JUDGMENT : H.C. Mishra, J. Both these appeals arise out of the same impugned Judgement and as such they were heard together and are being disposed of by this common Judgement. 2. Heard learned counsels for the appellants and the learned counsel for the State in both these appeals. 3. The appellants are aggrieved by the impugned Judgement of conviction and Order of sentence dated 18.11.2009, passed by the learned Sessions Judge, Simdega, in S.T. No.37 of 2008, whereby both these appellants, who are father and son, have been found guilty and convicted for the offence under Sections 302 / 34 the Indian Penal Code. Upon hearing on the point of sentence, they have been sentenced to undergo imprisonment for life with fine of Rs.2,000/- each, for the said offence. 4. The prosecution case was instituted on the fardbeyan of the informant Jitendra Swansi, the brother of the deceased Khirodhar Swansi, recorded at village Hating Hore, Baraik Toli, P.S. Bano, District Simdega, on 13.12.2007 at about 1:00 P.M., wherein he has stated that he had his home in village Soday, P.S. Rania, District Khunti, as also in village Hating Hore, where the occurrence had taken place. He had a land near his house in village Hating Hore, on which his mother started digging the foundation for building house on 9.12.2007. The nearby lands which also belonged to him were sold by his uncle Samru Swansi to Akbar Mian, Teju Mian, Samshad Mian etc., and those purchasers were also constructing their houses. His uncle Samru Swansi had an eye on the land of the informant also, to sell it away, for which they were pressurizing his mother, and earlier they had also assaulted his mother. On 13.12.2007 the foundation was being dug in his land where his elder brother Khirodhar Swansi was present and the informant was standing by the side of the road. At about 10:00 A.M., his uncle Samru Swansi and his son Shiv Swansi came and started abusing them. Samru Swansi assaulted his brother by sabbal and Shiv Swansi took out a bhujali from his waist and started assaulting his brother indiscriminately. The informant raised the alarm, whereupon the accused persons also chased him and thereafter they fled away. The labourers working there had also seen the occurrence. When he returned back, he saw his brother dead. Samru Swansi assaulted his brother by sabbal and Shiv Swansi took out a bhujali from his waist and started assaulting his brother indiscriminately. The informant raised the alarm, whereupon the accused persons also chased him and thereafter they fled away. The labourers working there had also seen the occurrence. When he returned back, he saw his brother dead. The informant was also informed that Akbar Mian etc., had brought Samru Swansi and Shiv Swansi from village Soday on motorcycle. Claiming, that for usurping the land of the informant the accused persons had committed the offence, killing his brother Khirodhar Swansi, the fardbeyan was given by the informant, on the basis of which, Bano P.S. Case No. 61 of 2007, corresponding to G.R. No. 449 of 2007, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against both the accused persons and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against both the accuseds for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial 11 witnessed were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-10 Bijay Sahu has turned hostile and has not supported the prosecution case. 6. P.W.-9 Jitendra Swansi is the informant of the case. This witness has stated that the deceased Khirodhar Swansi was his elder brother. The occurrence took place on 13.12.2007 on a Thursday. He was near the road side and his brother Khirodhar was getting the foundation dug for construction of house, when Akbar Mian, Shiv Swansi and Samru Swansi came from Soday. Akbar went away, but both the accused remained there and they started abusing his brother, objecting the construction of the house, whereupon his brother told them that he would stop the foundation digging. In the meantime Samru Swansi assaulted his brother by sabbal, due to which he fell down and Shiv Swansi assaulted his brother by bhujali indiscriminately, on different parts of the body. When he tried to save his brother, both of them chased him. In the meantime Samru Swansi assaulted his brother by sabbal, due to which he fell down and Shiv Swansi assaulted his brother by bhujali indiscriminately, on different parts of the body. When he tried to save his brother, both of them chased him. He also raised alarm whereupon his mother, brother and other persons also came there. His brother died at the spot. He has stated that the police arrived at the place of occurrence and recorded his fardbeyan, on which he put his signature. He has identified his signature on the fardbeyan, which was marked Exhibit-2. He has stated that the police prepared the inquest report of the dead body and also seized the blood stained soil. He has identified his signature on the seizure list of the blood stained soil, which was marked Exhibit-3. He has identified both the accused persons in the Court. In his cross-examination, this witness could not give the details of the land in question, but has stated that the land was his ancestral property. His uncle had sold the land of his share. He has stated that at the time of occurrence only the labourers were present there. When he raised the alarm, he was chased by the accused. He has stated that he was chased up to the market which is at a distance of about 25 to 30 steps from the place of occurrence. He has denied the suggestion of giving false evidence and of falsely implicating the accused persons. 7. P.W.-6 Devendra Swansi is the other brother of the deceased, and P.W.-7 Tetri Devi is the mother of the deceased. Both of them have stated that they were in the house at the time of occurrence when the accused persons came, abused the deceased Khirodhar, and assaulted him to death. P.W.-6 Devendra Swansi has however, stated in his cross-examination that he had not seen the accused persons assaulting his brother, but he had seen Akbar bringing the accused persons, whereas P.W.-7 Tetri Devi has stated in her cross-examination that upon the alarm raised by her son she saw the occurrence, and by the time she reached there, the accused persons had fled away. These witnesses are not the eye witness to the occurrence, which is also evident from their attentions drawn in their cross-examination towards the statement given before the police, and the I.O. as also stated that they had not given the statement before him as eye witness to the occurrence. 8. P.W.-1 Chamru Manjhi, P.W.-2 Bhutru Naik, P.W.-3 Butna Lohra and P.W.-4 Chaitu Singh, are the labourers who were digging the foundation at the time of occurrence, and all these witnesses have fully supported the prosecution case as eye witnesses to the occurrence, stating that both these accused persons took up the quarrel with the deceased Khirodhar Swansi, Samru assaulted him by sabbal and Shiv assaulted him by bhujali and they also chased Jitendra Swansi. These witnesses have stated that the deceased died at the spot, and they have also identified both the accused in the Court. 9. P.W.-5 Haildor Baraik had seen the dead body of the deceased and is a witness to the inquest report as also to the seizure list of blood stained soil, on which he had put his thumb impression. He has not stated anything about the occurrence. 10. P.W.-8 is Dr. Christ Anand Xaxa, who had conducted the post-mortem examination on the dead body of the deceased on 14.11.2007 (Sic. - should be 14.12.2007), and had found the following injuries on the dead body :- On external examination:- (i) Sharp cut injury upper part of neck 3"x1/4” x muscle deep (ii) Multiple sharp cut injuries 3 in number, below thyroid cartilage size- 5”x1/4”. 2nd sharp cut injury just above first injury size 4”x1/4” x muscle deep. 3rd injury over second injury below thyroid cartilage size 3”x1/2” x muscle deep. (iii) Sharp but injury over right nipple 1”x1/2” x muscle deep. (iv) Injury on back side below right scapula sharp cut 3”x1/2” lateral to the scapula. (v) Sharp cut injury medial side of scapular region 3”x1/2”. (vi) Sharp cut injury lower part of right scapula 1 1/2” x 1/2”. (vii) Sharp cut injury lateral side of spine 3”x1/2” depth of wound passing into thorasic cavity (viii) Sharp cut injury lateral to T-10 vertebra 1 1/2” x 1/4”. On internal examination:- Right thoracic cavity was full of blood, lung collapsed, injury on the posterior side of lung 1 1/2”x 1/2”. Brain and meninges were pale. Spleen, liver, kidney - pale. Stomach empty. Heart chambers empty. On internal examination:- Right thoracic cavity was full of blood, lung collapsed, injury on the posterior side of lung 1 1/2”x 1/2”. Brain and meninges were pale. Spleen, liver, kidney - pale. Stomach empty. Heart chambers empty. Urinary bladder full. He has stated that all the injuries were ante-mortem in nature, caused by sharp cutting weapon, such as may be bhujali, and the cause of death was shock caused by the above injuries. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-1. In his cross-examination, he has stated that he had not found any injury caused by any hard and blunt substance and the injuries were not possible by single blow. 11. P.W.-11 Surendra Kumar Sinha is the I.O. of the case. This witness has stated that on 13.12.2007 he was posted as S.I. at Bano Police Station. There was a rumour about the death of a person in village Hating Hore, about which sanha entry was made, and he along with the Officer-Incharge and the police party went to the place of occurrence, where they saw the dead body. He recorded the fardbeyan of Jitendra Swansi, the brother of the deceased, which he has proved with the endorsement thereon, as also the formal F.I.R., which were marked Exhibits-4, 4/1 and 5 respectively. He has stated that the charge of investigation was handed over to him at the place of occurrence itself. He recorded the re-statement of the informant and he prepared the inquest report of the dead body, and sent the dead body for post-mortem examination. He also seized the blood stained soil from beneath the neck of the deceased, and he has proved the seizure list, which was marked Exhibit-6. He recorded the statements of the other witnesses. He inspected the place of occurrence, where he found the foundation dug for construction of the house and the dead body was near the boundary of the lands of Samru Swansi and the informant. He has stated that the entire land was divided into four parts. On 14.12.2007 he arrested both the accused persons. He received the post-mortem report and after completing the investigation he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not seen the documents of the land, but the land was demarcated by lime powder. He has stated that the entire land was divided into four parts. On 14.12.2007 he arrested both the accused persons. He received the post-mortem report and after completing the investigation he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not seen the documents of the land, but the land was demarcated by lime powder. He found the foundation dug in the share of the informant which was adjacent to the share of the accused. There was no foundation dug in the share of the accused. The accused had already sold their land. He has stated that the witness Devendra Swansi had stated before him that at the time of occurrence he was in school and he was informed about the occurrence at about 3:00 P.M., whereas the witness Tetri Devi had not given her statement as eye witness to the occurrence. He has denied the suggestion of making faulty investigation. 12. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. Shiv Swansi had stated in his statement that he had been falsely implicated for usurping his land, but he has stated that his land was situated by the side of the land in which the foundation was dug. No evidence was adduced by the defence. 13. Learned counsels for the appellants have submitted that the appellants have been falsely implicated in this case due to land dispute between the parties. It is submitted that though it is alleged that the appellant Samru Swansi had assaulted the deceased by sabbal due to which he fell down, but there is no injury caused by hard and blunt substance. It is also submitted that there was no recovery of the weapons of offence from the accused persons. Learned counsels submitted that there is admitted land dispute between the parties and the appellants have been falsely implicated to usurp the land of the accused persons, and lastly submitted that even though the witnesses have supported the prosecution case, it was a fit case in which the appellants ought to have been given at least the benefits of doubt. 14. 14. Learned counsel for the State on the other hand has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-1 Chamru Manjhi, P.W.-2 Bhutru Naik, P.W.-3 Butna Lohra and P.W.-4 Chaitu Singh, who were working as labourers at the place of occurrence, engaged in digging the foundation, and is also fully supported by P.W.-9 Jitendra Swansi, the informant and the brother of the deceased, as eye witnesses to the occurrence. Though the presence of P.W.-6 Devendra Swansi at the place of occurrence may be doubtful in view of the evidence of the I.O., but the presence of the mother P.W.-7 Tetri Devi in the house cannot be doubted, and she has also stated that upon hearing the noise of alarm she came out and saw the dead body. She has given the details of the occurrence which is quite natural. It is submitted by learned counsel that all these witnesses have stated that the accused Samru Swansi had assaulted the deceased by sabbal which is an iron rod having sharp edge at one end and the other accused Shiv Swansi had assaulted the deceased by bhujali, giving repeated blows. The Doctor had found several incised wounds on the dead body of the deceased and the injuries found on the dead body were sufficient in the ordinary course of nature to cause the death. Learned counsel submitted that the prosecution has been able to bring home the charge against both the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgement of conviction and Order of sentence passed by the trial Court below, worth any interference by this Court. 15. 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 informant P.W.-9 Jitendra Swansi who is also the brother of the deceased and the four labourers, viz., P.W.-1 Chamru Manjhi, P.W.-2 Bhutru Naik, P.W.-3 Butna Lohra and P.W.-4 Chaitu Singh, who were engaged in digging the foundation at the time of occurrence. Though the other brother P.W.-6 Devendra Swansi has also supported the case stating that he was present in the house, but he has admitted in his cross-examination that he had not seen the accused assaulting the deceased. Though the other brother P.W.-6 Devendra Swansi has also supported the case stating that he was present in the house, but he has admitted in his cross-examination that he had not seen the accused assaulting the deceased. The evidence of the I.O. however, shows that this witness had claimed before him that at the time of occurrence he was at his school and he got the information at about 3:00 P.M. P.W.-7 Tetri Devi, the mother of the deceased was present in her house and her presence in the house cannot be doubted. She came out from the house upon the alarm raised by her son, i.e., the informant, and had seen the dead body of her deceased son. It is natural for her to give the manner of occurrence as informed by her other son. All these witnesses have stated that at the time of digging the foundation both these accused persons came there and they were objecting the construction of the house. They started abusing the deceased and the accused Samru Swansi assaulted the deceased by sabbal due to which he fell down and thereafter Shiv Swansi gave repeated assaults upon the deceased by bhujali, causing his death. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-8 Dr. Christ Anand Xaxa, and the post-mortem report proved by him as Exhibit-1, which show that there were at least ten incised wounds on the dead body of the deceased, including on the vital parts of the body and the injuries were sufficient in the ordinary course of nature to cause the death. The non-recovery of the weapon in such case cannot be said to be fatal to prosecution, particularly when the prosecution case is supported not only by the family members, but also by the independent witnesses, i.e., the four labourers, P.Ws.-1 to 4, who were working there, as eye witnesses to the occurrence. There is no cross-examination of any of these witnesses by the defence that the informant’s side were digging the foundation on the land of the accused persons. In fact the statement of the accused Shiv Swansi recorded under Section 313 of the Cr.P.C., also clearly shows that his land was situated by the side of the land on which the foundation was dug. In fact the statement of the accused Shiv Swansi recorded under Section 313 of the Cr.P.C., also clearly shows that his land was situated by the side of the land on which the foundation was dug. The evidence of the I.O. P.W.-11 Surendra Kumar Sinha also clearly shows that the foundation was dug in the share of the informant and not in the share of the accused and the shares were properly demarcated by lime powder. As such it cannot be argued that the informant side were intending to grab the land of the accused persons. 16. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to bring home the charge against both the accused persons that in furtherance of their common intention, both of them assaulted the deceased causing his death at the spot. As such, there is no illegality in the impugned Judgement of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 17. For the foregoing reasons, we do not find any illegality in the impugned Judgement of conviction and Order of sentence dated 18.11.2009, passed by the learned Sessions Judge, Simdega, in S.T. No. 37 of 2008, convicting and sentencing the appellants Samru Swasi and Shiv Swansi for the offence under Sections 302 / 34 of the Indian Penal Code, which we hereby, affirm. The appellant Shiv Swansi is already in custody undergoing the sentence, whereas the appellant Samru Swasi is on bail. The bail of the appellant Samru Swasi, is hereby, cancelled. He is directed to surrender in the Trial Court below forthwith, for serving out the sentence. The Trial Court is also directed to issue process forthwith, compelling the surrender / production of the appellant Samru Swasi for serving out the sentence. 18. Before parting with this Judgment, we wish to record that P.W.-7 Tetri Devi, who is the mother of the deceased, is the victim of crime in this case, and she is entitled to be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Code of Criminal Procedure. We, accordingly, direct the Member Secretary, Jharkhand State Legal Service Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that P.W.-7 Tetri Devi is duly compensated under the Victim Compensation Scheme, at an early date. We, accordingly, direct the Member Secretary, Jharkhand State Legal Service Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that P.W.-7 Tetri Devi is duly compensated under the Victim Compensation Scheme, at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 19. We find no merit in both these appeals, which are accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgement.