Criminal Appeal No.19 of 1999 (R)
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Against the judgment of conviction and order of sentence dated
23.11.1998 passed by 1st Additional Sessions Judge, Chaibasa in
Sessions Trial No.86 of 1996.
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1. Damu @ Dobai @ Ramrai Soren
2. Songa @ Dele Jamuda
3. Jora Jamuda
4. Roto Jamuda
5. Pandu Jamuda..............................................................Appellants
VERSUS
State of Bihar............................................................... Respondent
For the Appellants: Mr.R.C.Khatri
For the State : Md. Azimuddin
P R E S E N T
THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
THE HON'BLE MR. JUSTICE R.R.PRASAD
By Court: All the five appellants were put on trial to face charge under
Section 302/34 and 201/34 of the Indian Penal Code for committing
murder of Bandia @ Damu Jamuda in furtherance of their common
intention and for causing disappearance of the evidence of murder in
order to screen themselves for legal punishment. The trial court finding
the appellant no.5 Pandu Jamuda guilty for the offence under section
302 of the Indian Penal Code and other appellants for the offence
under section 302/34 of the Indian Penal Code sentenced them to
undergo imprisonment for life. Further all of them on being found
guilty for the offence under section 201 of the Indian Penal Code were
sentenced to undergo rigorous imprisonment for five years and to pay
a fine of Rs.2000/- and in default to undergo rigorous imprisonment
for two years. Both the sentences were ordered to be run
concurrently.
The case ofthe prosecution is that while the informant Durga
Jamuda (P.W.2) was sitting outside of his house on 27.8.1995 and his
younger brother Bandia @ Damu Jamuda was in the house, all the
appellants armed with Lathi and Pistol came over there and made
complaint as to why they do not provide chicken etc. at the time of
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worship which is performed in the village. By saying so, they came
before Bandia @ Damu Jamuda and started assaulting with Danda.
Meanwhile, the appellant no.5 Pandu Jamuda brought a Tangi which
had been kept inside the house and inflicted injury by it, as a result of
which, his brother Bandia @ Jamu Jamuda died at the spot.
Thereafter Durga Jamuda (P.W.2) being frightened with the
scene of occurrence fled away and came before Village Munda,
namely, Maka Jamuda (P.W.1) at village Goalkera and told about the
occurrence to him. The next day, i.e, on 28.8.1995 the informant
Durga Jamuda (P.W.2) and also Maka Jamuda (P.W.1) came to
Chakradharpur Police Station and informed to the police about the
occurrence. Thereupon one Ramjee Singh, Sub-Inspector of
Chakradharpur Police Station came to village Goalkera at about 12
noon and recorded the Fardbeyan (Ext.3), upon which a formal first
information report (Ext.4) was drawn. The said Ramjee Singh on
taking up the investigation of the case, inspected the place of
occurrence and then came on the bank of river from where he
recovered a dead body which had been buried under the sand. On
holding inquest on the dead body, inquest report (Ext.5) was
prepared. Thereafter dead body was sent for post mortem examination
which was conducted by Dr. M.P.Singh (not examined) who, as per the
post mortem report (Ext.2), proved by another Doctor, namely, Dr.B
Deyal (P.W.6) found the dead body highly decomposed. However, one
incised injury on the right side of neck was noted. The cause of death,
according to Doctor, was due to shock and haemorrhage on account of
injury found on the person of the deceased which had been caused by
heavy sharp cutting weapon.
After completion of the investigation, police submitted charge
sheet against the appellants whereupon cognizance of the offence was
taken and in due course, when the case was committed to the court of
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sessions, charges were framed to which the appellants pleaded not
guilty and claimed to be tried.
The prosecution in order to prove he charge examined
altogether 7 witnesses. Of them, the informant, Durga Jamuda
(P.W.2), and Jema Jamuda (P.W.3), daughter of the informant, have
claimed to have seen the occurrence whereas Village Munda, namely,
Maka Jamuda (P.W.1) is an hearsay witness who came to know about
the occurrence from Durga Jamuda (P.W.2).
The trial court having found the eye witnesses to be trust
worthy, recorded the order of conviction and sentence as aforesaid.
Being aggrieved with that, this appeal has been preferred by
the appellants.
Learned counsel appearing for the appellants submits that
though Durga Jamuda (P.W.2) as also Jema Jamuda (P.W.3) have
claimed to have seen the accused persons assaulting the deceased but
from the evidence of Jema Jamuda (P.W.3) elicited in the cross-
examination, it would appear that as soon as the accused persons
arrived at the house of the informant, Jema Jamuda (P.W.3) as well
as Durga Jamuda (P.W.2) fled away from there out of fear and,
therefore, their testimonies to the effect that the accused persons
assaulted the deceased are not worth reliable.
It was further submitted that the Investigating Officer has not
been examined and as such, place of occurrence can never be said to
have been established by the prosecution. In spite of that, the trial
court recorded the order of conviction and sentence which, in the facts
and circumstances as stated above, is fit to be set aside.
Heard learned counsel appearing for the State also.
Having heard learned counsel appearing for the parties and on
perusal of the record, we do find that, according to eye witnesses,
Durga Jamuda (P.W.2) and Jema Jamuda (P.W.3), while they were in
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front of his house and the deceased Bandia @ Damu Jamuda was
sitting on the verandah of his house, the accused persons came over
there armed with lathi and expressed their anger for not providing
chicken at the time of village puja and then started beating the
deceased with danda. Meanwhile, Pandu Jamuda, appellant no.5
picked up a Tangi which had been kept in the house and gave Tangi
blow on the neck of the deceased, as a result of which, the deceased
died. Evidences of both the witnesses were sought to be impeached
by referring that piece of evidence of P.W.3 where she says that when
the accused persons came, she as well as P.W.2 ran away from the
place of occurrence but that piece of evidence cannot be read in
exclusion, rather if we consider the evidence of P.W.3 in totality, it
comes out that after she saw the entire occurrence, one of the
appellants pointed out pistol towards her and then she fled away and,
therefore, P.Ws. 2 and 3 cannot be said to have not seen the
occurrence. That apart, we do not find anything on the record to
disbelieve the testimonies of both the eye witnesses. From their
evidences the place of occurrence which is verandah of the house of
the deceased and informant (P.W.2) gets fully established and as such
non-examination of the Investigating Officer does not have any
adverse impact over the case of prosecution particularly when nothing
was shown to have caused prejudice to the defence on account of
non-examination of Investigating Officer. Moreover, testimonies of
both the eye witnesses get corroboration from the medical evidence
whereby Doctor has found cut injury over the neck caused by heavy
sharp cutting weapon.
However, in the facts and circumstances, it needs to be
considered as to whether all the persons were sharing common
intention ? We have already noted that accused persons being
annoyed with the act of the deceased of not providing chicken had
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come to the house of the informant armed with lathi and not with any
dangerous weapon and the accused persons, as per the evidence of
P.W.3 as elicited in the cross-examination, never assaulted on the vital
part of the body. However, appellant no.5 Pandu Jamuda, as per the
evidence of eye witnesses, picked up the Tangi which was there in the
house of the informant and inflicted injury over the neck of the
deceased knowing fully that such act is so dangerous that it would in
all probability cause death or such bodily injury as is likely to cause
death. Thus, we do find that appellants 1 to 4 had had no intention to
commit murder and, therefore, they are acquitted for the offence
under section 302/34 of the Indian Penal Code. However, they are
found guilty for the offence under section 323/34 and also under
section 201/34 of the Indian Penal Code and are sentenced for the
period already undergone, whereas appellant no.5 Pandu Jamuda, in
the facts and circumstances of the case, has rightly been convicted
and sentenced for the offence under section 302 of the Indian Penal
Code and also under section 201/34 of the Indian Penal Code and
hence, judgment of conviction and order of sentence is hereby
affirmed.
Thus, this appeal stands dismissed with the aforesaid
modification in the order of conviction and sentence so far appellant 1
to 4 are concerned.
(Amareshwar Sahay, J.)
( R. R. Prasad, J.)
Jharkhand High Court, Ranchi,
The 5th May, 2009
NAFR/N.Dev