LAKSHMAN URAON, J. - (1.) THIS appeal is directed against the judgment and order of conviction dated 22.8.1996 and sentence dated 27.8.1996 passed by Shri Mahesh Prasad Tiwary, learned 5th Additional Sessions Judge, Dumka in Sessions Case No. 122 of 1994, whereby and whereunder ail the appellants have been convicted for the offence under Sections 302/34 IPC and sentenced to undergo imprisonment for life. He further convicted the appellants for the offence punishable under Sections 323 and 542 IPC and sentenced each of them to undergo R.1. for one year each on each count. The learned 5th Additional Sessions Judge, Dumka directed that all the sentences in respect of all the appellants in each count shall run concurrently.
(2.) THE prosecution case has arisen on the basis of FIR (Ext.1) lodged by Sonadhan Soren (PW -9) on 2.2.1994 at 11.30 am alleging therein that on Tuesday i.e. 1.2.1994, Dhena Soren (PW5) and his wife Parvati Murmu (PW3) picked up quarrel regarding domestic affairs. Both of them went to village Pradhan Gudui Marandi (PW4) to solve their differences. Village Pradhan (PW4) assured them to settle the dispute in the next morning. Both of them returned home. Thereafter at 7.00 p.m. on the same day, appellant NO.3 Surja Kisku of Kalaibari went to the home of Dhena Soren and inquired as to why he had picked up a quarrel with his wife PW3 Parvati Murmu. He abused Dhena Soren. There was scuffle in between Surja Kisku and Dhena Soren. Surja Kisku went home and again at about 7.30 p.m. came back along with his brother Ganesh Kisku (appellant no. 4). Dilip Kisku, Labai Kisku (appellant No.1). Shibu Hansda, Amin Murmu (appellant No.2). forming an unlawful assembly armed with iron rod and lathi. They entered into the house and started assaulting Dhena Soren (PW5) and Lalu Tudu (PWS) with Lathi and iron rod. Both of them sustained injuries due to assaults. Mother of the informant Pikru Kisku. who was at home, was going to call village Chaukidar and had covered about 500 yards towards north of her home. When she reached at Bhutwari of the same village Kalaibari, then Surja Kisku (appellant No.3) Ganesh Kisku (appellant No.4) Dilip Kisku. Labai Kisku (appellant No.1). Shibu Hansda, Amin Murmu (appellant No.2) assaulted Pikru Kisku with lathi and rod and murdered her. On the cry of his mother. informant and his brother Samsul Soren (PW6), wife Khandi Hansda and other villagers went there and saw the accused persons assaulting his mother. Surja Kisku assaulted with iron rod and others assaulted with lathi to Pikru Kisku and murdered her. The prosecution examined altogether 12 witnesses in order to substantiate the charges levelled against Surja Kisku. Ganesh Kisku, Labai Kisku, Dilip Kisku, Shibu Hansda and Amin Murmu. PW1, Koncha Kisku and PW2 Paltan Murmu are the formal witnesses of inquest report and seizure -list. PW3 Parvati Kisku is the wife of PW5 Dhena Soren. PW4 Gudui Marandi, village Pradhan, is quite ignorant about the alleged occurrence and is a hostile witness. P.W.6 Samsul Soren is the son of the deceased and claims to be the partly eyewitness. PW 7 Khandi Hansda is the wife of the informant PW9 Sonadhan Soren. P.W.8 Lalu Tudu who was going along with Pikru Kisku, his phuphu, to inform the Chaukidar, was also assaulted but he could not identify the assailants due to darkness and is a hostile witness. PW 10 Yamuna Pd Singh is the Investigating Officer, whereas PW 11 Dr. S. Murmu conducted autopsy on the dead body of Pikru Kisku and PW 12 Dr. Ajit Kumar examined the injured Lalu Tudu (PW 8) and Dhena Soren (PWS). Thus, PW3, PWS, PW6, PW7, and PW9 are closely related with the deceased and are of the same family, whereas PW8 is also related with the deceased as she was his phuphu.
(3.) THE learned 5th Additional Sessions Judge, Dumka relied the evidence of the closely related witnesses before whom they have claimed that deceased Pikru Kisku disclosed the names of the assailants on her person which is the oral dying declaration made by Pikru Kisku to her close relatives. He also believed the evidence of injured witnesses -PWS Dhena Soren and PW8 Lalu Tudu. He found the manner of occurrence as alleged that appellant Surja Kisku assaulted with iron rod piercing on the abdomen of Pikru Kisku, whereas the others assaulted with lathi finds corroboration by the medical evidence of PW11 Dr. S. Murmu and from injuries sustained by PW5 and PW8 corroborated by Dr. Ajit Kumar (PW12) and, convicted all these appellants and sentenced them for the offences charged against them. He did not find the evidence for conviction against accused Dilip Kisku and Shibu Hansda. Hence they were acquitted.;