S.J.MUKHOPADHAYA, J. - (1.) BEING ago, grieved by judgment and order of conviction and sentence dated 15th March, 2002 and 19th March, 2002 respectively passed by Sri BK Sahay, learned Additional Sessions Judge (F.T.C. -1), Dhanbad in Sessions Trial No. 595 of 1995 arising out of Baliapur P.S. case no. 46 of 1995, corresponding to G.R. case no. 2473 of 1995, the appellant challenged the same in this appeal. By the impugned judgment dated 15th March, 2002/19th March, 2002, the appellant has been held guilty and convicted of the charge u/s. 302 I.P.C. and sentenced to undergo imprisonment for life. 2. The prosecution case, in brief, as per fard beyan of informant, Somai Kisku (P.W. 4) is that he lives with his family members consisting of wife, two sons, two daughters -in -law and one daughter, Rani Manjhiain and her husband, Shambhu Tudu (accused). Her sister, Saraswati Manjhiain and brother -in -law, Butu Hansdah (deceased) also live with him. Butu Hansdah was working in Lodna Colliery and about four years back he retired. In his place, the second son of informant, Mongal Manjhi was working. His son -in -law, Shambhu Tudu (accused) was a labour, who was sitting in the house since last few days because of his illness. On the day of occurrence, 9th July, 1995, at about 8 A.M. while he was sitting in his kitchen, suddenly heard hulla from his court -yard (Aangan). When he came out, saw his son -in -law, Shambhu Tudu (accused) was assaulting his brother -in -law, Butu Hansdah (deceased) with tangi. As a result of assault, Butu Hansdah sustained injury and fell on the ground. The informant tried to save him but the accused also threatened him to kill. The informant raised alarm upon which Thakur ManJhi (P.W. 2), Sona Ram Tudu (P.W. 1) and other villagers came there and snatched the tangi from the hand of accused, Shambhu Tudu and caught him. By that time Butu Hansdah had died. The informant, thereafter, waited for arrival of his son, Mongal Manjhi (P.W. 3), who was to return from his duty. In the meantime, police reached there and recorded his fardbeyan. The police registered a case u/s. 302 I.P.C. against the accused, Shambhu Tudu and after investigation, submitted charge sheet u/s. 302 I.P.C. Learned Chief Judicial Magistrate, Dhanbad took cognizance of the offence and after commitment, the case was tried in the court of learned Additional Sessions Judge, F.T.C. No.1, Dhanbad. The prosecution examined altogether 10 witnesses in order to bring home charges levelled against the appellant. Apart from the informant, Somai Kisku (P.W. 4), two other witnesses, namely, P.W. 1, Son a Ram Tudu and P.W. 2, Thakur Manjhi are eye witnesses. The informant, Somai Kisku (P.W. 4), seen the total occurrence including the tangi blow inflicted by accused on the deceased, Butu Hansdah. Sona Ram Tudu (P.W. 1) and Thakur Manjhi (P.W. 2), both independent witnesses had seen the occurrence having blood stained tang; ill his hand, who tried to flee away but was caught by them. P.W. 3, Mangal Manjhi, son of the informant is a hearsay witness. P.W. 5, Dr. Binod Kumar conducted autopsy on the body of the deceased. Rest of the witnesses, namely, P.W. 6, Sheolal Hembram; P.W. 7, Sobaran Marandi; P.W.8, Baburam Tudu; P.W. 9, Devilal Hembram and P.W. 10, Sunil Kumar are formal witnesses of seizure list, inquest report or proved the fard beyan. On the basis of the evidence available on record, including the informant an eye witness and two other independent witnesses of the same village, (P.W. 1 ) and (P.W. 2), learned trial court convicted and sentenced the appellant. 3. Learned counsel for the appellant has submitted (i) That there is a delay in lodging F.I.R. which has not been explained. (ii) Saraswati Manjhiain, another eye witness has not been examined in the case; as such the prosecution case suffers from doubt. (iii) The prosecution failed to bring on motive for accused to commit murder. and (iv) Prejudice caused to the accused on account of non -production of Tang; and non -examination of the Investigation Officer.
(2.) Learned A.P.P. submitted that the delay has been properly explained by the prosecution. The informant was waiting for arrival of his son, Mangal Manjhi and in the meantime, police reached there. So far as non -examination of Saraswati Manjhiain is concerned, it was submitted that the Court held that non -examination of Saraswati Manjhiain has not been prejudiced the accused. So far as motive is concerned, it was brought to the notice of the Court that the trial Court noticed that the accused had demanded money from the deceased and when the deceased refused to oblige, the accused committed murder. Certain other objections were raised by the counsel for the appellant, such as non -examination of I.O. and non -production of tang; in the court. Learned A.P.P., in this regard submitted that the oral evidence having been fully corroborated by the medical evidence, non -production of tang; in court or non -examination of I.O. will not affect the case of prosecution. It has been noticed that P.W. 6, Sheolal Hembram is a formal seizure list witness (Exhibit -2); P.W. 7, Sobaran Marandi is a formal witness of inquest report (Exhibit -3); P.W. 8, Baburam Tudu and P.W. 9, Devilal Hembram are formal seizure list witnesses (Exhibit - 3/1 and 3/2); P.W. 8, Baburam Tudu stated that one Kulhan (Tangl), one spectacle of black frame and blood stained earth were seized by the police in his presence. Similar statement was made by P.W. 9, Devilal Hembram who stated that one tang; and spectacle were lying at the place of occurrence which were seized by the police. P.W. 10, Sunil Kumar, who is a formal witness, only proved the seizure list and fard beyan.Sona Ram Tudu (P.W. 1) had seen part of the occurrence. In his Examination -in -Chief, he stated that when he heard hulla, he went to the house of Somai Kisku (P.W. 4) and saw the accused fleeing with blood stained tangi in his hand. He has further stated that he alongwith Thakur Manjhi (P.W. 2) and other villagers snatched away the tangi from the hand of the accused. He saw the deceased lying on the ground with 3 -4 injuries on his person. In his cross -examination, he has very specifically stated that his house was situated just beside the house of the informant. This witness has fully supported the prosecution case. He was not an interested witness nor he had any enmity with the accused. There is nothing on the record to disbelieve his evidence. Similar statement has been made by Thakur Manjhi (P.W. 2), another independent witness. He saw part of the occurrence and also saw the accused trying to flee with a blood stained tangi in his hand. He (P.W. 2) alongwith P.W. 1 and others snatched the tangi from the hand of the accused. He further stated that he saw the body of the deceased lying at the place of occurrence and there were 3 -4 injuries from which blood was oozing. The evidence of this witness is quite consistent with the evidence of P.W. 1, Sana Ram Tudu and the case of the prosecution, as stated in the fard beyan, his name also figures as an eye witness of the part occurrence. P.W. 3, Mangal Manjhi is hearsay witness. He came to know of the incident from the informant (P.W. 4), who told him that the accused, Shambhu Tudu killed Butu Hansdah. This witness also explained the motive at paras to his statement. He clearly stated that his aunt (Fua) -Saraswati Manjhiain told him that Shambhu Tudu (accused) was asking for money from Butu Hansda (deceased) and when Butu Hansdah refused to give money, the accused, Shambhu Tudu killed him. He saw the dead -body of the deceased lying in the court -yard and stated that P.Ws. 1, 2, 6, 7, 9 and others were also present at the place of occurrence. P.W. 4, Somai Kisku, who is the eye witness of the total occurrence, stood to his fard beyan. He stated in his evidence that at the time of occurrence, he was in the kitchen and when he heard hulla, he went out of the kitchen and saw the accused, Shambhu Tudu was having a tangi in his hand and was giving blow (cutting) Butu Hansdah with tangi. He tried to save but the accused also threatened him to kill. The accused killed Butu Hansdah. When he raised alarm, Sona Ram Tudu (P.W. 1), Thakur Manjhi (P.W. 2), Sheolal Hembram (P.W. 6), Devilal Hembram (P.W. 9), Sobaran Marandi (P.W. 7) and others came there and snatched away tangi. He further stated that at the time of occurrence, his son (Mangal Manjhi) was yet to return from duty, so he could not report the matter to the police. He fully supported the commission of murder by the accused and stood to his evidence even during lengthy cross -examination. No contradiction could be brought in his statement. The medical evidence supports the ocular evidence of P.W. 4, Somai Kisku as corroborated by the evidence of P.W. 1, Sona Ram Tudu and P.W. 2, Thakur Manjhi. Dr. Binod Kumar (P.W. 5), who conducted the post -mortem examination of the deceased, Butu Hansdah, found seven ante mortem injuries on his person, namely: - Injury no.1 -Lacerated wound 1 "x1/4" x scalp deep situated 3" above the root of left ear. Injury no.2 -Incised wound 3"x1/2"x bone deep (bone cut) at the upper part of the root of right ear. Injury no.3 -Incised wound 3"x1/2"x2" on the upper outer aspect of front of right side chest, lung was cut underneath. Injury no.4 -First, second and third ribs with color bone of right side were broken. Injury no.5 -Incised wound 3"x11/2" x bone deep on the left side lower part of neck. Injury no.6 -Incised wound 3"x1 "x bone deep on the back of left shoulder. Injury no.7 -Incised wound 3"x1 "x bone deep on the left shoulder back. On dissection 1st to 5th left ribs were found broken at front and flank, both sides of chambers of heart were empty, stomach empty, urinary bladder empty, the internal organs were pale. Time elapsed since death was between 18 to 30 hours before the time of Post Mortem examination. In the opinion of Doctor death was due to haemorrhage and shock as a result of incised wound caused by sharp cutting weapon like Tangi. The defence did not choose to examine any witness in its support. In the statement recorded u/s. 313 Cr.P.C., the accused denied the evidence of prosecution witness as wrong and did not say anything in his defence.
(3.) From the aforesaid facts and evidence, it will be evident that the prosecution could prove the genesis of the alleged occurrence i.e. refusal by Butu Hansdah to give money to the accused, Shambhu Tudu. They properly explained the delay of few hours in lodging F.I.R. as the informant (P.W. 4) was waiting for his son and in the meantime, police reached there. The prosecution successfully brought on record the evidence of eye witness (P.W. 1) which was fully corroborated by two other witnesses (P.Ws. 1 and 2) and the medical evidence. There being no dispute relating to place of occurrence, there is no room to doubt the case of prosecution. Thus, as there is no infirmity in the finding of the learned court below in convicting and sentencing the appellant, Shambhu Tudu u/s. 302 I.P.C., the judgment of the trial court requires no interference. 6. In the result, there being no merit in this criminal appeal, it fails and the appeal is, hereby, dismissed. The conviction and sentence passed by Sri B.K. Sahay, learned Additional Sessions Judge, Fast Track Court -1, Dhanbad against the appellant, Shambhu Tudu in Sessions Trial No. 595 of 1995 arising out of Baliapur P.S. case no,46 of 1995, corresponding to G.R. case no. 2473 of 1995 is. accordingly, confirmed. Lakshman Uraon, J. -I agree.;