R.K. Merathia, J.
1. All these three analogous appeals arise out of the common judgment of conviction dated 1.6.2000 and order of sentence dated 8.6.2000 passed by Shri Kumar Ganesh Dutt, 2nd Additional Sessions Judge, Palamau, Daltonganj in Sessions Trial No. 399 of 1997 were heard together and are being disposed of by this common judgment.
2. Dharmendra. Gosai, Ashoke Choudhary, Chandan Choudhary and Krishna Kahar alias Krishna Ram have been convicted for the offences punishable under Section 307/149 of the Indian Penal Code for attempting murder of the informant (P.W.4) and also under Section 302/149 of the Indian Penal Code for committing murder of the husband of P.W. 4 and also under Sections 452 and 120B of the Indian Penal Code. Chandan Choudhary has further been convicted under Section 302 of the Indian Penal Code. Lal Muni Gosai has been convicted with the aid of Section 120B of the Indian Penal Code. They have been awarded imprisonment for life and imprisonment for lesser periods and fine for other offences.
3. The fard beyan was lodged by Rukhmini Devi (P.W.4) at 9.00 P.M., i.e. within one hour of the occurrence on 27.9.1996. She stated, inter alia, that when she, her daughter Rina Kumari (P.W. 5) and her husband Bisundeo Gosai (the deceased) were in their house, Dharmendra Gosai, Chandan Choudhary, Ashoke Choudhary, Krishna Kahar alias Krishna Ram, one Dilip Goswami and one more accused, who had come to the house of Dharmendra Gosai, entered in the house at 8 P.M. Krishna Kahar alias Krishna Ram was standing outside the house with a bag. Dharmendra Gosai caught her husband and Chandan Choudhary assaulted her husband by dagger repeatedly. When they raised alarm, Ashoke Choudhary, Dilip Gosai and the said unknown person threatened them that they will be shot. When her husband died, Chandan Choudhary, on the instigation of Dharmendra Gosai assaulted her with dagger near the shoulder with a view to kill her. When she fell downfall the accused persons fled away. On alarm, several persons assembled and followed the accused persons. There was sound of bomb explosion. The villagers brought her to Satbarwa Police Outpost on Jeep. She further said that motive of occurrence was that the informant and her husband adopted P.W. 5, who was the daughter of cousin of her husband and they wanted to give their property to P.W. 5 which was not liked by her 'Dewar' (brother-in-law) Ram Prasad Gosai and Lal Muni Gosai and, due to this, there was quarrel about a year ago.
The informant further said that the younger brother of her husband, Ram Prasad Gosai and Lal Muni Gosai were saying that if she and her husband dies, the property will go to them. Therefore, they conspired to kill her and her husband and, for this purpose, he called Dharmendra Gosai, Dilip Goswami and some unknown persons who were residing in the house of Dharmendra Gosai. On the date of occurrence, in the afternoon, Chandan Choudhary, Ashoke Choudhary and Krishna Kahar assembled in the house of Dharmendra Gosai and they all took meal and liquor. She lastly said that when she was being taken to the hospital, the villagers caught and killed the said unknown person, who came in her house with gun.
Ram Bilash Sahu (P.W.I), Ram Niwas Mehta (P.W.2) and Krishna Choudhary (P.W.6) have put their signatures on the fard beyan as witnesses.
4. A formal first information report was drawn on the basis of the said fard beyan and charge sheet was submitted against the appellants. The charges framed against them were denied by them and they were put on trial.
5. The prosecution examined ten witnesses. P.W. 1 was declared hostile but he confirmed that he found the informant injured and her husband was lying dead and the informant was taken by Jeep to the Police Out Post. P.W. 2 was also declared hostile but he also deposed in similar lines. P.W. 6 said, inter alia, that the villagers caught and killed one accused and that the informant was injured and she was taken in a Jeep to the Police Station and she gave her fard beyan before the Police that Dharmendra Gosai caught her husband and Chandan Choudhary killed him. P.W. 3 said that he saw the informant injured and her husband lying dead and learnt that Dharmendra Gosai has killed him and fled away. He proved the seizure list. P.Ws. 7, 8, 9, 11, 12 and 15 have also been declared hostile. P.W. 14 has proved the injury report. P.W. 4 is the informant, the injured lady and P.W. 5 is her daughter. Both are the eye witnesses. P.W. 13 is the Doctor who held the post mortem examination. P.W. 16 is the Investigating Officer of this case.
6. It was-submitted on behalf of the appellants that there were vital contradictions. In the fard beyan, the informant said that Chandan Choudhary assaulted the informant at the instigation of Dharmendra Gosni but in the evidence she said that Dilip Goswami assaulted him with dagger.
7. It may be noted that the first information report was lodged within one hour of the occurrence in which the husband of the informant was killed; the informant was injured and she and her daughter were terrorised and, therefore, there are chances of mistake in giving the name of person who assaulted the informant. However, the assault on her at the instigation of Dharmendra Gosai has been prima facie proved by the eye witness P.Ws. 4 and 5 and the injury report (Ext. 3). As Dilip Goswami is not before us, as his trial has been separated, we are not in a position to record any finding against him in this judgment.
It was further argued that P.W. 5 stated that P.W. 4 became senseless as she was not speaking and was taken to hospital by the villagers where she regained hosh on the next day after treatment and, therefore, the fard beyan by her itself becomes doubtful.
In our opinion, it cannot be accepted that the fard beyan was not lodged by P.W. 4. P.Ws. 1, 2 and 6, who are the independent witnesses, have said that the fard beyan was lodged in their presence by P.W. 4 and they are the witnesses of the same. Moreover, P.W. 5 has not said that P.W. 4 remained senseless continuously during this period.
It was also argued on behalf of the appellants that they could not be convicted on the basis of defective and confusing charge.
It is true that there is some mistake in the wordings of the charge so far as Rukhmini Devi is concerned but it will not vitiate the prosecution case about Rukhmini Devi (P.W.4) that attempt to murder was made on her with a common object. From the trend of cross examination, it appears that the appellants fully understood the charge against them so far the assault on Rukhmini Devi is concerned.
8. So far as appellant Ashoke Choudhary is concerned, though it was said in the fard beyan that he also threatened the informant but, in her deposition, P.W. 4 did not say anything about him, though P.W. 5 has said that he was one of the persons who entered into the house along with other accused persons.
So far as Krishna Kahar is concerned, he was named in the fard beyan but P.W. 4 said that she did not see him entering her house. Regarding the appellant Lal Muni Gosai also, she said that he was not present at the place of occurrence. P.W. 5 said that Ram Prasad Gosai and Lal Muni Gosai had threatened that the deceased will be killed as they were annoyed due to adopting P.W. 5 and keeping her with them.
9. In the circumstances, in our opinion, appellant Ashoke Choudhary, Krishna Kahar and Lal Muni Gosai can be given the benefit of doubt about their presence at the place of occurrence and the alleged conspiracy. So far as Chandan Choudhary and Dharmendra Gosai are concerned, there is ample evidence that Dharmendra Gosai caught the deceased and Chandan Choudhary gave repeated dagger blow on the person of the deceased. It is also proved that on the instigation of Dharmendra Gosai, a dagger blow was given on the vital part of the body of the informant. The multiple dagger injuries on the person of the deceased are not possible unless he was caught by Dharmendra Gosai.
10. In the facts and circumstances of the case, we are of the view that the conviction and sentence of the appellants Chandan Choudhary and Dharmendra Gosai needs no interference.
11. In the result, the conviction and sentence passed against appellants Ashoke Choudhary, Krishna Kahar alias Krishna Ram in Criminal Appeal No. 276 of 2000 (R) and Lal Muni Gosai in Criminal Appeal No. 216 of 2000 (R) passed by the learned 2nd Additional Sessions Judge, Palamau, Daltonganj is set aside and their appeals are allowed. Appellants Ashoke Choudhary, Krishna Kahar alias Krishna Ram in Criminal Appeal No. 276 of 2000 (R) and Lal Muni Gosai in Criminal Appeal No. 206 of 2000 (R) are on bail. They are discharged from the liabilities of their bail bonds.
The conviction and sentence passed against appellant Chandan Choudhary, appellant in Criminal Appeal No. 276 of 2000 (R) and Dharmendra Gosai appellant in Criminal Appeal No. 206 of 2000 (R) is confirmed. Appellant Dharmendra Gosai is on bail. His bail bond is cancelled. He is directed to surrender in the trial court within two weeks from today to serve the remaining period of sentence, failing which, the trial court will take all possible steps for his apprehension without any delay.