D.P. Singh, J.

1. Criminal Appeal No. 6 of 1996 (R) has been preferred by the appellant Mansoor Mian and Criminal Appeal No. 146 of 1995 (R) has been preferred by the appellants Hanif Mian and Salim Mian against the judgment and order dated 9.11.1995 and 10.11.1995 passed by 1st Additional Sessions Judge, Giridih in Sessions Trial No. 154 of 1991 whereby and whereunder all the three appellants have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo RI for life each. As both the appeals arises out of same impugned judgment, they have been heard together and being disposed of by this common judgment.

2. The factual matrix leading to these appeals are that in the morning of 31.12.1990 the deceased Ramjan Mian has gone in the fields situated in Mauza Mangaso. P.S. Dhanwar, district Giridih to ease himself, he was encircled and assaulted by these appellants along with two others resulting in his death. According to prosecution case at about 6.45 a.m. the informant came out of his house for natural call when he saw the deceased going towards north in the field. According to him soon he has sat to ease himself, he heard alarm raised by the deceased and on raising he saw appellant Mansoor Mian son of Hanif Mian, Mokhtar Mian, Akhtar Mian son of Sadik Mian, along with appellants Hanif Mian and Salim Mian chasing the deceased. According to him Mokhtar Mian assaulted the deceased with sword on his leg after which he fell down and thereafter appellant Mansoor Mian assaulted the deceased with sword resulting in his death. According to the informant PW 2 Ismail Mian this incident took place because of dispute between the deceased and the appellants regarding division of joint family properties for which the deceased was insisting to get the lands measured through Amin. He further alleged that previous evening on 30.12.1990 there was exchange of hot words after which the appellants have threatened to finish him. He further asserted that when he tride to rescue his brother, the appellants threatened him and he could not help. According to him the incident was seen by other villagers named in the fardbeyan. He further alleged that PW 9 son of the deceased was also assaulted by the appellants.

3. The Dhanbar police arrived at the village and recorded the fardbeyan of PW 2 at about 8.45 a.m. same day 31.12.1990 and registered Dhanbad P.S. Case No. 193 of 1990 for various offences including under Sections 302 and 323 of the Indian Penal Code against five persons. The police prepared inquest report, sent the dead body for post-mortem examination seized bloodstained cloths and soil as well as water container, half pant worn by the deceased etc. The police after completion of investigation submitted charge-sheet against all the named accused persons. The case was committed for trial by the Court of sessions wherein the trial of two of the named accused Akhtar and Mokhtar was separated holding them juvenile. The appellants faced trial claiming innocence and false implication. However, the learned trial Court after examination witnesses found and held all of them guilty Under Section 302/149 of the Indian Penal Code and sentenced them to serve RI for life. The appellant Hanif was further convicted under Section 323 of the Indian Penal Code without sentencing him for this offence.

4. The present appeals have been preferred on the grounds that the learned trial Court has committed mistake by accepting to testimony of the interested witnesses. It is also asserted that the learned trial Court has misdirected itself by relying upon the afterthought statements of the highly interested witnesses controverted by their own admissions. According to learned Counsel for the appellant Mr. B.M. Tripathy the prosecution version that the occurrence was seen by many of the witnesses becomes doubtful with the contradictions brought during cross-examination with their earlier statements before the police. Sri Tripathy further contended that if so many witnesses have seen the occurrence themselves; they could have been named in the fardbeyan. According to him when other villagers also arrived at the place of occurrence, their non-examination by the police or before the trial Court causes a reasonable doubt on the prosecution version. Therefore, the conviction of the appellants deserves to be set aside.

5. We have anxiously considered the submissions made on behalf of the appellants along with the materials available in the case records. The prosecution case depends upon eye-witnesses of the occurrence, admittedly relative and family members of deceased Ramjan Mian. It is also admitted fact on record that the occurrence took place in the morning of 31.12.1990 at about 6.45 a.m. when the deceased has gone to ease himself out. The witnesses PW 2, PW 4, PW 7 have asserted that they had also gone out to ease themselves. It is quite natural that in the morning the villagers go out to answer natural calls and the probability of all these witnesses being present near the place of occurrence cannot be ruled out. PW 8 Sairoon Khatoon is wife of the deceased while PW 9 Samsher Mian is son of the deceased, According to PW 8 she has followed her husband while PW 9 came out of the house on hulla. All these witnesses have specifically mentioned that they could see the incident taking place by themselves when the deceased raised alarm on being chased by the appellants. They have given the descriptive details of the incident taking place in the field within short distance. The question of any ambiguity in identifying the appellants is ruled out. The IO has found that the dead body was lying in the field with three sharp cut deep injuries on left side of the head along with injuries on his right hand, knee. It further mentions that one suti rapper, plastic chhapal were found nearby the dead body. He further found water filled badhna at about 50 feets from the dead body. All these details provide definite and clear picture that the deceased was easing himself when he was attacked. It also appears that the deceased tried to run away but the aggressors could get hold of him and assaulted him with sharp cutting weapon resulting in his death. PW 3 Dr. B.P. Singh who conducted the post-mortem examination on the dead body of Ramjan Mian next day on 1.1.1991 found and held three incised wounds caused by sharp cutting weapons resulting in complete cut of the occipital bones, left lung lacerated spleen raptured. He further found three injuries caused by hard and blunt substance. According to him the death occurred within 24 hours. Therefore the homicidal death of Ramjan Mian is proved beyond doubts.

6. PW 2 Ismail and PW 4 Hanif both are related as brother with the deceased. They have claimed specifically that in the morning of 31.12.1990 the deceased has gone out to ease in the fields and they were also present nearby attending natural calls. Their presence has been criticized by the learned Counsel for the appellants that these witnesses being related have been added as eye-witness just to strengthen prosecution case against the appellants. However, in cross-examination these witnesses were not suggested that their presence was not possible. In villages where bathrooms are not available, ordinarily all persons go out to ease themselves. The time of the occurrence 6.45 a.m. in the winter season is the earliest possible time when people go out of their houses to ease themselves in fields. In such circumstances the presence of PWs 2, 4, 6 and 7 cannot be ruled out rather it is most probable that they may have gone out in the fields to ease themselves. Their presence was further criticized by the learned Counsel for the appellants because of their addresses given in the trial Court as Chungkho Koradih etc. said to be another tola or village then the tola of the deceased. However, during cross-examination in para 15 of PW 6 Taj Mohammad it has clearly come that tola Chungkho and Mangaso were separated by one pitch road and these tolas were situated adjacent to each other. Separate tolas of the same village are not uncommon. The fields contained wheat crop and in the end of December, wheat crops are of shorter length. Therefore, any person standing at a distance of even 100-200 yards in the morning may be able to see clearly what is happening nearby.

7. Informant, PW 2 has described the incident in details and stated specifically of assault on which part of the body of deceased with which arm. His evidence is stand supported by PW 5 who found the sharp cut injuries on vital portions as well as on the leg caused by heavy sharp cutting weapon like sword. He has further asserted that only 15 days ago a dispute arose between the deceased and the appellants regarding measurement of joint properties and in which last evening of 30.12.1990 appellant Hanif has finally refused to get the land measured and threatened the deceased with dire consequences. This witness has withstood the cross-examination asserting participation of the appellants in the alleged occurrence. The learned Counsel for the appellants stressed before us that this witness has admitted vide para 9 to have arrived at the police station after half an hour and reported the matter to police. However, PW 10 contradicts him by saying that he received information at the police station and arrived at the place of occurrence himself. According to learned Counsel, if the PW 2 is believed, his earlier version should have been the basis of FIR. However, we find that in the same para, this witness has asserted that his statement was not recorded at the police station and police arrived at the place of occurrence where his fardbeyan was recorded. In our considered view, this does not make much difference and depends upon the officer to get the FIR recorded for any cognizable offence either to record the statement of the persons who first goes to the police station or to come to the place of occurrence and record the statement of the persons who is willing to become the informant. This witness has further admitted during cross-examination regarding continuing litigations between the deceased and the appellants. He has been suggested that the deceased was a person of criminal antecedent but that cannot be a ground to disbelieve the informant having no criminal antecedent who was once arrested by police for parking rickshaw in no parking zone vide para 13.

8. PWs 4, 6 and 7 have claimed to see the occurrence. PW 4 has gone to the fields to plough his land. PW 6 was going to village Mangaso when he heard alarm raised by the deceased and saw the occurrence. These witnesses have been criticized on their assertion before the police regarding the manner in which the appellants were assaulting the deceased. Any incident seen by different persons are described in different manner. The point, remains that an incident took place in which death occurred because of assault allegedly made by the appellants. Eye-witnesses of the occurrence may describe the incident in different manner as per their perception but the contradictory description of the incident unless going to the root of the genesis of the occurrence are fatal contradictions cannot be accepted to disbelieve eye-witnesses. For example PW 4 admitted vide para 15 that he has stated before the police that appellant Mansoor and Mokhtar caused death of deceased with sword. All the witnesses stated like that the deceased was assaulted with sword by these two named accused. Trial of the Mokhtar has been separated because he was assessed to be juvenile but the fatal blows given by accused Mansoor on the neck of the deceased has been consistently supported by the eye-witnesses. This fact has been supported by PW 6 vide para 17 also. PW 7 Suleman Mian has similarly supported the prosecution version in details. He has been cross-examined in which he asserted that when he was easing himself in the fields, he heard the sound of the deceased and rushed towards the place of occurrence.

9. PW 8 Sairoon Khatoon and PW 9 Samsher Mian are wife and son of the deceased. Both of them have asserted that they also saw the occurrence naming the appellants as the assailants. We do not find any discrepancy in their statement to completely discard their statement particularly in view of the other eye-witnesses giving the details of the entire incident. The exaggeration or omissions made by these two witnesses being lady and son has to be considered in over all context. She could not be accurate regarding the time minute to minute which is most natural in her case. Minor details how she fell down on her husband and her cloths got smeared nor shown to the police neither seized by the 10 has been highlighted before us. However, we do not find that such minor omissions committed by the IO can be held fatal for the prosecution case particularly in view of the ocular versions confirmed by PWs 2, 4, 6 and 7. PW 9 has been examined for minor injuries by PW 5 same day. PW 10 the IO of this case has supported the fardbeyan recorded by him and seizure list, inquest report etc. in his examination-in-chief. He has admitted during cross-examination that on information received in the police station he arrived at the place of occurrence at about 8.45 a.m. He further denied that the fardbeyan was prepared at the place of occurrence and signatures there upon obtained vide para 11. Our attention was drawn towards the fact that the FIR was received in the Court of CJM, Giridih on 2nd January, 1991. It is admitted fact on record that on 31st December, 1990 the fardbeyan was recorded in the afternoon at 2.30 p.m. and next day being 1st January, 1991 was a holiday. Therefore, the receiving of the FIR next day on 2nd January, 1991 in the Court of CJM Giridih does not disclosed that there was inordinate delay in sending the FIR. He has specifically mentioned from where the dead body was recovered along with cloths, badhna lying in different sides and distance. He also found some faces near the dead body. All these circumstances corroborate the description given by eye-witnesses of the occurrence that the decease was chased and attacked by the appellants when he was easing himself in the fields. Some minor contradictions have been brought in his cross-examination regarding the statement of eye-witnesses which is not vital in nature.

10. The learned Counsel for the appellants have stressed before us that the IO by not recording the statement of PW 2 at the place of occurrence has committed a mistake. We have already discussed this aspect in for going paras. It is further asserted that the blood-stained soil and cloths etc. have not been sent for forensic examination. However, this fact is not disputed that Ramjan died homicidal death and his dead body was recovery from the field in presence of witnesses. According to injuries report (Ext. 5). The appellants Mansoor has asserted that he did not know anything and would like to adduce DW in his statement under Section 313, Cr PC. DW 1 examined on behalf of the appellants does not contain anything material on the merit of the case except that Rahman Mian and Ramjan Mian is same person. This does not make much difference as even if the deceased was involved in some criminal activities, his murder may not be justified in any circumstance. If the defence was trying to prove that the death of Ramjan Mian occurred in another circumstances, it was open for them to bring on record any such circumstance. This effort is missing on the record.

11. In the facts discussed and stated above we find that the prosecution witnesses PWs 2, 4, 6, 7, 8 and 9 have consistently supported the prosecution version that deceased Ramjan Mian was attacked by the appellants along with two others while he was easing himself in the fields in the morning of 31.12.1990 resulting in his death on spot. The prosecution has further been able to prove beyond doubts that the appellants participated in the attack in which Mansoor has taken lead on being extorted by appellant Hanif to kill the deceased. We do not find further any material on record to disbelieve the version of these probable eye-witnesses. We further find that the suggested grounds of false implication because of enmity rather strengthen the prosecution case.

12. Having regard to all the facts and circumstances, discussed above, we find that the present appeals are without merit and deserve to be dismissed. In the result both the appeals are dismissed and the judgment and order of conviction as well as sentence passed by the trial Court is hereby confirmed.

13. The appellants are on bail, their bail bonds are cancelled and they are directed to surrender forthwith before the Court below to serve out the remaining period of sentence, failing which the learned Court below will take all coercive steps for their arrest.

Amareshwar Sahay, J.

14. I agree.