JUDGMENT
Lakshman Uraon, J.
1. Both the appellants have preferred this appeal against the judgment and order of conviction and sentence dated 21.1.1994 and 22.1.1994 passed by Shri Vikramaditya Prasad, Addl. Judicial Commissioner, Lohardaga in S.T. No. 287/93/12/93, whereby and where-under, both the appellants have been convicted and sentenced to go imprisonment for life under Section 302/34. IPC.
2. The prosecution case as per the fardbeyan of the informant, Sahwan Ansari, PW 6, recorded on 30.8.1992 by S.I., Y.N. Singh, Officer-in-Charge, Kisko P.S. at about 9.15 p.m. at his village Chhatartoli is that on the same day at about 10 a.m. regarding cutting of the ridge of the field there was an altercation in between his son, Gafur Ansari (deceased) with his nephew, Imam Ansari and Shamir Ansari (both appellants) which was pacified by the informant. Both the nephew-appellants had threatened to see what happens till the evening. The informant brought his son, Gafur Ansari, to his home. After taking meal Gafur Ansari left for Semardih Bazar at about 2.50 p.m. to purchase chickens. After purchasing chickens at about 7 p.m. he was returning home and reached towards the West at a distance of 200 yards. This informant heard the voice of his son to save his life addressing his father (Bachao Ho Baba). At that time the West of the village and saw in the paddy field of Shiba Oraon which was situated at Parsha Chourabadhar, his son, Gafur Ansari, was fallen down by both the appellants, Imam Ansari and Shamir Ansari and they were giving Chhura blows on his person. The informant, his son and his wife when reached to the P.O. the informant asked Imam Ansari and Shamir Ansari as they assaulted his son, let he (informant) also be killed, then both the appellants fled away. The informant, his son and his wife saw the neck and face of Gafur Ansari cut having bleeding injuries. He uttered a sound (Bhaiya Ho) and thereafter he died. PW 4, Bibi Alaman, started weeping. The informant, PW 6, and his son, PW 3. Shakur Ansari, brought the dead body to their home. When the villagers assembled there then they informed them that both the appellants, Imam Ansari and Shamir Ansari murdered Gafur Ansari and fled away. The informant asked Mahal Chaukidar to inform the Police. On his information the Poliee came to his village where he informed about the alleged occurrence, which is the fardbeyan, Ext. 2/1.
3. The prosecution has examined altogether eight witnesses in order to bring home the charges levelled against the accused person. PW 1, Sowrati Ansari and PW 2, Salik Ansari are the witnesses of the inquest report prepared by the I.O. at the village where the I.O. had gone in course of enquiry. PW 3, Shakur Ansari, is the son of the informant, PW 6, Sahwan Ansari. PW 4, Bibi Alaman, is the wife of the informant, PW 6. All these three witnesses, PWs 3, 4 and 6 are the eye-witnesses of the alleged occurrence. PW 5, Julekha Bibi, is the wife of the deceased, Gafur Ansari. She is a tendered witness as she had not gone to see Gafur Ansari where he was assaulted in the paddy field of Shiba Oraon at Parsha Chourabadhar because she was pregnant at that time. PW 7, Dr. M.M. Sen Gupta, conducted the post-mortem examination (Ext. 3) on the dead body of Gafur Ansari, whereas, PW 8, Yadunandan Singh, is the I.O. of this case. The defence has examined DW 1, Asim Ansari, who has stated that both the appellants had also gone to the house of the informant when they heard that Gafur Ansari was murdered and his dead body was brought to his home. This witness D.W. 1, Asim Ansari, asked both the appellants to escape from that place only because they were in inimical terms with the deceased and his family.
4. The learned Court below relied on the evidence of the eye- witnesses, PWs 3, 4 and 6, supported by the medical evidence, PW 7, and also the place of occurrence proved by the I.O., PW 8, and convicted and sentenced the appellants.
5. In this case only the interested witnesses who are the father, mother and brother of the deceased, Gafur Ansari, namely, PW 6, Shahwan Ansari, PW 4, Bibi Alaman and PW 3, Shakur Ansari, respectively are the eye-witnesses. The genesis of the alleged occurrence was only due to previous enmity as there was dispute regarding tamarind tree which was towards the West of their home and also regarding cutting of the ridge of their field by the appellants and throwing the earth on the field of the informant by the appellants at about 10 a.m. on the same day resulting an altercation with Gafur Ansari and the appellants. PW 6, the informant, pacified them and brought his son to home. At about 12 a.m. his son, Gafur Ansari, took meal and left the village at about 2.30 p.m. for Semardih Bazar to purchase hens. At about 7 p.m., PW 6 was standing towards the West of his home and heard the voice of Gafur Ansari, his son, to save him. He went to his home, brought a Torch and alongwith his son, PW 3 and wife, PW 4, rushed towards the West at the paddy field of Shiba Oraon. He flashed the Torch then saw Imam Ansari cutting the neck of Gafur Ansari with Chhura and Shamir Ansari was tearing the left side of his neck with Chhura. There was a number of cut injuries on the head and neck of Gafur Ansari Gafur uttered a voice (Bhaiya Ho) and thereafter he died. These three eye-witnesses found the paddy trampled at the P.O. Chappal of the deceased was also fallen down. The dead body was brought to their home. When the villagers assembled then they were informed that both the appellants murdered Gafur Ansari with Chhaku blows on his neck and head. The cycle, four hens which were purchased by Gafur Ansari, were found at the P.O. PW 3, Shakur Ansari, brought those articles to home. PW 6, the informant, did not produce the Torch, the means of identification to the I.O. He found mud on the clothes of Gafur Ansari which were also wet. The informant, PW 6, had asked the village chowkidar to inform the police. Therefore, he also went to the P.S. and when the police went to his home which is at a distance of 5 KMs., his fardbeyan was recorded, Ext. 2/1. PW 3, Shakur Ansari and his mother, PW 4, Bibi Alaman, have supported the evidence of the informant, PW 6, who has corroborated his statement as recorded in his fardbeyan by the S.I., Ext. 2/1. Both these witnesses, PWs 3 and 4 were inside their home at that time when PW 6 had gone towards the West of the home near tamarind tree where the daughter of Gafur Ansari, aged about 2-3 years, was easing. On hearing the voice of Gafur Ansari, PW 6, the informant, came back to home, took up a Torch and informed both these witnesses that some one is assaulting Gafur Ansari. These three witnesses, PWs 6, 4 and 3 rushed towards the West to see and reached Parsha Chourabad-har. All of a sudden PW 6 flashed the Torch and in the light they saw the appellant, Imam Ansari, cutting the neck of Gafur Ansari with Chhura and the appellant, Shamir Ansari, was also given Chhura blows on the left neck of Gafur Ansari. Both these witnesses, PWs 3 and 4, have also corroborated that PW 6 asked both the appellants to kill the entire family as they murdered Gafur Ansari. Then both the appellants taking Chhura fled away. Both these witnesses found the paddy trampled and blood was oozing out. Both PWs 3 and 6 brought the dead body to their home and thereafter, PW 6 went the police station. Then the Police came to their home. Both these witnesses, PWs 3 and 4 have also stated that the alleged occurrence took place only due to enmity as there was dispute regarding tamarind tree and also on that very day at about 10 a.m. there was an altercation in between the deceased and the appellants regarding cutting of ridge of the field. PW 6 had pacified the matter but the appellants had threatened to see what happens till the evening.
6. The learned counsel for the appellants has argued that there are other houses nearby the house of the informant. None of the villagers heard the voice of Gafur Ansari but only PW 6, the informant, claimed to have heard the voice of his son. It was also submitted that the place of occurrence is Parsha Chourabadhar, the paddy field of Shiba Oraon, situated towards the west at a distance of 500-600 yards from the village Parhepath Chatartoli. It was submitted that from a distance of 500-600 yards no one can hear this sound and identify the voice. It was also submitted that PW 6 has deposed that he asked Mahal Chaukidar to inform the Police but he had not named the assailants nor the name of the deceased. It was argued that the statement as given by Mahal Chaukidar, is not on the record. The subsequent information, which is alleged to be the fardbeyan of the informant, PW 6, Ext. 2/1, is hit under Section 162, Cr PC on which the informant has signed which is also not legally acceptable. It was also argued that the source of identification i.e., Torch, has not been mentioned in the fardbeyan, Ext. 2/1, rather in course of evidence, PWs 3, 4 and 6, have developed the story of Torch, as a source of identification. The I.O. has also not seized that Torch nor the I.O. has seized the blood-stain from the P.O. or from the house where the dead body was kept. The I.O. did not seize the blood-stained clothes of the deceased, PW 6, the informant and his son, PW 3, who had brought the dead body of Gafur Ansari, carrying from the P.O. to their home. It was also argued that PW 1, Sowrati Ansari, has stated that the Police prepared the inquest-report on which he signed at the P.S. whereas PW 2, Salik Ansari, another witness of the inquest- report, has deposed that in his presence inquest-report was not prepared. But in course of investigation when the I.O. had gone to the village Parhopat Chattartoli then he signed on it as asked by the I.O., Exts. 1 and 1/1 respectively. On these grounds it was urged that the manner of the alleged occurrence could not have been seen by the interested eye-witnesses nor PW 6 could have heard the voice from a distance of 500-600 yards and also non-production of Torch, which was the source of identification, preparation of the inquest-report, signature on it at the P.S. non-seizure of blood-stained soil and blood-stained clothes by the I.O., create doubt in the prosecution case.
7. The learned APP has submitted that in the village at about 7 p.m. there is no due and cry or any noise as it is found in the town. In the village it is pin-drop silence and in that situation if anyone cries at a distance of 500-600 yards which is hardly 1/3rd Mile distance, then that can very well to heard and ascertained. It was submitted that at the village the other villagers were inside their respective homes. When PW 6, heard the voice of his son, Gafur Ansari, for help he was outside the home near tamarind tree, then he came back to home, took up Torch, informed his wife, PW 4, and his son, PW 3, rushed towards Parsha Chourabadhar near the field from where the voice was heard. When they reached near the paddy field of Shiba Oraon at Parsha Chourabadhar then at the flash to Torch light they saw both the appellants cutting the head and neck of Gafur Ansari with Chaura. When the accused fled away then they saw Gafur Ansari dead. The dead body was brought to the village home. It was also urged that the I.O., PW 8, found trample-mark of paddy and mud at the P.O. He also saw blood-spot at the paddy field of Shiba Oraon. He also saw blood in the house of the informant where the dead body was kept. The Doctor who conducted the postmortem examination on the dead body of Gafur Ansari, found multiple injuries with sharp-edged weapon like Chhura on his person resulting his death.
8. I have stated above that all the eye-witnesses, PWs 3, 4 and 6, are the only eye-witnesses who have supported the case of the prosecution. They have stated about the alleged occurrence and the manner of the alleged occurrence, naming these appellants who murdered Gafur Ansari giving Chhura blows. PW 8, Y.N. Singh, had got information on 30.8.1992 at 8 p.m. from the Chaukidar, Biriya Oraon, at the P.S. that at village Parhopat Chhattartoli one person was murdered hence immediate action is required. He entered S.D. Entry No. 661 dated 30.8.1992 and went to village Parhopat Chhattartoli for verification alongwith other Police staffs. At village Parhopat Chhattartoli he came to know about the alleged occurrence from the informant. Sahwan Ansari, PW 6. His fardbeyan was recorded on which he signed, Ext. 2/1. The I.O., PW 8, Mr. Y.N. Singh, was informed that Gafur Ansari had gone to Semardih Bazar. While he was returning then he was murdered by his cousin brothers, Imam Ansari and Shamir Ansari by falling him in the paddy field with Chhura blows. The I.O. prepared the inquest-report of the dead body at the village itself on which the witnesses, PWs 1 and 2 signed. He found the P.O. situated towards the West of the village Parhopat Chhatartoli at a distance of 500-600 yards in Parsha Chourabadhar. He found foot prints and trample marks at the P.O. He also found plastic chappal of the deceased at the P.O. that field was of Shiba Oraon. He found blood spot on the ridge of the paddy field of Shiba Oraon. He also deposed that Mahal chaukidar, Birilia Oraon, informed for the first time about the alleged murder. When he went to the village alongwith Chaukidar then he recorded the statement of the informant, PW 6. He did not seize the torch. He was pointed out the place and the distance from where the torch was flashed. PW 6, the informant and the eye-witnesses identified these appellants who were assaulting with Chhura on the neck and head of Gafur Ansari. Near about the P.O. within the area of 500-600 yards there is no any other village or house. He did not collect the blood which was fallen at the P.O. and in the home where the head body was brought and kept. He did not mention in the inquest-report as to whether there was mud on the cloth of the deceased, Gafur Ansari and the same was also wet. PW 7, Dr. M.M. Sen Gupta, conducted the post- mortem examination on the dead body of Gafur Ansari on 31.8.1992 at 10.30 a.m. and found the following ante-mortem injuries :
(A) Rigor mortis present in both upper and lower limb.
(B) Following incised wounds present on the scalp :
(a) 3″ x 1″ x 1/2″
(b) 3″ x 1″ x 1/2″
(c) 3″ x 1/2″ x 1/2″ .
(d) 2″ x 1/2″ x 1/2″
(C) Fracture of left parietal bone 2″ long linear type underneath the fracture portion. There was collection of blood in carenial cavity.
(D) One incised wound on the base of nose 2″ x 1/2″ x 1/2″.
(E) Two incised wounds on the right side of cheek 1/2″ x 1/2″ x 1/2″ and 3″ x 1/2″ x 1/2″ respectively.
(F) One incised wound 1″ behind the right ear 2″ x 1″ x 1/2″ in line.
(G) One incised wound below lower lip 2″ x 1/2″ x 1/2″.
(H) Following incised wounds were present on the neck :
(a) Three incised wounds on the right side of neck 1″ x 1″ 1/2″, 1″ x 1/2″ x 1/2″ and 1″ x 1/2″ x 1/2″ respectively.
(b) One incised wound on the upper portion of neck 4″ x 1″ x 1″, cutting access the asephegous, larynx and muscles and vessels in the neck.
(c) One incised wound on the middle of neck 2″ x 1″ x 1/2″.
(I) One incised wound on the asephogous 1″ x 1/2″ x 1/2″.
(J) One incised wound on the right middle finger 1″ x 1/2″ x 1/4″.
In the opinion of this medical witness the death was due to shock and haemorrhage due to the above noted injuries caused by sharp cutting weapons, such as knife, within 16 Hrs. from the time of the post-mortem examination. The post-mortem examination report is Ext. 3. examination report, Ext. 3.
9. The post mortem examination was conducted on 31.8.1992 at 10 a.m. whereas the alleged occurrence took place on 30.8.1992 at 7 p.m. itself. The time of the alleged occurrence is corroborated by the post mortem examination report, Ext. 3. The Doctor also found multiple incised wounds on the scalp, parietal bone, nose, right side cheek and behind the ear which corroborates the ocular evidence of PWs 3, 4 and 6 that both the appellants gave Chhura blows on the head and neck of Gafur Ansari. The witnesses saw multiple cut and bleeding injuries on the face and neck of Gafur Ansari which were corroborated by the post-mortem examination report, Ext. 3.
10. Mahal Chaukidar, when asked by the informant, PW 6, Sahwan Ansari, went to P.S. which is 6 Miles away from the village Parhepat Chattartoli. Mahal Chaukidar went to Thana and informed the Police. The I.O. entered S.D. Entry No. 661 dated 30.8.1992 and thereafter alongwith Mahal Chaukidar, Biriya Oraon and other Police Officers went to the village Parhepat Chattartoli. He found the dead body and prepared inquest-report at the house of the informant. Ext. 1/2 is the inquest-report prepared by Y.N. Singh. S.I., Officer-in-Charge, Kisko P.S. at Camp village Parhepat Chattartoli. On that inquest-report PWs 1 and 2 have signed PW 1 has deposed that inquest-report was prepared at the P.S. whereas PW 2 has deposed that the I.O. had gone to the village Parhepat Chattartoli and prepared inquest-report which was signed by these witnesses. The preparation of inquest-report by the I.O., is not in dispute. The I.O. has mentioned that he prepared inquest, report at Camp village Parhepat Chattartoli. The village witnesses, PWs 1 and 2 might have confused it to be the P.S. This discrepancy is minor one when the fact is that the I.O. found the dead body in the house of the informant, PW 6, and prepared inquest-report in carbon process on which PWs 1 and 2 have signed, Exts. 1 and 1/1 respectively. The learned counsel for the appellants has submitted that Ext. 2/1, fardbeyan of the informant, PW 6, is not the FIR in the eye of law as prior to his information Mahal Chaukidar, Biria Oraon, had gone to the P.S. and informed the Police resulting S.D. Entry No. 661 dated 30.8.1992. In that S.D. entry Mahal Chaukidar himself informed that one man has been murdered. He did not disclose who was murdered and who has murdered and where. The detail information about the alleged occurrence is not in the S.D. Entry No. 661, dated 30.6.1992. On the other hand, PW 6, the informant, had also gone to the P.S. and came to his home where his fardbeyan was recorded in detail. There appears no infirmity in the fardbeyan (Ext. 2/1) of the informant and Section 162, Cr PC, has no application regarding the validity of Ext. 2/1. PW 6 had given his statement in the fardbeyan, Ext. 2/1, which was corroborated by his son PW 3, Shakur Ansari and his wife, PW 4, Bibi Alaman. Although these witnesses are the interested witnesses but their evidence can not be thrown out only on this ground alone. The I.O. when went to the P.O. which is the field of Shiba oraon, he found foot-prints and blood fallen on the ridge of the field. He also saw muddy water, foot-prints of two or three persons and trampled mark at the spot. The I.O. was not vigilant. He did not seize the blood found at the P.O. nor he prepared the seizure-list of the plastic Chappal of the deceased found at the P.O. He also did not seize the blood-stained clothes of the deceased and the witnesses nor he seized the Torch, the source of identification. But the consistent evidence of PWs 3, 4 and 6 is that the they identified the appellants in the flash of Torch light when they reached near the field of Shiba Oraon at Parsha Chourabadhar. The enmity has been alleged by the informant which was also corroborated in the evidence. The villagers had gone to the house of the informant, PW 6, on hearing the cry and weeping. They were informed about the alleged occurrence and the name of these appellants who assaulted Gafur Ansari with Chhura resulting his death in the paddy field of Shiba Oraon.
11. There is minor contradiction as discussed above and also due to carelessness of the I.O., the Torch, blood-stained soil, clothes and muddy clothes of the deceased were not seized. However, this negligent action of the I.O. does not discredit the prosecution case. Thus, in my considered view, it is a well proved case without leaving any doubt in the prosecution case regarding the time of the alleged occurrence, the manner of the alleged occurrence, the place of the alleged occurrence and also involvement of all these appellants in giving Chhura blows on the neck and head of the deceased, Gafur Ansari, who died at the spot itself. On the other hand, I do not find any merit in this appeal.
12. In the result this criminal appeal is dismissed. The judgment and order of conviction and sentence passed by the learned Court below, is hereby affirmed. As both the appellants are on bail, hence, their bail bonds are cancelled and they are ordered to surrender before the learned Court below to serve their sentences. The learned Court below is also directed to take effective steps for apprehension to the appellants-convicts to serve their sentences.