JUDGMENT
N.N. Singh, J.
1. This is an appeal against the judgment dated 22nd August, 1994, passed by Sri Eric Machyari, 4th Addl. Session Addl. Sessions Judge, Hazaribagh, in S.T. No 255 of 1985, whereby he convicted this appellant under Section 302, 307IPC and also under Section 4 of the Explosive Substance Act and sentenced him to undergo imprisonment for life under Section 302 IPC and further to undergo rigorous imprisonment for seven years on each count under Section 307 IPC and under 4 of the Explosive Substance Act, with a direction that the sentences would run concurrently.
2. Shortly stated, the case of the prosecution as mentioned in the ‘fardbeyan’ Ext 6 is that in the night of 14th July, 1983, at about 11-12 p.m. when the informant Rohini Devi and her husband Panchal Mistry were sleeping in their house at village Dandai Kala, P.S. Sadar, District Hazaribagh, some 3 or 4 persons knocked the door and when Panchal opened the door, he was dragged away by the miscreants and after some time a bomb was exploded. Further case of the prosecution is that the villagers assembled there and they challenged the miscreants who treed to run away and when villagers assaulted them with ‘Tangi’, another bomb was exploded by them, as a result of which, Kailash Prasad (P.W. 11) got splinter injury. The dead body of Panchal Mistry was found on the road under a mango tree with injuries in his chest and abdomen. Further case of the prosecution is that in the morning an injured person i.e. this appellant was found in a bush with fracture injury, across Sewaney river who disclosed his name as Parmeshwar Mehta who also named his associates. He was brought to the village by the villagers and when the police arrived there, the S.I. took charge of him and sent him for treatment, under arrest.
3. The defence as gathered from the suggestions of the P.Ws. and the statement of this appellant under Section 313 Cr.PC is that he has been falsely implicated in this case and that he was assaulted by dacoits who took away his bullock.
4. The judgment of the trial court was challenged on behalf of the appellant mainly on the ground that the informant has not supported the prosecution case and that the blood stained axe was not produced in the Court.
5. The point for consideration is to see, if the appeal be allowed.
6. The prosecution examined 12 witnesses in this case, out of whom, P.W. 6 Chandrairah Singh was tendered for cross-examination and P.W. 2 Bindhyachal Singh is a seizure list witness, who proved his signature, Ext. 2 and the seizure list. P.W. 5 Lalji Singh is also a witness on inquest report, who proved his signature Ext. 2/1, over the inquest report, Ext. 7. Similarly, P.W. 3, Ganauri Ram is also a witness on inquest report, who proved his signature Ext. 2/2. P.W. 1 is Dr. Shashi Bhushan Sinha , who held postmortem examination on the dead, body of Panchal Mistry and proved the postmortem report, Ext. 1. P.W. 3 is Dr. D.P. Mondal, who proved the injury report, Ext. 3, regarding the injurfes found on the person of this appellant. P.W. 9, Dr. Vinay Kumar has proved another injury report, Ext. 4, regarding the injuries found on the person of Kailash (P.W. 11). P.W. 7, Rohini Devi, the informant has been declared hostile by the prosecution. The remaining two witnesses, P.W. 10, Dwarika Ram and P.W. 11 Kailash Prasad are the witnesses on the point of occurrence. P.W. 12 Rajendra Prasad Sinha is the Investigating Officer of this case.
6. First of all, I will discuss the evidence on the point of factum of death of Panchal Mistry. P.W. 12 Rajendra Pd. Sinha, the I.O. of this case, stated that on 15.7.1983, station diary entry regarding the incident (Ext. 5) was made in the police station and that he proceeded to the P.O. village, Dandai Kala. He stated to have found a dead body which was identified to be of Panchal Mistry. P.W. 12 further stated to have recorded the “fardbeyan’ (Ext. 6) of Raohini Devi, the widow of the deceased. P.W. 4, Janki Thakur stated that on the date of the alleged occurrence at about 11-12 in the night, he woke up on hearing the sound and saw that villagers had assembled near the house of Panchal Mistry. He further stated that bombs were exploded and out of fear he did not go there and subsequently he found Panchal Mistry dead near his house. He further stated that a man was also arrested. P.W. 5 Lalji Singh also stated that on hearing the sound of explosion of bomb, he woke up, but he closed his door and in the morning when he wentthere, he found the dead body of Panchal Mistry in the south of the house. He is a witness on inquest report point. P.W. 7 Rohini Devi, the informant, who was declared hostile by the prosecution atleast supported the prosecution case that dead body of her husband was found under a mango tree on the road near her house. P.W. 10, Dwarika Ram claimed to be a tenant in the house of Janki Thakur, P.W. 4. He stated that on hearing the sound of explosion, he woke up and rushed towards the house of Panchal Mistry, where the found two persons assaulting Purnmasi Rajak (not examined). He claimed that he was armed with an axe and that when the miscreants attacked on him, he hurled his axe hitting them. He further stated that Kailash Prasad (P.W. 11) raised alarm whereupon he went to him and saw Kailash struggling with one of the miscreants and that he gave a Tangi’ blow on the leg of that miscreant, in order to save Kailash. He further stated that on being pushed by the miscreants, the axe fell down which Kailash picked up and inflicted injuries on that miscreant who filed away. He further stated that a bomb was also hurled on Kailash causing injuries on his person. He identified the appellant as the person to whom he caused the axe injury in order to save Kailash. This witness further stated that Panchal Mistry was found dead with injuries in his chest. P.W. 11, Kailash Prasad also claimed to be a tenant in the house of Janki Thakur, P.W. 4. In his evidence, he supported the prosecution case in the minutes detail, as stated by P.W. 10. P.Ws. 10 and 11 both were living as a tenant in the village and were employed as cook in B.S.F. Camp. Perhaps, that is why they struggled with the miscreants causing injuries to them. P.W. 11 also stated that the dead body of Panchal Mistry was found with injuries in his chest.
7. P.W. 1 Dr. Shashi Bhusun Sinha, stated to have held postmortem examination on the dead body of Panchal and found the following ante-mortem injuries of thorasic wall with charred margin along with ribs and muscles.
(ii) few black spots over right front of thigh and both arms on ulnar side.
(iii) on dissection fracture of 2nd to 9th ribs on the front including sternum blasted off.
8. The doctor opined that the weapon used in the case was explosive like thing and that the death was caused 12-13 hours before the occurrence due to shock and internal bleeding. He proved the postmortem report, which is Ext. I. Nothing has come out in his cross-examination. Thus from the discussions made above, the fact of death of Panchal Mistry is established in the manner narrated by the P.Ws.
9. Now I proceed to discuss as to whether this appellant was one of the miscreants. It has come in the evidence of P.Ws. 10 and 11 that when the villagers chased the miscreants they fled away towards the river side. It has also been stated by the P.Ws. that an injured person was found in a bush across the river Sewaney. The P.Ws. further stated that the said injured person was brought to village who disclosed his name as Parameshwar Prasad Mehta. P.Ws. 10 and 11 both identified this appellant as one of the miscreants with whom they struggled. P.W. 10 stated that this appellant had hurled a bomb on Kailash and that in order to save Kailash he had inflicted the axe injury on his leg.
10. P.W. 3, Dr. P. Mondal, stated to have examined this appellant, whom he identified in the dock. He found four lacerated wounds, 3 fractures and one sharp cut injury on the left sole. He also found one sharp cut injury on the back of the body and Anr. sharp cut’ injury on the back of left thigh. The existence of these sharp cut injuries on the person of this appellant get corroboration form the statements of P.W. 10 and 11 who have given detailed versions and description of the assault on this appellant made by them.
11. P.W. 9, Dr. Vinay Kumar is another Doctor, who examined Kailash Prasad, P.W. 11. He stated to have found 8 injuries including three lacerated wounds, three abrasions and scattered tatoo marks caused by some explosive substance. He proved the injury certificate which is Ext. 4.
12. P.W. 12, this Investigation Officer, stated to have inspected the place of occurrence. He claimed that it is the appellant Parmeshwar Prasad Mehta, who was brought to the village by the villagers and was arrested by him and was sent to the Doctor for examination of his injuries. The injury report prepared by him (Ext. 9) was proved by this witness. Another report regarding the injuries on the person of Kailash was also proved by him as Ext. 9/1. He further stated that unexplored bomb and splinters collected by him at the place of occurrence were sent to the expert for examination. He proved-that report as Ext. 10. He claimed to have prepared inquest report of the dead body of Panchal Mistry, which is Ext. 7. He proved seizure list Exts. 8 and 8/1. He stated that the Dy. Commissioner, Hazaribagh, sanctioned the prosecution as required under the law and he proved the sanction order, which is Ext. 11.
13. P.W. 7, Rohini Devi, the informant was declared hostile and she denied to have got her fardbeyan recorded. Her statement that she was sleeping and woke up in the morning cannot be believed in the a face of the evidence of the villagers that bombs were exploded. It appears that for obvious reasons, she retreated and even disowned her own “fardbeyan’. However, that makes no difference, in view of the consistent evidence of P.Ws. 10 and 11, who incident is completed by the evidence of P.W. 12, the I.O. who stated to have found blood trial marks from the place of occurrence to the bush where this appellant was found by the villagers and was brought to the village by the villagers in the morning. On that placed some dried blood was also found by the Investigating Officer, indicating that with bleeding injuries by his associates was taken to the bush where he was found. In his statement under Section 313 Cr.PC this appellant did not place his defence excepting denial of charges and circumstances placed in the form of questions to him. I have already discussed above that the Doctor had found sharp cut injuries on the back of the body of this appellant, which P.W. 11 Kailash Prasad claimed to have inflicted. Sri Bajaj raised a point that this appellant was not put on T.I. parade. In this case, where the appellant was brought by the villagers was kept there till the police arrived and arrested him, there was no necessity of placing him on T.I. parade.
14. While there is clear evidence of P.W. 10 and P.W. 11 that this appellant hurled bomb on Kailash making him liable under Section 307 IPC, evidence on record simply shows that some one from miscreants with common intention of them all, caused the death of Panchal Mistri, making the appellant liable under Section 302 read with Section 34 of IPC. Though the trial court’convicted the appellant under Section 302 IPC, it can be safely converted into Section 302/34 IPC, with sentence remaining the same.
15. Summing up the entire discussions made above and the attending circumstances discussed above, I find and hold that the prosecution has succeeded to establish the charges levelled against this appellant and I hold, with slight modification, that the trial court has rightly convicted this appellant.
16. In the result, there being no merit in this appeal, it is accordingly dismissed with modification in Section of conviction and the sentence passed by the trial court is hereby upheld.