Lakshman Uraon, J.
1. All the appellants have preferred this appeal against the judgment and order of conviction and sentence dated 24th Sept, 1987, passed by the learned 5th Additional Sessions Judge, Dumka, in Sessions Case No. 141 of 1985/68 of 1985, whereby and whereunder, all the appellants have been convicted for the offences under Sections 302, 149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/149 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under Section 148 of the Indian Penal Code, directing both the sentences in respect of each convict to run concurrently.
2. The fact of the case, which is based on the Fard-beyan (Ext. 1/1) of the informant Prabhu Mahto (PW 1) is that in the night of 5/6th January, 1983 informant Prabhu Mahto (PW 1) along with deceased Bhuneswar Raut, PW 6 Tarni Raut and PW 5 Mohan Mahto was sleeping in the Khalihan of the deceased Bhuneswar Raut. At about mid night all of a sudden, 17 to 18 persons surrounded the Khalihan. They exploded three bombs, causing injuries to Bhuneswar Raut, Mohan Raut and the informant Prabhu Mahto. The informant, who had a Farsa, tried to give Farsa blow to the assailants but the appellants Jagdish Mahto and Baikunth Mahto, injured, the informant Prabhu Mahto with Bhala and asked him to keep Farsa. The informant sustained injuries by Bhala blows, given by both the appellants Jagdish Mahto and Baikunth Mahto. The appellants were searching Bhuneswar Raut inside the thatched hut, covered with straw (Dhako) to kill him. Thereafter, the appellants Chetlal Mahto, Chintu Mahto, Baikunth Mahto, Sukhdeo Mahto, Nanku Mahto, Darogi Mahto, Jagdish Mahto, Prasadi Mahto, all of village Jhagrahi and Jagdish Mahto of Village Paharpur and four other villagers started assaulting Bhunewar Raut with Bhala. Lathi and sword repeatedly. There was alarm. When the nearby villagers assembled then the assailants fled away. After the alleged occurrence, the mother and the wife of Bhuneshwar Raut reached there to whom the deceased narrated the names of the assailants and died. The alleged occurrence took place due to the long standing litigations in between the deceased Bhuneshwar Raut and the appellants. Due to that appellants, the villagers forming an unlawful assembly assaulted Bhuneswar Raut, resulting his death.
3. PW 7 Ramanuj Singh A.S.I, on 6-1-1983 at 11.25 a.m. recorded the statement of Shankar Prasad Yadav of Village Jhagrahi and entered S.D. Entry No. 92 dated 6-1-1983, which was read over to him. But this witness does not remember as to whether Shankar Prasad Yadav had signed on it or given L.T.I. Thereafter, he went to Village Jhagrahi along with other police officials. The Fard beyan (Ext. 1/1) of Prabhu Mahto was recorded on 6-1-1983 at 15 hours on the basis of which formal F.I.R. (Ext. 3) was drawn up. The I.O. recorded the re-statement of the informant, prepared injury report in respect of Mohan Mahto and Prabhu Mahto and sent them to Jarmundi Hospital for treatment. He prepared inquest report (Ext. 4) of the dead body of Bhuneswar Raut in carbon process in presence of the witnesses and inspected the place of occurrence, which is 100 yards east from the house of the deceased Bhuneswar Raut at Village Jhagrahi. He found bundles of paddy in the Khalihan. There was a thatched hut surrounded by straw in all the three sides, which was 4 1/2' in height, 6' in length and 6' in width. The dead body was found inside the straw thatched hut. Inside the hut, he found the splinters of bomb explosion and blood stained straw, which he seized and prepared seizure list (Ext. 5).
4. The prosecution produced altogether eight witnesses, including the I.O. (PW 7). PW 1 is the informant himself, who was sleeping in the Khalihan inside the thatched hutment along with PW 5 Mohan Mahto and PW 6 Tarni Raut. PW 2 Sudama Rautain is the wife of the deceased and PW 4 Darshania Rautain is the mother of the deceased. PW 3 is the doctor, who conducted the post mortem examination on the dead body of Bhuneshwar Raut.
5. The learned court below relied on the evidence of the eye witnesses PW 1 Prabhu Mahto, PW 2 Sudama Rautain, PW 4 Dharshnia Rautain and PW 5 Mohan Mahto, supported by the I.O. (PW 7) as also the doctor (PW 3) and convicted the appellants and sentenced them to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and rigorous imprisonment for one year for the offence under Section 148 of the Indian Penal Code.
6. Learned counsel for the appellants has assailed the judgment and order of conviction and sentence on the ground that admittedly the deceased and the appellants were on inimical terms. The alleged occurrence took place in the mid night, which was a dark night. The thatched hutment, constructed in the Khalihan, was 6' in length 6' in width and 4 1/2' in height, surrounded by three sides with straws and the front side was open. At the mid night PW 1 Prabhu Mahto claims to have heard the explosion of bomb. He along with deceased Bhuneswar Raut, Tarni Raut and Mohan Raut sustained bomb injuries. Thereafter, the assailants started flashing torch light. In that situation, when it is alleged that all the appellants along with four other villagers entered inside the thatched straw made hut and started assaulting Bhuneshwar Raut, where already there were four persons, i.e. informant, deceased and two others, namely, Mohan Mahto and Tarni Mahto sleeping, the informant and others who were inside the straw thatched hut could not have identified the assailants, who had surrounded the Khalihan and started assaulting at random to Bhuneshwar Raut with Bhala, Lathi and sword. It was also submitted that the identification in the torch light flashed by the assailants itself is not probable. It was also submitted that the injured informant Prabhu Mahto, Mohan Mahto and Tarni Mahto were not examined by the doctor although they were sent for their treatment to Jarmundi Hospital. The doctor PW 3 who conducted the post mortem examination on the dead body of Bhuneshwar Raut, did not find any injury sustained due to bomb explosion. It was also urged that Sudama Rautain PW 2 and Darshania Rautain PW 4 went to the place of occurrence after the alleged occurrence. They have claimed that deceased Bhuneshwar Raut narrated them the names of the assailants and died. Thus, these two witnesses namely, PWs 2 and 4 are not the eye witnesses of the alleged occurrence of assault although they claimed in Court that when they heard sound of bomb explosion, they rushed to the Khalihan flashing torch and identified the appellants and also saw them assaulting Bhuneshwar Raut with Lathi, Bhala and sword. It was also urged that the doctor PW 3 who conducted the post-mortem examination on the dead body of Bhuneshwar Raut found six incised wounds on his person. Injury No. 3 incised wound was on the left side of temporal region of skull with bleeding from left ear and injury No. 6 was a number of incised wounds of about 1' x 1/2' X 1/2' size over anterior aspect of chest and abdomen. He found fracture of ribs 4th, 5th and 6th on the left side of chest with bleeding clots inside the chest cavity. The lungs of left side was lacerated. As per the opinion of the doctor these were sufficient to cause death in ordinary course of nature. These injuries along with other injuries incised in nature may result instantaneous death. Considering the opinion of the doctor PW 3 learned counsel for the appellants has submitted that the deceased Bhuneshwar Raut was not in a position to speak as the death according to the doctor must have been instantaneous. In view of this fact Bhuneshwar Raut named the appellants to the wife and the mother when they went after the appellants had fled away, is quite improbable. Lastly it was submitted that the first information was given by one Shankar Prasad Yadav on whose statement, S.D. Entry No. 92 dated 6-1-1983 was recorded by the I.O. but that document was suppressed by the prosecution.
7. Learned A.P.P. supporting the judgment and order of conviction and sentence by the learned Court below has stated that due to long standing enmity as cases were pending in between the deceased Bhuneshwar Raut and the villagers, the villagers had once attempted. prior to the alleged occurrence to cause his murder in the form of dacoity but he anyhow survived. Out of fear, Bhuneshwar Raut was not sleeping in his house rather he was sleeping hither and thither and on the alleged night of occurrence, the informant along with deceased Bhuneshwar Raut, PW 4 Mohan Mahto and PW 6 Tarni Raut was sleeping inside the thatched made hut (Dhako), situated in the Khalihan of the deceased, which is 100 yards away from the house of Bhuneshwar Raut. PW 1, PW 5 and PW 6 are the eye witnesses but PW 6 Tarni Raut has been declared hostile by the prosecution, as he claimed to have identified only Sultan, Bhima and Ayodhi amongst the dacoits. However, Tarni Raut, when examined under Section 164, Cr.P.C. (Ext. 8/1), has named all the appellants namely, Nanku Mahto, Chetal Mahto, Chinta Mahto, Baikunth Mahto, Bisheshwar Mahto, Sukhdeo Mahto, Shrawan Mahto, Darogi Prasad, Prasadi Mahto, Jagdish Mahto and others assaulting Bhuneshwar Raut with Bhala and caused injury by hurling bombs, resulting his death.
8. PWs 2 and 4 in their earlier statements, recorded under Section 164, Cr.P.C. (Exts. 8/2 and 8/3 respectively) claimed themselves to be the eye witnesses, naming all the appellants to whom they identified at the place of occurrence. But as per the statement of PW 5 both these witnesses and other villagers reached at the place of occurrence after the assailants had fled away. Thus, the statement of these witnesses recorded under Section 164, Cr.P.C. has been contradicted by the eye witness PW 5 that they are the eye witnesses of the alleged occurrence.
9. There is no dispute regarding the place of occurrence and time of the alleged occurrence, which took place in the mid night of 5/6th January, 1983 at the Khalihan of the deceased Bhuneshwar Raut in a straw thatched hutment (Dhako). The night was dark, as deposed by the witnesses. The source of identification is alleged to be the torch light, flashed by the assailants as also by PW 2 Sudama Rautain and PW 4 Darshania Rautain, who claimed that they rushed to the Khalihan on hearing sound of bomb explosion and alarm, flashing torches. PW 2 Sudama Rautain has alleged that her torch was snatched by appellant Chetlal Mahto. PW 7 Ramanuj Singh, I.O. in paragraph No. 17 has deposed that Sudama Devi had not stated before him that the assailants were flashing torches. PW 1 Prabhu Mahto, who is the informant of this case and claims to have sustained injuries by Bhala blows in his Fard beyan (Ext. 1/1), has not deposed in Court that when he woke up on hearing the sound of bomb explosion and he saw many persons but due to darkness he could riot identify any of them. He claims that he became unconscious due to the injuries, sustained by him on his head by hurling of bomb. This PW 1 (informant) has not supported the case of the prosecution, as stated by him in his Fard-beyan (Ext. 1/1)./ Hence he was declared hostile by the prosecution. This witness is the brother of appellant Darogi Mahto. Appellants Jagdish Mahto and Prasadi Mahto are the sons of Darogi Mahto and are nephews of this witness (informant). This witness in paragraph No. 5, has deposed that deceased Bhuneshwar Raut was accused in a dacoity case, which was committed in the house of Bangali Mahto of Village Madhopur. Ram Sundar Raut, uncle of the deceased Bhuneshwar Raut, was also accused in that case, Shankar Prasad Yadav is the cousin brother of deceased Bhuneshwar Raut who had informed the police, resulting S.D. Entry No. 92 dated 6-1-1983 (Ext. 10). In that S.D. Entry Shankar Prasad Yadav has put his signature. His signature also appears in the Fard-beyan of the informant. That Shankar Prasad Yadav who is cousin brother of deceased Bhuneshwar Raut has not been examined by the prosecution.
10. Learned counsel for the appellants has argued that the very first information, which is S.D. Entry No. 92 dated 6-1-1983 (Ext. 10), does not disclose the names of the assailants. This Ext. 10 shows that Shankar Prasad Yadav has simply informed regarding the injury sustained by Bhuneshwar Raut, Prabhu Mahto, Mohan Mahto and Tarni Raut in the Khalihan of Bhuneshwar Raut, due to hurling of bomb and sharp edged weapons. Bhuneshwar Raut had died and the others were at the place of occurrence in injured condition. He did not disclose the details rather simply stated that he will narrate the occurrence in detail at the place of occurrence. Subsequently neither this witness narrated in detail about the alleged occurrence at the place of occurrence nor he was examined by the Investigating Officer in course of investigation, although he is signatory in the Fard-beyan (Ext. 1/1). Prabhu Mahto (informant) has claimed that he sustained injuries due to hurling of bomb and by Bhala blow. This witness along with another injured Mohan Mahto had sustained injuries and the I.O. prepared injury slip (Exts. 6 and 7 respectively), directing them to be treated by the Medical Officer, Jamundi. The doctor, who examined both these injured has not been examined and hence the injury report, issued by him on the back of injury slips indicate that Prabhu Mahto (informant) sustained simply lacerated wounds, seven in number, all caused by hard and blunt substance whereas injuries sustained by Mohan Mahto were simple in nature and injury No. 1 was due to explosive substance, resulting blackening and tattooing mark on the upper extremity of right hand and there was swelling on the right thigh. Both the injuries were simple in nature. The injury slip (Ext. 7) does not disclose that the informant (PW 1) sustained any injury either by hurling of bomb or by sharp edged weapon rather the injuries were only lacerated wounds caused by hard and blunt substance. This shows that actually PW 1 (informant) had not identified any of the assailants and had not deposed in the Court that he also sustained any injury. That is why the doctor did not find any injury caused by sharp edged weapon i.e Farsa and Bhala. Thus, the very Fard-beyan of the informant could not be supported either by the informant himself or by the injury slip (Ext. 7), prepared by the I.O. PW 2 Sudama Rautain and PW 4 Darshania Rautain, wife and mother respectively of the deceased, claim that they went to the Khalihan flashing torch light and identified all the assailants, who assaulted Bhuneshwar Raut resulting his death. PW 5 Mohan Mahto is the witness, who was sleeping inside the Dhako (straw thatched hutment) along with Bhuneshwar Raut, Tarni Raut and Prabhu Mahto. This witness in paragraph No. 5 has deposed that when the assailants fled away, then the mother and wife of Bhuneshwar Raut reached to the Dhako (straw thatched hutment). This very statement cuts the root of the evidence of PW 2 and PW 4 that they had gone at the place of occurrence and are the eye witnesses regarding the assault on the person of Bhuneshwar Raut and others, who were sleeping inside the Dhako. The witnesses PW 2 and PW 5 have further deposed that Bhuneshwar Raut, before he died, slowly named the assailants to them. But while discussing the evidence of the doctor (PW 3) that the injuries sustained by Bhuneshwar Raut could have caused instantaneous death, the story of naming the assailants by Bhuneshwar Raut before he died is also belied. This witness PW 5 in paragraph No. 15 of his evidence has deposed that the assailants restrained him and others, who were inside the Dhako by keeping 5/7 Bhalas at the door of the Dhako. On Hulla the assailants hurled bomb, causing injury to Bhuneshwar, Prabhu and to him also but the doctor, who conducted the post mortem examination on the dead body of Bhuneshwar Raut did not find any injury of bomb explosion. As Prabhu Mahto (informant) has not stated regarding any injury sustained by him due to Bhala, Farsa and bomb explosion, the evidence of this witness who was very much present at the place of occurrence and was inside the straw thatched house, has not supported this statement of this eye witness. PW 6 Tarni Mahto has claimed only to have identified Sultan, Bhima, and Ayodhi Mahto. Bhuneshwar Raut died instantaneously at the night. This witness did not name the assailants and hence he was declared hostile by the prosecution. In his statement, recorded under Section 164, Cr.P.C. (Ext. 8/1), he claims that all of a sudden the dacoits surrounded the Khalihan of Bhuneshwar Raut.
11. In view of the considered facts and evidence of the case, I find that Shankar Prasad Yadav, who informed the police by giving statement on which he signed, was the First Information Report, which was recorded as S.D. Entry No. 92 dated 6-1-1983. That earlier statement does not disclose the names of the assailants rather Shankar Prasad Yadav in Ext. 10 has simply informed about the injured persons and he assured to inform in detail at the place of occurrence. This statement would have been the First Information Report and would have given a true picture of the alleged occurrence. He is the cousin brother of the deceased, who has been suppressed by the prosecution and he was not examined in this case. The informant (PW 1) did not support his case as narrated in his Fard-beyan (Ext. 1/1) and also the injuries sustained by him and, as such, he was declared hostile by the prosecution. Another witness PW Tarni Raut was also sleeping in the straw thatched hutment (Dhako)) near the Khalihan of deceased Bhuneshwar Raut. This witness has also not deposed as to who were the assailants as it was dark night and hence he could not identify any of them rather he claimed to have identified only Sultan, Bhima and Ayodhi Mahto. Only Ayodhi Mahto is the appellant in this appeal as the other two, namely, Sultan and Bhima were not tried as accused in this case. This witness is also a hostile witness. Thus, the only eye witness, who was present in the Dhako is PW 5 Mohan Mahto, whose evidence is to the effect that both PW 2 Sudama Rautain and PW 4 Darshania Rautain reached to the Khalihan after the assailants had fled away. Hence both these witnesses are not the eye witnesses. The statements of PW 2, 4 and 5 that Bhuneshwar Raut, before he died, named the assailants and died soon thereafter, is also belied by the evidence of Dr. Bimal Kumar (PW 3), who found ante mortem injuries on the dead body of Bhuneshwar Raut.
(I) Incise wound 1' x 1' x bone deep with fracture on right maxillary bone over right side of the cheek.
(II) Incised wound 2' x 1' x bone deep with fracture of mandible on the left side of the cheek.
(III) Incised wound 2' x 1' bone deep on left side of temporal region of skull with bleeding from left ear. On dissection blood clots inside the cranium on the left side was present.
(IV) (i) Incised wound 1' x 1' over right elbow joint (ii) Incised wound 1' x 1' x 1/2' over right elbow joint, lateral to the first injury.
(V) (a) Incised wound 2' x 1' over lateral aspect of left thigh, (b) Incised wound 2' x 1' x 1' over lateral aspect of left thigh above injury No. (a)
(VI) A number, of incised wound of about 1' x 1/2' x 1/2' size over anterior aspect of chest and abdomen were found. On dissection, there was fracture of ribs -- 4th, 5th and 6th on the left side of chest with blood clots inside the chest cavity. The lungs of left side was lacerated.
The doctor opined that the death was due to injury Nos. 3 and 6, which were sufficient in ordinary course of nature to cause death, within 36 hours from the time of post mortem examination. The weapon used was sharp cutting weapon, may be sword and Bhala. In his opinion, the injuries may result in instantaneous death.
12. Thus, the statement of PWs 2, 4 and 5 Bhuneshwar Raut named the assailants and died is quite improbable. The death of Bhuneshwar Raut is not denied, who was done to death inside the straw thatched hutment (Dhako), which gets support by Post mortem Report (Ext. 2), Inquest Report (Ext. 4) and seizure list (Ext. 5). Thus, the prosecution has proved only the place of occurrence and the death of Bhuneshwar Raut. On the other hand, the prosecution has failed to substantiate the charges under Sections 302/149 and 148 of the Indian Penal Code against all the appellants only on the ground that the eye witnesses i.e. PW 1 informant and PW 6 Tarni Raut have not supported the prosecution case and were declared hostile by the prosecution. PW 2 Sudama Rautain and PW 4 Darshania Rautain are not the eye witnesses of the alleged occurrence, as deposed by PW 5 Mohan Mahto, who was also sleeping in that night in the straw thatched hutment (Dhako) along with the deceased. The doctor did not find any injury of bomb on the dead body of Bhuneshwar Raut. PW 1 Prabhu Mahto did not sustain any injury due to Farsa, Bhala Or bomb explosion. The doctor who examined him and found only lacerated wound caused by hard and blunt substance, simple in nature, was not examined by the prosecution. PW 2 Sudama Rautain and PW 4 Darshania Rautain when reached to the Khalihan, did not find any injury on the person of Prabhu Mahto, Tarni Mahto and Mohan Mahto. All these circumstances and evidences, as adduced by the prosecution, create doubt in the manner of the alleged occurrence and participation of these appellants in causing murder of Bhuneshwar Raut and injuring Prabhu Mahto, Mohan Mahto and Tarni Raut.
13. Hence I find that the prosecution case is full of doubt to bring home the charges levelled against these appellants. In the result, this Criminal Appeal is allowed and the impugned judgment and order of conviction and sentence dated 24th Sept. 1987, are hereby set aside. As all the appellants are on bail, they are discharged, from the liabilities of their bail bonds.
Vishnudeo Narayan, J.
14. I agree.