NARENDRA NATH TIWARI, J. - (1.) THE appellants were convicted by the learned 2nd Additional Sessions Judge, Singhbhum at Cahibasa in ST No. 262/1987 under Section 302/34, IPC for the murder of Borta Deogam and were sentenced to undergo RI for life. Aggrieved by the same, this appeal has been preferred by the appellants.
(2.) THE incidence said to have occurred in the day time on 17.11.1986. According to the prosecution case, the said Borta Deogam (father of the informant) along with his elder sister -in - law (Bhabhi) Bamela, nephew and other family members had gone to Khalihan. At about 3 p.m., Borta complained uneasy feeling to his brother and returned home. After about half an hour, the informant and her elder aunt (Badi Maa) also returned home but did not find Borta there. On enquiry the informant was told that Borta had gone to market to bring some change for making payment to the grass vendor. At about Sun set, the informant went inside for preparing food. In the meanwhile, her father returned home in severely injured condition, smeared in blood and fell down on the cot kept in the 'Angan' (courtyard). Borta told them that the accused Surja Deogam @ Tapu and Lal Singh Deogam assaulted him. Thereafter Borta became unconscious. The informant then requested her sister -in -law (Bhabhi) to inform the male members who were at work in the Khalihan. In the mean while Borta died. Male members along with other persons arrived thereafter. The deceased was then carried to the police station by a bullock cart where the FIR was lodged in the night. The informant named both the appellants in the FIR as the assailants who killed her father. According to her, there was enmity with the accused persons due to land dispute. On investigation, the police submitted charge -sheet against the appellants under Section 302/34 and also under Section 379 IPC, alleging that while returning from the market bicycle of the deceased was also snatched. The charges were subsequently framed under the said Sections of the IPC to which the appellants pleaded not guilty. In order to prove charges against the accused -appellants, the prosecution examined as many as thirteen witnesses. PW 1 Sunika Deogam was the informant. She is the daughter of the deceased Borta Deogam. In her evidence she has deposed that her father had gone to market and while he was coming back, his bicycle was snatched. Her father told that Lal Singh Deogam and Tapu @ Surja Deogam (appellants) assaulted him and thereafter he became speechless. Furnishing motive, she stated that there was land dispute between the deceased and the appellants Surja @ Tapu and the appellant Lal Singh Deogam is the supporter of appellant Tapu. According to her she named the appellants as father told their names before he became unconscious. PW 2 Sumi Deogam is the wife of the son of the deceased's brother. In her deposition she stated that on his returning home he sat down on a cot for about an hour and then lay down. According to her Borta uttered that the appellants had assaulted him and thereafter Borta became unconscious and after sometime he died. PW 3 Balema Deogam is the elder sister -in -law (Bhabhi) of the deceased. In her deposition she stated that Borta returned from Market in injured condition. He told her that the appellants had assaulted him. According to her, the motive was enmity due to land dispute and litigation. PW 4 Malmum Deogam is the daughter -in -law of deceased Borta. According to her, Borta had gone to market on a bicycle but returned on foot. There were mark of injuries on his neck, cheek and wrist. He had come running. He sat on the cot kept in Angan and thereafter lay down. Subsequently he succumbed to the injuries. According to her he had named the appellants as assailants who assaulted him due to land dispute. PW 5 is a formal witness who has proved inquest report (Ext. 3). PW 6 Baigo Deogam. He is also a witness of the inquest report who proved his signature on inquest report marked as Ext. 1/1. He has submitted that one Ram Deogam informed him about the death of the deceased Borta. When he went there, he saw the dead body of Borta with injuries on cheek, neck, head and wrist. There he was informed by the daughter -in -law of Borta that he had told her that Surja and Lal Singh assaulted him. PW 7 is the nephew of Borta. In his deposition he has stated that at about 3.30 p.m. his uncle Borta complained that he was not feeling well and went home to take rest. Subsequently his sister -in -law (Bhabhi) came to Khalihan weeping and informed that Borta was severely injured and that the appellants had assaulted him. When he came home, he found Borta's body smeared with blood. Thereafter he informed the village Munda. He also supported that there was land dispute between Surja and Lal Singh. PW 8 Manki Deogam was tendered for cross -examination. He was said to be an independent witness. In his deposition he has said that he is neighbour of Borta and on hearing commotion and screaming he went there and saw the dead body of Borta lying. Bolena, Sonika, Sumi, Malmum were there but they did not name the assailants at that time rather they told that they only saw the dead body of Borta. PW 9 Bali Charan Deogam is the son of the deceased Borta. He got information of his father's murder in the evening of 18.11.1986 at Nimdih Circle where he was posted. When he returned home next day, his family members told him that the appellants were assailants. According to him also there was litigation between Surja Deogam and the deceased. PW 10 Bal Kishun Deogam is the nephew of the deceased Borta. According to him he was at work in Nawadih Mines. After the Sun set he reached home and saw his uncle lying on a cot in the Angan, in injured condition. The family members told him that the appellants had assaulted Borta. PW 11 Baldeo Deogam is the son of the deceased Borta Deogam. He got information about his father's murder at Seraikella on 18.11.1986 at about 10 a.m. and thereafter came to his native place where he saw his father's dead body brought after post -mortem examination. His wife, sister -in -law and aunt narrated the incidence and also named the appellants as assailants. PW 12 M.R. Kadri is the IO of this case. He proved the FIR (Ext. 2) and in his deposition he stated that the fardbeyan of Sunika Deogam was in 'Ho' language which was interpreted to him in 'Hindi by the village Munda. According to him after recording the FIR he visited the P.O. (Angan of the house of the deceased) where he seized bloodstained earth and sent the same for test to Forensic Science Laboratory, Patna by the order of the CJM Chaibasa. However, the report could not be received and it cannot be ascertained as to whose blood it was. In paragraph 13 of his deposition he has stated that the informant had told him that her father came running and fell down on the cot kept in the Angan. At that time his voice was not clear. He denied that he was told by the witnesses Sumi, Balema and Malmum that when her father came to home, he sat down on the cot. PW 13 is the doctor who conducted the post -mortem examination on the dead body of Borta Deogam. He found several antemortem injuries on the dead body. Injury No. 3 was incised wound on the back of the neck 6' x 1' x 2 -1/2' and injury No. 6 was incised wound on the right side in front of the neck 3' x 1/2' x 2 -1/2'. On dissection, he among others found skin, muscles, vessels of right front of neck with Trachea just below Larynx and Oesophogus cut off. Other incised wounds were also found which do not require detailed discussion in the circumstances of the case.
(3.) THE learned Sessions Judge concluded the trial with his finding that there is no eye -witness of the alleged murder of Borta Deogam, but his dying declaration before the family members PWs 1 -4 led him to hold that charge under Section 302/34 IPC has satisfactorily been brought home against both the accused -appellants beyond all reasonable doubt. However, he came to the conclusion that the charge under Section 379/34 IPC could not be proved against the appellants and thus the impugned judgment of conviction and order of sentence first mentioned were passed against the appellants.;