JUDGMENT
A.K. Prasad, J.
1. The appeal is directed against the judgment and order dated 16-9-1989 in S.T. No. 44/98 passed by Smt. Shakuntala Sinha, the then 2nd Addl. Sessions Judge, Chaibasa whereby and whereunder the appellants have been convicted under Section 302 of the I.P.C., on the charge of committing the murder of Rajendra Sinku and they have been sentenced to rigorous imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo simple imprisonment for three months each. Further, appellants, Mana Sinku and Jai Ram Sinku have been convicted under Section 323 of the I.P.C. for voluntarily causing hurt to Roya Ram Sinku, the informant and sentenced to undergo rigorous imprisonment for one month thereunder. Both the sentences passed on appellants Jai Ram Sinku and Mana Sinku have been ordered to run concurrently.
2. Briefly put, the prosecution case is as under:-
On 2-9-1987, on the occasion of Jomnama parv two friendly football matches were played in between the boys of villages Jamdih and Basasai from 9 a.m. to 9.30 a.m. and thereafter between the teams of Jamdih and Matkampi from 10 a.m. to 10.30 a.m. After the game was over the players and spectators dispersed. Thereafter during the day time there was an altercation between Rajendra Sinku (since deceased) on the one hand and accused Doge Sinku, Guru Sinku and Maran Singh Laguri on the other and they had given fist blows to him. On the same day in the evening Rajendra Sinku, the deceased narrated the incident to informant, Roya Ram Sinku (P.W.3).
On 2-9-1987, around 7 p.m., the informant along with the deceased, Rajendra Sinku, Roya Sinku, son of Kedia Sinku (P.W.I) Renso Sinku (P.W.2) and Turi Sinku (P.W.6) was going to village Matkampi to take part in the dance on the occasion of Sirka festival. When they reached in between the house of Ladura Sinku and Joto Sinku, sixteen accused persons, named in the F.I.R., including the appellants, armed with lathi-dandas, surrounded them and uttered that deceased Rajendra Sinku is not to be spared and is to be killed. Thereafter appellants, Guru Sinku, Jai Ram Sinku, Mana Sinku, Martam Sinku and co-accused Dadu Laguri and Moran Sinku (ab-sconder) started giving lathi and danda blows as aresult of which Rajendra Sinku sustained wounds and fell down on the ground. The informant rushed to save him whereupon appellants, Mana Sinku and Jai Ram Sinku and co-accused, Satish Sinku (whose trial was separated as he was a juvenile) assaulted and wounded him with lathi whereafter he fled to save himself. The other companions of the informant escaped to save themselves. Later on the informant learnt that the deceased had died on the spot. The dead body of Rajendra Sinku was lifted by Roya Sinku (P.W. 1) and kept near the house of Gura Kuntia (P.W.5). The informant was taken to his home by Sona Ram Kuntia (P.W.7) and Sidiu Kuntia (P.W.4). The informant was carried to the State Dispensary at Hat Gamaharia by his villagers on the next day (3-9-1987) where he was treated for the wounds.
On the basis of an out door slip regarding wounds sustained by the informant, received from doctor (P.W. 13) of State Dispensary at Hat Gamaharia, through Jamadar Sinku, Mukhiya (P.W.9), Officer-in-charge, Tonto P. S. (P.W. 15) visited Hat Gamaharia State Dispensary and recorded the fardbeyan (Ext. 4) of the informant. On its basis, the present case was instituted, the formal F.I.R. (Ext. 5) was drawn up. He proceeded to village Jamdih, held inquest over the dead body of Rajendra Sinku which Was lying in the compound of Gura Singh Kuntia (P.W.5) (Ext. 6 is the inquest report), he took charge of blood stained earth therefrom under seizure list (Ext. 7) and inspected the place of occurrence which is village Kachhawa in front of the house of Joto Ladura Sinku at village Jamdih. There is a tamarind tree on the East and other on the West of the village road and the place of occurrence is the village road between the two tamarind trees. The village road runs North to South and it is to the West of the house of Joto Ladura Sinku. At the time of the inspection it was drizzling and water had collected on the village road and no blood mark was found on the spot. After completion of investigation charge-sheet was laid in Court against the accused persons.
3. The main defence is of innocence and false implication.
4. At the trial the prosecution examined as many as 15 witnesses. Out of them P.W.8, Uday Chandra Gope is a tendered witness. P.W.I, Roya Sinku, P.W.2 Renso Sinku, P.W.5 Gura Singh Kuntia, P.W. 6 Turi Sirka, P.W. 10, Rup Singh Sinku and P.W. 12, Bamiya Sinku have been declared hostile by the prosecution. The other P.Ws. are : P.W.3 Roya Sinku, informant himself, P.W.4, Sidiu Kuntia, P.W. 7 Sona Ram Kuntia, P.W. 9 Jamadar Sinku, the Mukhiya, P.W.I 1, Ganga Ram Sinku, P.W. 13, Dr. Tusan Prasad who had examined the wounds on the person of the informant, P.W. 14, Dr. O. N. Jaiswal who conducted autopsy on the dead body of Rajendra Sinku and P.W.15, Ganesh Prasad Sinku, Investigating Officer.
5. The defence, on the other hand, did not examine any witness.
6. On consideration of the materials on record learned Addl. Sessions Judge held that the charge under Section 302 of the I.P.C. for committing murder of Rajendra Sinku was established beyond reasonable doubt against the appellants and accordingly convicted and sentenced them thereunder as stated above. Further, learned Addl Sessions Judge held that appellants Jai Ram Sinku and Mana Sinku had voluntarily caused hurt to the informant and as the injuries sustained by him were simple in nature they were convicted under Section 323 of the I.P.C, though the charge had been framed under Section 307 of the I.P.C and passed sentence on them as indicated above. Learned Addl. Sessions Judge acquitted the other ten accused who were charged under Section 302 read with Section 149 of the I.P.C. for the constructive liability for the murder of Rajendra Sinku.
7. The point which falls for consideration is whether the prosecution has been able to bring home the respective charge to the accused persons-appellants beyond shadow of reasonable doubt.
8. Learned counsel for the appellants has assailed the impugned judgment mainly on the ground that the informant (P.W.3) is related to the deceased and his testimony cannot be accepted on the participation of the appellants in the occurrence in the background that P.Ws. 1,2 and 6, who are cited as eye-witnesses to the occurrence in the fardbeyan (Ext.4), have not supported the prosecution version; that P.Ws. 4, 5 and 7 are not cited as witnesses in the F.I.R. and there are vital contradictions in their evidence and as their house is situated approximately 200 yards off the P.O. it is highly improbable that they could not have witnessed the actual assault on the deceased; that there has been delay in the lodging of F.I.R. inasmuch as the alleged occurrence is said to have taken place on 2-9-87 around 7 p.m. and the fardbeyan was recorded on the following day at 1 p.m.; that at any rate there is omnibus allegation in the fardbeyan that the appellants had commenced the assault on the deceased and no specific injury to the deceased has been attributed to the appellants and in the circumstances the conviction of the appellants under Section 302 of the I.P.C. is bad in law.
9. Learned A.P.P. appearing for the respondent-State, on the other hand, has supported the impugned judgment.
10. The factum that the deceased met a homicidal death is not in dispute, P.Ws. 3, 4, 5 and 7 have stated that deceased was assaulted resulting in his death on the spot. P.W. 15, G. P. Sinha, Investigating Officer, has testified to the effect, he held inquest over the dead body of Rajendra Sinku (Ext. 7 is the inquest report). P.Ws. 10 and 12 are witnesses to the inquest.
P.W. 14, Dr. O.N. Jaiswal has testified to the effect that on 4-9-1987 at noon he conducted post-mortem examination on the dead body of Rajendra alias Rajesh Sinku and he found the following ante-mortem wounds on his person:-
(i) Fracture of right parietal bone.
(ii) Depressed fracture of right temporal bone 2.5″ long
(iii) Fracture of right Zygomatic bone.
According to him, wounds were caused by heavy and blunt object like lathi and there was underlying copious subdural and extradural haemorrhage and diffused haematoma under the scalp visible from within overlying the fractures. He has opined the cause of death was due to cerebral compressions resulting from the injuries. He has further opined that the injuries were sufficient in the ordinary course of nature to cause death. Ext. 3 is the post-mortem report in his pen. According to him, the time elapsed since death was between 24-36 hours of the post-mortem examination. The medical evidence establishes beyond doubt that the death of the deceased was homicidal.
11. The crucial point which arises for consideration is whether the appellants were instrumental in the murder of the deceased. One may now proceed to discuss the evidence of the P.Ws. 3, 4 and 7 on the spot.
12. P.W. 3, Roya Ram Sinku, has stated in the chief-examination that on the fateful day, around 7- 7.30 p.m. while he was returning to his village from Matkampi, in the company of the deceased, P.Ws. 1, 2 and 6, after witnessing dance programme, on the way in between the houses of Ladura Sinku and Joto Ladura, the 4 appellants, Dadu Laguri, Satish Singh (whose case has been separated), Doge Sinku (whose parentage is not given) and 9 others (who are not named), armed with lathi-danda, surrounded them and uttered that deceased Rajendra Sinku is not to be spared and he has to be killed whereafter appellants, Gura Sinku, Mana Sinku, Jairam Sinku, Moram Sinku (absconder) and Satish Sinku assaulted the deceased who fell down, on sustaining wounds and when he rushed to intervene, the appellants, Mana Sinku and Jai Ram Sinku assaulted him with lathi and he sustained wounds on his head and he was chased by them and appellants Mana Sinku and Jai Ram Sinku gave thrust blows on his chest, back, stomach and thigh and P.W.5, ultimately, saved him from further assault and he was reached home by P.Ws. 4 and 7 which fact has been corroborated by P.Ws. 4 and 7.
In the fardbeyan (Ex. 4) the informant has alleged that the incident took place while they were on way to Matkampi but in evidence, as noticed above, he has stated that occurrence took place while they were returning from village Matkampi. This is a minor contradiction occasioned by failure of memory with lapse of time and his evidence cannot be discredited on this ground alone.
13. P.W. 3 has stated that on the next day he was carried on a cot to State hospital at Hat Gamaharia where he was treated for the wounds and the police officer (P.W. 15) had recorded his fardbeyan. P.W. 13, Dr. Tusan Prasad has testified to the effect that on 3-9-1987 at 10 a.m. he had examined the informant (P.W. 3) and he had found the following wounds on his person :-
(i) lacerated wound on right parietal area of scalp 1″x 1/3″x 1/3″.
(ii) Abrasion and diffused swelling on right scapular area on back 1/2″ x 1/2″ x skin deep.
According to him, injuries were simple in nature caused by hard and blunt substance and possible by lathi blows and the injuries were aged more than 12 hours and within 24 hours of the examination. Ext. 2 is the injury report of the informant in his pen. He has further stated that he had informed the matter to the police also. P.W. 15 has stated that on 3-9-87 he had received O.D. slip about the injury of the informant (P.W.3) at the P.S. whereupon he proceeded to Hat Gamaharia State Hospital and the fardbeyan was recorded. P. W.4 has stated that the informant had suffered wound on head in the incident. P.W. 15 has also stated that he has found wounds on the person of P.W. 3. Thus, it is manifest that the informant is an injured witness. His presence on the spot at the time of the occurrence cannot be doubted.
14. It is now to be considered whether the evidence of P.W.3 can be relied upon on the involvement of the appellants in the occurrence. It is true that in the cross-examination P.W.3 has admitted that he did not name co-accused Satish Sinku in the fardbeyan as an assailant of the deceased. The trial of Satish Sinku, a juvenile, has been separated. On this ground the testimony of P.W.3 as a whole on the point of occurrence cannot be discarded. A criticism has been made that genesis of the occurrence was that in the day time, Donge, Gura Sinku and Moram Singh Laguri had fisted the deceased but no earlier report of such incident was made to the police or any authority. P.W. 3 admits that he did not witness such incident and he could know about it on the fateful evening from the deceased. It was a trivial matter and as such the deceased might not have chosen to report it to any authority.
15. It has been elicited in the cross-examination of P.W. 3 that there was darkness at the time of occurrence and on this premises it has been contended by the defence that due to darkness P.W. 3 could not have identified the assailants of the deceased. A suggestion was given to this effect by the defence which was denied by P.W. 3 and he had clarified that it was not so dark that one could not be able to identify. There is no material on record to suggest that P.W. 3 has any animus against the appellants. P.W. 3 had sustained injuries in the incident and this shows that he had seen the culprits involved in the incident from a close distance. The appellants are the co-villagers of P.W. 3. Under the circumstances, P.W. 3 could have identified them even in a bit of darkness. It has been pointed out by the appellants’ counsel that P.W. 3 has stated that he had sustained wounds on his chest, stomach and thigh also by the thrust blows given to him with dandas but no such injury was found by the doctor on his person. It may be because no apparent mark of injury by the thrust blows had been caused. P.W. 3 has fairly admitted that the deceased was his cousin. But on this score alone his evidence cannot be straightway rejected. It is well settled that evidence of a related witness is to be scrutinised with care and caution. A relative of deceased or victim himself would not spare the real culprits and falsely implicate innocent persons. P.W. 3 is quite consistent in his evidence on the involvement of the appellants in the incident. There is no reason to disbelieve his testimony on the point.
16. A comment has been made that P.W. 3 did not disclose about the incident to Mukhiya (P.W. 9) before the recording of his fardbeyan and there is possibility that appellants have been falsely implicated in the case after due deliberation. P.W. 3 has explained that due to wounds his face was swollen and he was unable to open the mouth and so he did not disclose about the incident to the Mukhiya. The distance between the place of occurrence and Tonto P.S. is about 30 K.M. Under the circumstances, there is plausible explanation for the delay in recording of the fardbeyan and the omission of P.W. 3 to narrate the incident to Mukhiya (P.W. 9) before the recording of his fardbeyan. It is true that P.W.9 has stated that he had informed the P.S. that deceased, Rajendra Sinku, his cousin, was lying dead at village Jamdih and it was recorded by police officer. It has been contended by the appellants’ counsel, on the basis of such statement, that there was an earlier F.I.R. about the death of the deceased which has been suppressed by the prosecution. This plea was not even suggested by the defence to P.W. 15. P.W. 9 has stated in cross-examination that he did not give any written report to the P.S. and that he has no personal knowledge about the cause of death of Rajendra Sinku. He has not stated that he had given information at the P.S. that the deceased had been done to death. So, on the basis of a vague information, the police officer was not required to record F.I.R. regarding death of the deceased and the police officer would have legitimately proceeded to enquire/ascertain the matter after making station diary entry. In such circumstances, the above contention of the appellants’ counsel is fit to be rejected.
17. It has been pointed out by the learned counsel for the appellants that P.W. 3 has stated that six persons, including the appellants, were assaulting the deceased with lathi-dandas, but the doctor had found three wounds only on the person of the deceased and this improbabilises that he had witnessed actual assault on the deceased. It is said that as many as 16 persons had surrounded the deceased and the informant had witnessed the occurrence from some distance and there was bit of darkness. He might have been stunned and in horror at the time of the incident. He might not have been able to observe as to whose blow actually hit the deceased and on which part of the body. But the fact remains that he had seen the appellants armed with danda-lathi, when the attack was made on the deceased P.W. 3 is specific in his evidence that appellants, Mana and Jairam had assaulted him with lathi and this is corroborated by the medical evidence. This lends assurance to the testimony of P.W.3 that appellants Mana and Jairam were involved in the incident.
18. P.W. 4, Sudiu Kuntia has stated in the chief-examination that his house is near the house of Joto Ladura and on the fateful evening he was at his home and on hulla he came out and witnessed appellants Mana, Jairam, Gura and co-accused Rashika (since acquitted) assaulting the deceased and the informant had rushed to save the deceased but he could not see the assault on him. He has further stated that the informant took shelter in his house. He has reiterated in his cross-examination that he had witnessed the assault on the deceased; that five persons were assaulting him and he is emphatic that appellant Mana too had assaulted the deceased. P.W. 7 Sonaram Kuntia, the younger brother of P.W.4, has testified to the effect that on hulla he came in the courtyard of his house and appellants Mana, Jairam and co-accused Doge had assaulted the deceased with lathi and that he could not identify the other assailants of the deceased. He has further stated that appellants Jairam, Mana and Gura had assaulted the informant. He has further stated that the incident of assault took place at a short distance from his house and after the assault the informant had ran towards -the house of this witness. In his cross-examination P.W.7 pointed out to a neem tree near Court-room as the distance between his courtyard and the place of assault which was estimated by trial Court to be about 20 yards. No material has come in the evidence of P.Ws. 4 and 7 to suggest that they bear any animus against the appellants. It has been urged by the learned counsel for the appellants that Investigating Officer (P.W. 15) had stated that the distance between P.O. and the house of P.Ws. 4 and 7 is about 200 yards and this renders improbable that P.Ws. 4 and 7 had witnessed the actual assault on the deceased. The evidence of P.W. 7 is that he had witnessed the occurrence from a short distance of about 20 yards. The evidence of P.Ws. 4 and 7 may not be independently used to found the conviction of the appellants. But it can be used as corroboration of the testimony of P.W. 3 that appellants Jairam Sinku, Mana Sinku and Gura Sinku were amongst those who had taken part in the assault on the deceased. Further, the testimony of P.W.7 corroborates the fact that appellants Mana Sinku and Jairam Sinku had assaulted the informant.
19. In view of the discussions made above and on consideration of the evidence on record, I find and hold that the appellants, armed with lathi-danda, had participated in the occurrence culminating in the death of the deceased and that appellants, Mana Sinku and Jairam Sinku had voluntarily caused hurt to the informant (P.W.3).
20. Now it has to be determined about the nature of offence committed by the appellants. It has not been spelt out in evidence as to which injury was caused to the deceased by the appellants individually or who is the author of the fatal blow dealt to the deceased. But the fact remains that the appellants, armed with danda-lathi, had participated in the incident. It is said that the occurrence took place on account of some minor incident which had taken place earlier in the day time between the deceased on the one hand and appellant Guru Sinku, co-accused Doge Sinku and Moram Singh Laguri on the other. In view of the facts and circumstances of the case, the intention of the appellants could only have been to cause injuries to the deceased and they did not share any common intention to cause death of the deceased. Where there is absence of intention to cause death, coupled with absence of sufficient involvement of all the accused persons in causing death, they would be liable under Section 304, Part II and not under Section 302, I.P.C., 1997 SCC (Cri) 1106 : (AIR 1997 SC 3997), Ram Kishan v. State of Rajasthan. The appellants can be imputed with the knowledge that the injuries inflicted to the deceased by danda-lathi were likely to cause his death. In such circumstances, a conviction can be founded under Section 304, Part II read with Section 34 of the Indian Penal Code, 1985 SCC (Cri) 54 : (1985) 1 SCC 200 : (1985 Cri LJ 660), Mer Dhana Sida v. State of Gujarat. For these reasons, the conviction of the appellants under Section 302 of the I.P.C. cannot be sustained. Instead I convict them for the offence under Section 304, Part II read with Section 34 of the I.P.C. and set aside the sentence of imprisonment of life and fine of Rs. 1000/- imposed on them by the trial Court and instead sentence each of them to undergo rigorous imprisonment for five years.
21. The conviction of appellants, Jairam Sinku and Mana Sinku under Section 323 of the I.P.C. and the sentence passed thereunder by the trial Court is affirmed.
22. In the result, the appeal is dismissed with modification, as indicated above, in the order of conviction and sentence by the trial Court against the appellants. The appellants shall surrender to their bail bonds in the Court below to serve out the remaining part of the sentence forthwith, failing which the trial Court shall take all steps for securing their attendance.