Judgment:
ORDER
1. The appellants 1, 3, 7, 6, 2, 4 and 5 were arrayed as Al to A7 respectively before the 1st Addl. Sessions Judge, Dumka in Sessions Case No. 20 of 1988/15 of 1989. They were tried under Section 302 read with 34 of the IPC and also under Section 323 of the IPC. In this judgment the appellants should be referred as Al to A7 in the same order as they were before the 1st Addl. Sessions Judge.
2. The allegation against the accused 1 to 7 in the charge is that at about 6 p.m. on the 7,5.1987 they, in furtherance of common intention of one another, assaulted Gobind Murmu and also caused injury to Som Murmu leading to his death at the Jamtara Hospital after six days. The trial Judge, finding the appellants guilty, has sentenced each one of them to imprisonment for life under Section 302 read with 34 of the IPC. He did not award any separate sentence under Section 323 of the IPC.
3. The facts can be briefly narrated as follows :-
PW 1, Gobind Mumnu and PW 3, Soren Murmu are the brothers of the deceased, Som Murmu. PW 4, Babudhan Murmu is the son of PW 1, Gobind Murmu and PW 2, Luthro Murmu is the other brother of the deceased, Som Murmu. According to the prosecution, there was long standing dispute between the accused and the deceased party as regards the enjoyment of a land and that several civil suits were pending between them in the civil courts. They were also proceeded under Section 145 Cr PC and this is said to be the motive for the occurrence.
4. At about 6 p.m. on 7.5.1987, PW 1, Gobind Murmu, PW 3, Soren Murmu and the deceased, Som Murmu were returning from village Tarara where they had gone to borrow money to meet the litigation expenses. When the witnesses and the deceased reached Thekaha river, the accused 1 to 7 surrounded them. They were armed with bamboo, axe and iron rod. Thereafter they started assaulting PW 1, Gobind Murmu and deceased, Som Murmu. PW 3 managed to escape on seeing the assault on the above two persons. After assaulting PW 1 and the deceased, Som Murmu, all the accused left the place and in the meantime, Soren Murmu Went to the village and informed PW 2, PW 4 and other villagers about the occurrence. PW 2, 3 and 4 and other villagers returned to the place of occurrence and found PW 1 and the deceased, Som Murmu lying on the ground with injuries. They were taken to the hospital for treatment.
5. PW 1 was examined by PW 6, Civil Assistant Surgeon at 11.30 a.m. on 8.5.1987. He found four injuries on his per son and they are as follows :-
(i) Incised wound 3' x 1/2' x 1/8' over forehead on the left side.
(ii) Incised wound 3-1/2' x 1/2' x bone deep with fracture of supra orbital bone of right side.
(iii) Incised wound 2' x 1/4' x 1/8' below right, eye.
(iv) Swelling with tenderness 3' x 2' in the middle of right leg.
The doctor issued injury certificate, Ext. 5. After the admission of the injured, PW 1 and the deceased, Som Murrnu, a complaint was given at the Police Station at 11,30 a.m. on 8.5.1987 by PW 2, Lathro Murmu. The said complaint is Ext. 3, on the basis of which an FIR, Ext. 2 was registered by the officer. After the registration of the crime, investigation was taken up by PW 5, Balrup Sinha, A.S.I. attached to Jama P.S.
6. PW 5, on taking up investigation in the crime, went to the place of occurrence and surveyed it. He examined the witnesses including PW 3 and recorded his statement. Thereafter he went to Sadar Hospital and examined Som Murmu whose statement was recorded. He also recorded the statement of Gobind Murmu, PW 1. While the investigation was being conducted, Som Murmu died on 15.5.1987. On receipt of the death intimation crime was altered to Section 302 of the IPC and investigation proceeded. The officer conducted inquest and gave a requisition to the doctor requesting him to conduct autopsy on the dead body of Som Murmu. On receipt of the requisition, PW 6, Assistant Civil Surgeon conducted autopsy on the dead body of Som Murmu and he found the following injuries :-
(i) Stiched wound 1-1/2' x 1/2' x 1/4' over the left forehead. The margin of which was incised.
(ii) Stiched wound 1' x 1/4' x 1/4' over left temporal region of scalp. The margin of which was incised.
(ill) Stiched wound 4-1/2' x 1/2' x bone deep over left parietal region of sclap, the margin of which was incised.
(iv) Stiched wound 1-1/2' x 1/4' x 1 /8' with lacerated margin over occipital region.
(v) Sitched wound 2-1/2' x 1/4' 1/8' with lacerated margin over occipital region.
On dissection of the scalp there was depressed fracture of left temporal and parietal bone size about 4' long with whole thickness of the bone. There was laceration of membrane and brain substance.
(vi) Swelling 3' x 2' over left jaw.' The doctor issued Ext. 4, post-mortem certificate and in his opinion, the death is on account of shock caused by injuries 2 and 3 and the said injuries are sufficient to cause death in the ordinary course of nature.
7. After completion of the investigation the final report was filed against all accused.
8. Learned counsel appearing for the appellants strenuously contends that since the prosecution did not mark the injury report of Som Murmu, the deceased in this case, the entire prosecution case is to be rejected since, according to him, averments found in the fardbeyan, Ext. 3 and the evidence of the witnesses in Court are contradictory in nature. It is his further submission that though PW 4, according to the prosecution, was informed about the occurrence by PW 3, a perusal of the evidence of PW 4 shows that PW 3 did not mention the name of the accused at that time and therefore, the present case ought to have been shaped against the accused by the witnesses after putting their heads together in view of the long standing dispute pending between the parties. On the above contention we have heard Mr. S.N. Rajgarhia, counsel appearing for the State and also perused the recorded evidence.
9. There can be no doubt and in any case it is not disputed that Som Murmu died on account of homicidal violence. The doctor, PW 6, who conducted autopsy, while giving evidence in Court stated that the injuries 2 and 3 are sufficient to cause death in ordinary course of nature and that they are homicidal in nature. We, therefore, hold that Som Murmu died on account of homicidal violence.
10. The prosecution, in order to establish that accused 1 to 7 caused injuries on Som Murmu leading to his death, examined PWs 1 and 3, the two brothers of the deceased and of them PW 1 Gobind Murmu, is an injured witness. We have perused all the evidence carefully and on * going through the evidence of the two witnesses, we find no reason to reject their evidence. The defence did not dispute the fact that PW 1 suffered injury at the time when Som Murmu suffered injury the defence not having taken the stand that PW 1 did not suffer injury along with Sorn Murmu it is to be accepted that Govind Murmu suffered Injury at the time when Som Murmu also suffered injury and that both of them suffered injuries at the same time and at the same place. Once this Court comes to the conclusion that PW 1 and the deceased, Som Murmu, suffered injuries during course of the same transaction then in absence of any specific material, his evidence cannot be rejected since the injury found on PW 1 itself is a corroborative piece of evidence corroborating the prosecution version that he was present and witnessed the incident, Apart from PW l, who suffered injuries, we also have the evidence of PW 3. According to PW 3, after the accused started assaulting PW 1 and the deceased, Som Murmu, he escaped from the place, ran to the village and informed PWs 2 and 4 as well as other villagers. PWs 2 and 4 have also Stated that Soren Murmu, PW 3 informed them about the occurrence. It is no doubt true that PW 4 did not say in the chief- examination that PW 3 mentioned the names of the accused but there is also no evidence on record, to show that at the time when PW 3 informed the villagers about the occurrence he did not know the names of the accused. It does not require for us to mention at this stage that not mentioning the names of the accused is totally different from not knowing the names of the accused. All that PW 4 in his chief stated is that PW 3, Soren Murmu informed the villagers about the occurrence and not that he could not give the names of the assailants of Som Murmu and Gobind Murmu. Therefore, the contention of the counsel that since PW 4 did not state in his evidence that PW 3 gave the names of the assailants, the prosecution case is to be rejected, cannot be accepted by us. Similarly, the contradiction pointed out by the counsel as regards the averments found in the complaint and the evidence is totally trivial in nature. It is no doubt true that in the fardbeyan, Ext. 3 it is mentioned by PW 2 that when they went to the scene of the occurrence they found both, the deceased, Som Murmu and the injured Gobind Murmu lying on the ground with injuries whereas. PW 1 gave evidence by staling that after he was beaten he ran away from the place and was hiding himself. The above contradiction, whether PW 1 was also lying on the ground along with the deceased when the witnesses reached the place of occurrence after the incident or whether he was hiding in a bush after the occurrence, is not fatal to the prosecution version. We are also unable to accept the contention of the learned counsel that since the injury report of the deceased was not marked, prosecution did not establish the age of the injury and therefore, the prosecution case is false. It is not in dispute that the occurrence took place at 6 p.m. on 7.5.1987 and if that be the case, we are unable to understand as to how the marking of the injury report could have altered the situation to show that the deceased must have suffered injury much earlier in point of time and that the accused were prejudiced on account of the non-marking of the injury report.
11. We have already stated that PW 1 is an injured witness and that his evidence is supported by the medical evidence and also corroborated by PW 3. It was not even suggested to PW 5, the Investigating Officer, who took up investigation that his investigation revealed that PW 1 and the deceased suffered injuries at earlier point of time and not at 6 p.m. on 7.5.1987. In the absence of explanation for the injuries found on the person of the deceased, Som Murmu and PW 1 by the defence and the accused having accepted that PW 1 suffered injury along with the deceased, we cannot reject his evidence which is also corroborated by PW 3. We, therefore, accept the evidence of PWs 1 and 3 and hold that the trial Court rightly found the appellants guilty.
12. The appeal is accordingly dismissed. It is reported that the appellants are on bail. The learned trial Court is directed to take steps to commit the appellants to prison for serving out the remaining part of the sentence.