LAKSHMAN URAON, J. - (1.) DEATH Reference No. 1 of 2003 along with Cr. Appeal Nos.345 and 347 of 2003 arise out of the common judgment and order of conviction and sentence dated 1.2.2003 and 3.2.2003 respectively, passed by Sri Satyendra Kumar Singh, learned Additional Sessions Judge, Simdega, in Sessions Trial No. 78 of 1999, arising out of G.R. No. 296 of 1998, whereby and whereunder, the learned Additional Sessions Judge has convicted all the appellants, namely, Anjlus Dungdung (appellant in Cr. Appeal No. 345 of 2003), Rajesh Yadav, alias Raju Gwala and Silwester Dungdung (appellants in Cr. Appeal No. 347 of 2003) under Section 302/120 -B of the Indian Penal Code for committing murder of Benetik Dungdung, his wife Martha Dungdung, three sons namely, 1. Surendra Dungdung, aged about 12 years. Anil Dungdung aged about 6 years, Amit Dungdung, aged about 3 years, and one daughter Elizabeth Dungdung, aged about 10 years.
(2.) AFTER hearing on the quantum of sentence, appellant Anjlus Dungdung was sentenced to be hanged by neck till death, with a fine of Rs. 2500/ - whereas appellant Rajesh Yadav alias Raju Gwala and Silwester Dungdung (appellants in Cr. Appeal No. 347 of 2003) have been sentenced to undergo rigorous imprisonment for life under Section 302/120 -B of the Indian Penal Code with a fine of Rs. 2500/ - each, in default to undergo rigorous imprisonment for six months. Since Death Reference No. 1 of 2003 as also Cr. Appeal Nos. 345 and 347 of 2003 arise out of the same judgment and order of conviction and sentence, they have been heard together and are being disposed of by this common judgment. 2. Being aggrieved and dissatisfied with the said judgment and order of conviction and sentence, the appellants have preferred these appeals whereas the learned Additional Sessions Judge, Simdega has referred the Death sentence, awarded to Anjlus Dungdung (appellant in Cr. Appeal No. 345 of 2003) for confirmation under Section 366(1) of the Code of Criminal Procedure. The prosecution case has arisen on the fardbeyan (Ext. 6) of the informant Kajmir Kerketta (PW 19), recorded by the SI Subodh Kumar Jaiswal, Investigating Officer (PW 20), at Village Gandhri Pani on 24.11.1998 at 17.30 hours. The informant therein has alleged that he has got his house at Village Gandhri Pani, adjacent to the house of Benedik Dungdung in the east, at the short distance. Benedik Dungdung was residing in his house along with his wife, three sons and one daughter. In the night of 23.11.1998 till 7.00 p.m. Benedik Dungdung and other members of his family were seen in their house. In the morning of 24.11.1998 at 7.30 a.m. when no one of the house of Benedik Dungdung came out and moreover the cattle and goats were also not brought out of the house, the informant went into the courtyard of Benedik Dungdung. He saw that one door plank was fallen down. He entered into the room and found the door of the room open. He saw Benedik Dungdung, his wife and four children dead in injured condition, having pool of blood therein. They were murdered by sharp edged weapons by cutting their necks and other parts of the body. He came out of the house and informed the villagers, namely, Mariyanus Dungdung (PW 12), Eses Dungdung, Bhimsen Kerketta (PW 5) and other villagers, who assembled there and saw the dead bodies. Deceased Benedik Dungdung had enmity with his cousin brother Anjlus Dungdung (appellant in Cr Appeal No. 345 of 2003) and his family members since 1993. Appellant Anjlus Dungdung had alleged that 15 Decimals of his father 'sland were forcibly cultivated by Benedik Dungdung. There was a Panchayati regarding that dispute but neither the appellant Anjlus Dungdung nor his family members ever attended the Panchayt meeting. Anjlus Dungdung had also instituted a case against Benedik Dungdung. The villagers tried to settle the dispute but Anjlus Dungdung and his brother Jawakim (since dead) always used to threaten Benedik Dungdung of being murdered. In the month of A ug us t, Anjlus along with Jiwan Tirkey had gone to Punjab. In the month of September, a letter was received by Jawakim, brother of Anjlus Dungdung, that his brother Anjlus Dungdung was murdered at Punjab. Jawakim Dungdung spread rumour regarding the murder of his brother Anjlus Dungdung. But 5/6 days prior to the alleged occurrence, Vinsent Toppo (PW 18) of Village Binaypur had seen appellant Anjlus Dungdung at Simdega and has a talk with him. The informant alleged that Anjlus Dungdung got a rumour spread that he was murdered at Punjab and at Simdega he along with his brother Jawakim and other appellants, in furtherance of their common object and intention to cause murder of Benedik Dungdung and his entire family, in a pre -planned way, in the night of 23.11.1998 entered into the house of Benedik Dungdung and injured all the inmates with sharp edged weapons, causing their death. Due to brutal murder of six persons, the villagers and the informant were very much afraid and hence no one informed the police in time. The informant alleged that in this very year of 1998 in the month of May, Anjlus Dungdung had stabbed him with knife. The fardbeyan was signed by the informant Kajmir Kerketta (Ext. 3/9), in presence of the witnesses Silas Kerketta (PW 1), who also signed on it (Ext. 3/10). On that basis, a case was registered and formal First Information Report (Ext. 8) was drawn, which was forwarded by the Officer -in -charge, Simdega Police Station, under his endorsement and signature (Ext.7). After investigation, charge -sheet was submitted under Sections 302/34 and 120 -B of the Indian Penal Code.
(3.) THE prosecution, in support of its case, has examined altogether 22 witnesses. PW 1 Silas Kerketta is not an eye -witness, as he was informed by the informant Kajmir Kerketta about the alleged murder. Similarly PW 2 Fransis Kerketta, PW 3 Albinus Kerketta. PW 4 Patrik Kerketta and PW 5 Bhinsent Kerketta are hearsay witnesses, as they were informed by the informant (PW 19) about the alleged murder. However, PW 18 Vincent Toppo had seen appellant Anjlus Dungdung at Simdega 5/6 days prior to the alleged occurrence. PW 7 Abinash Topno is a seizure list witness in respect of recovered letters. PW 6 Johan Kullu and PW 15 Julias Dungdung are hostile witnesses. PW 8 Radha Prasad Sao is also a seizure list witness in respect to seized Tangi, Balua and other material exhibits. PW 9 Laxmi Nath Tirkey is also hearsay witness, who came to know about the occurrence on being informed by the informant and is also a seizure list witness in respect of the seized blood stained cloths. PW 10 Johnson Minz is also a seizure list witness in respect of the seized underwear, chadar and blood stained soil etc. PW 11 Walter Kerketta has proved the letter, written by appellant Anjlus Dungdung, addressed to his brother Jawakim. PW 12 Mariyanus Dungdung was informed by Kajmir Kerketta (PW 19) about the murder whereas Vincent Toppo (PW 18) has informed him regarding the presence of appellant Anjlus Dungdung at Simdega 5/6 days prior to the alleged occurrence. PW 13 Govind Sao is a seizure list witness regarding the seized railway ticket and knife. PW 14 Benjamin Kullu is a hostile witness but has deposed that he was informed by witness Kajmir Kerketta regarding the recovery of knife and ticket. PW 16 Dr. Ajit Kumar Agrawal, PW 17 Dr. Kameshwar Nath Tiwari, PW 21 Dr. Nawal Kishore Sinha and PW 22 Dr. A.D.N. Prasad are the witnesses, who have conducted autopsy on the six dead body. PW 18 Vinsent Toppo was also informed by PW 1 Silas Kerketta that there was land dispute in between the appellants and the deceased. Moreover he had seen Anjlus Dungdung at Simega near the market complex. PW 19 Kajmir Kerketta is the neighbour of deceased Benedik Dungdung, who informed the villagers about the murder of entire inmates of the family of Benedik Dungdung, due to land dispute, pending since 1993. PW 20 Subhodh Kumar Jaiswal is the IO of this case. The learned Additional Sessions Judge, Simdega, considering the circumstantial evidence, corroborated by the village independent witnesses, supported by the medical evidence and the IO has convicted the appellants and sentenced them thereunder.;