S.J.MUKHOPADHAYA, J. - (1.) THE appellant Bhim Thakur having convicted under section 302 I.P.C. for causing death of Sahdeo Thakur and having sentenced to undergo life imprisonment, has challenged the judgment and sentence dated 8th June, 1999 passed by the learned 3rd Additional Judicial Commissioner, Ranchi in Sessions Trial No. 730/96.
(2.) AS per Fardbeyan of Smt. Surdhani Devi (P.W.4), wife of the deceased, the case of the prosecution was that in the night of 26th July, 1996, the Informant Surdhani Devi (P.W.4) was sleeping in a room along with her three sons, namely, Prem, Dilip, Buteshwar and one niece, namely, Rina. In another room, situated on the Verandah, her husband Late Sahdeo Thakur and his younger brother i.e. accused Bhim Thakur were having a chat. The Informant, in the meantime, slept. At about 12 in the night, she (Informant) heard cry of her husband (deceased). On hearing such cry, the Informant alongwith her sons Prem Thakur and Dilip Thakur went to the Verandah and saw Bhim Thakur slitting the neck of her husband (deceased) with a razor causing deep injury and blood was oozing out. Her (Informant) husband (deceased) was in great pain. It was further alleged that when Bhim Thakur noticed her (Informant), he fled away along with razor after opening the door. On hearing Hulla, the co -villagers Sudhai Mahto, Dudhai Mahto (P.W.3), Charka Mahto (P.W.5) and Shyamlal Thakur (P.W.5) came at the place of occurrence and noticed the crime. The motive for the occurrence was stated to be previous strain relationship in between the brothers i.e. deceased and the accused Shim Thakur. Out of the ten prosecution witnesses, Saleshwar Thakur (P.W.6) and Lal Mohamad (P.W.7) are formal seizure list and inquest report witnesses. Shyam Lal Thakur (P.W.B) is also a hearsay witness, apart from inquest report witness. Dr. Tulsi Mahto (P.W. 9) is an Assistant Professor who did post mortem on the body of the deceased. Chetna Nand Sinha (P.W. 10), Officer -in -Charge was the Investigating Officer. Dudhia Mahto (P.W.3) and Charka Mahto (P.W.5) who are stated to have 'reached 1he place of occurrence on hearing her alarm, cannot stated to be the eye witness, rather they are hearsay witnesses. Three of the witnesses, namely, Prem Thakur (P.W.1), Dilip Thakur (P.W.2), both are sons of the deceased and Sudhani Devi (P.W.4), wife of the deceased claimed to be the eye witnesses. Sudhani Devi (P.W.4), the Informant and the wife of the deceased supported her statement as made in the Fardbeyan. She stated that about two years back on the date of occurrence, in the night at about 12 O'Clock, her husband Late Sahdeo Thakur along with Shim Thakur were sleeping in the Verandah. The Informant (P.W.4) was sleeping along with her children in another room inside the house. On hearing noise, she wakeup and went near the Verandah along with her children and witnessed that the accused Shim Thakur fled away after slitting the neck of Sahdeo Thakur. On hearing her alarm (Hulla), covillagers also assembled at the place of occurrence. In her cross -examination, the Informant (P.W.4) stated that her husband had no enmity with Shim Thakur. She further stated that the room in which she was sleeping along with the children was about 15 to 20 feet away from the room (Verandah) where her husband was sleeping. She did not lit the Dhibri in the room. When she reached the place of occurrence, her husband was in pain and distress and the accused Shim Thakur was fleeing away. She did not chase Shim Thakur. She further stated in her cross -examination that she witnessed the occurrence and saw Shim Thakur slitting the neck of her husband. She denied the suggestion of the defence that her husband died before she reached the place of occurrence. The defence also suggested that one Uday Mahto, a distant relation of deceased had an illicit relationship with the Informant (P.W.4), which was seen by the deceased. This suggestion of defence was denied by the Informant (P.W.4). She also denied the suggestion that the accused Shim Thakur was not present on the date of occurrence. Her statement during lengthy cross -examination was consistent and the defence could not point out anything to disbelieve her ocular evidence. Prem Thakur (P.W.1), the other eye witness stated that the occurrence took place on 25th July, 1993 at about 12O' clock in the night. He along with his mother Sudhani Devi (P.W.4) and brother was sleeping inside the room and his father and the accused Shim Thakur were sleeping on the Verandah. After some time, he (P.W.1) and his mother (P.W.4) woke up on hearing noise and went outside the' room. They noticed that the accused Shim Thakur was slitting the neck of his father (deceased) Accused Bhim Thakur having noticed them, fled away. In his cross -examination, Prem Thakur (P.W.1) stated that they had put off the Dhibri and the place where his father was sleeping was about 10 feet away from the room where they were sleeping. He further stated that on hearing alarm (Hulla), covillagers Uday Mahto and others came. In the cross -examination, P.W.1 specifically stated that he had witnessed Bhim Thakur slitting the neck of his father. He supported and corroborated the evidence of P. W.4, the Informant. Dilip Thakur (P.W.2) is the other eye witness to the occurrence. He being aged about 12 years and being a child witness, counsel for the appellant submitted that his statement could not be relied. But such submission cannot be accepted. Though, Dilip Thakur (P.W.2) was a child witness aged about 12 years, his competency was tested by the Court and he was found competent to depose before the Court. In his examination -in -chief, P.W.2 stated that the occurrence took place about 21/2 years back. He (P.W.2) was sleeping along with his mother (P.W.4) and his father (deceased) was sleeping with Bhim Thakur outside the room in Verandah. On hearing some noise, he woke up and went outside the room and witnessed that the accused Bhim Thakur was slitting the neck of his father. Thereafter Bhim Thakur fled away. In the cross -examination, though PW.2 could not disclose the exact date of occurrence, he stated that when they raised alarm, the villagers assembled. He further stated that the accused Bhim Thakur is Barber by profession. This. eye witness also corroborated the statement of PWs. 1 and 4. Though, there was a lengthy cross -examination, but the counsel for the appellant could not point out any discrepancy to disbelieve the evidence of PW.2. Dr. Tulsi Mahto (P.W.9) who, at that point of time, was posted as an Assistant Professor in R.M.C.H., stated that on 26th July, 1996 at about 14 hours, he conducted the post mortem on the dead body of Sahdeo Thakur and found the following injuries and gave his opinion: Externally: - Incised Wounds: -(1) 8 cm x 3 cm x bone deep over left front lateral neck cutting the soft tissue blood vessels and Vth and VIth cervical Vertebra partially. On inspection of the wound one tissue tag was projecting from the right angle of the wound indicating minimum two blows. There is inflatration of blood and blood clot in soft tissue and bony tissue at the site of cut injury rest of the organs are normal and pale. The stomach contains undigested rice particles 150 grams urinary bladder contains little urine. Opinion: - All the injuries are antemortem caused by heavy sharp cutting weapon death due to hemorrhagic shock as due to the result of above injuries. Time since death six hours to 24 hours from the time of postmortem.
(3.) DUDHIA Mahto (P.W.3) who reached the place of occurrence soon thereafter stated that about two years ago at about 12 in the night, he was sleeping in his house. On hearing alarm, he went to the house of Sahdeo Thakur and noticed that the neck of Sahdeo Thakur has been slitted. The wife of Sahdeo Thakur disclosed him that Shim Thakur had slitted the neck of the deceased. He identified Shim Thakur on the dock. In the cross -examination, he stated that he was in his house at the time of occurrence. Charka Mahto (P.W.5), who also reached the place of occurrence soon them after, in his examination -in -chief stated that about two years back, at about 12 O'clock in the night, he was sleeping in his house. On hearing alarm, he went to the house of Sahdeo Thakur and saw that the neck of the deceased has been slitted. He further stated that the wife of Sahdeo Thakur had disclosed him that the accused Shim Thakur had slitted the neck of Sahdeo Thakur. In his cross -examination, he could not disclose the exact date of occurrence. He further stated that the occurrence did not take place in his presence. Shyam Lal Thakur (P.W.8) is a seizure list witness and also the inquest report witness has stated that the occurrence took place about two years back at about 12.30 A.M. In the said night, on hearing alarm, he (P.W.8) went to the house of Sahdeo Thakur and noticed that his neck was slitted. On the next date, he learnt that Shim Thakur had murdered Sahdeo Thakur. PW 8 further stated that one Razor was recovered from the person of Shim Thakur and the Police has seized the blood stained soil from the house of Sahdeo Thakur and prepared a seizure list which bears his signature. Saleshwar Thakur (P.W.6) has stated that the occurrence took place about two years ago. The accused Shim Thakur was arrested and from his person one Razor was seized by the Police. Lal Mohamad (P.W.7) was a formal inquest report witness, who identified his signature on the inquest report. In his cross -examination, P.W.7 stated that he had seen the dead body of Sahdeo Thakur, whose neck was slitted and the dead body of Sahdeo Thakur was kept on the Verandah. Chetna Nand Sinha (P.W.10), Officer in -Charge who investigated the case, while accepted that he had recorded the Fardbeyan of P.W.4, given the details of the place of occurrence. He stated that in the house of the deceased there is one room measuring 14 feet x 12 feet and south to it, there is a room towards west 8 feet in width and a Verandah, which is closed by a wall. In the main room, the Informant and her children were sleeping and in the Verandah towards its western side, the dead body of Sahdeo Thakur was found in a cot. The neck of the dead body was slitted. He further stated that he seized the blood stained soil from the place of occurrence and prepared the seizure list in presence of P.Ws. 6 and 8. In his cross -examination, P.W.10 further stated that the co -villagers had apprehended the accused Bhim Thakur and the motive hr occurrence was a dispute regarding judgmani between the deceased and the accused.;