JUDGMENT
A.K. Prasad, J.
1. This Criminal Appeal at the behest of the appellants is directed against the judgment and order dated 27th August, 1983, in S.T. No. 156 of 1979 passed by Sri Chandranan Singh, the then 1st Additional Sessions Judge, Giridih, whereby and whereunder he convicted the appellants under Section 302 read with Section 34 of the I.P.C.for committing murder of Dhananjay Singh, and sentenced them to imprisonment for life thereunder.
2. The substance of the prosecution case, as laid at the trial, is as under: There was a dispute and series of cases between Baijnath Pandey (P.W. 7) and accused persons over Plot No. 2762/5509, under Khata No. 510, situated at Mouza Hossir, within Gomia P.S., District-Giridih. Ultimately, Baijnath Pandey succeeded in the litigation and his name was mutated despite the objections made by the accused persons with respect to the disputed land. But the accused persons caused hinderance in the cultivation of the land by him. They used to cut the crop raised by him. Ultimately, Baijnath Pandey gave the land on Batai to Dhananjay Singh (the deceased) and Kuwar Nayak (P.W. 1) some time ago. On 18.6.1978, around 8 p.m., while Dhananjay Singh, Kuwar Nayak (P.W. 1) and Chandar Nayak (P.W. 9) were returning from Batai land after watching the seedlings there and reached on the road under the bridge, the accused-Raghu Mahto armed with Bhala, accused Manger Mahto and Biru Gope, armed with Tangi and accused Jitan armed with Lathi began to abuse Dhananjay Singh. Dhananjay Singh retorted and abused them too. In course of alternation, accused- Raghu Mahto and Manger Mahto assaulted him with Bhala and Tangi, respectively, as a result of which deceased Dhananjay Singh fell down. When he attempted to flee away, accused-Biru Gope and Jitan Gope assaulted him with Tangi and Lathi, respectively, causing his instantaneous death. The further prosecution case is that Kuwar Nayak and his companion-Chander Nayak fled in fear and on way they met Salik Karmali (P.W. 2) and Ganesh Karmali (P.W. 4) at a distance of about 50 to 60 yards from the place of occurrence and they narrated the incident to them. Salik Karmali and Ganesh Karmali informed Balmukund Singh (P.W. 8), the full brother of the deceased (Dhananjay Singh) about the incident and when Balmukund Singh was on the way to the spot, he met the officer-in-charge and other police personnel including P.W. 10 (Bibhuti Narayan Rai), of Gomia P.S. near the bridge on Hossir-Tulbul Road. It is said that the police officers had been to village Hossir around midnight to make an enquiry on the information lodged by the accused-Jitan Matho about commission of dacoity in his house, which was found untrue and while they were returning, Balmukund Singh (the informant) had met them near the bridge. He have his fardbeyan on 19.8.1978 at about 3 A.M. (Exhibit 6) which was recorded by Sri R. Singh, the then officer-in-charge, Giridih P.S. On the basis of the fardbeyan (Exhibit 6), the present case was instituted and its investigation was entrusted to P.W. 10 (Bibhuti Narayan Rai), who held inquest over the dead body of Dhananjay Singh (the inquest report is Exhibit 10) and sent the corpse of the deceased to the Police Hospital at Hazaribagh for post-mortem and after completion of investigation, charge-sheet was laid in Court against the accused persons.
The case was, ultimately committed to the Court of Sessions by order dated 18.6,1979.
3. At the trial, the prosecution examined ten witnesses in support of its case. Out o them, P.W. 9 (Chandar Nayak) is a tendered witness, whereas P.W. 5 (Ghanshyam Ram) is the witness on the inquest report P.W. 1 (Kuwar Nayak), P.W. 2 (Salik Karmali), P.W. 3 (Ramdeo Singh) and P.W. 4 (Ganesh Karmali) claimed themselves as eye-witnesses to the alleged occurrence. Dr. Birendra Chandra Chattrejee (P.W. 6) held autopsy on the dead body of Dhananjay Sine P.W. 7 (Baijnath Pandey) and P.W. 8 (Balmukand Singh) are hearsay witnesses. P.W. 7 (Baijnath Pandey) has spoken about the litigation between him and the accused persons, and regarding giving of the disputed land on Batai to deceased-Dhananjay Singh and Kuwar Nayak, which is the motive assigned for the murder of the deceased by the accused persons. P.W. 10 (Bibhuti Narayan Rai) is the 10 of the case.
4. On the other hand, the defence did not examine any witnesses.
5. The main defence is of innocence and false implication at the instance of P.W. 7 (Baijnath Pandey) due to previous enmity.
The learned Sessions Judge on consideration of the materials on record and mainly relaying on the evidence of P. Ws. 1 to 4 and the medical evidence found the accused persons guilty of the charge under Sections 302/34 of the Indian Penal Code and sentenced them to life imprisonment, as stated above.
6. Being aggrieved by the judgment of the trial Court, the appellants preferred the instant criminal appeal. It may be stated that earlier this criminal appeal was allowed by the Division Bench of this Court on 17.1.1985 and the order of conviction and sentence was set aside. Against this the informant (P.W. 8) preferred Cr. Appeal No. 401 of 1986 before the Apex Court. The Apex Court allowed the criminal appeal vide order dated 13th August, 1996, and remitted the appeal to this Court for its disposal after hearing the parties afresh. Thus, the instant appeal has come up before this Court for fresh adjudication.
7. Mr. A. N. Deo, learned Counsel for the appellants, has assailed the impugned judgment and has contended that the P. Ws. 1 to 4, in fact, did not witness the occurrence of assault on the deceased and are got up witnesses; that the appellant-Jitan Gope and Biru Gope are not named in the first information report, but they have been subsequently implicated in the case and this renders the whole prosecution case doubtful, that in the fardbeyan, the first source of information was P. Ws. 1 and 9, but in evidence it has been changed to P. Ws. 2 and 4; and in the fardbeyan Tangi is mentioned as the only weapon of assault, but in the evidence Bhala and Lathi have been introduced as additional weapons used in the assault to explain the wounds found on the person of the deceased. The appellants’ counsel has vehemently contended that the deceased-Dhananjay Singh had a bad antecedent and he might have been murdered by some unknown persons and due to enmity the appellants were implicated in the case, at the behest of P.W. 7.
Learned A.P.P. and the learned Counsel for the informant, on the other hand, fully supported the judgment of the trial Court.
8. At the first instance, it has to be considered whether the death of the deceased was homicidal.
9. P.W. 10 (B.N. Rai), the Investigating Officer, has testified to the effect that he found the dead body of the deceased (Dhananjay Singh) in the paddy field of Harihar Rawani and there were several cut wounds on his person. Exhibit 1 is the inquest report of the deceased prepared by him. P.W. 5 is the witness on the inquest report. P.W. 8, another witness on the inquest report, has stated that he had seen the wounds on the person of the deceased.
10. P.W. 6 (Dr. Birendra Charan Chatterjee) has testified to the effect that on 19.8.1978 at 4.30 P.M. he held post-mortem examination on the dead body of Dhananjay Singh and he found the following ante-mortem external injuries on his persons;
(1) lacerated wound 5″ x 4″ fracture of skull bone on the back left side and brain matter in the back was damaged.
(2) incised penetrating wound 3″ x 1/2″ x chest cavity in the back left side in the middle.
(3) Concussed wound 2-1/2″ x 1-1/4″ on the back left the side in the posterior axillary line.
(4) incised wound 2″ x 1-1/4″ x 1″ on the middle of the left scapula.
(5) incised and penetrating wound 2″ x 1″ x 3″ on the upper part of the thigh left side.
On dissection, there was fracture of the left parietal and occipital bones of the head left side back into four pieces and the brain matter of the left side back was damaged. There was fracture of the ribs back side from 6th to 9th and left lung was completely damaged. According to him, the injuries were caused by heard and blunt substance and sharp pointed weapons. He has clarified that the external injury No. (1) was possible by Lathi, whereas injury No. (2) could be caused by Bhala, injury No. (3) could have been caused by either Lathi or blunt portion of Tangi and injury No. (4) was possible by Tangi. He has opined that time elapsed since death was between 18 to 24 hours of the postmortem examination and the death was due to shock and haemorrhage as a result of the injuries which were sufficient in ordinary course of nature to cause death. He has further stated that the internal injuries separately and collectively caused instantaneous death of the deceased. The post-mortem report of the deceased in the pen of P.W. 6 is Exhibit 2. It corroborates the testimony of P.W. 6. The medical evidence establishes beyond doubt that the death of the deceased was homicidal.
The defence has not challenged the factum of the murder of the deceased. Thus, on the basis of materials on record, it is held that death of the deceased was homicidal.
11. The place of occurrence has not been disputed by the appellants before us.
It has come in the evidence of P.W. 1 that the altercation took place near the road bridged and at a short distance from the house of the appellant-Jitan Mahto (Gope) and deceased-Dhananjay Singh was done to death in the paddy field of Harihar Rewani. P.W. 3 has stated that the road bridge is about 10 yards to the South of the field of Harihar Rewani. P.W. 10 (B.N. Rai) had found the dead body of Dhananjay Singh with wounds in the field of Harihar Rewani and paddy plants were found trampled at three places in the field and water around the dead body of Dhananjay Singh was red in colour. Exhibit 7 is the sketch map of the place of occurrence prepared by the I.O. (P.W. 10). It shows that the house of the deceased is at a distance of about 1 K.M. on North. East of the place of occurrence, whereas the house of the accused is about 425′ on the West-corner of the paddy field of Harihar Rewani and the bridge road is in between the house of the accused and the field of Harihar Rewani.
Thus the prosecution has established the identify of the place of occurrence, which is the filed of Harihar Rewani. It is not the defence version that the occurrence of assault and murder had taken place at some other place.
12. The crucial point which now arises for consideration is whether the appellants were instrument in the murder of the deceased. As stated above, P. Ws. 1 to 4 claimed themselves to be eye-witnesses to the occurrence culminating in the homicidal death of the deceased. One may now proceed to discuss and analyse the evidence of the witnesses.
13. P.W. 1 (Kuwar Nayak) has testified to the effect in his chief-examination that on the fateful night, around 9 P.M. he was returning in the company of the deceased and Chandar Nayak (P.W. 9) from the Batai land, which belongs to P.W. 7 (Baijnath Pandey), after seeing the paddy seedlings and when they reached the bridge, which is at a distance of about 150 yards approximately from the house of the accused (vide Exhibit 7), the appellants began to abuse the deceased. Dhananjay Singh and suddenly the appellants-Baghu Mahto and Manger Mahto attacked the deceased with Bhala and Tangi, as a result of which the deceased fell down and when the deceased attempted to flee, the appellants-Jitan Mahto and Biru Mahto, dealt blows with Lathi and Tangi to the deceased who was severely wounded and died instantaneously. He has further stated that he moved ahead in fear accompanied by P.W. 9 (Chander Nayak) and at a distance of about 50 to 60 yards from the place of occurrence he met Salik Karmali (P.W. 2) and Ganesh Karmali (P.W. 4) to whom he pointed towards the place of occurrence by sign. He has further deposed that he and the deceased had taken the land on Batai from P.W. 7 (Baijnath Pandey). It has been elicited in his cross-examination that when the assault on the deceased had begun, he had P.W. 9 (the full brother) went away 15 to 20 yards to the East of the place of occurrence and when the appellants-Jitan Mahto and Biru Mahto ran to assault them, they fled to the bank of the river where they spent the remaining night and they returned home the next morning around 8 A.M. whereafter they narrated the incident to P.W. 8.
14. P.W. 2 (Salik Kamar alias Karmali) has stated in his chief-examination that on the date of occurrence, around 8 p.m. he was’returning in the company of P.W. 4 (Ganesh Karmali), his cousin, from village-Birsa after doing job and on way on hearing Hulla of Mar-Pit they went there and he witnessed the appellants-Raghu Matho armed with Bhala, Manger Mahto and Biru Mahto armed with Tangi and Jitan Mahto with Lathi assaulting a person with their respective weapons, but he could not identify the victim. he has further stated that later on he met Kuwar Nayak (P.W. 1) and Chandar Nayak (P.W. 9), who narrated the whole incident and disclosed the name of the victim to be Dhananjay Singh (the deceased). P.W. 2 has further stated during cross-examination that he went to the house of Balmukund Singh (P.W. 8) and disclosed about the incident to him and thereafter the returned. He claims to have disclosed the names of all the accused-appellants to P.W. 8 and the weapons used by them in the assault on the deceased. It is true that he has made statement in the cross-examination that he was not examined by the police officer during investigation. P.W. 2 is an illiterate person. He is a named witness in the charge-sheet. It seems that this statement has been made by him due to some confusion and his evidence is not to be discarded on this score alone.
P.W. 4 (Ganesh Karmali) has deposed that on the date of occurrence, around 8 P.M. while he was returning from Birsa village in the company of P.W. 2 he heard the Hulla near Rabjtola and when he moved ahead he saw the four appellants assaulting a person with weapons, but he could not see the victim. he has clarified that the assault took place near the bridge of his village and in a field. He has further stated that afterwards at some distance he met P. Ws. 1 and 9 who disclosed that the accused-appellants had assaulted Dhananjay Singh (the deceased). He has further stated that he had narrated the incident to Balmukund Singh (P.W. 8) on the same date.
15. P.W. 3 (Ramdeo Singh) has stated that on the date of occurrence at about 8 p.m., on invitation, he was at the house of Lala Mahto, to attend the Chhati ceremony and the house of the accused-appellants is 10 yards to the West of the house of Lala Matho. whereas field of Harihar Rewani is about 25 yards in the North of Lala Mahto’s house. He has deposed that on hearing of abuses he came out from the house of Lala Mahto and saw the appellants. Raghu Mahto (armed with Bhala) and Manger Mahto weilding (Tangi) abusing Dhananjay Singh and they assaulted him with their weapons near the bridge, who fell down and attempted to flee whereupon the appellant-Raghu Matho again assaulted him with Bhala and when Dhananjay Singh made last attempt to escape, the appellants-Jitan Mahto and Biru Mahto attacked him with Lathi and Tangi and he fell dead. He has further stated that Kuwar Nayak (P.W. 1) and Chandar Nayak (P.W. 9) fled away from the spot, the moment assault on the deceased and commenced. It has come in his cross-examination that he alone came out of the house of Lala Mahto on Hulla to witness the occurrence. It sounds un-natural that the other persons present on the occasion of Chhati at the house of Lala Mahto would not stir out on Hulla in the immediate vicinity. No other witness has supported the presence of P.W. 3 at the house of Lala Mahto or his presence on the spot at the time of occurrence. P.W. 3 denied his relationship with P.W. 8. It has come in his cross-examination that he returned home in the night around 10 P.M. and did not disclosed about the incident to any one on that night, although there are other families living in his neighbourhood and that it was on the next day that he first narrated the incident to Balmukund Singh (P.W. 8). P.W. 8 has stated that on 19.8.1978 at noon, P.W. 3 had disclosed about the incident to him. P.W. 3 is a resident of tola-Khajt and which is at a distance of about half a mile from the village-Hossir. The conduct of P.W. 3 in not immediately disclosing about the incident to his family members or his neighbours on the night of occurrence itself and its belated disclosure for the first time made to P.W. 8 on the following day is quite unnatural and it is doubtful that he was present on the spot and had witnessed the occurrence. Hence, it would not be safe to rely on his testimony. So, it is kept out of consideration for adjuging the involvement/participation of the appellants in the occurrence.
16. There is the evidence of P. Ws. 1, 2 and 4 that they had witnessed all the appellants assaulting the deceased to death. It has come in evidence of P. Ws. 1, 2, 4 and 8 that there was full moon on the night of occurrence. This fact has not been disputed by the defence. So, in moon-light one could have witnessed the occurrence from a short distance. No doubt P. Ws. 1, 2 and 4 are residents of village Hossir. P.Ws. 2 and 4 have admitted that they are neighbours of the informant (P.W. 8). P.W. 1 has claimed that while he was returning from the Batai land after watching the paddy seedlings in company of the deceased, the incident occurred and he witnessed it. P.W. 7 (Baijnath Pandey) has corroborated the testimony of P.W. 1 that he had given the land, purchased by him from Most. Sukar alias Budho under registered Sale Deed dated 19.12.1973 (Exhibit 4) on Batai to the deceased and P.W. 1 for one year in 1978. There is also evidence of P.W. 8 to this effect. It has further come in the evidence of P.W. 7 that there was dispute and chronic litigation in the past for the land between him and the accused persons. It is true that there is no documentary evidence on the giving of land on Batai by P.W. 7 to the deceased and P.W. 1. But the fact remains that there is oral testimony of P.W. 1, P.W. 7 and P.W. 8 on the point. There was mutation proceeding between the accused and P.W. 7 in 1974-76 with regard to the land in question (vide Exhibits 11 and 11/h) and litigations persisted between them even thereafter till 1980. Thus there was the need for P.W. 7 to give the land on Batai to the deceased and P.W. 1. So the presence of P.W. 1 at the place and time of occurrence is quite nature. P. Ws. 2 and 4 have denied that they are cow-herds of the informant (P.W. 8). They have stated that while returning from village-Birsa they had occasion to witness the occurrence. They have frankly stated that they could not identify the victim at the time of occurrence. Had they deposed falsely, they could have claimed to have identified the victim on the spot as well, P.W. 1 has stated that while fleeing, he had pointed out the place of occurrence to P. Ws. 2 and 4. Hence, P. Ws. 2 and 4 could have witnessed a part of the assault on the deceased. P.W. 10 (Bibhuti Narayan Rai), the Investigating Officer, has stated that on 18.8.1978, around 11.30 p.m., Jitan Mahto had lodged an information with Gomia P.S. that a dacoity was being committed at his house and when he and other police personel rushed to the village-Hossir, around mid-night, and made enquiry into the matter, the information regarding commission of dacoity was not found to be true. It is manifest that an attempt was made by the accused to give a different colour to the incident. But the fact remains that an occurrence had taken place at some distance from their house, as testified to by the P. Ws.
17. Now the question which arises for consideration is as to what extent the evidence of P. Ws. 1, 2 and 4 on the involvement of the appellants in the occurrence is to be accepted. It has been urged by the learned Counsel for the appellants that in the fardbeyan (Exhibit 6) it is mentioned that both-appellants, Raghu Mahto and Manger Mahto had assaulted the deceased with Tangi. but in evidence improvement has been made that appellant-Raghu Mahto had assaulted the deceased with Bhala. The informant is not an eye-witness to the occurrence. It is quite probable that in a disturbed stated of mind. when his brother had been killed, the informant might have committed mistake in stating about the weapon used by the appellant-Raghu Mahto. Hence, this inconsistency about the weapon used is not of much significance.
18. It has been contended by the learned Counsel for the appellants that in the fardbeyan (Exhibit 6) it is mentioned that Kuwar Nayak (P.W. 1) and Chandar Nayak (P.W. 9) had witnessed the occurrence and disclosed about it, but in evidence, P. Ws. 1 and 8 have stated that P. Ws. 1 and 9 had disclosed about the incident to P.W. 8 on the next date. He further submitted that P. Ws. 2, 4 and 8 have given a different version in their evidence that in the night of occurrence itself, P. Ws. 2 and 4 had disclosed about the incident to the informant and that P. Ws. 2 and 4 are not named as witnesses in the fardbeyan (Exhibit. As stated above, the fardbeyan was recorded on 19.8.1978 around 3 A.M. P. Ws. 2 and 4 have stated that they had witnessed the occurrence of assault and P. Ws. 1 and 9 too had narrated it to them and they had disclosed about it to P.W. 8 on the same night. P. Ws. 2 and 4 are the neighbours of the informant. So, it is quite natural that on returning home in the night, they had disclosed about the incident to the informant. It seems that in his fardbeyan (Exhibit 6) the informant in disturbed state of mind attributed the source of information of the incident to Kuwar Nayak and Chandar Nayak. The evidence of P. Ws. 2 and 4 cannot be brushed aside simply because they are not named as the eye-witnesses in the first information report. The intrisit value of their evidence is that they had witnessed some part of the occurrence of assault on the deceased. A comment has been made that Chandar Nayak who was accompanying the deceased at the time of occurrence has been tendered by the prosecution. It is suffice to say that Chandar Nayak (P.W. 9) has not been with-held by the prosecution. That apart, even where the witness who had accompanied the deceased is not examined in a case by the prosecution that by itself is not a fatal defect when there are other reliable evidences to establish the charge against an accused.
19. In the fardbeyan (Exhibit 6), appellants-Jitan Mahto and Biru Mahto are not named. P.W. 2 has stated in his evidence that he had disclosed the names of all the appellants to P. w. 8 on the same night. P.W. 8, on the other hand, has deposed that on the night of occurrence P. Ws. 2 and 4 had disclosed before him the names of two appellants, namely, Manger Mahto and Raghu Mahto only among the assailants of the deceased and they had stated that they could not identify the other assailants. The appellants, Jitan Mahto and Biru Mahto are related to appellants-Manger Mahto and Raghu Mahto. There is possibility that the appellants, Jitan Mahto and Biru Mahto, who are not named in the fardbeyan (Exhibit 6), may have been subsequently implicated in the case as they are related to main accused Manger Mahto and Raghu Matho. This inference gets support from the fact that the informant for the first time named appellants, Jitan Mahto and Biru Mahto before the Investigating Officer in his third statement recorded on 24.8.1978, vide paragraph Nos. 8 and 9 of depositions of P. Ws. 8 and 10 respectively. In the circumstances, appellants, Jitan Mahto and Biru Mahto are entitled to benefit of doubt.
20. Appellants, Manger Mahto and Raghu Mahto are named in the fardbeyan (Exhibit 6). There is consistent evidence of P. Ws. 1, 2 and 4 that they actively participated in the occurrence culminating in the death of the deceased. The medical evidence corroborates their evidence that the injuries by Tangi and Bhala were inflicted by these two appellants to the deceased. In view of the discussions made above, their evidence is accepted to the extent that the appellants, Manger Mahto and Raghu Mahto in furtherance of common intention committed the murder of the deceased.
21. It is true that P.W. 8 (Balmukund Singh) has admitted in his cross-examination that there were several criminal cases against the deceased. He has stated that the deceased was never convicted in any case. Learned Counsel for the appellants has urged that the deceased (Dhananjay Singh) might have been murdered by some unknown persons because he had a bad antecedent. This plea cannot be accepted in face of occular testimony of P. Ws. 1, 2 and 4.
Further, the appellants, Raghu Mahto and Manger Mahto, had motive for the murder of the deceased due to the land dispute with P.W. 7 who had given the land on Batai to the deceased. Hence, the above contention of the appellants learned Counsel is without merit.
22. In the result, the conviction of the appellants, Raghu Matho and Manger Mahto, alias Raghu Gope and Manger Gope respectively, under Section 302 read with Section 34 of the Indian Penal Code and the sentences awarded thereunder to them is affirmed. Consequently, the appeal preferred by these appellants is dismissed. Their bail bonds are cancelled any they are directed to surrender in the Court below forthwith to serve out the remaining part of the sentence, failing which the Court below shall take all coercive steps to secure their attendance.
The appellants, Jitan Gope and Biru Gope are given benefit of doubt and they are acquitted of the charge under Section 302 read with Section 34 of the Indian Penal Code and they are released from their bail bonds. The appeal preferred by these two appellants is accordingly allowed that the order of conviction and sentence passed against them by the Court below is set aside.
R.A. Sharma, J.
23. I agree.