S.J.MUKHOPADHAYA, J. - (1.) THIS appeal has been preferred by the appellants against the judgment dated 30th Septem ber, 2002 passed by learned 3rd Additional Judicial Commissioner, Khunti in Sessions Trial No. 513 of 1998 whereby and where -under, the appellant, named above, have been convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment.
(2.) THE case of prosecution as per FIR dated 10th February, 1998 lodged by the informant, Saraswati Devi (PW 2, wife of the deceased) is that her nanad, Waris Devi was married with Kartik Mahto (A -7) about 15 years back. They were blessed with a son aged about ten years. About two months back, Kartik Mahto (A -7) again married with another lady and after about 2 -3 days of marriage, he turned out his wife, Waris Devi after assaulting her. Since then Waris Devi was living with the informant and her husband. It was further stated that her nanad, Waris Devi filed a Maintenance Case No. 62 of 1997 against Kartik Mahto (A - 7) which is pending in the civil Court, Khunti. Further case of the prosecution is that on 8th February, 1998, when the informant and her husband, Lal Babu Mahto were not at their house, Kartik Mahto came and forcibly took her nanad to Jamdih. When they returned, they came to know about this incident. On the following day i.e., 9th February, 1998, her husband proceeded to village -Jamdih in search of his sister. At about 4 a.m. of the day of FIR (10th February, 1998) Prabhu Mahto of village -Jamdih came to her house and informed her that in -laws of her sister -in -law (nanad) has badly assaulted her husband, Lal Babu Mahto and he was lying injured in an unconscious condition. She along with her father -in -law, Mangal Mahto rushed to the house of Kartik Mahto in village -Jamdih where they found her husband lying in an unconscious condition on a cot (khat). When she sprinkled water on the face of her husband, he regained consciousness and told about the incident. He said that when he asked Kartik Mahto about her sister then Kartik Mahto (A -7), Debu Mahto (A -l) son of Ram Charan Mahto, Vaijy @ Baidhnath Mahto (A -5) son of late Yogaya Mahto, Lakhan Mahto (A -4) son of Kartik Mahto, Chandra Mohan Mahto (A -3) son of Ramcharan Mahto, Chotu Mahto (A -2) son of Ram Charan Mahto all resident of village Jamdih had assaulted and injured him by lathi danda and farsa. He further stated that Kartik Mahto with an intention to kill him attacked with a farsa which caused injuries on his head and all other appellants gave lathi blow causing injuries on him. After making such statement, her (informant 's) husband again become unconscious. She (informant) further stated that as her husband tried to bring back her sister in his house Kartik Mahto having married another woman, all the appellants assaulted her husband with an intention to kill him. On receiving written complaint, the police registered Tamar P.S. Case No. 7/98 dated 10th February, 1998 under Sections 147, 148, 149, 323, 324 an 307 of the IPC and took up the matter for investigation. Lal Babu Mahto, husband of the informant was admitted in R.M.C.H. Ranchi for treatment where he died at about 6 a.m. on 11th February, 1998. After investigation, Lalu Mahto (A -6) was also made an accused. The police submitted chargesheet against all the appellants ' under Sections 147, 148, 149 and 302 of the IPC. Learned Additional Chief Judicial Magistrate, Khunti took cognizance and record was committed to the Court of sessions where charges were framed under Sections 149 and 302/34 of the IPC against all the seven appellants. The appellants pleaded 'not guilty ' before the trial Court. Altogether eight witnesses were produced before the Court. PW 1, Dr. Saroj Kumar is the Medical Officer, who conducted post mortem on the dead -body of Lal Babu Mahto. PW 2, Sarswati Devi, the informant is the wife of the deceased, Lal Babu Mahto. PW 3, Warish Devi is the sister -in -law (nanad) of the informant i.e. sister of deceased Lal Babu Mahto and wife of appellant No. 7 (Kartik Mahto). She was declared hostile by the prosecution. PW 4, Mangal Mahto is the father of the deceased i.e. father -in -law of the informant. PW 5, Dhudeshwar Mahto is a formal witness of inquest report whereas, PW 6, Karla Devi is the nice of appellant No. 7 (Kartik Mahto) who was also declared hostile by the prosecution. PW 7, Soma Uraon and PW 8, Prabhu Mahto are villagers of Kartik Mahto (A -7), both of them said nothing against the appellants. Earlier, statement of Saraswati Devi (informant) under Section 164 of the Cr PC was recorded. The Post -mortem report was marked as Exhibit -1; FIR marked as Ex -hibit -2; Signature of informant marked as Exhibit -3/1 and 3/2; signature of Dudesh -war Mahto and Dharam Deo Nath Sahdeo on the inquest report were marked as Exhibit 3/2 and 3/3 respectively. The case is mainly based on the dying declaration of the deceased given before the informant, Sarswati Devi (PW 2) and Mangal Mahto (PW 4). Dr. Saroj Kumar (PW 1) stated that he conducted post -mortem on the dead -body of Lal Babu Mahto on 11th February, 1998, found injuries and given his following opinion : '' Abrasion : (i) 2 x 1 cm and l x l cm on left side of forehead. Stiched wounds : (i) 07 cm long situated antero -posterirly on right fronto -parietal region of head. (ii) 06 cm long situated carnally on right parietal region of head. Internal : There was defused contusion of right fronto parieto temporal scalp. There was depressed and comminuted fracture of right parietal bone measuring 6 x 2 cm area. There was crack fracture of right temporal bone starting from right margin of said depressed fracture. There was presence of extra -dural blood clot over parieto -temporal region and subdural blood and blood clot over right hemisphere of brain. there was a contusion of soft tissues of left knee front. Opinion ''(1) All the injuries were ante -mortem. (2) Abrasions and internal injuries were caused by hard and blunt substance and opinion regarding the stitched wounds can be had from the surgeon concerned. (3) Death due to head injury. (4) time elapsed since death was 6 to 24 hours. xxxx xxxx xxxx The doctor has further opined that the due to the present injuries, instantaneous death is not necessary but such injuries may cause -unconsciousness. PW 2, the informant reiterated the version as was made in FIR. She stated that her sister -in -law (nanad) was married with Kartik Mahto (A -7) 15 years back and were blessed with a son, Dilip Mahto. Few months back, Kartik Mahto (A -7) married another woman and turned out his first wife, Waris Devi, who, thereafter, started living with them (informant and deceased). She also stated that on.9th February, 1998 while her sister -in -law (nanad) was collecting cow dung and they were not in the house, Kartik Mahto took her forcibly. They could come to know of the incident on return, from the wife of Shiv Ram that the husband of her nanad, Kartik Mahto had taken her. Thereafter her husband and Puran Das went to the house of Kartik Mahto to search his sister. Next day, Prabhu Mahto informed them that her husband was lying injured in the house of Kartik Mahto in unconscious condition. She further stated that her shas (mother -in - law), Gotani (sister -in -law) and Bari shas (elder mother -in -law) and other went to the house of Kartik Mahto where they found Lal Babu Man to lying unconscious on a cot (khat). The informant (PW 2) further stated that while she sprinkled water on the face of her husband, he regained consciousness and told them that Kartik Mahto assaulted him on his head by farsa and Chotu Mahto, Debu Mahto, Chandra Mahto, Lalu Mahto and Baijnath Mahto assaulted him with lathi and danda. After giving such statement, again her husband became unconscious. Thereafter she along with others carried her husband to the police station, then to the Tamar Hospital and thereafter on the advice of the doctor, he was admitted in the R.M.C.H., Ranchi. On the next day i.e. 11th February, 1998 in the morning at about 6 a.m., her husband died. The informant further stated that she had made the written report in the Tamar Police Station and put her signature (marked as Exhibit -2). She also identified the signatures (marked as Exhibit -3 and 3 series). The informant also identified the appellants who were present in Dock. In her searching cross -examination, the informant withstood the same and reiterated the details of occurrence and statement made by the deceased. She also stated that when she visited the house of Kartik Mahto (A -7), he was not present in his house and only Dhotu Mahto was there. Her husband was kept there under lock. PW 3, Waris Devi was declared hostile by the prosecution.
(3.) PW 4, Mangal Mahto stated that Kartik Mahto had married with another woman and left her first wife, Waris Devi. Waris Devi had filed a case against her husband. He further stated that Kartik Mahto had forcfully taken away Waris Devi. In the evening of Monday, Lal Babu Mahto had gone to the house of Kartik Mahto in search of Waris Devi. On the next day at about 4 a.m., Prabhu Mahto came and informed him that his son was assaulted by Kartik Mahto, Debu Mahto, Chandra Mohan Mahto, Baijnath Mahto, Lakhan Mahto, Chotu Mahto and Lalu Mahto. Thereafter, he along with her daughter -in -law, wife and others went to the house of Kartik Mahto where he found his son lying unconscious, in an injured condition. Prabhu Mahto brought water and the wife of Lal Babu Mahto sprinkled water on the face of her husband. While his son regained consciousness, told that kartik Mahto and other accused persons (appellants herein) had assaulted him with lathi, tangi thenga and farsa. Thereafter, his son (deceased) again became unconscious. During the cross -examination, PW 4, he has also stated that during the date of alleged incident, his son had gone to Khun -ti alone and subsequently he had gone to Aradih along with Ram Das Puran. During the cross -examination, PW 4 clearly stated that on regaining consciousness, the deceased narrated the incident to him, his daughter, Nuni, his wife and wife of Lal Babu Mahto i.e. the informant. PW 4 further stated during the cross -examination that he made statement before the police that on regaining consciousness, Lal Babu Mahto told him that all the accused persons (appellants herein) had assaulted him. PW 4 also stated that they carried Lal Babu Mahto to Tamar Police Station on a bullock cart arranged by the villagers, who assembled there. This witness (PW 4) during his long cross -examination remained firm and defence failed to make out any vital contradiction in favour of appellants. PW 5, a formal witness stated that he had gone to R.M.C.H. along with Lal Babu Mahto where Lal Babu Mahto died. He put his signature on the inquest report, marked as Exhibit -3/2 and the signatures marked as Exhibit -3 series. PW 6, Karla Devi is the nice of the appellant, Kartik Mahto (A - 7). She was declared hostile by the prosecution, but accepted that her uncle Kartik Mahto was married with Waris Devi. PW 7, Soma Uraon has stated that some quarrel had taken place with Kartik Mahto but made no statement with regard to incident. He stated that Kartik Mahto had one only wife, Waris Devi and he does not know Lal Babu Mahto, nor knows whether Lal Babu Mahto is dead or alive. However, in the last part of his examination -in -chief, he stated that Lal Babu Mahto is dead. PW 8, Prabhu Mahto made no specific statement regarding the incident. He only stated that on the alleged date of incident he was not in his house and on return, he came to know that Lal Babu Mahto died in the hospital.;