JUDGMENT
Lakshman Uraon, J.
1. The appellants have preferred this appeal against the judgment & order dated 5.6.1990 passed by the learned Sessions Judge, Dumka in Sessions Case No. 43 of 1989, whereby & whereunder they were convicted under Sections 302/34, IPC and sentenced to go imprisonment of life.
2. The prosecution case as per fardbeyan (Ext. 4) of the informant, who later on died, is that on 12.8.1988 at 6.00 a.m. at village Murga Danga, he had gone to plough in his nearby field which was allotted to the share of Ravan Marandi, his step-brother. As Ravan Marandi and his sons were not living in the village, hence he was cultivating that land. At that time, both these appellants and their son Daniyal Hansda (since acquitted) went there armed with Sickle and Danda and asked to kill him as he was ploughing the land. The informant (deceased) out of fear fled away towards north of the field but at the maize field, he was caught, laid down on the field and was given hasua blows on different parts of his body. Villager Pappu Hambram (PW 3); wife of Jari Murmu and nearby villagers witnessed the alleged occurrence.
3. The alleged occurrence took place only due to partition of his father’s land. The injured informant was taken to Maheshpur State Dispensary where his Jardbeyan was recorded on the same day at 9.30 a.m. by S.I. Ramsagar Sharma of Mahespur PS who went there on receipt of O.D. slip in presence of Malke Hambram and Murki Pahariya on which Maike gave his L.T.I. and Murki Pahariya signed (Ext. 2). A formal FIR was drawn under Sections 341, 324, 326, 307/34, IPC (Ext. 6). When the informant Budhan Hansda died in the next morning at Pakur hospital. Section 302, IPC was added against all the three accused.
4. On trial, accused Daniyal Hansda. son of these appellants, was acquitted and both these appellants were convicted and sentenced as referred to above.
5. The prosecution has examined altogether 10 witnesses in order to prove the charges framed against the accused appellants. PW 1 is the doctor who conducted the
post-mortem examination on the dead body of informant Budhan Hansda. PW 2 Muni Murmu is the mother of the deceased. PW 3 Pappu Hambram is the relative of the deceased who is also an eye-witness. PW 4 Murki Pahariya, an independent witness, is also an eye-witness. PW 5 Hemo Basuki has been tendered. PW 6 Maike Hambram is the wife of the deceased. PW 7 Manik Murmu, an eyewitness, is also an independent witness of the village. PW 8 Baijal Kisku was declared hostile by the prosecution, whereas PW 9 Sattu Murmu is the seizure-list witness and PW 10 is the I.O. of this case.
6. The alleged occurrence took place only because informant-deceased Budhan Hansda was ploughing the land which was given to Pardhan, son of Ravan. Ravan and appellant Sukul Hansda are step brothers of informant-deceased as they are sons of the first wife of Chunda Hansda. Informant Budhan Hansda is the son of PW 2 Muni Murmu, second wife of late Chunda Hansda, Deceased Budhan Hansda was demanding partition of his father’s lands which was objected by appellant Sukul Hansda, On the alleged day of occurrence, Budhan had gone to plough the land of Pradhan Hansda, son of Ravan, Hansda which is situated hardly towards North at a distance of 25-30 hands from his home. PW 2 Muni Murmu, wife of the deceased informant was at her door. She saw that her son Budhan was ploughing the land of Pradhan Hansda, appellant Sukul Hansda, his son Danial Handa and his wife Mainu Murmu went there. Both these appellants had hasua (sickle) in their hands, whereas Danial Hasda had a lathi. Budhan fled away towards North, but he was chased and caught. Thereafter, all the three accused assaulted him at random with sickle and danda. PW 2, Muni Murmu went there and raised holla, but the appellants also threatened to kill her after causing injury with sickle, the accused fled away. Injured Budhan Hansda was taken to Maheshpur hospital. From there he was referred to Pakur hospital, but in the next morning at Pakur he died. PW 2 has deposed that due to sickle cut injuries, abdomen of Budhan had come out and was on the ground. Even then, he had consciousness. On her alarms, villagers, Uma, Manik (PW 7),
Pappu (PW 3) and others went there besides the chaukidar. They took Budhan to hospital on a cot. The doctor of Maheshpur State Dispensary after bandage, referred for better treatment to Pakur. In the next morning, Budhan died at Pakur. PW 3 Pappu Hambram was also ploughing his field nearby the field of Budhan Hansda where he was ploughing. He is the eye-witness of the alleged occurrence who has deposed that Sukul Hansda, Mainu Murmu and Danial Hansda went there. Both the appellants gave hasua (sickle) blow on the person of Budhan Hansda and Danial assaulted with lathi Firstly, Sukal Hansda gave sickle blow, then Budhan fled away. All the accused chased him, apprehended and again assaulted with sickle and lathi. This witness has corroborated the evidence of PW 2. PW 6 Maike Hambram, wife of deceased Budhan Hansda; also saw the three accused assaulting her husband while she had gone to throw cow-dung on the field early morning. She raised alarms. On her alarms, the nearby persons assembled. She has also specifically deposed that Sukul Hansda and his wife Mainu Murmu gave hasua blows on the body of her husband Budhan and Danial assaulted with lathi. She has stated that in her presence, fardbeyan of her husband was recorded. At that time, he was in senses on which she also gave her LTI. PW 7 Manik Murmu, an independent eye-witness, has also seen the alleged assault on Budhan by both these appellants with hasua and Danial with lathi. PW 9 Sattu Murmu has deposed that the I.O. seized one hasua and one paina at the P/O and prepared seizure-list on which he signed (Ext. 2/1). PW 4 Murki Pahariya has also stated that when the fardbeyan of Budhan was recorded, he was in hosh. The fardbeyan was read over by the I.O. on which he gave LTI. This witness also signed on it (Ext 2) and the wife of the deceased informant also gave her LTI.
7. PW 1 Dr. Madan Mohan Prasad Sinha conducted post-mortem examination on the dead body of Budhan Hansda on 13.8.1988 at 11.45 a.m. and found the following ante-mortem injuries on his person.
I. Incised wound from forehead to
maxillary region 1.5″ x 1″ x 1/2″ deep of
the bone;
II. Sharp cut injury 5″ x 2″ x 1/2″ on the frontal region of the left side of scalp. The injury was from left occipital region obliquely to preauricular region;
III. Sharp cut injury on the frontal region on the left side of the scalp obliquely towards midline 2″ x 1/2″ x bone deep;
IV. Sharp cut injury on the right side of cheek, semi-circular from preauricular region to maxillary region 2″ x 1/2″ x 1-1/2″;
V. Sharp cut injury on the right shoulder from supra scapular region to front of axilla 5″ x 3″ x 1″ cutting the acromion process of scapula;
VI. , Sharp cut injury 1″x 1/4″x 1/2″ on the scapular region right side;
VII. Sharp cut injury on the anteromedial region on the left arm obliquely 5″ x 1-1/2″ x skin deep;
VIII. Sharp cut injury on the back from middle to middle axillary line cutting the 9th and 10th ribs 4″ x 1-1/2″ x chest cavity deep. On opening the chest, the left lung was found punctured;
IX. Sharp cut injury on the back of lumbar region from the midline to anterior axillary line 7″ x 1-1/2″ x abdomen deep;
X. Sharp cut injury 2-1/2″ x 1″ x bone deep on the back above iliac spine; and
XI. Stitched wound on the lumbo iliac region obliquely 1-1/2″ lateral to ambilicus to mid iliac region 4″ x 1-1/2″.
On opening the abdomen, the large intestine sigmoid region was found punctured. PW 1, the doctor, opined that the death of the deceased was caused due to massive hemorrhage leading to shock as the result of the above injuries specially injury No. 8. He also opined that all the injuries were caused by sharp weapon such as sickle. According to him, time elapsed since death is 6 hours from post-mortem examination. He prepared post-mortem report in his pen and signature (Ext. 1).
8. The I.O. PW 10 Ram Sagar Sharma on the basis of O.D. slip received from State Dispensary, Maheshpur on 12.8.1988 at
9.15 a.m. (Ext. 3) proceeded to hospital. He recorded the fardbeyan of injured informant Budhan Hansda which was read over and explained to him on which he signed in presence of Maike Hambram (PW 6) and Murki Pahariya (PW 4) on which they gave their LTI and signed respectively. Ext. 4 was written in his pen & signature. He had also prepared injury slip (Ext. 5) of the informant injured and drew formal FIR (Ext. 6). The I.O. found the land jointly recorded; but the land was cultivated by the informant. He found freshly ploughed field which is at a distance of 10 yard from the home of the informant. He also found plough and Yoke at the P/O. The informant and the appellants had differences regarding claiming of the land. The I.O. (PW 10) has deposed that the injured was sent to Pakur Hospital for treatment where he died in the next morning. Manjur Alam of Pakur PS prepared the inquest report in his pen & signature (Ext. 8) and the dead body was sent for post-mortem examination.
9. In this present case, PW 2 Muni Murmu, PW 3 Pappu Hambram, PW 6 Maike Hambram and PW 7 Manik Murmu are the eye-witnesses of the alleged occurrence. They have corroborated the statement of informant Budhan Hansda as deposed in his fardbeyan (Ext. 4) that both these appellants assaulted him by Sickle (hasua) on different parts of his body. The injuries sustained by the informant deceased are corroborated by evidence of Doctor Madan Mohan Prasad Sinha (PW 1) who conducted the post-mortem examination his dead body and found 11 injuries. He opined that the deceased Budhan Hansda died due to above injuries specially injury No. 8 which is sharp cut injury on the back from middle to middle axillary line cutting the 9th and 10th ribs 4″ x 1-1/2″ x chest cavity deep puncturing the lungs. On opening the chest, the left lung was found ruptured. There is no contradiction in their statement to discredit their evidence. The I.O. (PW 10) also inspected the P/O and found regarding tampering marks in the field which was muddy, watery and blood was also found. He did not seize those materials as it was rainy season. Prior to that day, it had rained and on the previous day also, there was
rain. However, he seized one sickle and paina at the P/O and prepared seizure-list.
10. The P/O field is very near to the houses of the informant. The witness PW 2 Muni Murmu, the mother of the deceased, was at home. Muni Murmu saw the alleged occurrence from her door, while Maike Hambram saw the alleged occurrence while she had gone to throw cow-dung in the field. PW 3 was just ploughing his field nearby the field of Budhan Hansda and he has witnessed the alleged occurrence.
11. Although the witnesses are closely related, but their evidence is trustworthy. The alleged occurrence took place only due to partition of landed properties of the father of appellant No. 1 and the informant-deceased which was given in share of another brother Pradhan, who is son of Ravan. Ravan is the brother of appellant Sukul. Both Ravan and Sukul are the step brothers of informant-deceased Budhan as they are sons of the first wife of late Chunda Hansda. Thus, the genesis of the occurrence, the manner of the alleged occurrence and participation of both these appellants in assaulting with an intention to kill him by giving sickle blow on different parts of the body causing eleven injuries show that they assaulted Budhan repeatedly with sickle.
12. On a careful consideration of the evidence, oral & documentary, I find that it is a well proved case against both these appellants who have given sickle blows on the person of Budhan Hansda (informant) on different parts of his body repeatedly resulting into death. Fardbeyan (Ext. 4) is the statement of Budhan Hansda. When his fardbeyan was recorded by the I.O. in Maheshpur State Dispensary at 9.30 a.m. he was in hosh. In his full understanding he has narrated the genesis and the manner of the alleged occurrence and participation of these appellants in injuring him with Sickle. That statement was also evidenced by PW 4 Murki Pahariya who signed on the fardbeyan (Ext. 2) on which Maike Hambram, wife of the deceased, gave her LTI. The I.O. has deposed that while he recorded the fordbeyan of Budhan Hansda, he was in hosh. Similar is the statement of the eye-witnesses PW 2, PW 3 and PW 6. Thus, this fardbeyan (Ext. 4) is a dying
declaration of the informant-deceased Budhan Hansda regarding the assault on him by these appellants with Sickle resulting in his death in the next morning at Pakur Hospital. This fardbeyan corroborated by the independent and eye-witnesses as referred to above by me is a reliable document as a dying declaration of the deceased-informant Budhan Hansda. It is pertinent to mention here that in view of the materials on the record acquitted accused Danial Hansda was not a juvenile below 16 years of age on the date of the occurrence as well as when he was first brought before the Court of SDJM, Pakur and on calculation he is aged more than 16 years and 5 months on the date of occurrence. Therefore, the trial of the appellant does not at all stand vitiated.
13. In view of my above considered facts, I find that the prosecution case has been proved beyond all shadow of reasonable doubts by the prosecution against both these appellants. I do not find any infirmity in the findings of the learned Court below.
14. In the result this Criminal Appeal is dismissed and the conviction and sentence passed by the learned Court below is hereby affirmed. As both these appellants are on bail, their bail bonds are cancelled and they are directed to surrender in the Court below to serve their sentences. The learned Court below is also directed to take coercive steps for apprehension of the appellants-convicts to serve their sentence.
Vishnudeo Narayan, J.
I agree.