- (1.) THEPRESENTCRIMINALAPPEALHASBEENPREFERREDAGAINSTTHE judgmentandorderof convictionandsentencepassedby 4thAdditional District & Sessions Judge, Dumka, in Sessions Case No.30/2001. The learned Trial Court vide order dated 25th October, 2002 has punished these appellants for life imprisonment for offence punishable under Section 304/34 of the I.P.C.
(2.) THE case of prosecution is that on 2.6.2000 at 21.15 hrs (i.e. 9.15 P.M.)theinformantBittiHembrom(P.W9)gavefardbeyanat Ramgarh Hospital to police that on 2.6.2000 at 4.30 P.M. informant, her husband Girish Hansda (deceased) and her son Indray Hansda (P.W8) were in their home. At thattimeinformantbrotherinlawi.e.RajaHansda(accusedno.1)and Nandan Hansda (accused no.2) came there and took Girish Hansda to the house of Raja Hansda in order to have a talk in connection with settlement of marriage of his daughter and Girish Hansda went to the House of the accused Raja Hansda.They talk about the marriage of Girish Hansda niece and also talk about the partition of ancestor land and then they started altercation with informant husband for partition land. Thereafter at 5 P.M. informant saw that her husband was caught hold by Nandan Hansda at the door of Raja Hansda house and Raja Hansda inflicted two blows of sharp edged fasuli on Girish Hansda and after getting injured, Girish Hansda run from there to save himself but both the accused persons chased him and gave 2/3 blows of fasuli on his chest and head and injured him. Then informant raise noise (hulla) and her son Indray Hansda rushed to rescue his father. The accused Raja Hansda also inflicted further blows by fasuli on the Girish Hansda even after his fall and then accused persons fled away from there. Then informant son Indray Hansda brought his father Girish Hansda to home and thereafter with the help of villagers he was taken to Ramgarh Hospital for treatment but doctor declared him dead. The informant further alleged that the reason for occurrence took place only due to differences in partition of ancestral lands. Ten witnesses were examined by the prosecution P.W. -1 Rameshwar Hembram He is the Eye witness of the occurrence and he has proved his signature in the fardbeyan i.e. marked as Ext.1 and also proved his signature in the seizure list i.e. marked as Ext.1/1. P.W. -2 Sonalal Hansda He is the Eye witness of the occurrence. P.W -3 Sanat Kisku He is the Eye witness of the occurrence and he has proved his signature and signature of Suklal Kisku in the Inquest report i.e. marked as Ext.2 and 2/1. He has also proved his signature in the seizure list i.e. marked as Ext.1/2 P.W -4 Suklal Kisku He is the Eye witness of the occurrence. P.W -5 Dhaneshwar Hembram He is the son -in -law of deceased Girish Hansda and is the Eye witness of the occurrence. P.W -6 Baburam Besra Declared Hostile witness. P.W -7 Dr. Nasimul Haque He is the Doctor who has conducted the Post -mortem of the dead body of Girish Hansda and has proved the Post -mortem report i.e. marked as Ext.3. P.W -8 Indray Hansda He is the son of deceased Girish Hansda and he is the Eye witness of the occurrene. P.W -9 Bitti Hembram She is the wife of deceased Girish Hansda and is the Eye witness of the occurrence. P.W -10 Shyamlal Tuddu He is the Investigating Officer of this case. He has proved the fardbeyan i.e. marked as Ext.4 and has also proved the endorsement of O/C Ramgarh Police Station in fardbeyan i.e. marked as Ext.4/1. He has proved the formal FIR i.e. marked as Ext.5 and also proved the carbon copy of Inquest report i.e. marked as Ext.6. He has proved the seizure list i.e. marked as Ext.7 and also proved the signature of Raja Hansda (accused) in the seizure list i.e. marked das Ext.1/3.
(3.) IT is submitted by the counsel for the appellants that the learned trialcourthasnot properlyappreciatedthefactthattherearemajor contradiction,omission and improvement in the deposition of the prosecution witnesses and hence the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted that so called eye witnesses of the incident in question are in fact not theeyewitnessesat alllookingto theirexaminationinchiefandcross examinationbeforethelearnedtrialcourtandthereis agreatdegreeof variation in the deposition of the so called eye witnesses which tantamount two major omission, contradiction and improvement. This aspect of the matter has not been properly appreciated by the learned trial court. It is submitted by the counsel for the appellant that there is inconsistency in the prosecution witness about the number of injuries sustained by the victim such as P.W.1 is speaking about two blows at head of the deceased given by appellant no.1 whereas P.W.2 is differing in his deposition in paragraph 1 that there are five or six blows given by appellant no.1. Thus, different witnesses are narrating differently the whole incident and consequently there is major contradiction between occular evidence and medical evidence. It is further submitted that P.W.7 the doctor has stated that injuries are culpable caused by heavy sharp cutting weapon whereas thealleged weaponusedby appellantno.1 is not aheavy sharp cutting instrument at all neither this weapon has been produced before the learned trial court. This aspect of the matter has not been properly appreciated by the learned trial court. Hence, the judgment and order of conviction and sentence passed by learned trial court deserves to be quashed and set aside. It is further submitted that the motive which is alleged by the prosecution is the land dispute. These two appellants are the brothers of the victim and with a view to grab the property these appellants have been falsely implicated by the informantandalternativelyit submittedby thelearnedcounselforthe appellants that assuming that the whole case is proved against appellant no.1 who has caused injury then also the benefit may be given to the appellant no.2 who has not caused any injury to the deceased. Even half a dozen eye witnesses have stated that not a single injury has been caused by appellant no.2 upon the body of the deceased, therefore, appellant no.2 should be forthwith released by the Court. It is further submitted that so far as appellant no.1 is concerned alternatively appellantno.1 may beheldguilty fortheoffencepunishable under section 304 Part II I.P.C because the whole incident has taken place because of sudden fight and only because of property dispute. This is not a pre planned action of the murder on the part of the appellant no.1 who has already . remainedin jailsincethirteenandhalfyearsand,therefore,if boththe appellants are punished for ten years R.I. then it will suffice the purpose of imposing punishment under Section 304 Part II I.P.C. It is further submitted that how this aspect of the matter has not been properly appreciated by the learned trial court and as such the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is submitted by learned A.P.P. that no error has been committed by the learned trial court in appreciating the evidence on record. The case of theprosecutionis baseduponas manyas halfa dozeneyewitnesses, immediate is the F.I.R. The name of the appellants is mentioned in the F.I.R. The names of several witnesses have also been mentioned in the F.I.R and P.Ws.1,2,3,4,5,8 and 9 are the eye witnesses of the incident. They have clearly stated that these two appellants have caused the murder of Girish Hansda, the deceased. It is submitted by the learned A.P.P. that initially the assault had taken place at the house of appellant no.1 and thereafter victim started to run away and he came out of the house of appellant no.1 and in a gali (witnesses have referred in their own language as "kulhi") and four of the injuries were caused after chasing the deceased by these two appellants in a gali and chasing of the deceasedby theappellantsrevealstheintention.In furtheranceof their common intention one has facilitated the murder and another has caused the murder. This is how they shared the common intention. It is further submitted that there is no discrepancy in the deposition of the eye witnesses nor there is majorcontradiction,omissionandimprovement.Halfa dozenof theeye witnesses, in their deposition, have stated that they had seen the occurrence and they are the natural witnesses. As stated by the Investigating Officer who is P.W.10thehouseof theappellantsis nearthevicinityof theplaceof occurrence. The informant(P.W.9) who is the wife of the deceased raised alarm andimmediatelythesonof thedeceased(P.W.8)rushedto theplaceof occurrence and others have also rushed to the place of occurrence. Thus, they haveseen the whole incident. The eye witnesses have narrated thewhole incident without any exaggeration. It is submitted by the A.P.P. that there are always chances of truth in the deposition of the prosecution witness and false in uno omnibus maxim is not applicable in the criminal jurisprudence. It is further submitted by A.P.P. that there is no discrepancy between the occular and medical evidence given by Dr.Nasimul Haque(P.W.7). The injuries sustained by the deceased are tallying with the narration of the incident given by the eye witnesses. Sofaras productionof weapon inthecourt isconcerned it is submitted that the said weapon was recovered from the house of the appellant no.1. There are witnesses to the seizure list who are P.W.1 and P.W.3 and they are also the eye witnesses of the incident and they have proved the recovery of the weapon, thus, production of the weapon in the court is not sine qua non of the proof of the murder. Thus, the medical evidence is corroborated by the deposition of the eye witnesses. This aspect of the matter has been properly appreciated by the learned trial court. The prosecution has proved the murder of the deceased, Girish Hansda beyond all reasonable doubt. There is no error committed by the learned trial court in convicting and sentencing these two appellants for causing murder of the deceased, Girish Hansda. Hence, this appeal cannot be entertained by this Court.;