JUDGMENT
Page 1030
1. The appellants, two in number, who were arrayed as Al and A2 before the Sessions Judge, were tried for an offence under Section 323, 380 and 302 read with Section 34 I.P.C. The allegation against them is that at about 9 or 10 p.m. on 6.6.1981, they caused injury to Prakash Tanti @ Prakash Das, as a result of which he died on 10.6.1981 at Sadar Hospital, Dumka and that during the course of same transaction, they Page 1031 also caused injuries on P.W.7 Ishwar Tanti, son of the deceased, and removed certain articles from the house of P.W.7, who was Headmaster of a school.
2. The Trial Judge, though found the appellants guilty under Section 323 and 380 I.P.C, did not award any separate sentence, but sentenced each of them to imprisonment for life under Section 302 read with Section 34 I.P.C. The above appeal is against the said conviction and sentence.
3. The accused and the deceased were inimical towards each other on account of a dispute over a property. Proceedings were also initiated under Section 107 Cr.P.C and that, according to the prosecution, is the motive for the occurrence.
4. At about 9.00 or 10.00 p.m. on 6.6.1981, 6 to 7 persons entered the house of P.W.7, which was situated within the school premises, and after entering the house, beat the deceased and P.W.7 Ishwar Tanti and both of them suffered injuries. They removed some articles, a watch and a sum of Rs. 425/- in cash. On hearing the cries, P.W.5 Uma Shankar Tanti, who is the son of P.W.7 and grandson of the decease and who was staying in another room, came out and went back to his room out of fear and was hiding himself. He came to the scene of occurrence, after the accused left the place and P.W.7 informed P.W.5 that he and his father, namely, Prakash Tanti, were beaten by 6 to 7 persons and two of them are the appellants. On the next day, the ‘villagers, on hearing about the occurrence, reached the place and later the injured P.W.7 Ishwar Tanti and his father Prakash Tanti, who died on 10.6.1981, were sent to the Jarmundi Primary Health Centre.
5. P.W.8, Dr. S.N. Dey, examined Prakash Tanti and found on his person the following injuries:-
(i) Lacerated wound 2″ x Va” x 1A” on the parietal region of the scalp
(ii) Abrasion Va” x W on the scalp (iii) Abrasion %” x 1A” on the right fore-arm (iv) Bruise on the anterior wall of the chest right side”.
The Doctor issued injury report, Ext.4, and referred him to Sadar Hospital, Dumka.
The Doctor also examined P.W.7 Ishwar Tanti and found one lacerated wound 1″ x W x W above the right eyebrow and an abrasion measuring 1/4″ x 1/4″ on the upper lip. The Doctor also found a bruise measuring 3″ x 1/2″ over posterior wall of the chest and on the mid scapular region. Ext.4/ 1 is the injury report.
6. The fardbeyan was given to P.W.9 and the same stands marked as Ext.2, upon which Ext.5, the F.I.R, was registered. During the course of investigation, P.W.9 examined witnesses and recorded the statements. While investigation was continuing, Prakash Tanti, who was undergoing treatment at Sadar Hospital, Dumka, died on 10.6.1981 and on getting the death intimation, the crime was altered to one under Section 302 I.P.C. Inquest was conducted over the dead body and it was subjected to post mortem at the request of the Investigating Officer.
7. P.W.4 Dr. Shyam Sunder Daruka conducted autopsy on the dead body of Prakash Tanti and he found 2″ long stitched wound over right parietal region of the scalp which was 1″ right lateral to mid scalp line. On dissection of the abdomen, the Doctor noticed a laceration 3/4″ long over large intestine in the descending part cutting all the layers and structure of the intestine at that level. Accumulation of blood was also noticed. The Doctor found laceration of liver and spleen. The Doctor issued Ext. 1, the post mortem certificate, with his opinion that the deceased would Page 1032 have died on account of shock and hemorrhage due to the injuries suffered by him in the abdomen and that the injuries were sufficient to cause death in ordinary course of nature.
8. After completion of the investigation, the final report was filed against the appellants. When they were questioned under Section 313 Cr.P.C on the incriminating circumstances appearing against them, they denied all the incriminating circumstances.
9. The case of the prosecution is that Prakash Tanti was attacked at about 9 or 10 p.m. on 6.6.1981, while he was in the house along with P.W.7, which was in the school premises. It is the further case of the prosecution through the evidence of P.W.7, at about 9 or 10 p.m. when he and his father along with his son, Uma Shankar Tanti, were in the house, 6 to 7 persons entered the house, thereafter started beating him and his father. It is his evidence that though there were 6 to 7 persons, he could only identify two of them and that they are the appellants. It is the case of the prosecution that on account of the existing enmity between the accused and deceased party (enmity was not denied by the appellants, when they were questioned under Section 313 Cr.P.C, rather they admitted it), the appellants by joining with others entered the house, caused the death of Prakash Tanti and caused injury to P.W.7. On going through the evidence of P.W.7, we find that his evidence is trustworthy and in fact, his evidence is also supported by P.W.5. According to P.W.5, while he was in the house, he heard the cries, came out of the room and found his father and his grand-father being beaten and that out of fear, went back to the room only to return later to be informed by his father as well as by his grand-father that they .were beaten by 10 to 12 persons and that they could identify two persons among them and that they are the appellants. The evidence of P.W.5, therefore, shows that P.W.7 suffered injuries during the occurrence and informed his son about the identity of two accused. It also shows that Prakash Tanti was conscious and gave a statement to P.W.5, which is in the nature of dying declaration and admissible under Section 32 of the Evidence Act, that he was beaten by the two appellants and others, who entered the house and attacked him and P.W.7. The evidence of P.W.5 is supported by P.W.7 and the dying declaration made by the deceased to P.W.5 clearly establishes that the deceased and P.W.7 were inflicted with injuries. It is not possible for us to hold that P.W.7 and the deceased could not have given the names of the accused to P.W.5 since P.W.7 was not subjected to any cross-examination and the defence, in fact, did not cross-examine the Doctor, P.W.8, before whom Prakash Tanti was produced on 7.6.1981 to show that the deceased Prakash Tanti could not ‘have been in a position to talk after sustaining injuries. In the absence of the medical evidence that the deceased Prakash Tanti could not have been in a position to talk after sustaining injuries, we cannot but accept the evidence of P.W.5 that he was informed by his grand father that the two appellants by joining with other unknown persons caused injuries on the deceased. The dying declaration of the deceased supported by the oral evidence of P.W.7, which finds corroboration by the medical evidence, conclusively establishes that the deceased and P.W.7 were attacked by the above two appellants along with others.
10. The contention of the learned counsel appearing for the appellants that because of the motive P.W.7 would have implicated the accused is stated only to be rejected.
Page 1033
It is a well known fact that the motive is a double edged weapon and merely because there was enmity between the deceased and the appellants, we cannot come to the conclusion that on account of enmity, P.W.7 came with false version implicating the appellants. We have already found that there was no cross-examination either to the Doctor or P.W.7 that the deceased could not have been in a position to talk after sustaining injuries and P.W.7 could not have informed P.W.5 about the identity of the two appellants. We, therefore, accept the evidence of P.Ws. 5 and 7 as well as the statement given by the deceased to P.W.5 and hold that the appellants are guilty as charged. We find no infirmity for us to interfere with the impugned order of conviction and sentence imposed upon the appellants. The appeal is, therefore, dismissed. It is reported that the appellants are on bail. Their bail bonds stand cancelled. The Sessions Judge is directed to take steps to commit the appellants to prison for serving the remaining part of the sentence.