the name of the assailants cannot be a ground to demolish/disbelieve the case of prosecution. In support of his contention Mr. Mukherjee relied on the Supreme Court decision reported in AIR 2004 (Supreme Court) Page 1058 Para-20 (Bhargavan and others vs. State of Kerala) as follows:- “So far as non-disclosure of names to the doctor, same is really of no consequence. As rightly noted by the Courts below, his primary duty is to treat the patient and not to find out by whom the injury was caused. The plea in this regard is clearly unacceptable. The question was examined by this Court in Pattipati Venkaiah v. State of Andhra Pradesh ( AIR 1985 SC 1715 ) and similar view was taken.” In conclusion Mr. Mukherjee submitted that the Judgment and Order passed by the learned Court below on 18th January, 2006 and 19th January, 2006 should be affirmed by this Hon’ble Court. The question was examined by this Court in Pattipati Venkaiah v. State of Andhra Pradesh ( AIR 1985 SC 1715 ) and similar view was taken.” In conclusion Mr. Mukherjee submitted that the Judgment and Order passed by the learned Court below on 18th January, 2006 and 19th January, 2006 should be affirmed by this Hon’ble Court. (18) On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that the P.W.1 and P.W.2 being the eye witnesses deposed that after crossing Kolbandh when they approached towards Relif Road at that time accused Bikash Mahato and Lalu Mahato came from the eastern side with ‘axe’ and ‘dang’ respectively and they (accused persons) obstructed them and thereafter accused Lalu assaulted the P.W.1 with ‘lathi’ on his right leg and thereafter on his left leg and accused Bikash assaulted his uncle (deceased) with ‘axe’ on his head. Thereafter accused Bikash and Lalu struck the deceased with ‘axe’ and ‘dang’ and he fell down. After he fell down said Sattar Ansari shouted “Save Me, Save Me”. When he fell down then the accused persons assaulted him at random with ‘dang’ and ‘axe’. When the deceased stopped shouting then the P.W.1 and P.W.2 realised that the accused had succumbed to his injuries. P.W.1 further stated that he and the deceased’s son (P.W.2) then proceeded towards Jaleswar village leaving behind the deceased and went to the house of Masuruddin Ansari and narrated the entire incident to him. Masuruddin took the P.W.1 to Purulia, on the way they met Haffiza Sariful Kadri and being advised by said Kadri, P.W.1 and P.W.2 went to Purulia (M) P.S. and lodged complaint verbally and the same was written as per their instruction by the duty officer. The police took them to the place of occurrence and seized one Almirah key, one wriest watch on spot from the deceased and prepared the seizure list. P.W.1 further stated that he was admitted for three days in Sadar Hospital for treatment. P.W.1 also deposed that on 10th January, 2001 there was altercation between Mahato Community of their village and the Mohammedan Community of the same village and P.W.1 took leading part in the said altercation. We find that evidence of P.W.1 and P.W.2 and as well as the written complaint are corroborating with each other. P.W.1 also deposed that on 10th January, 2001 there was altercation between Mahato Community of their village and the Mohammedan Community of the same village and P.W.1 took leading part in the said altercation. We find that evidence of P.W.1 and P.W.2 and as well as the written complaint are corroborating with each other. Therefore, we have no hesitation to accept the evidence of these witnesses. (19) We further find that P.W.3, P.W.4, and P.W.5 were hearsay witnesses and P.W.6 was a signatory of Inquest Report. P.W.7 became hostile and P.W.8 was the Doctor who examined P.W.1 and he prepared his report. (20) P.W.11, wife of deceased was a hearsay witness and she heard from the P.W.1 that accused Lalu and Bikash Mahato murdered her husband. Therefore, we find factum of assault has been proved corroborating the evidence of P.W.1, P.W.2 as well as the written complaint. Therefore, there is no scope to disbelieve those evidence. (21) We further find from the evidence of P.W.9 the autopsy surgeon who opined that injuries sustained by the victim were 7 in numbers and they were so grievous in nature that each one of the injury could cause death to the deceased. (22) We find that the deceased was involved in erecting the boundary wall behind the Shiv Mandir in which the accused persons raised objection along with others and as a result altercation took place between the Mahato Community and Mohammedan Community on 10th January, 2014. The accused persons then with some motive to take revenge against Sattar Ansari murdered the said Sattar Ansari on the next day. (23) We find from the oral testimony of Doctor P.W.9 as well as the post mortem report altogether unerringly lead to the only conclusion that the injuries as described under post mortem report were so severe and grievous in nature that any of the injuries could cause death to the deceased. (23) We find from the oral testimony of Doctor P.W.9 as well as the post mortem report altogether unerringly lead to the only conclusion that the injuries as described under post mortem report were so severe and grievous in nature that any of the injuries could cause death to the deceased. (24) We further find the evidence of eye witnesses received full corroboration from the medical evidence and also from the answer given by the appellant no.1 during his examination under Section 313 Cr.P.C which leaves no room for harbourding any doubt that on 11th January, 2001 at about 6 a.m. the appellants (accused Lalu and Bikash Mahato) had hit the deceased with ‘axe’ and ‘dang’ respectively and as a result Mukti Sattar Ansari sustained grievous injuries in his brain and face and he died on spot. P.W.1 and P.W.2 who were with the deceased witnessed the assault. We, therefore, have no hesitation to hold that the prosecution has been able to prove the guilt against the accused persons namely Lalu @ Lalmohan Mahato and Bikash Mahato to the hilt and the learned Trial Court has rightly held that guilt was proved against the appellants. The sum total of the forgoing discussion is that the Trial Court has properly appreciated the evidence on record and has rightly held the appellants guilty. (25) We do not find any merit in the appeal. It deserves no interference. (26) The appeal, thus fails and stands dismissed. (27) The office is directed to send the Lower Court Records at once.