JUDGMENT
N.N. Singh, J.
1. These three criminal appeals, arising out of Single Judgment, are directed against the judgment of conviction and sentence passed on 12.5.1995 in T.S. Nos. 661/92 and 352/94, heard and disposed of together by the Vth Additional Judicial Commissioner, Ranchi, by which the appellants of Criminal Appeal No. 45/95 (R) were convicted under Section 342/149 of the Indian Penal Code and were sentenced to undergo RI for two years and appellants of Criminal Appeal Nos. 51/95 (R) and 61/95 (R) were connected under Section 302/149 of the Indian Penal Code and were sentenced to undergo RI for life.
2. The prosecution case in short, as contained in the fard-beyan (Ext. 1) of Kalawati Devi (PW 4), widow of deceased Ramji Yadav is that on 19.4.1982, at about 6 a.m. Ramji Yadav with agricultural implements left for preparing land of his field at Chamargarhi Don and his two sons accompanied him with cattle for grazing. At about 7 a.m. Sewanti Kumari, daughter of the informant informed her about a meeting in village and being perturbed, she rushed towards the filed, where her husband and sons had gone to work and on reaching there, she saw 24 accused persons, including these appellants, variously armed, surrounding her husband, Ramji Yadav. Further case of the prosecution is that she saw the appellants, Sukra Oraon and Sukru Oraon who had caught the hands of her husband and that accused, Fagu Oraon and Husna Oraon assaulted Ramji Yadav with Balua as a result of which Ramji Yadav (deceased) fell down on the earth and thereafter all the accused persons assaulted him and when she tried, to save her husband, she was also assaulted by the appellants, Nandan Yadav, Situ Yadav, Sheo Narayan Yadav and Suresh Oraon as a result, of which she fell down in water. Further case is that the appellants, Jitbahan Oraon and spot an thereafter the accused persons fled a way. The informant claimed to have sustained injury on her head and hands and on other parts of her body and she remained there by the side of the deadbody of her husband where ASI S.K. Singh (PW 1), on hearing a rumour, arrived at 8.30 a.m. there and recorded her Fardbeyan.
3. On the basis of the aforesaid Fardbeyan, Chanho P.S. case No. 47/92 was registered against 24 accused persons and the police, after due investigation, submitted chargesheet. The case of two accused, Dhaneshwar Oraon and Etwa Oraon were seperated as they were juvinile. Charges could’ not be framed against Rajendra Oraon and Fagu Oraon since they were absconding at that time but subsequently Fagu Oraon was arrested and supplementary chargesheet was submitted against him and his case numbered as S.T. No. 352 of 1994 was also added and thereafter, by order dated 27.9, 1993, both sessions trials were amalgamated and the trial proceeded together.
4. The defence, as gathered from the suggestions put to PWs and the statements of the appellants under Section 313 the Code of Criminal Procedure appears to be that the appellants had been falsely implicated in this case due to land dispute and that they were innocent.
5. The prosecution examined seven witnesses in support of its case, out of whom PW 1 is Shailendra Kumar Singh, ASI the Investigating Officer and PW 2 is Rang Nath Sharma, part IO who had submitted charge sheet. PW 6 Moin Ansari is the seizure list witness and PW 7 is Dr. Arvind Prakash who claimed to have examined the injuries found on the person of PW 4 and proved his injury report at Ext II. PW 5 is Dr. Sandip Prasad Lai who held post mortem examination on the dead body of Ramji Yadav and proved his post mortem report (Ext. 9). PW 4 Kalawati Devi is the informant and widow of the deceased and PW 3 is Arun Kumar Yadav, son of the deceased who are witnesses on the point of occurrence. No defence witness was examined.
6. PW 5, Dr. Sandip Prasad Lai who claimed to have held post mortem examination on the dead body of Ramjl Yadav and stated to have found the following ante-mortem injuries:
(i) Incised wound 15 x 3 cm bone deep right lateral neck upper part and adjoining right chest cutting the soft tissue, blood vessels and third cervical vertebra partially including right side mandable with infiltration of blood and blood clots.
(ii) The body was decapitated through the neck. The head was attached with the trunk by means of small tag of skin on the position part of neck. On inspection of the wound, the margin bears two tags of skin indicating minimum three blows with infiltration of blood and blood clots.
(iii) 5X1 cm. X soft tissue back of right hand.
(iv) 6X2 cm X bone deep right wrist medial side cutting the underlying bone partially and some bruises were also found.
The doctor (PW 5) opined that the death was caused due to above noted injuries. He proved the post mortem report which is Ext 9. In his cross-examination he opined that the incised injuries on the person of the deceased were possible by four independent blows and that injuries No. 3 and 4 were not likely to cause death. Thus from his evidence this much is established that Ram Ji Yadav died a homicidal death.
7. Once it has been established that Ramji Yadav died homicidal death, the point for consideration is to see as to whether prosecution was able to prove the death of Ramji Yadav was caused by those appellants, in the manner and place, as alleged. PW 4, Kalawati Devi, the informant, supporting her fard-beyan (Ext. 1) stated that on hearing about a meeting being held in the village she left cooking and rushed to Chamargarhi Don where her husband, Ramji Yadav was cutting earth and his two sons were there for cattle grazing. She named all 24 accused persons with their arms and further stated that the appellants, Sukra Oraon and Sukru Oraon had caught the hands of her husband and thereafter Fagu Oraon and Husne Oraon gave balua blow to her husband as a result of which he fell down and then all appellants started assaulting him and when she went to his rescue the appellants Nandan Yadav, Situ Yadav, Sheo Narayan Yadav Suresh Oraon and Dharma Oraon assaulted her also with sword, Ballam and Balua as a result of which she fell down in water. In her evidence (PW 4) also added the name of Dharma Oraon as her assailant who was not named by her as such in her fardbeyan. PW 4 further stated that the appellants, Jit Bahan Oraon, Suresh Oraon and Dharma Oraon cut the neck of her husband as a result of which he died. Here she also added the name of Suresh Oraon about whom she had not stated in her fardbeyan to be the among persons who cut the neck of her husband. In her cross-examination she stated that she reached at the place of occurrence where the accused persons had surrounded her husband and that her husband died after Jitbahan Oraon and Dharma Oraon cut his neck and thereafter they fled away. She also stated about injuries sustained by her and caused by the appellants, Suresh Oraon, Situ Yadav, Shib Narayan yadav and Nandan Yadav. She admitted that Dharma Oraon had not assaulted her Regarding the motive for the alleged occurrence, she stated in her fardbeyan that Fagu and Rajendra wanted to purchase her land at Chamargarhi Don and they were pressing her husband for the sale but her husband by filling the ditch, was preparing the land and for that killed her husband. Thus this witness has fully supported the prosecution case as narrated in her fardbeyan (Ext.l).
8. PW 3 Arun Kumar Yadav, the son of the deceased claimed that he had gone with his father to Chamargarhi Don and that his father was cutting earth there and these accused persons arrived there. He also stated that Sukra and Sukru (Oraon ) caught hands of his father while appellants Fagu and Hunse (Oraon) assaulted his father as a result of which he fell down and when his mother, who had reached there, went to save his father his mother was assaulted by appellants Nandan Yadav, Shiv Narain Yadav, Situ Yadav and Suresh Oraon as a result of which she fell down in waster and that appellants, Jit Bahan and Dharma cut the neck of his father. He has been cross-examined at length but nothing has come out in his cross-examination to disbelive him. On behalf of the appellants it was argued that the other sort, Pramod, was not examined by the prosecution. PW 3 stated that Pramod was aged about five years and this explains the reason for his non-examination. Sewanti Kumari, the daughter of the informant was a witness only on the point informing her mother about the meeting in village and her non-examination is not very material. PW 3 in para 6 of his cross-examination stated that there was no house near the place of occurrence and that at the place of occurrence and that at the place of occurrence, his father, he and his brother Pramod were alone there and it explains the reason for non-examination of any other witnesses.
9. PW 1 S.K. Singh stated that he was posted as ASI at Channo P.S. and that on hearing rumour about the murder of Ramji Yadav by some persons, he made entry No. 313 dated 19.4.1992 at 8 a.m. and for verification he rushed to place of occurrence, where he reached at 8.30 a.m. and recorded fardbeyan (Ext. 1) of Kalawati Devi. It was argued on behalf of the appellants that as PW 4 in her cross-examination at paragraph 15 stated that her son Arun went to PS. and came back with the SI the fardbeyan (Ext. 1) would be barred under Section 161 of the Code of Criminal Procedure. This statement does not indicate that PW 3 gave information about the occurrence at PS PW 1, the IO did not say that PW 3 gave any information to him not PW 3 stated to have given any such information about the occurrence. Simply because he stated to have signed on his statement recorded by the IO, it cannot be inferred that prior information was given by him to SI or that the fardbeyan (Ext. 1) is berred under Section 161 of the Code of Criminal Procedure. PW 1 also proved the endorsement (Ext. 2) registering Chanho PS case No. 49/92 under Section. 147, 148, 149, 302, 324 and 323 of the Indian Penal Code on his return to police station. From perusal of the formal FIR (Ext. 3) it appears that place of occurrence was at a distance of 12 K.M. from the police station. He stated to have prepared the inquest report (Ext. 4) of the deadbody of Ramji Yadav and to have sent the dead body for post mortem examination. PW 1 further stated to have inspected the place of occurrence which was the land of the informant situated at Chamargarhi Don bearing plot No. 1528 area 96 decimals. He further stated that the occurrence took place at the northeastern comer of the plot where the deadbody of the deceased was found and earth was found blood stained and there were signs of striking of weapons on the earth and that the deadbody was also found there. He stated to have seized the blood stained earth and to have prepared seizure list (Ext. 5) signed by the seizure witness (PW 6) Moin Ansari. He further stated to have prepared the injury report of the injuries found on the person of the informant (Ext. 6) and to have sent her for medical examination and to have prepared challan for sending the dead body for post mortem examination (Ext. 7). PW 7, Dr. Arvind Prakash stated to have found five lacerated injuries on different parts of the body of the informant, caused by hard and blunt substance and simple in nature, he opined that such injuries could be caused by Lathi and blunt portion of balua and sword and he proved the injury report II. His opinion regarding weapons justified conviction of appellants of criminal appeal No. 45/95 (R) under Section 324/149 of the Indian Penal Code though they were charged under Section 307/149 of the Indian Penal Code.
10. In course of the argument, much stress was given by the learned Advocate for the appellants on the point that the dead body was not found on the place of occurrence and that from the evidence it appears that place of occurrence has been shifted and as such the prosecution story should not be believed. This assertion was made by the learned Advocates for the appellants on the the ground that the IO (PW 1 ) in his cross-examination stated that the place of occurrence was Labariabandh and that from the evidence of PW 3 it has been established that Lebariabandh and Chamargarhi Don both were different places. I have examined this point and I find that in the fardbeyan (Ext. 1), it is mentioned that it was recorded at Chamargarhi Don in village Balsokra Karam Toll and place of occurrence described in fardbeyan was the same. In his examination-in-chief PW 1, the IO while describing place of occurrence has clearly stated that it was North-West corner of S.P. No. 1528 lying Chamargarhi Don belonging to informant and that the dead body was found there and blood stained earth with signs of the striking of weapons were found there and that the deadbody of the husband of the informant was found on the place, where he was cutting earth. The Investigation Officer gave boundary of that place which is as such:
North-Onion field of Fagu Oraon.
South-Water logged field of informant in Chamargarhi Don.
East-Water logged land of the informant.
West-Water logged land of Rajendra Oraon.
PW 1 further mentioned that where the dead body was found, there was a stone in north of water logged area. In his cross-examination PW 1 in paragraph 10 of his cross-examination stated that place of occurrence was Labariabandh but only after two lines, he clarified it that Labariabandh and Chamargarhi Don are the same place and perhaps that is why in the seizure list and inquest report (Exts. 4 and 5), has also mentioned the location to be near Labariabandh. In view of the explanation given by the PW 2 that Labariabandh and Chamargarhi were treated by him as synonyms of each other, the use of word Labariabandh as PO by the IO is of so help to the appellant. PW 3 also stated that occurrence took place in Chamargarhi Don and Labariabandh was away from there and that his mother remained at Chamargarhi Don from the beginning of the assault to the end of the assault. PW 3 further clarified in paragraph 8 of his cross-examination that Chamargarhi Don and Labariabandh are adjacent but different plots and that assault took place at Chamargarhi Don and not at Labariabandh. PW 4, informant, also stated that occurrence took place at Chamargarhi Don and that her statement was recorded at Chamargarhi Don. In paragraph 8 of her cr6ss-examination she explained that Don of Fagu was at a distance from Chamargarhi Don and Labariabandh belonged to Rajendra in which the people used to take bath and wash their cattle. PW 1 is the witness on seizure list (Ext. 6) who proved his signature (Ext. 10) stated that Chamargarhi Don was at a distance of 300 yards from Labariabandh and that blood stained earth was seized from the South of Labariabandh at a distance of 150 yards from the Labariabandh. In Ext. 5 also the place from where the seizure was made, was described as “Labariabandh Ke Pass Se”. Thus this also indicated that place of occurrence was not described as Labariabandh but a place near it. In view of the explanation given by the IC that he meant Labariabandh and Chamargarhi Don to be the same place, no benefit can be given to the appellants for the use of the word Labariabandh for the PO by the IO in his cross-examination or in other documents prepared by him. It is very clear and established from the description of the place of occurrence, by the IO that place of occurrence was the informant’s land in Chamargarhi Don bearing plot No. 1528 and that the occurrence took place in North-East corner of it, where the dead body was found and from where the blood stained earth was seized and signs of striking of weapons were found on the land. To make it more definite, the boundary as stated above has also been mentioned which removed any unambiguity and made it very clear that occurrence took place in Chamargarhi Don and not at Labariabandh which were treated by the IO by mistake, as synonyms of the other. On the basis of the discussion made above, I find no weight in the argument of the learned Advocate of the appellants that place of occurrence has been shifted and as such the appellants could not get any advantage of it. In view of this finding on the point of fact that there is no shifting, as alleged in the place of the occurrence, there is no necessity for discussing the ruling cited by the appellants on the ground of shifting the place of occurrence.
11. I have scrutinised the evidence of PWs 3 and 4 very minutely and I find that their evidence does not suffer from any infirmity and the learned lower court rightly relied on their evidence. Framing of charge and acquittal of other accused persons by the trial court, giving them benefit of doubt are not subject matters for consideration in these appeals.
12. In the result I find no merit in these appeals and they are accordingly dismissed and order of conviction and sentence passed against the appellants is hereby confirmed. The bail bonds of appellants, Situ Yadav, Nandan Yadav, Shib Narayan Yadav and Suresh Oraon of criminal appeal No. 45 of 1995 (R), who are on bail, are hereby cancelled and they are directed to surrender forthwith to serve the sentence passed against them failing which the trail court will take steps for their arrest. The period of detention undergone by the appellants as under trial prisoners, would set off under Section 428 of the Code of Criminal Procedure.