- (1.) THESE appeals have been preferred against the common judgment of conviction dated 30th January, 2012 and order of sentence dated 31st January, 2012 passed by Shri Ram Naresh Mishra, District and Sessions JudgeII, Dhanbad in Sessions Trial No. 223 of 1992, whereby, the appellants in both the appeals have been convicted for the offence punishable Under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment. The appellants of Criminal Appeal (D.B.) No. 385 of 2012 namely, Narayan Tudu and Lobin Tudu have also been sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 148 of the Indian Penal Code whereas the appellants of Criminal Appeal (D.B.) No. 263 of 2012 namely, Lalu Hansda, Labeshwar Tudu, Dumka Tudu and Thakur Tudu have been further sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 147 of the Indian Penal Code. However, all the sentences have been ordered to run concurrently.
(2.) THE case of prosecution is that on 11.08.1991 at 6:45 A.M., the informant Mohan Hansda (P.W. -2) gave fardbeyan to police that on 10.08.1991 at about 4:30 P.M., the informant was talking with his brotherin -law Sukhlal Marandi in front of his house. At about 5:45 P.M., Narayan Tudu armed with Tangi (Axe), Lobin Tudu armed with Tangi (Axe), Gorain Hansda armed with Tangi (Axe) and Rasu Hansda, Lalu Hansda, Manager Murmur, Labeshwar Tudu, Budhan Tudu, Dumka Tudu armed with Lathi came out from the house of Rasu Hansda and Gorai Hansda (accusedexpired during trial) and came to the door of the informant and started abusing him with filthy language while informant was objecting them from abusing him. At that time, Ruba Tudu (deceased) came there and objected the accused persons and asked them as to why they were using filthy language. Then Narayan Tudu ordered his companion to assault Ruba Tudu, whereupon, Gorai Hansda, Narayan Tudu and Lobin Tudu, who were armed with Tangi (Axe) assaulted Ruba Tudu on his head as a result he fell down on the ground and started writhing. At the same time, Pano Manjhain, (wife of Ruba Tudu), who was also coming to that side saw the occurrence. Thereafter, the accused persons chased the informant and his brother -in -law to assault them but due to fear they fled away from there and went to village Uparchirahi Tola and stayed there throughout the night and in the morning informant lodged the case in the police station. The informant further alleged that the motive behind the occurrence is that the accused persons named above had forcibly occupied one tank, which was adjacent to the land of the informant. The informant had been protesting against forceful possession of the said Tank by the accused persons as he also wanted to use the tank water for irrigation to his field but the accused persons were not allowing him to do so and due to this annoyance the accused persons having made unlawful assembly attacked at the house of the informant and killed Ruba Tudu by assaulting him with Tangi. Seven witnesses were examined by the prosecution: P.W.1 Ram Awater Pandit He is the Investigating Officer of this case. He has proved the F.I.R. i.e. marked as Ext. -1 and has also proved the carbon copy of inquest report i.e. marked as Ext. -2. P.W.2 Mohan Hansda He is the informant of this case and is eye witness of the occurrence. He has proved his signature and signature of Gopal Tudu in the F.I.R. i.e. marked as Ext. -3 and 3/1 and has proved his signature in the inquest report i.e. marked as Ext. -3/2. P.W.3 Gopal Tudu He is the Hearsay witness. He has proved his signature in the inquest report i.e. marked as Ext.3/3. P.W. 4 Sonaram Tudu He is the Hearsay witness. P.W. 5 Pano Manjhian She is the wife of deceased Ruba Tudu and is Eye witness of the occurrence. P.W. 6 Dr. Vinod Kumar He is the Doctor who has conducted the postmortem of the dead body of Ruba Tudu @ Shambhu Tudu and has proved the postmortem report i.e. marked as Ext. -4. P.W. 7 Sukhlal Manjhi Declared Hostile witness.
(3.) IT has been submitted by the counsel for the appellants in both the appeals that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses, which affect the very root of the case. This aspect of the matter has not been properly appreciated by the learned trial court 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 also submitted by the counsel for the appellants in both the appeals that there is gross delay in lodging 4 the F.I.R., which is approximately about 12 hours. No independent eyewitness has been examined by the prosecution, even though, several persons were present at the place and time of occurrence. P.W. 5 has stated that she had seen Narayan Tudu, Lobin Tudu and Rasu Tudu causing two injuries upon the body of the deceased, whereas as per the medical evidence, there are three injuries, looking to the postmortem report, which is at Ext. -4. Thus, there is discrepancy between the ocular evidence and the medical evidence and the eye -witnesses are in fact not the eye -witnesses at all. It is further submitted by the counsel for the appellants in both the appeals that there is no F.S.L. report on the record. The place of occurrence is also doubtful and not proved by the prosecution and lastly, it is submitted that both the so called eyewitnesses i.e. P.W.2 and P.W. 5 have failed to state before the learned trial court that which of the appellants had caused what injury and on which part of the body of the deceased and this aspect of the matter has not been properly appreciated by the learned trial court and hence the prosecution has failed to prove the offence of murder committed by these appellants beyond all reasonable doubts and, therefore, the judgment and order of conviction and sentence passed by the Sessions Judge -II, Dhanbad dated 30th/31st January, 2012 in Sessions Trial No. 223 of 1992 deserves to be quashed and set aside. It is further submitted by the counsel for the appellants that said Narayan Tudu and Lobin Tudu, who are the appellants in Criminal Appeal(D.B.)No. 385 of 2012, are in judicial custody since long and the appellants of Criminal Appeal(D.B.) no. 263 of 2012 are on bail because of suspension of sentence passed by this Court. It is submitted by the counsel for the State -A.P.P. in both the appeals that no error has been committed by the learned trial court in appreciating the evidence on record in the Sessions Trial and the prosecution has proved the offences as alleged by the prosecution beyond all reasonable doubt. The case of the prosecution is based upon more than one eye -witness, who is P.W.2 and P.W.5. The whole incident has taken place on 10th August, 1991 at about 5:45 P.M. and the F.I.R. was lodged on 11th August, 1991 at about 6:45 A.M. before Baliapur police station, District - Dhanbad. It is submitted by the A.P.P. that P.W. 2 has clearly narrated the role played by these appellants -accused i.e. Naryan Tudu and Lobin Tudu stating that they along with one Gorain Hansda came with sharp cutting instrument -Tangi, whereas other persons, who are accused, came with Lathi - a hard and blunt substance and they assaulted Ruba Tudu @ Shambhu Tudu so severely that Ruba Tudu @ Shambhu Tudu expired on the spot. Therefore, Narayan Tudu and Lobin Tudu are the persons, who used sharp cutting instrument, whereas Lalu Hansda, Labeshwar Tudu, Dumka Tudu and Thakur Tudu have used the Lathi, but there are no injuries caused by Lathi, as per the postmortem report -Ext.4 and as per the deposition given by P.W. 6 Dr. Vinod Kumar. It is further submitted that as they came together, there was a common intention of each of these appellants and there was a common object also of that unlawful assembly in prosecution of the common object for causing such bodily injury that the deceased may expire, they assaulted Ruba Tudu @ Shambhu Tudu and hence they have been rightly punished for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code and Narayan Tudu and Lobin Tudu have also been punished for the offence punishable under Section 148 of the Indian Penal Code, and the appellants of Criminal Appeal(D.B.)no. 263 of 2012 have been rightly punished for the offence punishable under Section 147 of the Indian Penal Code, over and above, life imprisonment for the offence of murder. The medical evidence has also corroborated to the depositions of the eye -witnesses. Inquest report has also been proved by P.W. 3. Thus, the prosecution has proved the offence beyond all reasonable doubts and, therefore, these appeals may not be entertained by this Court.;