JUDGMENT : 1. Appellant has preferred this appeal against the judgment and order dated 23.06.1995 passed by 1st Additional Sessions Judge, Dumka in Sessions Case No.77 of 1994, by which the appellant has been convicted and sentenced to imprisonment for life for the offence under Section 302 of the Indian Penal Code. 2. First Information Report was instituted by the informant alleging that there is a paddy field of the informant, measuring about 1 ½ bighas where there was paddy crop. Contiguous east of that plot is jamabandi land of the informant measuring about 1 bigha which was at that time fallow and undulated. Contiguous north of that plot is the land of accused Ram Prasad Mandal. The informant had been making his uneven land fit for cultivation by cutting necessary soil from that plot for the last 15 to 30 days before the occurrence. Accused Ram Prasad Mandal and Nunu Darbey had objected to that act of the informant, saying that they themselves would make that land cultivable. On the day of occurrence (07.10.1993) at about 04.30 p.m. the informant and his brother Kamdeo Mandal (deceased) had gone to see their paddy crops and the soil which was being cut from their field. All the four accused were standing there with Kulhari and Gainta. They started abusing the informant and his brother saying that they did not stop cutting soil from that land inspite of their objection. The informant insisted that the land was of his jamabandi. On this, accused Ram Prasad Mandal got enraged and spoke out that they (informant and his brother) would be done to death. The informant and his brother wanted to escape out of fear. Nunu Darway caught hold of informant’s brother Kamdeo Mandal. Accused Rajendra @ Rajan Mandal inflicted indiscriminate Kulhari blows at the head of the informant’s brother Kamdeo Mandal. Accused Bhopal Mandal (appellant) assaulted him (Kamdeo Mandal) with Gainta at his back. The informant’s brother (Kamdeo Mandal) fell down unconscious. The informant ran away towards his village raising hulla. He informed the villagers about the occurrence. Hearing about the occurrence, informant father Tilak Mandal (P.W.2) younger brother Naresh Mandal (P.W.3), Sarpanch Lakhan Lal Sah (P.W.4), Kailash Prasad Sah (P.W.5), Ghanshyam Sah (P.W.6), Moti Mandal (not examined) and others came to the place of occurrence. The informant saw profuse blood at the place of the occurrence. He informed the villagers about the occurrence. Hearing about the occurrence, informant father Tilak Mandal (P.W.2) younger brother Naresh Mandal (P.W.3), Sarpanch Lakhan Lal Sah (P.W.4), Kailash Prasad Sah (P.W.5), Ghanshyam Sah (P.W.6), Moti Mandal (not examined) and others came to the place of occurrence. The informant saw profuse blood at the place of the occurrence. He also saw some flesh of the head at the place of the occurrence. There were trails of blood in the place of occurrence. He followed the trails of blood and found that the dead body of his brother Kamdeo Mandal had been thrown at a distance of about 50 yards from the place of occurrence in the paddy field of the informant. 3. With these allegations, Jarmundi Police Station Case No.111 of 1993 was registered. After completing investigation, chargesheet was submitted against four accused persons, including this appellant. Charges were framed to which the accused including the appellant herein pleaded not guilty and claimed to be tried. 4. Prosecution, in order to bring home the charges, had examined eight witnesses and also exhibited documents. The witnesses examined by the prosecution are P.W.1 Kisan Mindal, P.W. 2 Tilak Mandal, P.W.3 Naresh Mandal, P.W. 4 Lakhan Lal Sah, P.W.5 Kailash Prasad Sah, P.W.6 Ghanshyam Sah, P.W.7 Sharat Kumar Singh and P.W.8 Vishnu Deo Pathak. The documents exhibited by the prosecution are: Exhibit 1 – Signature of Informant Kisan Mandal upon Fardbeyan Exhibit 2 – Postmortem Examination Report Exhibit 3 – Fardbayan of the Informant Exhibit 4 – Map Exhibit 5 – Seizure List 5. P.W. 1 Kisan Mandal is the informant and an eye witness in this case. He stated that he and deceased had gone to see their land where they saw the accused persons. Accused Ram Prasad Mandal said to Nunu Darway that Kamdeo Mandal (deceased) has come and he should be caught, whereupon Nunu Darway caught hold of Kamdeo Mandal and pushed him down. Thereafter Ram Prasad Mandal caught hold of the legs of Kamdmeo Mandal and accused Bhopal Mandal assaulted him with Gainta and Rajan Mandal with Kulhari. P.W.2 Tilak Mandal is the father of P.W.1 Kisan Mandal (informant) and the deceased. According to him, on hue and cry made by P.W.1 that Kamdeo Mandal has been done to death, he went to the Bahiyar and saw the dead body of Kamdeo Mandal. P.W.2 Tilak Mandal is the father of P.W.1 Kisan Mandal (informant) and the deceased. According to him, on hue and cry made by P.W.1 that Kamdeo Mandal has been done to death, he went to the Bahiyar and saw the dead body of Kamdeo Mandal. P.W.3 Naresh Mandal is the brother of the informant (P.W.1). He stated that he heard hulla in Plot No.780, which is close to the field which he had gone to see. He saw Ram Prasad Mandal, Nunu Darway, Gopal Mandal and Rajan Mandal shouting loudly over Kamdeo Mandal and Kisun Mandal saying that they will not allow to cut soil from the field. This witness stated that his brothers told them that they are cutting soil from their own jamabandi. On this, Ram Prasad told to catch hold of them. Nunu Darway caught hold of Kamdeo Mandal and Rajan Mandal gave repeated blows with Kulhari on the head of Kamdeo Mandal. Bhopal Mandal attacked Kamdeo Mandal on his back with gainta. Kamdeo Mandal fell unconscious there itself. Rajan Mandal attacked Kamdeo over his head as a result of which the brain matter came out of the skull and there was profuse bleeding. This witness stated that he ran away towards village out of fear. When he returned to the place of occurrence after some time with other villagers, they saw the dead body of Kamdeo Mandal thrown in the paddy field. P.W.4 Lakhan Lal Sah is a hearsay witness. He stated that at about 6.30 to 07.00 p.m. Tilak Mandal had come to him running and told that Koyaries had killed his son. Thereafter when he went to the place of occurrence, he saw the dead body of the deceased in the paddy field. P.W.5 Kailash Prasad Sah is a tendered witness. P.W.6 Ghanshyam Sah is also a hearsay witness. He also stated that Tilak Mandal came to him weeping at about 07.00 p.m. and told him that Koyaries had killed his son. Thereafter when he went to the place of occurrence, he saw the dead body of the deceased. P.W.7 Sharat Kumar Singh is the doctor who was posted at Dumka Sadar Hospital. He had conducted the postmortem of Kamal Deo Mandal. This witness exhibited the Postmortem Report as Exhibit 2. P.W.8 Vishnu Deo Pathak is the investigating officer of this case. 6. P.W.7 Sharat Kumar Singh is the doctor who was posted at Dumka Sadar Hospital. He had conducted the postmortem of Kamal Deo Mandal. This witness exhibited the Postmortem Report as Exhibit 2. P.W.8 Vishnu Deo Pathak is the investigating officer of this case. 6. After closure of the evidence, statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. The Trial Court, after hearing the arguments advanced by the State and the accused-appellant, convicted the appellant by judgment and order dated 23.06.1995 and sentenced him to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code. 7. Challenging the aforesaid judgment of conviction and order of sentence, learned counsel appearing on behalf of the appellant submitted that the evidence led by the prosecution is to the effect that there was land dispute between the parties and thus, there is probability of false implication of the appellant. As per him, the postmortem report does not support the version of the alleged eye witnesses, i.e., P.W.1 and P.W.3. As per the evidence of the eye witnesses, this appellant has given blow with “Gainta”, an earth cutting tool, but from the evidence of P.W.7, the doctor, there is only one injury, i.e., injury No.4, which was caused by sharp weapon, thus, the evidence of prosecution witnesses are not reliable as medical evidence does not support the ocular evidence. 8. Learned A.P.P., supporting the judgment of conviction, submitted that there are two eye witnesses, i.e., P.W.1 and P.W.3, are the person who narrated the manner in which assault was made. The postmortem report corroborates the said statement. In the cross examination, the accused could not demolish the statement of P.W.1 and P.W.3, thus, this is a fit case where the appeal has to be dismissed. 9. After hearing the parties and after going through the record, we find that this case rests on the version of two eye witnesses, i.e., P.W.1 and P.W.3. Both of them have seen the occurrence. In paragraph 2 of his evidence, P.W.1 has stated that this appellant, with a ‘Gainta’ had given repeated blows on the deceased. The blow was on the back side, on the waist and near the eye, whereas Rajan Mandal, with an axe, gave a blow on the head of the deceased. Both of them have seen the occurrence. In paragraph 2 of his evidence, P.W.1 has stated that this appellant, with a ‘Gainta’ had given repeated blows on the deceased. The blow was on the back side, on the waist and near the eye, whereas Rajan Mandal, with an axe, gave a blow on the head of the deceased. In cross examination, nothing could be extracted, which can remotely suggest that this witness was not an eye witness, rather in cross examination, in paragraph 19, this witness reiterated the manner of assault. He stated that four blows were by ‘Gainta’, one in the waist, near the eyes and there was some penetration and in the chest there was assault by ‘Gainta’. Though he is a brother of the deceased, yet it is the case of the prosecution that he and deceased were working in the field. In cross examination also we could not find anything to disbelieve the version of this witness. 10. P.W.3 also stated that he had seen the occurrence. He also narrated that this appellant had assaulted with a ‘Gainta’ on the left back side of the deceased and Kamdeo assaulted on the head, as a result of which brain matter came out. In cross examination, he stated that he had seen the occurrence from 400 yards and then he fled from the place of occurrence. 11. From the evidence of these two witnesses, it is clear that they are eye witnesses and their testimony was not shaken during cross examination. Now, to corroborate their statement, we have carefully examined the deposition of P.W.7, the doctor, who conducted postmortem. He has found several injuries on the person of the deceased, which are as under: - (i) A lacerated wound 5” x 4” x skin deep, skin margin torn into several pieces. The underaged skull was fractured with 5 pieces. The meninges were torn. The brain matter came out of skull cavity. (ii) Incised wound 1” x ¼” x ¼” on left cheek with blood clot on dissection. (iii) Wound 1” x ½” with fracture of underlying nasal bone. (iv) Penetrating wound 1” x ½” on left 6th intercostal space on dissection blood was found in left plural cavity and diaphragm was penetrated leading to injury to spleen 1” x ½” x ½” and the stomach was perforated posteriorly ½” x ½” and contained rice about 200 grams undisgested. (iv) Penetrating wound 1” x ½” on left 6th intercostal space on dissection blood was found in left plural cavity and diaphragm was penetrated leading to injury to spleen 1” x ½” x ½” and the stomach was perforated posteriorly ½” x ½” and contained rice about 200 grams undisgested. (v) There was fracture of 3rd, 4th, 5th, 6th left ribs with blood clots between fragments. (vi) Abrasion 3” x 2” on right cheek. (vii) Abrasion 6” x 3” on front of left shoulder. (viii) Abrasion 3” x 2” on left knee. On dissection left lung was found penetrated, the right lung was normal, the heart was empty. The intestine contained gas and faecal. Kidneys were normal. The urinary bladder was empty. (ix) The death in my opinion was due to haemorrhage & shock as a result of I, iv and v which were sufficient enough to cause death. The weapon used for injury nos. I, v, vi, vii & viii was hard blunt substance. Injury no.ii & iii was caused by some sharp cutting weapon. Injury no.iv was caused by pointed sharp weapon. The time elapsed since death was about 48 hours. 12. From his deposition, which is based on the postmortem report, it is clear that there was assault on the head and skull of the deceased was fractured and the brain matter came out. P.W.1 stated that this appellant has struck twice with ‘Gainta’ on the top of the eyes and on the bottom of eyes. This part is corroborated from the medical evidence, where the doctor found incised wound on the left cheek and fracture of nasal bone. Further, P.W.1 stated that with the ‘Gainta’ the deceased was assaulted on the back side and on the waist. The medical examination also corroborates the aforesaid statement as the doctor found penetrating wound on the 6th intercostal space and diaphragm was penetrated leading to injury in the spleen. He also found the left lung was penetrated. Be it noted that P.W.3 had categorically stated that the assault was on the left side, thus, the evidence of P.W.1 and 3 has been corroborated by the medical evidence and the postmortem report. These two eye witnesses have categorically stated that it is this appellant, who has given all these blows. He also found the left lung was penetrated. Be it noted that P.W.3 had categorically stated that the assault was on the left side, thus, the evidence of P.W.1 and 3 has been corroborated by the medical evidence and the postmortem report. These two eye witnesses have categorically stated that it is this appellant, who has given all these blows. We, thus, do not find any material to disbelieve the statement of P.W.1 and P.W.3 and it has been established that the eye witnesses had seen the occurrence. 13. Thus, we find that the prosecution has been able to prove the involvement of this appellant in commission of the offence beyond all reasonable doubts. The Trial Court has correctly convicted the appellant under Section 302 of the Indian Penal Code. Thus, we are not inclined to interfere with the judgment and order dated 23.06.1995 passed by 1st Additional Sessions Judge, Dumka in Sessions Case No.77 of 1994. This appeal is, accordingly, dismissed. 14. The appellant, who is on bail, is directed to surrender immediately. His bail is cancelled. In the event, he does not surrender within four weeks, the Trial Court shall take all steps to take him in custody to serve the sentence.