JUDGMENT : Ratnaker Bhengra, J. The present appeal is directed against the judgment of conviction dated 9th April, 2003 and order of sentence dated 16th April, 2003 passed by Sri Anil Kumar, learned Additional Sessions Judge, Fast Track Court No. 7, Hazaribagh in Sessions Trial No. 377 of 1989 whereby and whereunder the appellants have been convicted under sections 147, 148, 304, Par-II/149 of the Indian Penal Code and have been sentenced to undergo R.I. for 5 years under section 304 Part-II/149 of the Indian Penal Code and one year R.I. for the offence under section 147 and 148 of the Indian Penal Code and the sentences were directed to run concurrently. 2. The prosecution case as it appears from the fard-beyan of Rajak Mian recorded by S.I. Sri S. Kumar, officer-in-charge of Barkatha police station on 02.03.1989 at 18.15 hours at Primary Health Centre Barkatha is that on 02.03.1989 at around 2 p.m. Hakim Mian was raising a hut in Gair Majarua land in Village Konhari Kala. There was a case pending in Koderma court for the said land. The informant prohibited him saying that hut may be raised after the decision in the said case. He has stated that Rasool Mian, Karim Mian, Adud Mian armed with Lathi, Noor Mian, Hakim Mian and Reyaj Mian armed with Tangi and Abdul Ajij armed with farsa assaulted the informant party and injured them. Due to the beating, his brother Imaman Mian fell down, thereafter the aforesaid persons continued beating with Tangi and Lathi and badly injured Imaman Mian. Due to the beating, his brother Jainul Mian, his mother Shalmi Khatoon and wife Nashima Khatoon also got injured His wife was at home in injured condition, however, rests of them went for treatment to hospital at Barkatha. During the course of treatment, his brother Imaman Mian died in the hospital. This incident has also been witnessed by Deglal Mahto, Jagi Mahto and Shyam Lal Singh and others. 3. On the basis of the aforesaid statements of Rajak Mian, Barkatha P.S. Case No. 12 dated 2.3.1989 was registered against the accused persons for the offence under sections 147,148,149, 323, 324, 326 and 302 of the Indian Penal Code. The Investigating Officer, after completion of the investigation, has submitted charge sheet. The learned ACJM, Koderma took cognizance of the offences against the accused persons and committed the case to the court of sessions. The Investigating Officer, after completion of the investigation, has submitted charge sheet. The learned ACJM, Koderma took cognizance of the offences against the accused persons and committed the case to the court of sessions. Charges were framed for the offence under sections 147,148 and 302/149 of the Indian Penal Code against the accused, and the charges were read over and explained to accused persons to which they pleaded not guilty and claimed to be tried. 4. The prosecution examined altogether 9 witnesses during the course of trial and the learned Additional Sessions Judge, FTC-VII, Hazaribagh at the conclusion of trial, convicted the appellants, herein, for the offences under sections 304 Part-II read with section 149 of the IPC. He further convicted them for the offence under sections 147 and 148 of the IPC and sentenced them as aforesaid. Both the sentences, said to be run concurrently. Hence, this appeal. 5. In this case 9 prosecution witnesses and one defence witness have been examined. The relevant and crucial witnesses are P.W. 8-the informant, P.W. 1-brother of the informant, P.W. 2-a co-villager P.W. 9 and D.W. 1. 6. P.W. 8, Rajak Mian, the informant, has deposed that the occurrence took place 14 years ago at around 2 o'clock in the afternoon, he does not remember the precise date. Rasool, Hakim, Noor Mian, Reyaj Mian, Abdul Ajik and Karim Mian were constructing a hut on the Gairmajarua land which lies before his house. Regarding this land, there is a case pending in Koderma court. This witness told them not to construct the house as there is a case pending in Koderma on which Rasool Mian came out with Lathi and said that come out what are you looking at and then Noor Mian came with Axe, Hakim Mian also with Axe, Abdul Ajij with a farsa, Reyaj Mian with a Farsa and Karim Mian with stick came out and has started assaulting. They assaulted the informant and also assaulted Jainul Mian, Shalmi Khatoon, Nashima Khatoon and Imaman Mian. Rasool Mian looked at Imaman and said that he is dead, let us flee. This witness has said that at 6 p.m. evening they went to Barkatha police station and then to the Barkatha hospital for treatment. Imaman Mian died during the treatment in hospital. He had given his statement in the police station. Rasool Mian looked at Imaman and said that he is dead, let us flee. This witness has said that at 6 p.m. evening they went to Barkatha police station and then to the Barkatha hospital for treatment. Imaman Mian died during the treatment in hospital. He had given his statement in the police station. He had narrated the incident which Daroga Ji recorded then he read out the statement to him which he heard and on finding it correct, he put his signature. He has proved his signature which has been marked as Exhibit-2. He has recognized Rasool Mian and Noor Mian in court and has claimed to be able to recognize others. In the cross-examination, he has stated that the hut was being constructed by Rasool Mian and Noor Mian. He has further stated that he had gone to prohibit the accused from making the hut alone and the dispute is regarding building of the hut. His house is near the place of occurrence and others also came there and due to the assault he made alarm. He has stated that he did not fall down. This witness further deposed that he had not assaulted anyone and they had not injured anyone. He further deposed that the accused after assaulting them went to the police station. He has also deposed that he had informed about the incident to Deglal Mahato ( P.W. 2), Mani Mahto ( P.W.-5) and Jagi Yadav ( P.W.-4), He has further deposed that they had also gone to the police station in an injured condition. He has also deposed that accused including the appellants have also lodged a case against us regarding the assault. Learned lower court has not held us guilty and we have not filed any appeal. 7. P.W. 1 is Md. Jainul, he is brother of the informant. He has deposed that the incident took place 3 and 1/2 years ago on 03.02.1989 at 2 o'clock on Thursday. He has further deposed that regarding the relevant piece of land which is gairmajaura in nature, a case is going on and that the accused persons were constructing a hut on that piece of land, when they went to oppose them, they did not agree to do so. He has further deposed that regarding the relevant piece of land which is gairmajaura in nature, a case is going on and that the accused persons were constructing a hut on that piece of land, when they went to oppose them, they did not agree to do so. He has further deposed that Rasool Mian gave command to assault at which Karim Mian assaulted Imaman with Lathi thereafter Abdul Aziz Mian also assaulted Imaman, thereafter Rasool, Noor Mian, Adud Mian, Hakim Mian, Reyaj Mian and Abdul Aziz also assaulted Imaman. Hakim and Reyaj assaulted with Axe. Karim assaulted with lathi and Imaman's fingers were broken. All of them also assaulted him, Imaman had fallen down after being hurt and then the accused punctured his testicles. Even after he had fallen down, he was assaulted. The accused have assaulted his mother Shalmi Khatoon and injured her. His brother's wife Nasima Khatoon and Rajak Mian were also assaulted by the accused. He has further deposed that Imaman Mian due to the injuries received, died at 6 p.m. in the evening at the Barkatha Hospital. Treatment of other injured also took place in the same hospital. This witness has recognized the accused persons in court and also claimed to be able to recognize other accused. In his cross-examination, he has stated that the land dispute is going on from 2 to 4 years and that he does not know the khata and plot number of the land in question. He has then described the location of the land and submitted that on that gairmajarua land, there are about 50 houses constructed which includes the house of Bhikhan Mian, Karim, Hakim Mian, Gaglal Mahto etc. He has deposed that the house of Deglal Mahto is around 20 to 22 steps from the place of occurrence, Jalim's house is 30-40 steps ahead, house of Shyamlal Singh is about 1 k.m. away. He has further deposed that the family of Deglal Mahto and Jaggi came to the place of occurrence. He further deposed that on that date the accused were building a hut of 25 hands long and 6-7 hands broad, wall was not constructed, they had put the poles in place and were constructing the thatched roof. However, he has deposed that he cannot say whether the poles have been put in place or not. He further deposed that on that date the accused were building a hut of 25 hands long and 6-7 hands broad, wall was not constructed, they had put the poles in place and were constructing the thatched roof. However, he has deposed that he cannot say whether the poles have been put in place or not. However, he also deposed that the poles were put in place from before. He has further deposed that when they had come the accused were putting the tiles in place and on reaching, the accused had already thatched one hand long and one hand broad thatching. He has further deposed that his house is just two hands away from that place and he cannot say from what time the accused were fixing the poles. He has further deposed that the first assault was made to Rajak, when two accused persons were armed with tangi and rest armed with lathi who assaulted Rajak. All the injured persons were beaten simultaneously and he received 2 to 4 stick blows by all the accused persons. He has further deposed that his brother wife was also assaulted by Rasool and his wife by stick but he is unable to say how many blows were received by Lathi. He has further deposed that after receiving injury, became unconscious and regained consciousness after one hour. They were treated at hospital, they went to hospital in the evening and came in the morning. He has further deposed that he could not give the statement to the Daroga that Imaman was assaulted by Lathi and that all the persons assaulted Aziz. He has given statement to the police that Hakim, Reyaj and Karim assaulted with Lathi due to which finger was broken. He has also given statement to the police that accused persons have smashed the testicles of Imaman. He has further deposed that a case was instituted by the accused persons against them in which the magistrate has convicted him and Reyaj was also convicted in that case. 8. P.W. 2, Deglal Mahto is a co-villager. He has deposed that the incident took place on 02.03.1989 at around 2 o'clock in the day time. He has said that he was sitting in the verandah of Butan Darji and at the time of occurrence, he saw Rasool, Hakim, Noor Mian, Reyaj, Abdul Aziz, Adud Mian, and Karim Mian were constructing a hut. He has deposed that the incident took place on 02.03.1989 at around 2 o'clock in the day time. He has said that he was sitting in the verandah of Butan Darji and at the time of occurrence, he saw Rasool, Hakim, Noor Mian, Reyaj, Abdul Aziz, Adud Mian, and Karim Mian were constructing a hut. Rajak Mian tried to prohibit them for raising the hut and Imaman and Jainul also accompanied Rajak but in spite of saying so, they continued to construct the hut and thereby fight started. Hakim, Reyaj, Abdul Aziz and Karim assaulted Imaman. Hakim and Reyaj assaulted him with Tangi and the rest two assaulted by stick. Noor Mian, assaulted Rajak Mian with Lathi. Adud and Rasool Mian assaulted Jainul with Lathi, Rajak fallen down after receiving injury and became senseless. Jainul had also fallen down and became senseless, Imaman was taken to hospital but he died in the Hospital. The wife of Rajak, Nasima Khatoon was also assaulted by Bhikhni and Tetari Khatoon. Mother of Rajak, Salmi was assaulted by these two persons and she also got injury. He has further deposed that on alarm being raised, people gathered and the injured were taken to police station and thereafter to the hospital. He has also described the location of the place of occurrence. He has further deposed that the hut was being raised from 8 O'clock in the morning and continued till 12 O'clock in the noon and his house is there itself and therefore he has seen the incident. He could not see how many injuries were inflicted at Rajak and Imaman or to the other persons. The accused persons had simultaneously assaulted, they assaulted Nasima and then they assaulted Rajak then Jainul, Imaman and his brother. Altogether five persons were injured. He further deposed that Salmi was assaulted by Bhjikni and Tetari and Jainul was assaulted by Karim and Noor and Nasima was assaulted by Bhikni and Tetari, Imaman was assaulted by Rasool, Hakim, Noor, Abdul Aziz, Reyaj and Karim, he has also tried to save them but accused ran towards them. He has further deposed that three persons become unconscious, namely, Rajak, Jainul and Nasima and they had regained consciousness at the hospital. 9. P.W. 9 is Khemlal Yadav and he deposed that he knows both Rasool and Rajak and deposed that the incident took place 20-25 years ago. He has further deposed that three persons become unconscious, namely, Rajak, Jainul and Nasima and they had regained consciousness at the hospital. 9. P.W. 9 is Khemlal Yadav and he deposed that he knows both Rasool and Rajak and deposed that the incident took place 20-25 years ago. He further deposed that during the incident he was in the shop of Sahadat Mian and at 2 O'clock, he heard the alarm and on the alarm everyone ran. He has further deposed that he saw Imaman Mian lying on a cot and he also saw blood. Imaman Mian was taken to Barkatha Hospital and in the hospital he passed away. He has deposed that he does not know who had assaulted Imaman. He has further deposed that Sahadat Mian's shop is 3-4 steps away from the hut and there are 20 to 25 houses in between. He has further deposed that in the shop 10 to 15 persons were there, when he reached there, no body was there and after that they went home and they were not able to talk with any one. He returned at 7 p.m. in the night after herding animals. A dispute between both the parties regarding the land was going on for sometime. Reyaj Mian and others accused were convicted in a case of assault to the current informant party. He has also deposed that the hut was built by Hakim Mian and it was built from before. 10. D.W. 1 is Moti Ram, He is from Pelawal, Police Station-Katatmsandi, Hazaribagh. He has deposed that formal FIR of Barkatha P.S. Case No.13 dated 02.03.1989 has been written by the then S.I. Dinesh Rai and on it the signature of the then officer-in-charge Sunil Kumar is there. He has deposed that he recognizes the writing and signature of Dinesh Rai. He has also deposed that he has also recognized the signature of Sunil Kumar. He has stated that the formal FIR has been marked as Ext-A. He has further said that in the case of Barkatha P.S. Case No. 13 of 1989, the fardbeyan has been written in the handwriting of the then officer in-charge Sunil Kumar. The endorsement is also by him. He recognizes the endorsement, it is marked as Ext-B. He has further stated that in Barkatha P.S. Case No. 13 of 1989, the injury report of Noor Mohamad, Abdul Hakim, Md. The endorsement is also by him. He recognizes the endorsement, it is marked as Ext-B. He has further stated that in Barkatha P.S. Case No. 13 of 1989, the injury report of Noor Mohamad, Abdul Hakim, Md. Reyaj was prepared by Dr. B.K. Bihari and he recognizes his handwriting. He has also said that he does not know where the said doctor is posted now. He has requested to exhibit the same as Ext.-C, C/1 & C/2. In his cross-examination, he has said that he has never worked in the hospital and doctor had not written and signed in front of him and similarly neither the I.O. nor the A.S.I. has written anything in front of him nor they signed anything in front of him. He has also said that he recognizes whatever FIR and Fardbeyan that has been brought to him. 11. Learned counsel for the appellant has tried to point out the contradictions in the depositions of the witnesses. He has said that P.W. 8 in the fardbayan says that Hakim was constructing the hut but in para 10 of his deposition, he said that Rasool and Noor Mian were constructing the house. In para 6, he says that first they went to police station then to the hospital but P.W. 2 Deglal Mahto says that he was unconscious and only regained consciousness in the hospital. Learned counsel for the appellant has said that he has given fardbeyan in the police station while in his fardbayan he says Barkatha Hospital. It has also come in the depositions that P.W. 8 informed P.W. 2 and others regarding the incident so in that case, P.W. 2 cannot be a witness or reliable witness. He has further said that P.W. 2 has stated about a case regarding the offence under section 107 of the IPC which was between him and the appellants, hence he is not reliable witness because if there was already a case existing between him and the appellants then his evidence in this case will naturally be against the appellants herein. Therefore, he is not to be believed. Therefore, he is not to be believed. He has further stated that this witness is further discredited as in the first paragraph of the deposition P.W. 2 says that he was sitting in the shop of Butan Darji but in para 14 he says that he did not say to the police that he was sitting in the shop of Butan Darji, so he cannot be believed. He has further submitted that no doctor was examined in this case and since it is a matter relating to injuries and death of a person only the prosecution witnesses' testimonies cannot be relied upon for convicting the appellants. He has further stated that no injury report has also been brought on record to prove the injuries to the informant party. He has also raised the argument that P.W. 2 has given detailed and meticulous evidence because in para 10 of his deposition he has deposed that the assault had taken place one after the other and he says that firstly Nasima was assaulted thereafter Rajak was assaulted thereafter Jainul and Imaman were assaulted and then the mother was assaulted. P.W. 2 in his deposition has also said that Imaman was assaulted by all. Then Hakim and Reyaj attacked Imaman by Tangi. Karim also assaulted Imaman after which Nasima was assaulted. So he has raised the other doubtful question that has been raised about P.W. 2. that he has given too many precise details regarding the assault, also the sequences of the assault which make him unreliable witness. Regarding the land over which the dispute was going on, he has stated that both sides have no document to the land and it is Gair majarua land so the appellants were equally entitled to claim the land as much as it could have been claimed by the informant side. He has further said that in the deposition of P.W. 1 in para 16, it appears that the hut was already constructed and poles were already in place so it is not correct that they have gone to the place and made fresh and new construction and so no provocation was given from the side of appellant rather it might have been otherwise that is why also a case was also lodged from the side of the appellant. 12. 12. Learned Additional P.P. has read out once again the fardbeyan and the depositions of P.W. 1, 2, 8 and 9 and D.W. 1 also. He has submitted that from the evidence of the prosecution witnesses herein mentioned it cannot be denied that the occurrence took place and that it is not also denied that a person Imaman had also died pursuant to the assault or counter assault and he was taken to the hospital on the same day and on the same day, he died during the course of treatment. So looking to the evidences of all these persons, it is not possible to say that the occurrence did not take place and that death did not take place and that if the occurrence and death did take place then some one would have to be made liable and the liability will fall on the appellants. He has further submitted that the crime is serious one and because of certain lapses in the non examination of doctor and non examination of I.O., they have already got the benefit of conviction in a lessor section of 304 Part II, if not they would have been punished for a stringent section because the FIR was initially lodged under section 302 and also charges were framed under section 302 of the IPC. So they have already been benefitted by the judgment of the lower court. He has further submitted that motive was clear cut, there was a dispute regarding the land of which already a case was going on, so there was ongoing dispute or enmity between the parties. Accused persons/appellants had not only gone there to construct but they also gone there fully armed with Lathi and Tangi. If they merely wanted to construct the hut they would have gone without any arms or with Lathi at the most. They were carrying Axe with them which can be used as deadly weapons. Further he has said that the manner and the nature of the assault and the severity that can be gathered from the facts and it has come out from the witnesses themselves that Imaman testicles were crushed. This shows deep rooted intention of the appellants, so they deserve to be convicted. FINDINGS 13. Learned counsel for the appellants has tried to point out the contradiction or inconsistencies in the main prosecution witnesses. This shows deep rooted intention of the appellants, so they deserve to be convicted. FINDINGS 13. Learned counsel for the appellants has tried to point out the contradiction or inconsistencies in the main prosecution witnesses. Some minor ones are regarding variations or inconsistencies as to who was constructing the hut or not. Whether the poles of the hut were being fixed or whether they were already in place and whether matter was reported to the police. These variations or inconsistencies do not remove anything substantially from the fact that a person was grievously assaulted leading to his death in hospital and that others who were also defending themselves were also injured at the same time and place. His main argument is against the witness of P.W. 2, Delgal Mahato, who appellants counsel says is motivated and biased against the appellants due to case relating to section 107 of the I.P.C., between him and the appellants. Hence, his evidence is too systematic and meticulous, because he is motivated against the appellants and therefore his entire evidence needs to be discredited. He has also said that the concerned piece of land was disputed, so enmity was from both sides and therefore, the appellants had also lodged a case. 14. The learned APP for the State has however claimed that the occurrence cannot be denied and that death did taken place and if death did taken place, then the liability under the circumstances needs to be fixed on someone, and in this case it is the appellants. He has concluded that motive was there because of prior enmity but what is significant is that the appellants along with other accused had gone there fully prepared with stick, axe and farsa, to respond to any objection by the informant's or deceased persons side. He has also pointed out the nature and gravity of assault, particularly, the crushing of the testicles of the deceased Imaman. It may not be appropriate to totally disregard the evidence of P.W. 2 as suggested, but if we lower him in the importance of witnesses, one still has the witness of the informant, P.W. 8 and P.W. 1 Mohamad Jainul. But first, let us see the essential aspects of the fardbeyan. In the fardbeyan of the informant, P.W.-8 has stated that all the accused were armed with sticks, axe and farsa. But first, let us see the essential aspects of the fardbeyan. In the fardbeyan of the informant, P.W.-8 has stated that all the accused were armed with sticks, axe and farsa. Appellants Karim Mian and Adud Mian being armed with sticks, appellant Reyaj Mian with axe and appellant Abdul Aziz with farsa. However, in the deposition of P.W. 8, he has mostly supported his fardbeyan regarding the reasons and manner of assault. He has deposed about Abdul Aziz and Karim Mian carrying the same weapon, but deposed that Reyaz Mian was holding a farsa instead of an axe and is silent on Adud's weapon of assault. P.W. 1 Mohammad Jainul has in his deposition supported that Karim Mian and Reyaz assaulted Imaman with stick and axe, which would be consistent with the fardbayan. Regarding assault by Abdul Aziz Mian and Adud Mian, he has simply stated, they assaulted which does not mean they did not have or did not carry their respective weapons. 15. P.W. 2 or Deglal Mahato is the disputed witness, however from his evidence, it seems that his house is near the place of occurrence itself and he probably saw the assault. Apart from saying that all the accused persons had attacked simultaneously, he stated that there were five injured of which three had become unconscious. He has deposed that he had seen the dispute commence over the construction of the hut and then seen the assaults take place. He has deposed that Reyaz, Abdul Aziz and Karim assaulted Imaman. Reyaz assaulted with Axe, and Abdul Aziz and Karim with sticks, though in the fardbeyan Abdul Aziz is mentioned as carrying a farsa. Regarding Adud, he says, he assaulted Jainul with lathi. So, even his deposition is at least clear that these four were involved in assault and holding either axe, farsa or stick. 16. P.W. 9 is Khemlal Yadav and he has been declared hostile, he is anyway not an eye witness. He however, seems to be an independent witness, and at least to the extent that he says he saw Imaman lying on a cot and blood was there and he was taken to the hospital and there he passed away, he can be noted. D.W. 1 is Moti Ram, seems to have throughly discredited himself in his cross-examination. 17. He however, seems to be an independent witness, and at least to the extent that he says he saw Imaman lying on a cot and blood was there and he was taken to the hospital and there he passed away, he can be noted. D.W. 1 is Moti Ram, seems to have throughly discredited himself in his cross-examination. 17. So based on the aforesaid reasonings, after examination of the arguments of the counsel for the appellants, the A.P.P. and the evidence of relevant witnesses, it is clear that the appellants were carrying either axe, farsa and stick and very much involved in the assault against the informants side on various persons and as a result one Imaman sustaining injuries later died. His testicles were also crushed. So the section 149 of the I.P.C. was aptly brought into play while convicting for the offence under section 304, Part-II I.P.C. with imposition of five year sentence. In this regard section 147 of the IPC is also relevant, some force and violance was used in the assault and hence sustained. Section 148 IPC is relevant because they were together holding deadly weapons. 18. The lack of examination of doctor or I.O. may not be material, since the factum of death cannot be denied, and the reference to enmity and counter case also suggest there that others were also assaulted and the altercation is not denied anyway. One aspect that however, seems to run consistent is that while the appellants seem to be armed, the informant, the deceased and others injured or assaulted did not seem to be so. 19. So, for the aforesaid reasons, the conviction dated 09.04.2003 and sentence dated 16.04.2003 of the four appellants under sections 304 Part-II, r/w section 149, section 147 and section 148 of the IPC are upheld. They will serve out the remaining period of sentence. 20. In the result, this appeal is dismissed. The convicting or successor court is directed to take all coercive steps for arresting the appellants to serve out the remaining period of sentence.