THE STATE OF BIHAR Vs. SARJU BHUMIJ, AND BANMALI BHUMIJ

JUDGEMENT

(1.) The two appellants Sarju Bhumij and Banmali Bhumij were put on trial for offences under Sec. 302read with Sec. 149of the Penal Code along with three others - -Mado Bhumij, Anil Bhumij and Joga Bhumij, who have been acquitted of the charges levelled against them, by the learned Additional Sessions Judge, Jamshedpur, who has convicted the appellants for an offences under Sec. 302read with Sec. 149of the Penal Code and sentenced them to death for having committed the murder of Govind Bhumij and his wife Bejo Bhumijain. The appellants first filed two appeals from jail. Later they have filed an appeal through Counsel as well. A reference has also been made by the learned Additional Sessions Judge for confirmation of the sentence of death by this Court in accordance with the provisions of the Code of Criminal Procedure. They were heard together and are being disposed of by a common judgment. At the outset we must observe that we have failed to appreciate as to how the learned Additional Sessions Judge having acquitted the three co -accused has convicted the two appellants for an offence under Sec. 302read with Sec. 149of the Penal Code when there was neither any allegation nor it was mentioned in the charge that, apart from five accused persons, others had also participated in the occurrence. Any way, it is well settled that if, on the basis of the evidence or/record, it can be held that the convicted appellants committed the murder in question, then they can be convicted under Sec. 302or Sec. 302read with Sec. 34of the Penal Code and in such a situation no prejudice is likely to be caused to them. Reference in this connection may be made to the well -known case of W. Slaney v/s. State of M.P. ( : AIR 1956 SC 116).

(2.) Coming to the merits the prosecution case is that on 19.6.1984 the informant (P.W. 1), his sister Bejo Bhumijain (deceased) and her husband Go, vind Bhumij (deceased) were getting their lands appertaining to Plot No. 153 of Village. Kaleselc, P.S. Ghatsila, District Singhbhum, ploughed. At about 10 a.m. it is said that these two appellants along with three others, since acquitted, armed with bows, arrows, Tangi and Lathi, came on the land in question and raised Hulla. The informant (P.W. 1) reached there and intervened. Thereupon appellant Sarju gave a lathi blow on Bejo Bhumijain, the sister of the informant, and appellant Banmali gave axe blows on her neck and other parts of the body. She fell down on the ground. Appellant Banmali also gave axe blows to Govind Bhumij. Appellant Sarju also gave lathi blows to Govind Bhumij. The remaining three appellants are said to have assaulted with fists and blows. Because of the assault Bejo Bhumijain and Govind Bhumij died. The informant (P.W. 1) also received lathi injury during the occurrence.

(3.) According to the prosecution, the first information of the occurrence was lodged on 20.6.1984 at 6 a.m. in the morning. In the first Information Report, it was said that as the informant was afraid of the accused persons he did not go to the Police Station during the night. The sub -Inspector of Police came at the place of occurrence, held the inquest report and took the dead bodies to the Police Station from where they were sent for postmortem examination to the State Dispensary, Ghatsila. After completion of the investigation, charge -sheet was submitted against the five accused persons. After the trial these appellants were convicted and sentenced as already stated above.