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2009 DIGILAW 691 (JHR)

Damu @ Dobai @ Ramrai Soren v. State of Bihar

2009-05-05

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court: All the five appellants were put on trial to face charge under Section 302/34 and 201/34 of the Indian Penal Code for committing murder of Bandia @ Damu Jamuda in furtherance of their common intention and for causing disappearance of the evidence of murder in order to screen themselves for legal punishment. The trial court finding the appellant no.5 Pandu Jamuda guilty for the offence under section 302 of the Indian Penal Code and other appellants for the offence under section 302/34 of the Indian Penal Code sentenced them to undergo imprisonment for life. Further all of them on being found guilty for the offence under section 201 of the Indian Penal Code were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-and in default to undergo rigorous imprisonment for two years. Both the sentences were ordered to be run concurrently. The case ofthe prosecution is that while the informant Durga Jamuda (P.W.2) was sitting outside of his house on 27.8.1995 and his younger brother Bandia @ Damu Jamuda was in the house, all the appellants armed with Lathi and Pistol came over there and made complaint as to why they do not provide chicken etc. at the time of worship which is performed in the village. By saying so, they came before Bandia @ Damu Jamuda and started assaulting with Danda. Meanwhile, the appellant no.5 Pandu Jamuda brought a Tangi which had been kept inside the house and inflicted injury by it, as a result of which, his brother Bandia @ Jamu Jamuda died at the spot. Thereafter Durga Jamuda (P.W.2) being frightened with the scene of occurrence fled away and came before Village Munda, namely, Maka Jamuda (P.W.1) at village Goalkera and told about the occurrence to him. The next day, i.e, on 28.8.1995 the informant Durga Jamuda (P.W.2) and also Maka Jamuda (P.W.1) came to Chakradharpur Police Station and informed to the police about the occurrence. Thereupon one Ramjee Singh, Sub-Inspector of Chakradharpur Police Station came to village Goalkera at about 12 noon and recorded the Fardbeyan (Ext.3), upon which a formal first information report (Ext.4) was drawn. The said Ramjee Singh on taking up the investigation of the case, inspected the place of occurrence and then came on the bank of river from where he recovered a dead body which had been buried under the sand. The said Ramjee Singh on taking up the investigation of the case, inspected the place of occurrence and then came on the bank of river from where he recovered a dead body which had been buried under the sand. On holding inquest on the dead body, inquest report (Ext.5) was prepared. Thereafter dead body was sent for post mortem examination which was conducted by Dr. M.P.Singh (not examined) who, as per the post mortem report (Ext.2), proved by another Doctor, namely, Dr.B Deyal (P.W.6) found the dead body highly decomposed. However, one incised injury on the right side of neck was noted. The cause of death, according to Doctor, was due to shock and haemorrhage on account of injury found on the person of the deceased which had been caused by heavy sharp cutting weapon. After completion of the investigation, police submitted charge sheet against the appellants whereupon cognizance of the offence was taken and in due course, when the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. The prosecution in order to prove he charge examined altogether 7 witnesses. Of them, the informant, Durga Jamuda (P.W.2), and Jema Jamuda (P.W.3), daughter of the informant, have claimed to have seen the occurrence whereas Village Munda, namely, Maka Jamuda (P.W.1) is an hearsay witness who came to know about the occurrence from Durga Jamuda (P.W.2). The trial court having found the eye witnesses to be trust worthy, recorded the order of conviction and sentence as aforesaid. Being aggrieved with that, this appeal has been preferred by the appellants. Learned counsel appearing for the appellants submits that though Durga Jamuda (P.W.2) as also Jema Jamuda (P.W.3) have claimed to have seen the accused persons assaulting the deceased but from the evidence of Jema Jamuda (P.W.3) elicited in the cross-examination, it would appear that as soon as the accused persons arrived at the house of the informant, Jema Jamuda (P.W.3) as well as Durga Jamuda (P.W.2) fled away from there out of fear and, therefore, their testimonies to the effect that the accused persons assaulted the deceased are not worth reliable. It was further submitted that the Investigating Officer has not been examined and as such, place of occurrence can never be said to have been established by the prosecution. It was further submitted that the Investigating Officer has not been examined and as such, place of occurrence can never be said to have been established by the prosecution. In spite of that, the trial court recorded the order of conviction and sentence which, in the facts and circumstances as stated above, is fit to be set aside. Heard learned counsel appearing for the State also. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that, according to eye witnesses, Durga Jamuda (P.W.2) and Jema Jamuda (P.W.3), while they were in front of his house and the deceased Bandia @ Damu Jamuda was sitting on the verandah of his house, the accused persons came over there armed with lathi and expressed their anger for not providing chicken at the time of village puja and then started beating the deceased with danda. Meanwhile, Pandu Jamuda, appellant no.5 picked up a Tangi which had been kept in the house and gave Tangi blow on the neck of the deceased, as a result of which, the deceased died. Evidences of both the witnesses were sought to be impeached by referring that piece of evidence of P.W.3 where she says that when the accused persons came, she as well as P.W.2 ran away from the place of occurrence but that piece of evidence cannot be read in exclusion, rather if we consider the evidence of P.W.3 in totality, it comes out that after she saw the entire occurrence, one of the appellants pointed out pistol towards her and then she fled away and, therefore, P.Ws. 2 and 3 cannot be said to have not seen the occurrence. That apart, we do not find anything on the record to disbelieve the testimonies of both the eye witnesses. From their evidences the place of occurrence which is verandah of the house of the deceased and informant (P.W.2) gets fully established and as such non-examination of the Investigating Officer does not have any adverse impact over the case of prosecution particularly when nothing was shown to have caused prejudice to the defence on account of non-examination of Investigating Officer. Moreover, testimonies of both the eye witnesses get corroboration from the medical evidence whereby Doctor has found cut injury over the neck caused by heavy sharp cutting weapon. Moreover, testimonies of both the eye witnesses get corroboration from the medical evidence whereby Doctor has found cut injury over the neck caused by heavy sharp cutting weapon. However, in the facts and circumstances, it needs to be considered as to whether all the persons were sharing common intention ? We have already noted that accused persons being annoyed with the act of the deceased of not providing chicken had come to the house of the informant armed with lathi and not with any dangerous weapon and the accused persons, as per the evidence of P.W.3 as elicited in the cross-examination, never assaulted on the vital part of the body. However, appellant no.5 Pandu Jamuda, as per the evidence of eye witnesses, picked up the Tangi which was there in the house of the informant and inflicted injury over the neck of the deceased knowing fully that such act is so dangerous that it would in all probability cause death or such bodily injury as is likely to cause death. Thus, we do find that appellants 1 to 4 had had no intention to commit murder and, therefore, they are acquitted for the offence under section 302/34 of the Indian Penal Code. However, they are found guilty for the offence under section 323/34 and also under section 201/34 of the Indian Penal Code and are sentenced for the period already undergone, whereas appellant no.5 Pandu Jamuda, in the facts and circumstances of the case, has rightly been convicted and sentenced for the offence under section 302 of the Indian Penal Code and also under section 201/34 of the Indian Penal Code and hence, judgment of conviction and order of sentence is hereby affirmed. Thus, this appeal stands dismissed with the aforesaid modification in the order of conviction and sentence so far appellant 1 to 4 are concerned.