Judgment:
1. Both the appellants having been found guilty for committing murder of one Phocha Mahto were convicted under Sections 302/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life.
2. The case of the prosecution is that on 27.6.1987 at about 6 a.m., Phocha Mahto (deceased) had come to plough his land along with his wife, Ghamia Mahatwain, the informant, P.W. 3. While the deceased, Phocha Mahto, was ploughing the land, appellant, Horil Mahto, suddenly came over there and caught hold of leg of Phocha Mahto, who any how got himself released from his clutches and started running away but both the appellants caught hold of him after chasing to some distance and made him fall on the field and then appellant-Ganesh Mahto inflicted knife injuries over the face of Phocha Mahto and appellant-Horil Mahto assaulted him with the back portion of the spade. On hearing hulla, several persons came over there, but the accused persons fled away from there.
When S.B. Upadhyay, S.I., Madhupur Police Station, came to the place of occurrence, he recorded the fard beyan (Ext. 3) of the informant, Ghamia Mahatwain. Thereupon, the matter was taken up for investigation by said S.I., S.B. Upadhyay, who held inquest on the dead-body and prepared Inquest Report (Ext. 4). Thereupon, the dead-body was sent for postmortem examination which was conducted by Dr. Narendra Kumar Singh, P.W. 11 who found the following injuries on the person of the deceased.
1. Crush injury of right side of face with fracture of mandible and maxilla of right side.
2 On the right side the eye ball was ruptured due to crush injury.
3. Incised wound on the right side of cheek 1 1/2' x 1/2 x bone deep.
4. Incised wound on the right Auricle (ear) 1' x 1/2' x skin deep.
5. Incised wound on the right temporal region 1' x 1/4' x skin deep.
6. Incised wound on the forehead 1 1/2' x 1/2' x skin deep.
7. Two incised wounds behind the left Auricle (i) 2' x 1/2' x skin deep (ii) 1' x 1/2'.
8. Incised wound on right thigh 1/2' x 1/4' .
Accordingly, the doctor issued post mortem examination report (Ext. 2) with an opinion that the death of the deceased occurred due to cardio respiratory failure on account of shock and haemorrhage as a result of the above-noted injuries caused by hard and blunt substance as well as sharp cutting weapon.
3. On completion of the investigation, the police submitted charge-sheet upon which cognizance of the offence was taken and when the case was committed to the court of Sessions, charges were framed under Sections 302/34 and also under Section 323 of the Indian Penal Code for causing injuries to the informant to which the appellants pleaded not guilty and claimed to be tried.
4. In course of trial, the prosecution, in order to prove the charges, examined as many as twelve witnesses. Of them, P.W. 3, Ghamia Mahatwain, the informant, P.W. 5, Jamun Mahto, and P.W. 10, Lalu Das, are the eye witnesses, whereas P.W. 4, Bishan Mahra, P.W. 6, Giro Mahra, claimed to have seen the appellants fleeing away after committing murder of Phocha Mahto. P.W. 9, Sarban Mahra, is the hearsay witness who came to know about the occurrence from P.W. 3, the informant. Learned trial court having placed his implicit reliance on the testimonies of the eye witnesses such as P.Ws. 3 and 5 and also on the testimonies of the other witnesses who saw the accused persons fleeing away found the appellants guilty and hence passed the order of conviction and sentence, as aforesaid, though they were acquitted of the charge under Section 323 of the Indian Penal Code.
Being aggrieved with the said judgment, this appeal has been preferred.
5. Learned Counsel appearing for the appellants submits that both the eye witnesses, such as P.W. 3, the informant as well as P.W. 5, Jamun Mahto, are the interested witnesses, one being widow of the deceased and other being close associate of the deceased, who was in jail along with the deceased in connection with the murder of Bishu Mahto, brother of the appellants, and as such, no credence to their testimonies should have been given by the trial court particularly in view of the testimony of P.W. 10, an independent eye witness, disclosing manner of occurrence differently and that according to the evidence of P.W. 5, the information with respect to commission of murder of the deceased earlier to recording of the fard beyan was given to the police and as such, fard beyan (Ext. 3) is hit by Section 162 of Cr. P.C.
Lastly, it was submitted that on account of non-examination of the Investigating Officer, case of the defence has been prejudiced to a great extent and under these situations, the prosecution can certainly be said to have been failed to prove the charges beyond all reasonable doubts, but still the trial court has recorded the order of conviction and sentence which, in the facts and circumstances, as stated above, is fit to be set aside.
6. Having heard learned Counsel appearing for the parties and on perusal of the record, we do find that both the eye witnesses, namely, P.W. 3, Ghamia Mahatwain, the informant, as well as P.W. 5, Jamun Mahto, appear to be the natural witnesses, as according to P.W. 3, she had accompanied her husband (deceased) to the field for sowing seeds, whereas P.W. 5 had gone to his field to supervise the process of sowing in his field. According to both of them, while the deceased was ploughing the field, both the appellants came to the field of the deceased and started assaulting him upon which the deceased ran away but he was caught hold of by both the appellants and then appellant-Ganesh Mahto inflicted injuries on the face of the deceased by 'knife', whereas appellant-Horil Mahto did assault with the back portion of the spade on the temple of the deceased as a result of which, the deceased died at the spot. However, a criticism was made on behalf of the defence that the evidence of P.W. 5 is not consistent with the evidence of other eye witness i.e. P.W. 3, as P.W. 5 has deposed about two teeth being broken due to assault but P.W. 3 is quite silent and even the post mortem report does not suggest about the teeth being broken.
7. On careful perusal of the evidence of P.W. 5, we do find that P.W. 5 has never deposed about the teeth being broken, rather he has testified that on account of assault being made on the face of the deceased, the teeth came out and this appears to be quite natural on account of having crush injury with fracture of mandible and maxilla as noted by the doctor during post mortem examination and hence there does not appear to be any inconsistency in between the evidence of P.Ws. 3 and 5 on the point of assault.
However, learned Counsel for the appellants did point out that P.W. 10, who is also an eye witness, has given different description of the manner of assault, wherein he has stated that it was Ganesh Mahto who was assaulting the deceased with spade. It is true that such kind of statement of P.W. 10 is there, but that cannot be said to be quite inconsistent with the evidences of P.Ws. 3 and 5 if we take into account the testimony of P.W. 10 in totality. This witness has categorically testified that it was Ganesh Mahto who inflicted 'Chura' injury, though he has also deposed that Ganesh Mahto also assaulted the deceased with spade but that assault, according to P.W. 10, was made while the deceased was running away, whereas P.Ws. 3 and 5 have stated that the deceased was caught hold of by the appellants while he was running away and then was assaulted with spade and was inflicted with injuries by 'knife' which fact also gets corroboration from the evidence of P.W. 10 who has deposed that both the appellants did assault the deceased.
8. Thus, we do find that the testimony of P.W. 10 does not affect the evidences of P.Ws. 3 and 5 materially, rather in substance, it gets corroboration.
Other submission is that in view of the evidence of P.W. 5 regarding information of occurrence being given by him earlier to fard beyan (Ext. 3), the fard beyan has wrongly been treated to be the first version and as such, learned trial court was not justified treating fard beyan (Ext. 3) to be the first version of the occurrence.
No doubt, it is true that P.W. 5 has testified that after the occurrence, he came to the Police Station and informed the police but according to him, it was only to the extent that Phocha Mahto (deceased) has been done to death and in that view of the matter, when said information was vague, that cannot be treated as first information report, rather the information, given at the place of occurrence by P.W. 3, has rightly been treated to be the FIR and the version made therein is absolutely consistent with the evidence of P.W. 3, the informant, and not only that, the medical evidence also fully corroborates the testimony of P.W. 3 and P.W. 5.
Further, we do find that the testimonies of the eye witnesses get corroboration from the evidences of P.Ws. 4 and 6, who, on hearing alarm raised by P.W. 3, the informant, when came to the place of occurrence, saw both the appellants fleeing away from the place of occurrence. Thus, learned trial court is absolutely right in holding that the prosecution has succeeded fully in establishing its case in spite of the fact that the Investigating Officer had not been examined, as non-examination of the Investigating Officer does not seem to have prejudiced the case of the defence nor anything was shown to us regarding prejudice being caused to the defence on account of non-examination of the investigating Officer.
9. Accordingly, we find that the learned trial court was absolutely justified in recording the order of conviction and sentence which is hereby affirmed.
10. Thus, we do not find any merit in this appeal. Hence, this appeal is dismissed.