JUDGMENT : Per Rongon Mukhopadhyay, J. : 1. Heard Mrs. Rashmi Kumar, learned counsel for the appellants and Mr. Bhola Nath Ojha, learned Spl. P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 04-04-2017 (sentence passed on 12-04-2017) passed by Sri Ramashanker Singh, learned Additional Sessions Judge-I, Koderma, in S.T. No. 92/2012, whereby and where under, the appellants have been convicted for the offence under Section 302 /34 and 323/34 IPC and have been sentenced to undergo imprisonment for life along with a fine of Rs. 25,000/- each and in default in payment of fine, to undergo simple imprisonment for one year besides compensation of Rs. 20,000/- to be paid to the mother of the deceased. The appellants have further been sentenced to undergo simple imprisonment for three months for the offence under Section 323 /34 IPC. 3. The prosecution case arises out of the fardbeyan of Dharam Mahto in which it has been stated that on 02-05-2012, while the informant was having lunch at his house at 11:30PM, he heard some commotion that Babulal Yadav is being assaulted by his son, wife and brother-in-law and no one has extended any help to save him at which the informant reached the house of Babulal Yadav and saw that his son Sahadeo Yadav, Birendra Yadav and Munshi Yadav who were the brothers-in-law of Babulal Yadav assaulting Babulal Yadav with lathi and danda and the wife of Babulal Yadav, namely, Urmila Devi was goading them to commit assault also. The informant tried to dissuade them from assaulting Babulal Yadav but it fell on deaf ears. When Babulal Yadav became unconscious, the informant tried to catch hold of the danda at which, Birendra Yadav and Sahadeo Yadav caused assault upon him with lathi and resultantly, the informant had suffered head injuries. When the son of the informant, namely, Umesh Yadav came to his rescue, he was also assaulted on his head with lathi. In the meantime, Sahadeo Yadav wielded his stick in order to assault Umesh Yadav but accidentally the same struck Birendra Yadav on his head and blood started oozing out. The informant and his son were saved from further assaults due to the intervention of the villagers who had arrived and his son was taken to Jaynagar for treatment. In the meantime, Sahadeo Yadav wielded his stick in order to assault Umesh Yadav but accidentally the same struck Birendra Yadav on his head and blood started oozing out. The informant and his son were saved from further assaults due to the intervention of the villagers who had arrived and his son was taken to Jaynagar for treatment. In the meantime, a call came in the mobile of Umesh that Babulal Yadav has died and the accused persons were trying to escape. There was regular assault committed upon Babulal Yadav by his son and wife as well as his brother-in-law. Based on the aforesaid allegations, Jainagar P.S. Case No. 69/12 was instituted for the offences under Sections 325 , 307, 302, 201/34 IPC. On conclusion of investigation, charge sheet was submitted under Section 302 , 325, 201/34 IPC against Sahadeo Yadav, Birendra Yadav, Munshi Yadav and Urmila Yadav. After cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S.T. No. 92/2012. Charge was framed against the accused for the offences under Sections 325 , 302 and 201/34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eleven witnesses in support of its case: P.W.1 Masommat Dhaliya is the mother of the deceased Babulal Yadav who has stated that her son was married with Urmila Devi and out of the said wedlock, two sons and two daughters were born. Her son was murdered at the behest of his wife by her brothers. When her son had returned from outside and gone to his house, the appellants had locked the door from outside. The appellants had assaulted her son with lathi in the courtyard and kept him in a cot. Her son's head and legs were fractured and there were blood stains in his clothes. She had recognized all the accused persons in the dock. In cross-examination, she has deposed that the assault had taken place in the courtyard. She has named Nago Bhokta, Baiju and Rameshwar Yadav and others as her neighbours. Her statement was recorded by the Police and she had stated that her son and daughter-in-law were staying separate. At the time of the incident, she was outside the house. In cross-examination, she has deposed that the assault had taken place in the courtyard. She has named Nago Bhokta, Baiju and Rameshwar Yadav and others as her neighbours. Her statement was recorded by the Police and she had stated that her son and daughter-in-law were staying separate. At the time of the incident, she was outside the house. P.W.2 Dharam Mahto is the informant who has stated that at the time of the incident, he was in his house when he heard some commotion regarding Babulal being assaulted by his son, wife and two brothers-in-law, Birendra and Munshi. When he went to the house of Babulal, he saw Babulal whimpering and thereafter, he became unconscious. He had seen Sahdeo with a khanti and Birendra was having a lathi. When he protested, he was assaulted by Sahdeo on his head with a khanti. Umesh was also assaulted by Sahdeo. Babulal died on account of the assault. His statement was recorded in the hospital. In cross-examination, he has deposed that his village consists of more than 100 houses. His house is situated at a distance of 100 feet from the house of Babulal. He was being called by Manoj Choudhary and the wife of Saheb Choudhary. When he went, Babulal was already on the ground. Babulal did not die in his presence. He was taken to the hospital as he had suffered injuries on his head. He was assaulted by a solitary person. His son was also hospitalized. On the date of occurrence, the name of the brothers-in-law of Babulal was disclosed to him by Jaswa. P.W.3 Sahdeo Rana has identified his signature on the inquest report which has been marked as Exhibit-1. This witness has been declared hostile by the prosecution. P.W.4 Janakdeo Yadav has stated that on the date of occurrence, on hearing a commotion, he had gone to the house of Babulal Yadav where he came to know that Babulal Yadav has already died. The inquest report was prepared by the Police which was signed by him. In cross examination, he has deposed that the house of Babulal is situated at a distance of half a kilometer from his house. He does not have any personal knowledge about the incident. P.W.5 Dr. The inquest report was prepared by the Police which was signed by him. In cross examination, he has deposed that the house of Babulal is situated at a distance of half a kilometer from his house. He does not have any personal knowledge about the incident. P.W.5 Dr. Mithilesh Kumar had given his evidence but the same was expunged vide order dated 07-02-2017 on the prayer of the A.P.P. P.W.6 Manoj Choudhary has stated that on 02-05-2012 at about 11:30-12:00 PM when he had returned home from his shop for lunch, he was informed by his daughter that Babulal is being assaulted by his son, wife and others from his in-laws' place. When he went to the place of occurrence, he saw Sahdeo Yadav, Urmila Devi, Birendra and Munshi Yadav assaulting Babulal Yadav with lathi, danda and rod. When he went to save Babulal Yadav, the accused person chased him and he fled away from the place of occurrence. He informed the villagers who had subsequently assembled. Babulal had by that time lost consciousness. The accused persons had also assaulted Dharam Mahto and Umesh Yadav. In cross examination, he has deposed that when he went to the place of occurrence, there were no one present except the accused persons. When he tried to rescue Babulal Yadav, he was chased away by the accused persons and he fled away and informed the villagers. When he went for the first time, he had seen Babulal lying on the ground and the accused persons assaulting him. He saw the assault for 5-10 seconds. On the basis of his disclosure, 8-10 villagers who were unarmed had arrived. There was a gap of 4-5 minutes between the first time he had gone to the place of occurrence and the second time when he had returned back. He had a conversation with Dharam Choudhary, Dharam Mahto, Umesh, Tulsi Yadav, Rajiv, Rami Yadav and others and all these people went to the place of occurrence, except Rami. When he went for the second time with the others, there were no one except the accused persons. Babulal was found unconscious. He did not have any talk with Babulal. He and the others remained for 15-20 minutes by which time the accused persons started fleeing away. He had tried to take away Babulal but by that time he was dead. Babulal was found unconscious. He did not have any talk with Babulal. He and the others remained for 15-20 minutes by which time the accused persons started fleeing away. He had tried to take away Babulal but by that time he was dead. P.W.7 Jamuna Devi has stated that around 11:00 A.M. on the date of occurrence, she was at her home and her children had raised alarm that Babulal Yadav was being assaulted. When she went to the place of occurrence, she saw Babulal being assaulted by his son, wife and brothers-in-law with danda. When she and Manoj failed to pacify the accused, they called Dharam Mahto. The accused persons also assaulted Dharam Mahto. Babulal died due to the assault. Babulal had an estranged relationship with his wife which was the reason for the incident. In cross-examination, she has denied the suggestion of the defence that the aforesaid facts were not disclosed by her to the Police. She has further deposed that Babulal Yadav had already fallen down prior to her reaching the place of occurrence. P.W.8 Ashok Kumar Singh had recorded the fardbeyan of Dharam Mahto. He has proved his writing and signature in the fardbeyan as well as the signature of Umesh Yadav, Shyamsundar Yadav and Tulsi Yadav on the same and which has been marked as Exhibit-3. He has proved the formal FIR which has been marked as Exhibit-4. In course of investigation, he had recorded the restatement of the informant. After recording the statement of Umesh Yadav, he had inspected the place of occurrence which is the house of Babulal Yadav situated at village Gharonja. He had prepared the inquest report and had also taken down in writing the statements of Jagdeo Yadav and Sahdeo Yadav. The house of Babulal Yadav is constructed with mud and tiles in which exists a courtyard where Babulal is said to have been assaulted with lathi and danda. He had recorded the statements of Manoj Yadav and Jamuna Devi. On conclusion of investigation, charge sheet was submitted under Section 302 , 201, 325/34 IPC. He has proved the inquest report which has been marked as Exhibit-5. The challan of the post-mortem has also been proved by him and which has been marked as Exhibit-6. He had recorded the statements of Manoj Yadav and Jamuna Devi. On conclusion of investigation, charge sheet was submitted under Section 302 , 201, 325/34 IPC. He has proved the inquest report which has been marked as Exhibit-5. The challan of the post-mortem has also been proved by him and which has been marked as Exhibit-6. In cross-examination, he has deposed that he had not mentioned in the inquest report about the dead body being recovered from inside the room, and in Para 6 it has not been stated by him that the body was recovered from inside the room. P.W.9 Umesh Yadav has stated that on 02-05-2012 in between 10:00-11:00 AM, he was in his house when on hearing a cry of alarm, he had gone to the house of Babulal where an assault was going on as Sahdeo, his wife, Munshi Yadav and Birendra Yadav were assaulting Babulal with lathi and danda. Before he reached the place of occurrence, several other persons had already arrived. Sahadeo Yadav had assaulted his father and when he tried to intervene, he was assaulted by Birendra as a result of which he suffered injury on his head. Babulal Yadav died and the accused persons, by leaving Babulal, had fled away. He had identified his signature in the fardbeyan which has been marked as Exhibit-7. In cross-examination, he has deposed that his village consists of 120 houses. The distance between his house and the house of Babulal is about 500 yards. He cannot say as to who else had come to the place of occurrence prior to the arrival of his father. From the commotion raised, he could come to know that Babulal has died. He had not seen as to who had assaulted his father. This witness was assaulted by Sahdeo. P.W.10 Dr. Harendra Kumar Sharma was posted as a Medical Officer at Sadar Hospital, Koderma and on 03-05-2012, he had conducted autopsy on the dead body of Babulal Yadav and had found the following: On Examination: Wound on left upper perital area of head. Size 1” x 1” abrasion on left leg. Swelling and fracture of right elbow area. Size of swelling approx. 4” x 3”. Fracture on right lower arm. Fracture on right lower chest. On Dissection: (i) Chest cavity has coagulated blood. Left ribs 2 to 5 were fractured. Right rib 2 and 3 fractured. Size 1” x 1” abrasion on left leg. Swelling and fracture of right elbow area. Size of swelling approx. 4” x 3”. Fracture on right lower arm. Fracture on right lower chest. On Dissection: (i) Chest cavity has coagulated blood. Left ribs 2 to 5 were fractured. Right rib 2 and 3 fractured. (ii) Lungs left side ruptured and pale, liver pale, heart empty all the chambers. Spleen ruptured, kidney pale, stomach normal having undigested food material, intestine have gas. (iii) Abdominal cavity have blood. The cause of death was opined to be due to shock and hemorrhage owing to the above mentioned internal injuries. He has proved the post-mortem report which has been marked as Exhibit-2. P.W.11 Dr. Ajit Kumar Mandal was posted as a Medical Officer in Primary Health Centre, Jainagar and on 02-05-2012, he had examined Birendra Yadav and had found the following injuries: Lacerated wound on head 1” x ¼” x skin deep. The injury was simple in nature caused by hard and blunt substance. Age of injury within six hours. On the same day, he had examined Umesh Yadav and had found lacerated wound on head 2cm x 0.5cm x skin deep. The said injury was simple in nature caused by hard and blunt substance. The injury report was prepared by him which has been proved and marked as Exhibit-8. On the same day, he had examined Dharam Mahto and had found the following injuries on his person: Lacerated wound on left parietal region 2” x ½” x skin deep. Lacerated wound into right knee ½” x ½” x 1/8”. Both of the injuries were simple in nature caused by hard and blunt substance. Both the injuries were opined to be simple in nature caused by hard and blunt substance. This injury report has been prepared by him and bears his signature and which has been marked as Exhibit-8/B. In cross-examination, he has deposed that it is not possible that the injury of Umesh may be caused by fall. 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the commission of murder of Babulal Yadav. 6. The defence has examined the appellant no. 1 as D.W.1: D.W.1 Sahdeo Yadav is the appellant no. 1, who has stated that due to a land dispute his father and his grandmother used to quarrel. 6. The defence has examined the appellant no. 1 as D.W.1: D.W.1 Sahdeo Yadav is the appellant no. 1, who has stated that due to a land dispute his father and his grandmother used to quarrel. His father had objected to the decision of his grandmother to give the lands to her daughters due to which the sons-in-law of his grandmother committed the murder. He has been falsely implicated by his grandmother and Dharam Mahto. When he had remained in jail, his grandmother had executed sale deeds in favour of her daughters. Three sale deeds were filed which were proved and marked as Exhibit-A to A/2. In cross-examination, he has deposed that there are no documents to prove the enmity between his grandmother and his father. 7. It has been submitted by Mrs. Rashmi Kumar, learned counsel for the appellants that though several witnesses claim to have witnessed the assault, but the actual fact is that no one had seen the assault upon Babulal Yadav. P.W.1 is the mother of the deceased who in her cross-examination has admitted that she was outside the house when the assault had taken place. Even the informant (P.W.2), when he arrived at the place of occurrence had seen Babulal Yadav on the ground. Though he had suffered an injury on the head, but the same was by a solitary person who has not been named by P.W.2. It has been submitted that P.W.2 was the first person to reach the place of occurrence and since he had not witnessed the assault, the others who had come after him would automatically cease to be the eyewitnesses. P.W.7 and P.W.9 had reached the place of occurrence after the incident had taken place. So far as P.W.6 is concerned, when he had arrived Babulal was found lying on the ground. Mrs. Rashmi Kumar has summed up her submission by stating that there are no eyewitnesses to the occurrence and the appellants have been implicated due to previous enmity. 8. Mr. Bhola Nath Ojha, learned Spl. P.P. has submitted that there are several eyewitnesses to the occurrence who have categorically stated about the assault committed upon Babulal Yadav which led to his death. 9. We have heard the learned counsel for the respective sides and have also perused the trial court records. 10. 8. Mr. Bhola Nath Ojha, learned Spl. P.P. has submitted that there are several eyewitnesses to the occurrence who have categorically stated about the assault committed upon Babulal Yadav which led to his death. 9. We have heard the learned counsel for the respective sides and have also perused the trial court records. 10. The informant in his fardbeyan has given an eyewitness account of the assault committed by the accused persons on Babulal Yadav and when he had tried to intervene, he was assaulted on his head with lathi by Sahdeo Yadav and Birendra Yadav and when the son of the informant, namely, Umesh Yadav came to his rescue, he was also assaulted on his head with lathi. The informant and his son Umesh Yadav are the injured eyewitnesses and since several other witnesses claim themselves to have seen the incident, we shall discuss their evidence before making a close scrutiny of the evidence of P.W.2 and P.W.9. 11. So far as P.W.1 is concerned, she is the mother of the deceased Babulal Yadav who has stated about the assault which was committed in the courtyard, but at the same time in her cross- examination, she has deposed that she was outside the house when the incident had taken place. It cannot, therefore, be concluded that P.W.1 is an eyewitness to the occurrence. P.W.7 can also be discarded as an eyewitness as when she had arrived at the place of occurrence, Babulal had already fallen down. P.W.6 Manoj Choudhary is an important witness of the prosecution who claims to have witnessed the incident of assault and when he tried to save Babulal, he was chased away by the accused persons and he had returned back with the villagers by which time Babulal Yadav had lost consciousness. P.W.6 in his cross-examination has deposed that when he arrived at the place of occurrence, there were no other person present except the accused. This would signify that P.W.6 was the first person to arrive at the place of occurrence. P.W.6 in his cross-examination has deposed that when he arrived at the place of occurrence, there were no other person present except the accused. This would signify that P.W.6 was the first person to arrive at the place of occurrence. Though P.W.6 has stated that P.W.2 (informant) and P.W.9 (Umesh Yadav) were also assaulted by the accused persons, but it seems that after witnessing the incident for 5-10 seconds, he had fled away and informed the villagers and he had a conversation with several persons including P.W.2 and P.W.9 after which all had arrived at the place of occurrence where the accused persons were present, who ultimately fled away. The evidence of P.W.6 contradicts the evidence of P.W.2 and P.W.9 with respect to their arrival at the scene of crime. The evidence of P.W.6 can be inferred to be trustworthy as P.W.2 has stated about arriving at the place of occurrence after he was called by P.W.6. It would, therefore, seem that P.W.2 and P.W.9 have not witnessed the incident of assault upon Babulal Yadav. P.W.2 has stated in his cross-examination that when he went to the place of occurrence, Babulal was already lying on the ground. P.W.9 is the son of P.W.2 who had rushed to the place of occurrence on hearing a cry of alarm and before he had reached, several persons had already arrived. He had witnessed the assault by Sahdeo Yadav upon P.W.2 and when he tried to intervene, he was also assaulted. Thus, there is a glaring discrepancy in the evidence of P.W.2 and P.W.9. So far as P.W.6 is concerned, he seems to be the only person to have witnessed the assault for a few seconds after which he was chased away by the accused persons. The defence though has been able to dilute the evidence of P.W.2 and P.W.9 so far as their witnessing the incident is concerned, but P.W.6 has stood the test of cross-examination and the defence has failed to elicit any contradiction in his evidence. The defence though has been able to dilute the evidence of P.W.2 and P.W.9 so far as their witnessing the incident is concerned, but P.W.6 has stood the test of cross-examination and the defence has failed to elicit any contradiction in his evidence. Though we have come to a conclusion that P.W.2 and P.W.9 are not the eyewitnesses to the assault committed upon Babulal Yadav, but at the same time, their receiving injuries on account of the assault committed upon them by the accused persons amplifies their presence at the place of occurrence with various weapons of assault and coupled with the solitary eyewitness account of P.W.6, there cannot be any doubt regarding the perpetrators of the assault committed upon Babulal Yadav. We are conscious of the fact that the evidence of a solitary eyewitness has to be analyzed with circumspection to eradicate any possibility of falsity and exaggeration. On a close scrutiny of the evidence of P.W.6, there is no room for doubt that P.W.6 had witnessed the incident of assault upon Babulal Yadav, though briefly, and the evidence of P.W.2 and P.W.9 certifying the presence of the appellants at the place of occurrence indubitably point to the guilt of the appellants in committing the murder of Babulal Yadav. 12. We, therefore, on the basis of the discussions made hereinabove, do not find any reason to interfere in the judgment and order of conviction and sentence dated 04-04-2017 (sentence passed on 12-04-2017) passed by Sri Ramashanker Singh, learned Additional Sessions Judge-I, Koderma, in S.T. No. 92/2012 and consequently, we dismiss this appeal. 13. Since it appears that the appellant Munshi Yadav is on bail, he is directed to surrender immediately and forthwith before the learned trial court to serve out the rest part of his sentence. 14. Pending I.A.s, if any, stands closed.