LAKSHMAN URAON, J. - (1.) THE appellants have preferred this appeal against the order of conviction and sentence dated 12.8.96 and 14.8.96 respectively passed by Shri Prashant Kumar, the learned 5th Additional Sessions, Judge, West Singhbhum at Chaibasa in S.T. No. 85/1991, whereby and whereunder, the appellants have been convicted under Sections, 302/149, 307/ 149, 323/149 and 201/149, Indian Penal Code and sentenced each of them to undergo imprisonment for life for the offence under Sec.302/149 Indian Penal Code and further to undergo R.I. for five years for the offence under Sec.307/149 Indian Penal Code and simple imprisonment for one month for the offence under Sec.323/149, Indian Penal Code and R.I. for 2 years for the offence under Sec.201, IPC. However, it was directed that all the sentences in respect of each convict shall run concurrently. After filing this Criminal Appeal No. 168/1996 the appellants in the above criminal appeal filed application through jail which was received in the office of Superintendent, Special Central Jail, Bhagalpur on 2.2.2001 which was registered as Criminal Appeal No. 281/2002 in this Court on 20.6.2002. As both the appeals are in respect of the common order of conviction and sentence passed by the learned Court below which were heard by this Court together and are being disposed of by this common judgment.
(2.) THE prosecution case is based on the joint written information Ext. 3 of Pratap Singh Maria and seven others addressed to the Superintendent of Police West Singhbhum, Chaibasa signed by him Ext. 2 and other villagers including Sanatan Angaria PW -14 who also signed on it Ext. 2/1. The joint written information was sent to the Officer -in -Charge, Goelkera P.S. for registration of a case on the basis of which a case was registered and the formal FIR Ext. 4 was drawn. The villagers in the written information Ext. 3 has alleged that on 15.9.1990 at 10 a.m. the villagers of Boreo Bahatu had convened a meeting to get rid of Malaria fever and animal disease spread in the village. In the said meeting besides Munda of village Patam the other villagers, namely, Bahadur Angaria, Durbu Angaria, Rugdu Bandha, Kande Maria, Raimur Maria, Chokro Marla (Deva), another Chokra Angaria (Deva) and Bama Champia (Deva) were present. Mun -das of village Patam informed that all the sorcerists of his village were done to death. The family members of the sorcerists were fined Rs. 1,000.00 cash besides two goats and six pots of Hadia and only then the disease of the cattle and Malaria spread in his village Patam were rooted out. Therefore, they should also murder all the persons who are sorcerists to save their lives. He alleged that the missionaries of the localities teach witchcraft to the people in the church in the morning and evening. Therefore, they should also be eliminated to save the villagers and cattle from the Malaria disease. On the same day on 15.9.90 at about 10 p.m. night all the above named villagers along with other villagers went to the house of Govind Marla at village Boroie and killed Govind Marla and all the members of his family including his wife and four children. Ladu Champia of village Bahatu who had seen all the members of the family of Govind Maria, informed Sanatan Angaria on 16.9.90 at 7 a.m. The villagers of Borai Baihatu who were alleged to be sorcerists fled towards Jungle and went to village Taisara and took shelter in the house of Krishna Chandra Hembrom. The villagers sent S.O.S in writing to the Superintendent of Police West Singhbhum Chaibasa to save their lives which were in danger. They also sought help for their safe return to their village under police protection. On the basis of the said written information Goelkera P.S. Case No. 30/1990 was registered and the formal FIR was drawn which is the first information report in this case, registered on 18.9.90 at 21.30 Hrs. Subsequently, the fardbeyan of Suru Kui PW -3 wife of the deceased Govind Maria, was recorded by the ASI, R.S. Ram of Goelkera PS on 22.9.90 at 7 Hrs. at village Taisera in house of Krishna Chandra Hembrom within Tonto Gram PS in connection with Goelkera PS Case No. 30/90 dated 18.9.90. Suru Kui PW -3 wife of late Govind Marla and her son PW -5 Ram Singh Marla only survived in the family whereas the husband of Suru Kui, namely, Govind Marla and her sons Radheshyam Maria, Lakshman Marla and daughter Phulmani Kui were done to death by the appellants along with the other villagers. The FIR is the joint petition of the villagers Ext. 3. The villagers Pratap Singh Marla and others simply informed the Superintendent of Police West Singhbhum Chaibasa about the occurrence who were informed by one Ladu Champia of village Baihatu. Out of fear the villagers of Baihatu who apprehended their lives fled away and took shelter in the house of Sri Krishna Hembrom of village Taisera. They are not the eye -witnesses of the alleged occurrence but PW -3 Suru Kui wife of late Govind Marla and her son PW -5 Ram Singh Marla are the eye - witnesses. In the fardbeyan Suru Kui has stated that on Saturday i.e. 15.9.90 she was at home in the morning along with her husband Govind Maria, daughter Phulmani Kui aged 8 years, son Ram Singh Marla PW -5 aged 10 years. Radheshyam Marla aged 6 years and Lakshman Marla aged 2 years. In the morning of that day in between 8 -9 a.m. the villagers had convened a meeting. In that meeting Rusu Sidhu appellant No. 3, Kande Marla appellant No. 6, Man Singh Maria, Sena Maria, Dursu Maria, Ratmal Maria, Gunda Maria, Bamia Marla appellant No. 2, Juru Marla appellant No. 5 and others were present. In that meeting husband of Suru Kui, namely, Govind Marla was not called. Her husband was at home and she had gone to harvest the paddy crops. She heard the alarm of Dakua Rumda Wahamdaa that all the sorcerists of the village would be eliminated as due to their witchcraft disease has spread in the village. In the evening at about sun set Suru Kui PW -3 retuned home. She lit the lanterns and dhibri and started cooking. Her children and husband were at home. At that time Kande Marla appellant No. 4 went to her home for tobacco and lime and soon thereafter he went away. Her husband Govind Marla came out of the room to wash his hand and mouth after taking food. She also came out for taking water. In the mean time the villager Jarka Wahanda fired with country made gun causing injury to her husband. Her husband asked for a mat on which he was laid down. He informed that Jarka Wahanda to cause his murder shot at him causing injuries on his chest. Due to bleeding Govind Marla was scrambling. Her children started weeping. In the mean time Bamia Marla appellant No. 2, Guda Marla, Jura Marla, Dobra Marla, Rautu Marla, Mahendra Marla appellant No. 7, Zanam Singh Angaria appellant No. 8, Kaira Angaria appellant No. 9 armed with bows arrows and axe entered into her house. She heard the sound of whistle. Her husband Govind Marla was alive at that time who was assaulted with kicks and lathi by them resulting his death. They exhorted to eliminate the entire family members, PW -3 Suru Kui came out in the verandah taking Lakshman Marla two -year - old son on her lap. In the light of burning lantern she saw Kande Marla appellant No. 6, Man Singh Marla, Jugu Marla appellant No. 5, Juria Marla, Raiman Marla, Roya Marla, Bideo @ Mukru Marla, Zcna Marla, Kande Marla appellant No. 4, Dursu Marla, Kande Marla son of Dursu Marla, Basu Marla, Chokro Marla, Chare Angaria, Oiban Marla, Ponde Angaria, Roya Angaria appellant No. 10, Dangur Angaria, Ankura Angaria, Rungdu Waharigde (village Dakua), Naran @ Kamal Angaria, Rusu Sidhu appellant No. 3 (Neta, JMM), Durbu Angaria, Soban Sinku appellant No. 1, all armed with danda, axe, bows and arrows standing. Her daughter Phulmani Kui aged 8 years, son Radheshyam Marla aged six years were snatched by Dobra Marla, Basu Marla, Rautu Marla, Kande Marla appellant No. 6 and Kaire Agaria appellant No. 9. They assaulted with their respective lathis and kicked them out side the house in spite of her protest. Her son Ram Singh Marla aged 10 years PW -5 managed to escape from the house to save his life. The assailants named above tied the neck of the deceased husband Govind Marla, deceased daughter Phulmani Kui and the deceased son Radheshyam Marla with rope and took the dead bodies towards the river Deo. Jena Marla tied the rope on her waist. Her son Lakshman Marla aged about 2 years was on her lap who were also taken towards river Deo. Her son Lakshman Marla was snatched from her lap by Man Singh Marla, Rungdu Wahangda and Kande Marla appellant No. 6. They threw Lakshman Marla on the rock resulting his death. In the mean time Ram Singh Marla PW -5 was brought to her by Dursu Marla, Kande Marla appellant No. 4 and Rautu Marla on the bank of river Deo. In her presence he was killed and assaulted with danda. Thereafter believing that he is dead they threw him into the river. They also threw the dead body of her husband, daughter Phulmani and son Radheshyam along with Lakshman Marla into the river. She was given danda blows on her back. When the assailants were likely to cut her with axe, to save her life she jumped into the river. However, she crossed the river and on Sunday went to the house of her sister Minizari Kui of village Kadalsokua within Tonto PS. She narrated the entire incident to her. On Tuesday i.e. 18.9.90 her father Jamadar Wakanda PW -6 of village Rute Gutu went to her and informed that her son Ram Singh Marla PW -5 is alive and is at his home. She called her son Ram Singh Maria. When asked Ram Singh Marla he informed that on the date of the alleged occurrence he went to the house of Dursu Marla and concealed himself. After sometimes Dursu Marla, Kamde Marla appellant No. 4 and Rautu Marla assured him to take to his maternal uncle 'shome. Dursu Marla took him on his lap and took towards the river Deo where his mother was present. In her presence he was assaulted with kicks and fists. When he became unconscious then Relieving that he is dead he was thrown into the river. Ram Singh Marla further informed that when he regained his consciousness, then he found him floating into the river water. He caught grass at the bank of the river and came out of it. He took rest at night and in the morning he went to the house of his maternal uncle of village Rute Gutu. PW -3 Suru Kui has further stated that when she came out of river Deo she first went to the house of her uncle Purushotam Wahanmda PW -4 and from there she went to the house of her sister. At that time she was carrying pregnancy of about 7 -8 months. The reason of the alleged occurrence is that the grandfather Madan Marla of her husband Govind Marla was murdered by Kande Marla, Raiman Marla, Roi Marla, Man Singh Marla, Zugu Marla, Juria Marla in he year 1960 - 61 at the time of harvesting. In that murder case Zena Marla was convicted and sentence for 20 years imprisonment. Her husband Govind Marla had 10 acres of land in his share. The above named accused persons only to grab that land murdered her husband and other family members to eliminate the entire family and threw the dead bodies into the river Deo. Her son PW -5 Ram Singh Munda escaped providentially. Her house is surrounded by the houses of the named accused and others. Only to eliminate the entire family the villagers alleged them to be sorcerists. The villagers Pratap Singh Marla PW -2 and Dalpati Lakshman Angaria PW -1 are acquainted with the alleged occurrence. Her fardbeyan was recored on 2.9.90 on which she gave her LTI which was witnesses by Pratap Singh Marla PW -2 and Lakshman Angaria Dalpati PW -1.
(3.) AFTER investigation charge -sheet against all these appellants was submitted under Sections 448/302/201/120/34/364, Indian Penal Code showing investigation pending against the others.;