JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction dated 27th April, 2006, and Order of sentence dated 1st May, 2006, passed by the learned Additional Sessions Judge, F.T.C. VII, Hazaribagh, in S.T. No. 117 of 1989, whereby, all these three appellants have been found guilty and convicted for the offences under Sections 302, 307, 149 and 323 of the Indian Penal Code. Upon hearing on the point of sentence, all the three appellants have been sentenced to undergo imprisonment for life for the offence under Sections 302 / 149 of the Indian Penal Code, R.I. for five years for the offence under Section 307 of the Indian Penal Code and R.I. for one year for the offence under Section 323 of the Indian Penal Code, and all the sentences were directed to run concurrently. 3. The prosecution case was instituted upon the F.I.R. lodged by the informant Sewal Mahto, the son of the deceased Dharmchandi Mahto, on 18.09.1986 at Barkatha Police Station, in the then District of Hazaribagh, now in the District of Koderma. According to the prosecution case, at about 10.00 A.M. on the same day, the informant along with his father was harvesting the gondli crop, and his paddy field was also being irrigated. The informant went to see the water in the paddy field, and when he saw that the water had been diverted towards the field of Siblal Mahto, he blocked the flow of water towards the field of Siblal Mahto, for bringing the water to his own field, whereupon, Siblal Mahto assaulted him by tangi causing bleeding injury on his head. The informant ran towards the field where his father was working and Siblal Mahto went away to his house. Siblal Mahto again came armed with tangi, along with Parmeshwar Mahto, who was armed with farsa, Ghammandu Mahto (who died in course of trial) armed with bhala and Lokni Devi armed with lathi, and as soon as they arrived there, they started assaulting his father. Siblal Mahto assaulted his father by tangi, Parmeshwar Mahto assaulted his father by farsa, Ghammandu Mahto assaulted his father by bhala and Lokni Devi assaulted his father by lathi badly injuring him due to which he fell down. Siblal Mahto assaulted his father by tangi, Parmeshwar Mahto assaulted his father by farsa, Ghammandu Mahto assaulted his father by bhala and Lokni Devi assaulted his father by lathi badly injuring him due to which he fell down. Thereafter, Parmeshwar again assaulted the informant by farsa causing injury on his face, and the accused persons again assaulted his father and mother, due to which his father died at the spot. Thereafter, the accused persons fled away. It is stated in the F.I.R. that the persons nearby had seen the occurrence. On the basis of the information given by the informant, Barkatha P.S. Case No. 66 of 1986, corresponding to G.R. No. 574 of 1986, was instituted for the offences under Sections 323, 387, 324, 307, 302 / 34 of the Indian Penal Code, against the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case against the aforesaid accused persons and one Kunjal Mahto, i.e., five accused persons in all. 4. After commitment of the case to the Court of Session, charge was framed against all the five accused persons for the offences under Sections 302, 307, 149 and 323 of the Indian Penal Code, and upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined twelve witnesses in the case, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased, and the Doctor who had examined the injuries on the informant and his mother. The I.O. of the case has not been examined and accordingly, the F.I.R. has been proved by a formal witness P.W.-12 Badri Singh, upon which the same was marked Ext.-4. 5. P.W.-9 is Sewal Mahto, the informant of the case and the son of the deceased. This witness has stated that the occurrence had taken place about four years ago on a Thursday at about 10.00 A.M. He along with his father and brother was harvesting gondli crop in the field and he went to see the water in the paddy field, which was obstructed and diverted. He was correcting the flow of the water, when Siblal Mahto came and assaulted him by tangi on his head and fled away. This witness sustained bleeding injury and he went towards his father. He was correcting the flow of the water, when Siblal Mahto came and assaulted him by tangi on his head and fled away. This witness sustained bleeding injury and he went towards his father. In the meantime, Siblal, Parmeshwar, Ghammandu and Lokni armed with tangi, farsa, bhala and lathi respectively, came there and started pelting stones on the father of the informant. Thereafter, Siblal assaulted his father by tangi on his back due to which his father fell down. Thereafter, Parmeshwar assaulted his father by farsa on his back, Ghammandu assaulted him by bhala in his abdomen and Lokni also assaulted his father by lathi. Thereafter, Parmeshwar assaulted this witness by farsa on his face and he again assaulted his father by farsa, due to which his father died at the spot. This witness and his father had sustained bleeding injuries. His mother had brought the breakfast for them and she lied upon the father of the informant to save him, when she was assaulted by lathi by Lokni and Ghammandu. Some persons assembled at the place of occurrence who chased the accused Ghammandu and apprehended him. Other accused persons managed to flee away. This witness was brought to Police Station, where he lodged the information and thereafter he was sent to hospital. He has stated that he had put his signature on the information given by him at the Police Station, which, on his identification, was marked Ext. 1/5. He has also stated that the police had visited the place of occurrence and his restatement was also recorded. The dead body of his father was sent for post-mortem examination. He has identified the accused persons in the Court. This witness was put to extensive cross-examination by the defence, but there is nothing therein to discredit his testimony. Suffice would be to say that he has reiterated the allegations against the accused persons in his cross-examination also. He has denied the suggestion of giving false evidence. 6. P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar, P.W.-3 Mahadeo Mahto, P.W.-6 Kaila Mahto, the other son of the deceased, and P.W.-8 Bhikhni Devi, the wife of the deceased and the mother of the informant, are the other eye witnesses to the occurrence, who have supported the prosecution case as stated by the informant. 6. P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar, P.W.-3 Mahadeo Mahto, P.W.-6 Kaila Mahto, the other son of the deceased, and P.W.-8 Bhikhni Devi, the wife of the deceased and the mother of the informant, are the other eye witnesses to the occurrence, who have supported the prosecution case as stated by the informant. These witnesses have stated that Siblal had assaulted the deceased by tangi, Parmeshwar had assaulted the deceased by farsa and Ghammandu had assaulted him by bhala, due to which the deceased died. They have also stated that Parmeshwar had assaulted Sewal Mahto by farsa on his face. P.W.-2 Jhabu Kumhar and P.W.-3 Mahadeo Mahto had also seen the informant Sewal Mahto in injured condition due to the assault made by Siblal. P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar and P.W.-3 Mahadeo Mahto have not stated anything about the assault made by the accused Mostt. Lokni Devi. However, the other eye witnesses, namely, P.W.-6 Kaila Mahto and P.W.-8 Bhikhni Devi have supported the case against Mostt. Lokni Devi also, stating that when Bhikhni Devi was trying to save her husband, she was also assaulted by lathi by Lokni Devi. All these witnesses have stood the test of cross-examination and there is nothing in their cross-examinations to show that they have made any improvement over their version given before the police. 7. P.W.-4 Prayag Mahto and P.W.-5 Giridhari Mahto are the hearsay witnesses, who had reached the place of occurrence soon after the occurrence and they had seen the deceased dead at the place of occurrence, and they were informed about the occurrence. They had also seen the informant in the injured condition. 8. P.W.-7 is Md. Sakoor, who is also a hearsay witness and had reached the place of occurrence and had seen the dead body of the deceased in the pool of blood. He had also seen the accused Ghammandu fleeing away and had chased and apprehended him. He has stated that the other accused persons had fled away. 9. P.W.-10 is Dr. Surendra Prasad, who had conducted the post-mortem examination on the dead body of the deceased on 19.09.1986, and had found the following ante-mortem injuries on his person :- (i) Incised wound 3” x ½" x ½" started from nose to left cheek (bone and cartilages were intact). (ii) Incised wound 3” x ½" x 1/3" over middle part of left parietal region. (ii) Incised wound 3” x ½" x 1/3" over middle part of left parietal region. (iii) On dissection the bone was found also cut at the site of injury no.(ii). (iv) Incised wound 12” x 4” muscle depth over dorsum of left upper arm. (v) Incised wound 3” x 1 ½” x 1/3” over dorsum of left forearm. (vi) Incised wound 6” x 1/2" x 1/4" over back of neck second thoracic vertebra was found cut at the site of the injury. (vii) Incised wound 10” x 4” x up to muscle depth starting from left side of scapular region to infrascapular region left side. (viii) Incised wound 8” x 4½’ x up to bone from left infrascapular region to right scapular region fracture of 6th, 7th and 8th ribs and thorasic vertebra were found at the site of injury. This witness has stated that the aforesaid injuries were caused by sharp cutting weapon such as axe, farsa etc., and the death was caused due to the shock and hemorrhage caused by injuries Nos. (ii), (iii), (iv), (v), (vi) and (vii). He has identified the post-mortem report to be in his pen and signature, which was marked Ext.-2. 10. P.W.-11 is Dr. B. N. Das, who had examined the injuries of the informant Sewal Mahto and his mother Bhikhni Devi and has proved their injuries. On Sewal Mahto, there were two incised wounds, one on the face and the other on the left side of temporal region, whereas there was one swelling on the left upper arm and all the injuries were simple in nature. On Bhikhni Devi, there was one swelling on the gluteal region and scratch on the right forearm and these injuries were also simple in nature. The injury reports of these injured witnesses were marked Exts. 3 and 3/1. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No defence evidence, however, was adduced in the case. On the basis of the evidence on record, the accused appellants have been convicted and sentenced by the Trial Court below, as aforesaid. 12. 3 and 3/1. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No defence evidence, however, was adduced in the case. On the basis of the evidence on record, the accused appellants have been convicted and sentenced by the Trial Court below, as aforesaid. 12. Learned senior counsel appearing for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution has not been able to bring home the charges against the accused persons beyond all reasonable doubts. It is submitted by learned counsel that as the offence had taken place at the spur of moment, due to the dispute of irrigating the paddy field, it cannot be said that the accused persons were having the intention to kill the deceased and accordingly, the offence, if any, is made out only under Section 304 Part II of the Indian Penal Code. Learned senior counsel has also submitted that due to non-examination of the I.O., the defence has been vitally prejudiced in the case and as such, in any event, the appellants ought to have been given the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the case is fully supported by the witnesses P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar, P.W.-3 Mahadeo Mahto, P.W.-6 Kaila Mahto, P.W.-8 Bhikhni Devi and P.W.-9 Sewal Mahto, the informant, who are all the natural eyewitnesses to the occurrence and were present at or near the place of occurrence. They have fully supported the prosecution case. P.W.-9 Sewal Mahto has also stated that prior to the assault on the deceased, he was assaulted by Siblal Mahto by tangi on his head and thereafter, he came near his father when his father and mother were also assaulted by the accused persons. The hearsay witnesses, namely, P.W.-4 Prayag Mahto, P.W.-5 Giridhari Mahto and P.W.-7 Md. Sakoor have also supported the case stating that they were informed about the occurrence when they reached there and P.W.-7 Md. Sakur had also apprehended one of the accused who was fleeing away. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Sakoor have also supported the case stating that they were informed about the occurrence when they reached there and P.W.-7 Md. Sakur had also apprehended one of the accused who was fleeing away. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Surendra Prasad and the post-mortem report proved by him as Ext.2, which shows that in as much as, eight incised wounds were found upon the dead body, which were the cause of death of the deceased. Sharp cut injuries were also found upon the informant and the injuries caused by hard and blunt substance were also found upon the mother of the informant, as is apparent from the evidence of P.W.-11 Dr. B.N. Das and the injury reports proved by him. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against the accused persons beyond all reasonable doubts. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the eyewitnesses as also by the hearsay witnesses, examined in the case, who reached the place of occurrence soon after the occurrence and saw the dead body in the pool of blood and they were also informed about the occurrence. The evidence of the witnesses clearly show that initially the informant P.W.-9 Sewal Mahto was assaulted by the accused Siblal Mahto by tangi on his head and when he came towards his father, all the other accused persons also assembled there and they assaulted his father by sharp cutting weapons and it is also stated by P.W.-9 Sewal Mahto, that Lokni Devi had also assaulted the deceased by lathi. However, this allegation against the accused Lokni Devi is not supported by any other witnesses. The witnesses, other than P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar and P.W.-3 Mahadeo Mahto, have however, stated that Lokni Devi had assaulted Bhikhni Devi, the mother of the informant, when she tried to save her husband, and there is corroboration of this evidence by the medical evidence of P.W.-11 Dr. B.N. Das also and the injury report proved by him. The witnesses, other than P.W.-1 Gopali Mahto, P.W.-2 Jhabu Kumhar and P.W.-3 Mahadeo Mahto, have however, stated that Lokni Devi had assaulted Bhikhni Devi, the mother of the informant, when she tried to save her husband, and there is corroboration of this evidence by the medical evidence of P.W.-11 Dr. B.N. Das also and the injury report proved by him. Though from the material on record it appears that initially charge-sheet was submitted against five accused persons, including one Kunjal Mahto, but we find from the evidence on record that there is complete lack of evidence against the accused Kunjal Mahto. The accused Kunjal Mahto and Ghammandu Manto had died during the trial. Since there is complete lack of evidence against Kunjal Mahto, we are of the considered view that no offence can be said to be made out against the accused persons with the help of Section 149 of the Indian Penal Code, as if the presence of Kunjal Mahto was not there, there were only four accused persons at the place of occurrence. The framing of charge shows that the appellants were charged for the offences under Section 302, 307 and 323 of the Indian Penal Code independently of Section 149 of the Indian Penal Code. The evidence on record clearly shows that four accused persons, namely, Siblal Mahto, Parmeshwar Mahto, Ghammandu Mahto (since dead) and Mostt. Lokni Devi came to the place of occurrence variously armed and no sooner they reached the place of occurrence, accused Siblal Mahto and Parmeshwar Mahto assaulted the deceased by sharp cutting weapons causing his death at the spot. There were eight incised wounds on the dead body, which clearly shows that the assaults were made with the intention to cause the death. There is also evidence against the accused Siblal Mahto and Parmeshwar Mahto to have assaulted the informant Sewal Mahto by tangi and farsa on his head and face, which clearly shows that these appellants had also assaulted the informant with the intention to cause his death. The evidence of P.W.-11 Dr. B.N. Das shows that sharp cutting injuries were found on the face and head of the informant. The fact however remains that there is lack of evidence against Mostt. The evidence of P.W.-11 Dr. B.N. Das shows that sharp cutting injuries were found on the face and head of the informant. The fact however remains that there is lack of evidence against Mostt. Lokni Devi to have assaulted the deceased, as only P.W.-9 Sewal Mahto has stated that this accused had also assaulted the deceased by lathi, but no other eye witness has supported this fact. However, there is evidence on record that she had assaulted the mother of the deceased by lathi causing simple injuries on her and for that the offence is clearly made out against Mostt. Lokni Devi under Section 323 of the Indian Penal Code. We also find that no prejudice can be said to have caused to the defence due to non-examination of the I.O., as there is nothing in the cross-examinations of the witnesses to show that their attention had been drawn towards any statement, which was contrary to their statement before the police. 15. For the foregoing reasons, the impugned Judgment of conviction dated 27th April, 2006, passed by the learned Additional Sessions Judge, F.T.C. VII, Hazaribagh, in S.T. No. 117 of 1989, is modified to the extent that the accused Siblal Mahto and Parmeshwar Mahto are found guilty and convicted for the offences under Sections 302 and 307 of the Indian Penal Code, whereas Mostt. Lokni Devi is found guilty and convicted for the offence under Section 323 of the Indian Penal Code only. Mostt. Lokni Devi is acquitted of the charges under Sections 302 and 307 of the Indian Penal Code, and the accused Siblal Mahto and Parmeshwar Mahto are acquitted of the charge under Section 323 of the Indian Penal Code. Consequently, the impugned Order of sentence dated 1st May, 2006, is also modified to the extent that the sentence imposed by the Trial Court below upon the appellant Mostt. Lokni Devi for the offences under Sections 302 and 307 of the Indian Penal Code are hereby, set aside. Mostt. Lokni Devi is on bail and she has remained in custody for some period. In the facts of this case, the sentence of Mostt. Lokni Devi for the offence under Section 323 of the Indian Penal Code is hereby, modified, and she is sentenced for this offence for the period already undergone by her in custody. Mostt. Lokni Devi is on bail and she has remained in custody for some period. In the facts of this case, the sentence of Mostt. Lokni Devi for the offence under Section 323 of the Indian Penal Code is hereby, modified, and she is sentenced for this offence for the period already undergone by her in custody. The sentences of the appellants Siblal Mahto and Parmeshwar Mahto for the offence under Section 323 of the Indian Penal Code, are hereby, set aside. We do not find any illegality in the sentences imposed upon the appellants Siblal Mahto and Parmeshwar Mahto, for the offences under Sections 302 and 307 of the Indian Penal Code, which we hereby, affirm. The appellant Siblal Mahto and Parmeshwar Mahto are already in custody, undergoing the sentence. The appellant Mostt. Lokni Devi is on bail and she is discharged from the liabilities of her bail bonds, in view of the sentence imposed upon her for the period already undergone by her in custody, for the offence under Section 323 of the Indian Penal Code. 16. This appeal is accordingly, dismissed with the modifications in the Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.