JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard, Mr. Sanjay Kumar Pandey No.2, learned Amicus Curiae and learned counsel for the State, Mr. Shekhar Sinha, learned Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 16.02.2015 and order of sentence dated 18.02.2015, passed by learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 21 of 2010, whereby the sole accused has been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life with fine of Rs.2000/-and in default in payment of fine further simple imprisonment for two months. 3. The prosecution case is based upon the fardbeyan of informant, Kanchan Majhi (P.W.3-husband of deceased Fulmani Majhian) recorded by S.I., Waquar Hussain, Officer-In-Charge, Ichagarh P.S. on 23.07.2009 at 08.10 Hours. at the house of informant, Kanchan Majhi. The informant has stated that yesterday night (22.07.2009) at around 8.30 P.M. his wife went to bring water out of her house. The informant heard brawl raised by the wife and went out of his house taking lantern and saw Motka Majhi @ Shyam Majhi, S/o Guru Majhi, resident of village-Nagasoren fleeing away with axe and informant has also seen that blood was oozing near the head around temple of his wife. Informant went and asked his wife Fulmani Majhian about the occurrence, who disclosed that agnate Motka Majhi @ Shyam Majhi, S/o Guru Majhi has assaulted her by means of Kulhadi (axe) and fled away. The informant has further stated that at that time his wife was alive, as such, he brought her on cot inside the house. It is further stated that informant and his son, Bir Singh Majhi (P.W.4) went to call doctor. Dr. Chanchal Singh Munda came and after seeing his wife declared her to be dead. The informant has stated that occurrence took place in the night and at that time the electrical bulbs were glowing outside the house. The informant has alleged that because of previous land dispute between the parties and a month ago there was hot exchange of words between the parties with respect to land, the accused has killed his wife. 4. The informant has stated that occurrence took place in the night and at that time the electrical bulbs were glowing outside the house. The informant has alleged that because of previous land dispute between the parties and a month ago there was hot exchange of words between the parties with respect to land, the accused has killed his wife. 4. On the basis of fardbeyan of the informant, Kanchan Majhi (P.W.3), the police has registered Ichagarh P.S. Case No.35 of 2009, dated 23.07.2009, under Section 302 of the Indian Penal Code against the sole accused, Motka Majhi @ Shyam Majhi. 5. After completion of investigation, the police has submitted final form against the accused vide charge sheet no. 41/09 dated 14.09.2009, under Section 302 of the Indian Penal Code against sole accused, Motka Majhi @ Shyam Majhi. 6. The cognizance of offence has been taken vide order dated 20.01.2010 and the case has been committed to the court of sessions vide order dated 16.02.2010. 7. The charge has been framed against the accused, Motka Majhi @ Shyam Majhi under Section 302 of the Indian Penal Code, on 11.05.2010. The charge has been read over and explained to the accused in Hindi, to which the accused has pleaded not guilty and claimed to be tried. 8. The prosecution, in order to prove its case, has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence up to exhibit-6. Budheshwar Majhi, son of the informant and the deceased has been examined as P.W.1 and is a hearsay witness as he got information from informant of the case, Kanchan Majhi. Rasmani Majhian, daughter-in-law of the deceased and wife of Bir Singh Majhi has been examined as P.W.2. She is eye witness to the occurrence and in her presence deceased has also disclosed about the occurrence. Kanchan Majhi, informant and husband of the deceased has been examined as P.W.3, who has claimed to be eye witness to the occurrence and has seen the accused Motka Majhi @ Shyam Majhi fleeing away from place of occurrence having tangi (axe) in his hand and deceased has also disclosed before him the name of Motka Majhi @ Shyam Majhi as the assailant. Bir Singh Majhi has been examined as P.W.4. Bir Singh Majhi has been examined as P.W.4. He is son of deceased and informant and also eye-witness to the occurrence, who has seen the appellant fleeing away along with axe and the deceased has also disclosed before him about the occurrence and named Motka Majhi @ Shyam Majhi as perpetrator of the crime. Waquar Hussain, Sub-Inspector of Police and investigating officer of the case has been examined as P.W.5 and has submitted charge-sheet and sent up the accused/appellant for trial. Dr. Niranjan Minj, Medical Officer has been examined as P.W.6 and has conducted the autopsy on the dead body of Fulmani Majhian and has prepared the postmortem report, which has been proved and marked as Exhibit-6. The signature of informant, Kanchan Majhi on the fardbeyan proved by informant Kanchan Majhi (P.W.3) has been marked as Exhibit-1, carbon copy of the inquest report prepared by Waquar Hussain, Sub-Inspector of Police proved by Waquar Hussain (P.W.5) has been marked as Exhibit-2, fardbeyan of the informant has been proved and marked as Exhibit-3, endorsement on the fardbeyan has been proved and marked as Exhibit-3/1, Formal First Information Report of the case has been proved and marked as Exhibit-4, Seizure list of axe recovered on the basis of disclosure made by accused on 01.08.2009 proved by Waquar Hussain (P.W.5), S.I. has been marked as Exhibit-5 and postmortem report proved by Dr. Niranjan Minj (P.W.6) has been marked as Exhibit-6. 9. After closure of prosecution evidence, statement of the accused has been recorded under section 313 Cr.P.C., on 18.08.2014, where the prosecution material has been confronted to the accused but he has not given any explanation rather he has only denied about the occurrence and has claimed that he has been falsely implicated in this case. No defence witness or defence material has been adduced on behalf of the accused/appellant. 10. After hearing learned counsel for the parties and on perusal of materials available on record, learned trial court has convicted the accused Motka Majhi @ Shyam Majhi vide impugned judgment of conviction dated 16.02.2015, considering the oral dying declaration of the deceased coupled with the evidence of the prosecution witnesses who have seen the accused fleeing away from place of occurrence and before whom deceased has disclosed about the occurrence. Being aggrieved at and dissatisfied with the impugned judgment of conviction dated 16.02.2015 and order of sentence dated 18.02.2015, in Sessions Trial No. 21 of 2010 passed by learned Sessions Judge, Seraikella-Kharsawan the present criminal appeal has been preferred on behalf of the appellant before this Hon'ble court. 11. Heard, Mr. Sanjay Kumar Pandey No.2, learned Amicus Curiae. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has further submitted that no independent witness has been examined in this case nor Dr. Chanchal Singh Munda who has initially examined the victim has been examined in the case so as to cross-examine the doctor regarding state of consciousness of injured for disclosing the occurrence to P.W.2, Rasmani Majhi, P.W.3, Kanchan Majhi and P.W.4, Bir Singh Majhi. Learned amicus curiae has further submitted that Dr. Niranjan Minj (P.W.6), who has conducted the autopsy on the dead body of deceased has mentioned that injury has been caused by hard and blunt substances and as such entire prosecution case is falsified as it is alleged that injury has been caused by tangi (axe), which is a sharp edge weapon and as such, injury of hard and blunt substance falsifies the entire prosecution case as the appellant has land dispute with prosecution party and because of this enmity, he has been falsely implicated in this case. Learned Amicus Curiae has relied upon a judgment in the case of Roop Ram and another Vs State of M. P. as reported in 2011 (14) SCC 577 and has submitted that prosecution has not been able to prove the case beyond all reasonable doubt, as such, appellant may be acquitted from charge and conviction under Section 302 of the Indian Penal Code by extending benefit of doubt. Learned Amicus Curiae has further submitted that place of occurrence has not been proved by the prosecution and as such, genesis of the occurrence is also under doubt. Learned Amicus Curiae has further submitted that place of occurrence has not been proved by the prosecution and as such, genesis of the occurrence is also under doubt. Learned Amicus Curiae has further submitted that in the present case, if the appellant is not acquitted from the charge under Section 302 of the Indian Penal Code then the same may be converted under Section 304 part II of the Indian Penal Code as appellant has no intention of assault and single injury has been found by the doctor, which has been mentioned in exhibit-6 i.e., postmortem report. As such, instead of affirming the impugned judgment of conviction passed by learned trial court, this court may modify the conviction from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code and accordingly, the sentence of rigorous imprisonment for life with fine of Rs.2,000/- may be modified to period already undergone by the appellant. 12. Heard, learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of materials available on record. Learned counsel for the State has submitted that Rasmani Majhian (P.W. 2) is daughter-in-law of the deceased, Kanchan Majhi (P.W.3) is husband of the deceased and Bir Singh Majhi (P.W.4) is son of the deceased. Learned counsel for the State has submitted that all these three prosecution witnesses are eye-witnesses to part of the occurrence who came out of the house after hearing brawl raised by victim Fulmani Majhian and saw the accused Motka Majhi fleeing away from the place of occurrence having tangi in his hand. Learned counsel for State has further submitted that in presence of all these three witnesses, i.e. P.W.2 Rasmani Majhian, P.W.3 Kanchan Majhi and P.W.4 Bir Singh Majhi, victim has disclosed that Motka Majhi has assaulted her by means of tangi on her head. Learned counsel for State has submitted that Kanchan Majhi and Bir Singh Majhi being the husband and son of deceased went to call Doctor Chanchal Singh Munda, who came there and disclosed that victim has died. Learned counsel for State has submitted that Kanchan Majhi and Bir Singh Majhi being the husband and son of deceased went to call Doctor Chanchal Singh Munda, who came there and disclosed that victim has died. Learned counsel for State has submitted that on the basis of disclosure made by the accused, tangi has been seized and seizure list of the same has been proved and marked as Exhibit-5. Learned counsel for State has submitted that the impugned judgment of conviction and order of sentence has been passed by learned trial court on the basis of materials brought on record and the same does not warrant any interference of this Court as the same is a reasoned order. Learned counsel for State has further submitted that the judgment of Roop Ram & Anr. (supra) referred by learned amicus curiae is not applicable in the present case as the fact of both cases are different. Here the defence has not given any suggestion to any of the prosecution witnesses regarding the mental status of the victim to disclose the occurrence to Rasmani Majhian (P.W.2), Kanchan Majhi (P.W.3) and Bir Singh Majhi (P.W.4) and as such the judgment is not applicable as no such suggestion has been given by defence to the prosecution witnesses. Learned counsel for State has submitted that the assault may be made by tangi in two different ways. If assault is made from the sharp side of tangi then the same will cause sharp edge injury but if it is used from the blunt side then, the same will come under injury caused by hard and blunt substance. Learned counsel for the State has submitted that in absence of any substantial cross-examination by accused, the defence cannot take plea that accused has not assaulted the victim by means of tangi causing injury by hard and blunt substance leading to death of the deceased. Learned counsel for the State has thus submitted that the prosecution evidence remains intact and nothing has been elucidated during cross-examination of three eye-witnesses i.e. Rasmani Majhian (P.W.2), Kanchan Majhi (P.W.3) and Bir Singh Majhi (P.W.4) nor any contradictions have been taken from cross-examination of the Investigating Officer Waquar Hussain who has been examined as P.W. 5. Medical Officer Dr. Learned counsel for the State has thus submitted that the prosecution evidence remains intact and nothing has been elucidated during cross-examination of three eye-witnesses i.e. Rasmani Majhian (P.W.2), Kanchan Majhi (P.W.3) and Bir Singh Majhi (P.W.4) nor any contradictions have been taken from cross-examination of the Investigating Officer Waquar Hussain who has been examined as P.W. 5. Medical Officer Dr. Niranjan Minj (P.W.6) has also corroborated the prosecution case, as such, the impugned judgment has been passed by the learned trial court on the basis of materials available on record, as such, this Court may not interfere with the impugned judgment of conviction and order of sentence. 13. Heard, Mr. Sanjay Kumar Pandey No. 2, learned Amicus Curiae and learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor and perused the evidence brought on record including the First Information Report, framing of charge, evidence of six prosecution witnesses, six prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C., as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the materials available on record. The prosecution case is based upon the fardbeyan of Kanchan Majhi (P.W.3) who after hearing the brawl raised by his wife Fulmani Majhian came out of the house and saw Motka Majhi fleeing away from the place of occurrence having axe (tangi) in his hand. The informant was disclosed by the victim Fulmani Majhian about the assault made by Motka Majhi. P.W.2 Rasmani Majhian and P.W.4 Bir Singh Majhi being the daughter-in-law and son of the deceased were also present, who have also heard the disclosure of the victim made before them regarding commission of the offence by Motka Majhi @ Shyam Majhi. This Court has also perused the evidence brought on record and it appears that there was motive for the alleged occurrence as there was enmity with regard to land dispute prevailing between the parties and a month ago there was hot exchange of words between the parties. This court has scrutinised the credential of the prosecution witnesses. Budheshwar Majhi (P.W.1) being the son of deceased has claimed himself as a hearsay witness as entire occurrence has been disclosed to him by his father. This court has scrutinised the credential of the prosecution witnesses. Budheshwar Majhi (P.W.1) being the son of deceased has claimed himself as a hearsay witness as entire occurrence has been disclosed to him by his father. The credential of P.W.2 Rasmani Majhian, P.W.3 Kanchan Majhi and P.W. 4 Bir Singh Majhi have not been impeached by the defence and they are highly consistent as all these witnesses have supported the prosecution case and not a single line of contradictions has cropped up in their evidence. Rasmani Majhian (P.W.2) has stated that her husband Bir Singh Majhi has gone to call the doctor. Bir Singh Majhi (P.W.4) has also stated that he went to call the doctor. Kanchan Majhi (P.W.3) has said that he has taken the deceased before the doctor but entire prosecution evidence suggests that death of the victim has been declared by the doctor and on the basis of that F.I.R. has been lodged. The evidence adduced by the Investigating Officer suggests that on the basis of disclosure made by accused/appellant, police has seized the tangi as admitted by Waquar Hussain (P.W.5) in his evidence at paragraph-13 of his cross-examination. The evidence of Medical Officer suggests that deceased died because of the injury caused by hard and blunt substance which is in consistence with the fardbeyan of the informant and the other prosecution witnesses. 14. This Court has taken note of the fact that the defence has not given a single suggestion to the prosecution witnesses to disbelieve the prosecution case, Enmity cuts both the ways. As such there is no inconsistency in the prosecution evidence coupled with evidence of P.W. 2 Rasmani Majhian, P.W. 3 Kanchan Majhi and P.W. 4 Bir Singh Majhi in whose presence victim has disclosed about the occurrence. Considering the entire material in totality coupled with the fact that deceased died because of injury caused by means of tangi, we are of the opinion that learned trial court has rightly convicted the appellant under section 302 of the Indian Penal Code. Considering the entire material in totality coupled with the fact that deceased died because of injury caused by means of tangi, we are of the opinion that learned trial court has rightly convicted the appellant under section 302 of the Indian Penal Code. The submission of modification of conviction from section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code does not arise at all, as the appellant has assaulted the victim on the vital part of the body by lethal weapon, as such, intention was there to kill the lady, as such we are unable to accept the submission of learned amicus curiae so as to modify the conviction. 15. In the result, the impugned Judgment of conviction dated 16.02.2015 and order of sentence dated 18.02.2015, passed by the learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.21 of 2010 arising out of Ichagarh P.S. Case No.35 of 2009, corresponding to G.R. Case No. 587/09, is hereby upheld and affirmed. 16. Accordingly, the present criminal appeal is dismissed without any interference. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, forthwith. 18. Before parting with the judgment, this Court appreciates the assistance rendered by Mr. Sanjay Kumar Pandey No. 2, learned Amicus Curiae, in disposal of this criminal appeal. The Member Secretary, High Court Legal Services Committee is directed to release the legal admissible remuneration to learned Amicus Curiae, Mr. Sanjay Kumar Pandey No. 2 within a period of four weeks from the date of presenting an application by him along with certified copy of this judgment.