LAKSHMAN URAON AND VIKRAMADITYA PRASAD.JJ. - (1.) THE appellants stand convicted under Section 302/34. IPC for committing the murder of Ajul Khan and sentenced to R.I. for life for that. The deceased Ajul Khan as per the post -mortem report. Ext. 3 provided by PW 10 the Doctor had sustained the following injuries: "Abrasions - (i) 3 cm. x 2 cm. over front of left arm middle part (ii) 7 cm. x 2 cm. over right cheek with diffused contusion of soft tissues of right cheek (iii) 4 cm x 3 cm over left side of the chest with diffused contusion under neath; Lacerted wounds: - (i) 5 cm x 2 cm x bone deep over right side of forehead. (ii) 3 cm x 1 cm x bone deep over left parietal region of head; Internal injuries: - There were diffused contusion of soft tissues of forehead and both parietal temporal scalp with both temporal muscles. There was a crack fracture of frontall bone and a mosaic fracture of left fronts parietal temporal bones with lacertain of brain underneath and presence of blood and blood clots over both sides of brain. There was fracture of 2nd and 4th ribs of left side with blood and blood clots on the left chest cavity. " and died of the head injuries and the injuries referred to above were, in his opinion, caused by lathi and danda and the death had occurred between 12 and 36 hours prior to the time of conduct of the Autopsy on 6th November, 1993. Neither the death nor the identity of the deceased is in dispute. No dispute has been raised with regard to the place of occurrence.
(2.) THE fate of this case hinges on two points - (i) whether the evidence of PW 5, the informant, can be taken on its face value to be true in the face of the fact that the two eye -witnesses, PW 1 Dashrath Munda and PW 2 Onga Munda, from whom the informant PW 5 had received information of the occurrence have become hostile to the prosecution -and (ii) whether the oral dying declaration allegedly made before the aforesaid three witnesses, PWs. 5,6 and 7, should be treated as the dying declaration and the conviction can be based on that. The informant, as per the fardbeyan, Ext. 4, when he was in his house, received information from PW 1 and PW2 that while they were grazing their cattle in the jungle at about 11.00 a.m. on 5 -11 -1993, where the deceased was also grazing his cattle, suddenly at 12 ˜O' clock Mansa Munda (the accused, who has been declared absconder and against whom charge -sheet has been submitted as such), Tamamu Munda and Birsa Munda (both the appellants), arrived there armed with lathi and danda and first of all, Mansa Munda hit on the head of Ajul by his lathi causing fracture on his head and Ajul fell down and started wdthing, thereafter Tamamu Munda and Birsa Munda also assaulted on the head, arm, thigh of Ajul indiscriminately and when the aforesaid two persons, Dashrath Munda (PW1) and Onga Munda (PW2), tried to intervene, they were also threatened as the assailants chased them also. Consequently, they fled away and came to the village and made Huzza and thereupon the informant along with Balu Mahli, PW 4, and Shivu Gope, PW 3, went running to the jungle where the informant found his brother in unconscious condition writhing on the land and that his brother (deceased) also told that all the three accused -persons had assaulted him by lathi and after that they fled away; thereafter with the help of the villagers, he brought his brother to his house where his brother died. The reason behind the occurrence is that fifteen days prior to the occurrence there was a quarrel between the deceased and the accused -appellants over the grazing of the cattle and at that time, the accused had threatened his brother to do away with his life. It transpires that on the same day, i.e. 5 -11 -1993 at 7.00 p.m. the fardbeyan was recorded by R.N. Ram, PW 11, which was forwarded to the police station vide Ext. 5 after being signed by the informant, Ext. I, on the basis of which the case Ext. 5/1, was recorded and on that place, inquest report, Ext. 7 being signed in presence of Shamim Mirdhaga and Aiyub Khan, Ext. 2/1, was prepared. It also transpires that during the investigation, some blood stained soil was also seized from the P.O. vide, Ext. 8.
(3.) THE defence of the appellant, Tamamu Munda, is the denial of the allegations, besides setting up a case that Mohip Khan, the informant, had stolen his Ox and had gone to Sisaibazar to sell it out, then the appellants had gone there and caught hold of him and brought the Ox and Mohip Khan to the village where there was a pane hay at and thereafter, it was Mohip Khan, who had brought some Mohammedan people from the village Mehura, and had chased them to assault. He (Mohip) had also refused to pay penalty and thereafter, case was instituted in the PS but Mohip obliged the Thana people. Consequently, they did not accept the' case of the appellants. It was also the defence of the appellants that Mansa Munda (absconding accused) is a and man and they came to know later on that it was Mansa Munda, who had killed Ajul Khan and then it was Mohip Khan the informant, who pressurized the appellants to search out Mansa Munda, who was searched but was not found and thereafter, Mohip Khan falsely implicated him in this case.;