ORDER
1. Appellants, two in number, were tried before the 1st Addl. Sessions Judge, Dumka in Sessions Case No. 31 of 1986/16-A of 1989. The 1st appellant, Munna Pandey was charged under Sections 302/307 of the Indian Penal Code, on the allegation that he caused injuries to deceased Umesh Prasad Sah and also attempted to murder PW 5, Umesh Prasad Gupta during the course of same transaction. The 2nd appellant Bhim Mandal was charged under Section 302/34, IPC as well as 324, IPC on the allegation that he shared the common intention of the other in causing death of the deceased by inflicting injuries to Bahadur Turi, PW 9 when he went to rescue the deceased Umesh Prasad Sah. Learned trial Judge finding the 1st appellant guilty under Section 302/34, IPC sentenced him to rigorous imprisonment for life and also found him guilty under Section 307, IPC for which he was sentenced to five years RI. The 2nd appellant, on being found guilty as charged was sentenced to rigorous imprisonment for life under Section 302/34, IPC and for the offence punishable under Section 324 for causing injuries to PW 9 he was sentenced to one-year’s rigorous imprisonment. The present appeal by the accused/appellant is against the said conviction and sentence.
2. The facts are as follows :
The deceased Umesh Prasad Sah was going towards market alognwith the informant, PW 5, Umesh Prasad Gupta and PW 9 Bahadur Turi. Both the appellants suddenly jumped from rickshaw coming from the market side and started assaulting the deceased Umesh Prasad Sah with a dagger. When the witnesses went to rescue the deceased, PW 5 was attacked with a knife by the 1st appellant, Munna Pandey and the 2nd appellant, Bhim Mandal assaulted PW 9 Bahadur Turi and caused injuries. PW 5 Umesh Prasad Gupta and PW 9 Bahadur Turi ran away from the place. The appellants also ran away from the place. After running from’ the scene of occurrence both PWs 5 and 9 appeared before PW 1, Sitaram Sah, Medical Officer attached to Sadar Hospital Dumka. On examination. Dr. Sitaram Sah found the following two injuries on the person of PW 5.
(i) Incised wound 1-1/2″ x 1/4″ x 1/4″ over right side of abdomen.
(ii) Incised wound 1/4″ x 1/4″ 1/4″ over left side of chest.
3. The doctor issued injuries report Ext. 2. He also examined PW 9 and found incised wound 1″ x 1/2″ over gluteal region. According to the doctor injuries caused to PWs 5 and 9 were simple in nature. The injury report in respect of PW 9 is marked as Ext. 2/1.
4. In the meantime, PW 10. Binod Bihari, Officer incharge of the Dumka P.S. on receipt of information over phone from the hospital that two persons had come for treatment, rushed to the hospital where he found PW 5 and PW 9. PW 5 gave him Jardbeyan which stands marked as Ext. 4 in this case. Thereafter, the same was registered as a FIR. He directed PW 8 Jagarnath Mishra to conduct investigation and on his direction PW 8 conducted inquest over the dead body of the deceased and prepared the inquest report (Ext. 8).
5. After inquest, on receipt of requisition, PW 1, Dr. Sitaram Sah, CAS, attached to the Sadar Hospital, Dumka conducted autopsy on the dead body of the deceased, Umesh Prasad Sah and he found the following two injuries :
(i) Penetrating incised wound 1-1/2″ x 1″ x 1″ x deep to abdomen over upper -epigastric region. On dissection rectus muscle diaphriagm and heart right chamber were punchtured and left side of pleura and lung was punctured and a big haemotonma was there.
(ii) Penetrating incised wound 1-1/2″ x 1″ x deep to right inguinal region. On dissection right side of large gut was punctured and surrounding omentum was also punctured and haemotoma was there.
6. The doctor issued Ext. 1, the postmortem certificate with his opinion that death is on account of shock and haemorrhage due to the injuries and that said injuries are sufficient in the ordinary course of nature to cause the death.
7. After completion of the investigation final report was filed against the appellants.
8. When questioned under Section 313, Cr PC on the incriminating circumstances appearing against the appellants, they denied all the incriminating circumstances. They examined three witnesses as DWs 1, 2 and 3. DW 1 Dr. Kausalandra Kumar in his evidence stated that on the same day i.e. 14.7.1987 at 11.25 a.m. he examined Sailendra Kumar Ram and found injuries which were simple in nature.
9. DW 2 Vijay Prasad Das is a Compounder by whom the register is maintained at the hospital. DW 3, a Sub-Inspector of Police, was examined to show that PWs 5 and 9 assaulted Shailendra Kumar Ram and that Shailendra was treated by DW 1 Dr. Kauslandar Kumar.
10. Learned counsel appearing for the appellants contends that since there was delay in sending the FIR to the Court the case of the prosecution cannot be believed. He submits that the evidence of DWs 1 to 3 shows that Shailendra Ram suffered injuries at the hands of the deceased and the other two injured witnesses and, therefore, they are the aggressors and hence the appellants are entitled to acquittal.
11. On the above contentions we have heard the learned counsel for the State and perused the materials on record.
12. There can be no dispute that the deceased Umesh Prasad Sah died on account of homicidal violence which stands proved through the evidence of the doctor PW 1 Dr. Sitaram Sah and post-mortem certificate, Ext. 1, issued by him. We, therefore, hold on the basis of the medical evidence that the deceased Umesh Prasad Sah died on account of homicidal violence.
13. PWs 5 and 9 who suffered injuries during the course of the said occurrence in which the deceased suffered injuries were examined by the prosecution to establish that the appellants inflicted injuries on the deceased as well as on the two witnesses. The evidence of PWs 5 and 9 shows that while they were on way to market with the deceased, the appellants jumped from the rickshaw, started assaulting the deceased and when intervened both of them were attacked by the appellants. Their evidence shows that immediately thereafter they rushed to the hospital and were examined by the doctor PW 1. The evidence of the doctor, PW 1, and medical certificates, Exts. 2 and 2/1 issued by him shows that PWs 5 and 9 suffered injuries and were treated on the same day immediately after the occurrence. ‘On going through the evidence of the two witnesses, we find no reason to reject their evidence. On the contrary the evidence of PWs 5 and 9 is not only corroborated by the medical evidence but is also corroborated by the evidence of PW 10, the officer in charge, who received the information from the hospital authorities over phone abut the treatment of the two persons at the hospital where PW 10 rushed and found PWs 5 and 9 with injuries.
14. The evidence of PW 10 further shows that on being questioned, PW 5 gave statement that the deceased was attacked by the appellants and that when they intervened, they were also attacked by the appellants. It is, therefore, clear that not only the deceased was attacked at 8.30 p.m. but when the witnesses PWs 5 and 9 intervened, they were also attacked and thereafter, they rushed to the hospital for treatment which information was also passed on to the police officer. We therefore, find that immediately after the incident, the statement of PW 5 was recorded at the hospital and names of the two appellants are mentioned as persons who assaulted the deceased and caused injuries to PWs 5 and 9, We, therefore, accept the evidence of PWs 5 and 9 who suffered injuries during the said incident when the deceased suffered injuries.
15. The appellants before the trial Court came out with a version that Shailendra Kumar Ram was attacked by the deceased and two witnesses and that Shailendra Kumar Ram took treatment from DW 1, Dr. Kausalandra Kumar. In support of the said plea, they examined the doctor DW 1 who allegedly treated Shailendra Kumar Ram and also marked the record maintained at the hospital by DW 2 as well DW 3 who spoke about the said occurrence. On going through the evidence of the doctor, we find that it was only an unsuccessful attempt on the part of the accused/appellants to make out a case against the deceased and the witnesses. The doctor, DW 1 in his evidence stated that the injuries he found on Shailendra Kumar Ram are too trivial and superficial in nature and they could have been self inflicted. He also stated in his evidence that the injuries were in the healing process. It could also be seen from the evidence of DW 1 that Shailendra Kumar was examined by the said doctor on 14.7.1985 and not on 13.7.1985, the day on which other two witnesses PWs 5 and 7 were examined by DW 1. If the occurrence had taken place in the manner suggested by the appellants and that the deceased and the witnesses were aggressors, who caused injuries to Shailendra Kumar, then nothing could have prevented Shailendra Kumar from going to hospital to take treatment. On the contrary, he did not even go to hospital for treatment leave alone going to the police station to lay complaint against PWs 5, 9 and the deceased. We, therefore, find that the defence version put forward on behalf of the appellants could only be considered as an afterthought in order to escape from the clutches of law. We, therefore, reject the defence case and accept the evidence of the prosecution witnesses and hold that they were rightly held guilty by the trial Court.
16. For the reasons aforesaid, we find no merit in this appeal. We, therefore, dismiss the appeal and confirm the conviction and sentence impose upon the appellants. It is reported that the appellants are on bail. Their bail bonds are cancelled: The 1st Additional. Sessions Judge, Dumka will take all steps to commit the appellants to prison.
We, however, appreciate and put on record the assistance rendered by the amicus curiae during the course of the hearing of the appeal.