Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 532 (JHR)

Mahendra Gope v. State of Jharkhand

2018-03-07

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 5th of August, 2008, passed by the learned Sessions Judge, Lohardaga, in Sessions Trial No. 56 of 2006, whereby, out of three accused persons, facing the trial, the appellant Mahendra Gope, has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. The other two co-accused have been found guilty only for the offence under Sections 324 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant Mahendra Gope has been sentenced to undergo imprisonment for life and fine of Rs. 500/- for the said offence. It may be stated that no appeal is preferred by the State against the acquittal of the other co-accused persons, under Section 302 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Raghu Gope, the brother of the deceased Sanjay Gope, recorded at Village-Thekatali, P.S. and District Lohardaga, on 9.11.2005 at 10.15 hours, wherein the informant has stated that on 8.11.2005, his brother had gone to Bhandra Bazar and had returned back in the evening. In the night at about 8.00 P.M., he heard the noise from the house of his brother, whereupon, he came out of his house and saw that the ladies were quarreling and they were abusing his brother. In the meantime, Sanjeet Gope, Jodhan Gope, Birendra Gope @ Godam Gope and Mahabir Gope came, armed with lathi and they assaulted the deceased by lathi. Mahendra Gope came armed with tangi and he assaulted the deceased by tangi on his head, due to which, there were 2-3 cut injuries on the head of his brother and his brother fell down. Upon the alarm raised, the neighbouring persons assembled, but the accused persons fled away. Thereafter the informant with the help of Ganesh Gope and Rambir Gope, brought his brother to Sadar Hospital, Lohardaga, for treatment, where the first aid was given to him and he was referred to Ranchi. When they reached at Ranchi Hospital, he saw that his brother had died. Thereafter, the dead body was brought back to the village, and in the morning the police was informed. When they reached at Ranchi Hospital, he saw that his brother had died. Thereafter, the dead body was brought back to the village, and in the morning the police was informed. The informant has stated that he had no knowledge as to why the occurrence had taken place. Claiming that the aforesaid accused persons had assaulted his brother by lathi and tangi, causing his death, the fardbeyan was given by him to the police, on the basis of which, Lohardaga P.S. Case No. 228 of 2005, corresponding to G.R. No. 532 of 2005, was instituted for the offence under Sections 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 this case. 4. Upon commitment of the case to the Court of Session, three accused persons, namely, Mahabir Gope, Jodhan Gope and the appellant Mahendra Gope were put to trial and charge was framed against them, for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused pleading not guilty and claiming to be tried, they were put to trial. In course of trial, prosecution has examined nine witnesses in this case, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-6 Raghu Gope is the informant and the brother of the deceased. This witness has stated that the occurrence had taken place about one year two months ago, in the month of Kartik at about 8.00 P.M., in the night. He was in his house, there was some noise from the house of his brother Sanjay Gope, whereupon he went there and saw that his brother Sanjay Gope was being repeatedly assaulted by Sanjeet Gope, Jodhan Gope, Binod Gope, Mahabir Gope by lathi and Mahendra Gope (the appellant) by tangi. The assaults by tangi were made on the head and the assaults by lathi were made on the back of the deceased. His brother fell down, being injured. He tried to prevent the accused persons from assaulting his brother, but the accused persons continued assaulting his brother and, thereafter, when the villagers assembled, the accused persons fled away. He brought his injured brother to Sadar Hospital, Lohardaga, where treatment was given to him and, thereafter, he was referred to Medical College, Bariatu. His brother fell down, being injured. He tried to prevent the accused persons from assaulting his brother, but the accused persons continued assaulting his brother and, thereafter, when the villagers assembled, the accused persons fled away. He brought his injured brother to Sadar Hospital, Lohardaga, where treatment was given to him and, thereafter, he was referred to Medical College, Bariatu. He was bringing his brother to Ranchi, but he died in the way, and thereafter, they brought the dead body to the village. On the next morning at about 9.00-9.30 A.M., the police arrived there and recorded his statement, and upon finding the same true, he put his signature on the fardbeyan. He has identified his signature on the fardbeyan, which was marked Exhibit-2/2. He has also stated that the police had recovered one lathi from the place of occurrence and had prepared the seizure list, upon which also, he had put his signature, which upon his identification, was marked as Exhibit-2/3. He has identified the accused persons present in the Court and has claimed to identify the other accused persons also. In his cross-examination he has stated that the accused persons are his agnates and there was partition of property between them. There was no enmity with them. He has stated that at the time of occurrence, it was a dark night and there was no electricity in his village and in the village, people used to sleep at about 7.00-8.00 P.M. He has also stated that he had not gone to sleep when he had heard the noise, and the place of occurrence is at a distance of 1000-1500 steps from his house and in between, there were houses of the other families. He has stated that upon hearing the noise, he had reached the place of occurrence first and no one else had reached there. He has stated that the houses of Sanjay and Jodhan are adjacent, and the occurrence had taken place in the lane near their door. Mahendra Gope had given three assaults upon the deceased on his head. He has also stated that one lathi was recovered by the police and no mark was put on lathi in his presence. He has denied the suggestion to have falsely implicated the accused in this case. 6. P.W.-5 Kishan Gope is a minor boy, aged about 8 years. He is the son of the deceased. He has also stated that one lathi was recovered by the police and no mark was put on lathi in his presence. He has denied the suggestion to have falsely implicated the accused in this case. 6. P.W.-5 Kishan Gope is a minor boy, aged about 8 years. He is the son of the deceased. The Court satisfied itself that the boy was capable to depose, before recording his deposition. This witness has stated that the occurrence had taken place on 8.11.2005 in the night at about 8.00 P.M. He came out of the house along with his father in the night for urinating. In the meantime, Sanjeet, Jodhan, Mahabir and Mahendra caught hold of his father and started assaulting him by lathi. Mahendra Gope assaulted his father by tangi, causing injuries on his head. The other four accused persons assaulted his father by lathi. His father fell down being injured, and upon alarm raised by him, his family members and his uncle Raghu Gope came there and other persons of the village also came there and the accused persons fled away. Thereafter, his father was brought to Sadar Hospital, Lohardaga, from where he was referred to Ranchi Medical College, but he died in the way, and thereafter his dead body was brought to village. He had seen the dead body. The police had arrived and had taken his statement also. He had given the statement before the police and he had also given the statement under Section 164 of the Cr.P.C., before the Magistrate, on which, he had put his signature, which he identified and the same was marked Exhibit-2/1. He has also identified the accused persons in the Court. In his cross-examination, this witness has stated that he used to live in his maternal grand-mother’s place, where he used to study in a school and at times he used to come to his house also. His mother lives at the maternal grand-mother’s place and on the date of occurrence also, she was there. This witness has stated in his cross-examination that he used to call the accused persons by relation, such as uncle, elder brother etc., but after the occurrence, he calls them by their names. The houses of the accused persons is also at the same place. He has stated that at the time of occurrence, it was dark and the neighbouring persons had gone to sleep. The houses of the accused persons is also at the same place. He has stated that at the time of occurrence, it was dark and the neighbouring persons had gone to sleep. He has stated that for urinating he had come out of the house along with his father, and the occurrence had taken place at about two steps out of the door. He has stated that it was dark night, he could not see as to which accused had made how many assaults, but the assaults were also made by the sharp edge of tangi, and when his father fell down, the accused persons fled away. His attention was drawn towards his statement before the police, and he has stated that he had given the statement before the police on the date of occurrence, he was with his father in the house and he had come out for urinating and he had also stated that the assault was made on the head by tangi. He had also given the statement before the police that his father was taken to hospital in injured condition and he was being taken to Ranchi, when he died in the way. His statement was recorded under Section 164 of the Cr.P.C., in the chamber of the Magistrate and he was not tutored by the police for that. He has denied the suggestion of giving the false evidence. 7. P.W.-4 is Bhaiya Ram Gope, who is the eyewitness to the occurrence. He has stated that the occurrence had taken place in the month of Kartik in the night at about 8.00 P.M. He was in his house and upon hearing the noise, he came out of the house, and he had seen Jodhan Gope, assaulting Sanjay Gope with lathi and Mahendra Gope was assaulting him by tangi. Sanjeet Gope and Mahabir Gope were also there. The assaults of tangi were made on the head of the deceased, due to which, Sanjay Gope was badly injured and he became unconscious. He was brought to Lohardaga Hospital. Sanjay Gope died. His dead body was brought to village. He has stated that the inquest report of the dead body was prepared in the village, on which, he had put his thumb impression. He has identified the accused persons in the Court. He was brought to Lohardaga Hospital. Sanjay Gope died. His dead body was brought to village. He has stated that the inquest report of the dead body was prepared in the village, on which, he had put his thumb impression. He has identified the accused persons in the Court. He has stated that the deceased was his cousin and the accused persons are also his cousin and nephews and their houses are at the same place, with a courtyard in between. The occurrence had taken place at about 8.00 P.M. in the night when majority of people go to sleep in the village. He has stated that he has no knowledge as to why the occurrence had taken place. This witness has stated that by the time, he reached the place of occurrence, the occurrence was over, and Sanjay Gope had fallen down. He had not apprehended any accused nor had he gone to the hospital. He has denied the suggestion of giving the false evidence. 8. P.W.-1 is Savitri Devi, who is wife of the deceased. She has stated that the occurrence had taken place about 10 months ago. She was at her parents' place in Ranchi District, where her nephew Ashok came and informed her that her husband was killed by the accused persons. He had also informed her that Mahendra Gope had assaulted her husband by tangi and other accused persons had assaulted him by lathi and he was brought to Lohardaga Hospital, from where, he was referred to Ranchi Hospital, but he died in the way. Upon getting the information of the occurrence, she started crying and she came to her matrimonial house. The dead body of her husband was brought after post-mortem, when she saw the dead body with injuries on it. She has identified the accused persons in the Court. In her cross-examination, she has stated that all the accused persons are her relatives and agnates, whereas Mahabir Gope is the son-in-law of Jodhan Gope. This witness has stated that the occurrence had taken place due to dispute of a mango tree, due to which, the accused persons had given threats to kill them. She has also stated that she had not seen the occurrence and has denied the suggestion of giving the false evidence. 9. This witness has stated that the occurrence had taken place due to dispute of a mango tree, due to which, the accused persons had given threats to kill them. She has also stated that she had not seen the occurrence and has denied the suggestion of giving the false evidence. 9. P.W.-3 Rambir Gope and P.W.-7 Muneshwar Bhagat @ Gope, are the hearsay witnesses, who had reached the place of occurrence upon hearing the noise. They saw the deceased with bleeding injuries and they were informed about the occurrence. They have also stated that the deceased was brought to Lohardaga Hospital, from where, he was referred to Ranchi Hospital, but he died in the way, while going to Ranchi. P.W.-7 Muneshwar Bhagat @ Gope has also stated that he had brought the deceased to Lohardaga Hospital, from where, he was referred to Ranchi Medical Hospital, but in the way, he died, thereafter, they returned back. Both these witnesses are also the witnesses to the inquest report of the dead body and they have identified their signatures on the inquest report, which were marked Exhibits-2 and 2/4. There is nothing of much importance in their cross-examinations. 10. P.W.-2 is Dr. Noren Mundu, who had conducted the post-mortem examination on the dead body of the deceased on 9.11.2005 and had found the following ante-mortem injuries on the dead body:- External injuries:- (i) Intra cath with I.B. set and lycoplast applied over the Alexia aspect of right forearm. (ii) Vomitus over face. (iii) Stitched wound over both sides of skull on parietal bones right and left both. Right parietal bone 4” x 1”x bone deep. Left parietal bone-2” x 1” x scalp deep. Hematoma over globella it was about 4” in diameter. Internal injuries:- (i) Right parietal wound suggestive of fracture of right parietal bone with blood clot in brain matter. (ii) Hematoma after cut section over glabella. Viscera – Lungs were pale. Heart both right and left chambers were found empty. Stomach -empty. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. He has also stated that the injuries on the deceased could be caused by lathi and tangi etc., and were sufficient in normal course to cause death. In his opinion cause of death was due to shock and haemorrhage. Stomach -empty. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. He has also stated that the injuries on the deceased could be caused by lathi and tangi etc., and were sufficient in normal course to cause death. In his opinion cause of death was due to shock and haemorrhage. In his cross-examination, this witness has stated that he has not mentioned in the post-mortem report, the nature of weapons used and injury No. 1 in the right forearm was not sufficient to cause the death of a person. He has also not mentioned the type of injury in the post-mortem report. 11. P.W.-8 Barnavas Kujur is the I.O. of the case. This witness has stated that on 8.11.2005, he was posted as S.I. in Lohardaga Police Station. On which date, he was given the charge of investigation of this case. He recorded the re-statement of the informant and the statements of other witnesses. He had also seized a lathi from the place of occurrence and had prepared the seizure list in presence of the witnesses. He has identified the seizure list, which was marked Exhibit-3. He has also proved the endorsement on the fardbeyan to be in the handwriting of the Officer-Incharge of the Police Station, which was marked Exhibit-4. He has also proved the formal FIR, and the inquest report of the dead body, which were marked as Exhibits-5 and 6 respectively. The dead body was sent for post-mortem examination. He had recorded the statements of the wife and the son of the deceased. The statement of the son of the deceased was also recorded under Section 164 of the Cr.P.C. After completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not arrested any accused. He was given the charge of investigation orally at the place of occurrence itself on 9.11.2005. He has also stated that there was no blood stains on the lathi. He has also stated that the informant had given the statement before him that prior to occurrence, there was quarrel amongst the ladies of the house and during the investigation, he learnt about the dispute due to mango tree also. He has also stated that there was no blood stains on the lathi. He has also stated that the informant had given the statement before him that prior to occurrence, there was quarrel amongst the ladies of the house and during the investigation, he learnt about the dispute due to mango tree also. He has also stated that he had not tutored the child witness before his statement was recorded under Section 164 of the Cr.P.C. He had not recorded the statement of the Doctor, who had treated the deceased at the Lohardaga Hospital. He has stated that Kishan Gope had not stated before him that at the time of occurrence, he had come out for urinating along with his father and he had not stated that the assault by tangi was made on head. (The case diary however, shows that Kishan Gope had stated before the police about the assault by tangi on the head of his father). He has denied the suggestion of making faulty investigation, and on recall, this witness has produced the seized lathi, which was marked material Exhibit-A. 12. P.W.-9 is Rakesh Kumar Singh, the S.D.J.M., who had recorded the statement of the witnesses Kishan Gope on 11.11.2005 and he has proved the said statement, which was marked Exhibit-7. 13. The statements of accused persons were recorded, under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. 14. The defence has also examined one witness as D.W.-1, who is Nardeo Gope, who has come to depose that the accused Mahabir Gope was not present at the place of occurrence. As such, the evidence of this witness is of no help for the present appellant Mahendra Gope. 15. On the basis of the evidence on record, the accused appellant was found guilty, convicted and sentenced by the Trial Court below, for the offence as aforesaid. 16. Learned counsel for the appellant 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. It is submitted that the appellant has been falsely implicated in this case and the prosecution has not been able to bring home the charge against him beyond all reasonable doubts. It is submitted that the appellant has been falsely implicated in this case and the prosecution has not been able to bring home the charge against him beyond all reasonable doubts. It is further submitted by learned counsel that the occurrence had taken place at dead night at about 8.00 P.M., when it is admitted by the prosecution witnesses that normally the people in the village go to sleep and it was a dark night. Learned counsel submitted that as such, it was not possible for the informant Raghu Gope to have seen the occurrence, as it is admitted by him in his cross-examination that his house is at a distance of 1000-1500 steps from the place of occurrence. Learned counsel also submitted that the evidence of P.W.-5 Kishan Gope, who is minor son of the deceased, is also not trustworthy, as he is an interested witness and appears to be tutored witness. It is submitted by learned counsel that he had not stated before the police that at the time of occurrence, he had come out for urinating along with his father and to have seen the occurrence. As it is an admitted fact that he used to live at his maternal grand-mother’s place, where he used to study, it is doubtful that he was present at the place of occurrence. Learned counsel also submitted that the evidence of P.W.-4 Bhaiya Ram Gope shows that he is not the eyewitness to the occurrence, firstly because when he came out of the house, it was not possible to see the occurrence due to the dark night, as also in view of the fact that he has admitted in his cross-examination that by the time, he reached the place of occurrence, the occurrence was over and he had seen the deceased fallen in injured condition. Learned counsel also submitted that there are discrepancies in the evidence of P.W.-5 Kishan Gope, recorded in the Court, and his statement given before the Magistrate, under Section 164 of the Cr.P.C., which has been proved as Exhibit-7, in view of the fact that in his statement recorded under Section 164 Cr.P.C., he had not stated that he had come out of the house for urinating along with his father, and this witness has stated in his statement recorded under Section 164 of the Cr.P.C., that the accused Mahendra Gope assaulted his father by tangi on his head and, thereafter, he gave several assaults by the blunt side of the tangi. Learned counsel also submitted that the other witnesses are only the hearsay witnesses and since the evidence of aforesaid three eyewitnesses are absolutely doubtful, the prosecution has not been able to bring home the charge against the appellant beyond all reasonable doubts. Learned counsel also submitted that the ocular evidence of the witnesses is not supported by the medical evidence of P.W.-2 Dr. Noren Mundu, in view of the fact that the nature of the injuries have not been stated by the Doctor, whether the injuries were lacerated wound or incised wound, and in that view of the matter the Doctor could not have deposed that the injuries could be caused by tangi and lathi. Learned counsel, accordingly, submitted that the appellant ought to have given the benefits of doubt. 17. Learned counsel has also placed reliance upon the decision of the Hon’ble Supreme Court in Badal Murmu & Ors. Vs. State of West Bengal, reported in 2014 (2) JBCJ 159 (SC), wherein where, the Doctor had not stated that which injury was fatal and there was omnibus allegation against all the accused to have assaulted the deceased, in the interest of justice, conviction was converted into Section 304 Part-II of the Indian Penal Code. Reliance has also been placed upon the decision of Hon’ble Supreme Court in State of Punjab Vs. Tejinder Singh and Anr, reported in AIR 1995 SC 2466 , wherein except one injury on the head, which was only muscle deep, all the other injuries were on non-vital parts of the body of the deceased, it was held that the offence was made out under Section 304 Part-I of the Indian Penal Code. Tejinder Singh and Anr, reported in AIR 1995 SC 2466 , wherein except one injury on the head, which was only muscle deep, all the other injuries were on non-vital parts of the body of the deceased, it was held that the offence was made out under Section 304 Part-I of the Indian Penal Code. Reliance has also been placed upon the decision of the Hon’ble Supreme Court in Mohinder Singh Vs. State (Delhi Administration), reported in 1985 (Supp) SCC 473, where the assaults had taken place at night, but general type of evidence was led by the prosecution, it was held that the conviction under Section 302 or under Section 304 Part-II was not proper, rather the conviction was altered to Section 325 of the Indian Penal Code. Reliance has also been placed upon the decision of the Hon’ble Supreme Court in Davinder Vs. Ram Dutta and Anr., reported in 1990 (Supp) SCC 614, wherein it was held that if doubt is cast upon the testimony of the eyewitness, the benefit of doubt should be given to the accused. Lastly, learned counsel has placed reliance upon the decision of Hon’ble Apex Court in Hallu and Ors. Vs. State of Madhya Pradesh, reported in (1974) 4 SCC 300 , wherein it has been held that when the witness says that an axe or a spear is used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. Placing reliance on the abovementioned decisions, learned counsel has submitted that the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts, and in the facts of the case the appellant was entitled at least to the benefits of doubt. 18. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. It is submitted that the prosecution case is fully supported by three eyewitnesses, i.e., P.W.-4 Bhaiya Ram Gope, P.W.-5 Kishan Gope and P.W.-6 Raghu Gope and there is nothing in their evidence to discredit their testimony. It is submitted that the prosecution case is fully supported by three eyewitnesses, i.e., P.W.-4 Bhaiya Ram Gope, P.W.-5 Kishan Gope and P.W.-6 Raghu Gope and there is nothing in their evidence to discredit their testimony. Hearsay witnesses, namely, P.W.-1 Savitri Devi, P.W.-3 Rambir Gope and P.W.-7 Muneshwar Gope, who had seen the dead body and were informed that the accused persons had assaulted the deceased, and particularly the appellant had assaulted the deceased by tangi on his head. It is submitted by learned counsel that ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-2 Dr. Noren Mundu, who has proved the injuries on the head of the deceased, causing blood clots in the brain matter, which was sufficient in the ordinary course to cause the death. As such, the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 19. Having heard counsels for both the sides and upon going through the record, we find that out of the three accused persons, who had faced the trial, including this appellant, only the present appellant has been convicted for the offence under Section 302 of the Indian Penal Code, as there is direct and specific allegation against him to have assaulted the deceased repeatedly by tangi on his head. The rest of the two co-accused persons against whom there is allegation of assault by lathi only, have been convicted and sentenced only for the offence under Sections 324 / 34 of the Indian Penal Code, and they are not before us presently. The fact remains that the State has not filed any appeal against their acquittal, under Section 302 of the Indian Penal Code. 20. So far as this appellant is concerned, we find that the three eyewitnesses, P.W.-4 Bhaiya Ram Gope, P.W.-5 Kishan Gope and P.W.-6 Raghu Gope, the informant of the case, have fully supported the prosecution case stating that this appellant had assaulted the deceased by tangi on his head and the assault was also repeated 2-3 times. Though, P.W.-5 Kishan Gope is a minor witness, but he has fully supported the prosecution case. Though, P.W.-5 Kishan Gope is a minor witness, but he has fully supported the prosecution case. Only because of the fact he has made an addition in his evidence stating that he had come out of the house for urinating at the time of occurrence, it cannot be said that this is such an improvement over his statement before the police, that his entire testimony becomes doubtful. Indeed he had given his statements before the police, as well as before the Magistrate under Section 164 0f the Cr.P.C., as an eyewitness to the occurrence. He is a child witness aged about eight years only, who had seen the accused assaulting his father, who ultimately died. His anger and annoyance towards the accused reflects from his cross-examination, wherein he has stated that previously he used to call the accused persons by relation, such as uncle, elder brother etc., but after the occurrence, he calls them only by their names. This clearly shows that he is not a tutored witness, rather he had seen the occurrence himself, and has lost all the respects for the accused persons, which he previously used to have, which is very natural. Though, the occurrence had taken place in the dead night and it has come in the evidence of P.W.-6 Raghu Gope, the informant that there is no electricity in his village and most of the people use to sleep at that time in the village, but it cannot be said that P.W.-4 Bhaiya Ram Gope, P.W.-5 Kishan Gope and P.W.-6 Raghu Gope could not see the occurrence. In his fardbeyan, Raghu Gope has stated that upon hearing the noise from the house, he came out of the house and reached the place of occurrence and, thereafter, the accused persons came and assaulted the deceased. Same is the statement of the informant in his evidence that when he reached the place of occurrence, the accused persons assaulted the deceased. He had even tried to prevent the accused persons from assaulting his brother. As such, it cannot be said that due to dark night, he could not see the accused persons assaulting the deceased. Similarly P.W.-4 Bhaiya Ram Gope has stated in his evidence that when he came out of his house, he saw the accused persons assaulting the deceased and the appellant was assaulting him by tangi. As such, it cannot be said that due to dark night, he could not see the accused persons assaulting the deceased. Similarly P.W.-4 Bhaiya Ram Gope has stated in his evidence that when he came out of his house, he saw the accused persons assaulting the deceased and the appellant was assaulting him by tangi. Though in his cross-examination, he has stated that while he reached the place of occurrence, the occurrence was over, but the fact remains that his house is situated at the same place with a common courtyard with the deceased and the accused persons. All of them are agnates and known to each other very well. Therefore, similarly because the occurrence had taken place at 8.00 P.M., it cannot be doubted that the witnesses could not identify the accused. The other witnesses, who are the hearsay witnesses, were also informed about the occurrence in the same manner, as has been deposed by the eyewitnesses. P.W.-2 Dr. Noren Mundu, had found stitched wounds over both sides of skull and parietal bones of right and left sides. The stitched wounds had caused the fracture of the parietal bones and the brain matter was full of blood clot. This clearly shows that the assault on the head was repeated by the appellant and it was made by tangi. Since the assault by tangi on the head was repeated, it clearly proves that the assault was made with the intention to cause the death of the deceased. Though the Doctor has admitted that he had not given the nature of injuries, but the fact remains the injuries were stitched, as the deceased had undergone treatment, and in that view of the matter, it might not be possible for the Doctor, to give the exact nature of the injuries, whether they were incised or lacerated. The Doctor has stated that these wounds could be caused by tangi. 21. In the facts of the case, since there is evidence on record to show that the accused appellant had given the repeated blows on the head of the deceased by tangi, clearly indicating the fact that the assault were made with intention to cause the death of the deceased, we are of the considered view that the offence is clearly made out against the appellant under Section 302 of the Indian Penal Code. The decisions, relied upon, by the learned counsel for the appellant are of no help to the appellant, as the evidence of assault against him is absolutely specific, clearly corroborating the fatal injury on the deceased. Upon going through the evidence on record, we find that the prosecution has been able to bring home the charge against the accused appellant Mahendra Gope, beyond all reasonable doubts and there is nothing in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, warranting any interference by this Court, so far as it relates to the present accused. 22. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 5th of August, 2008, passed by the learned Sessions Judge, Lohardaga, in Sessions Trial No. 56 of 2006, convicting and sentencing the appellant Mahendra Gope, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant is already in custody, undergoing the sentence. 23. There is no merit in this appeal, and the same is accordingly, dismissed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with the copy of the Judgment.