Judgment:
Jaya Roy, J.
1. This appeal is preferred against the judgment dated 25.8.1990 passed by 2nd Additional Session Judge, Singhbhum, at Chuibasa in S.T No. 95 of 1989 whereby the appellants have been convicted under Section 302/34 l.P.C. and have been sentenced to undergo Rl tor life and they have been further convicted under Section 323/34 I.P.C. and sentenced to undergo RI for one year each. Both the sentences were ordered to run concurrently. The prosecution has failed to prove the charge under Section 307/34 I.P.C. against these appellants.
2. The prosecution story in brief is that Sanha No 129 dated 9.08.1988 was lodged by the Bimal Lakra alias Binay Lakra stating therein that on 8.8.1988 at 9.30 P.M. while the informant along with his brother Mohan Lakra (deceased) and Boyas Kachhap were returning from Monoharpur after cinema show, these three appellants namely Mangra Uraon, Etwa Uraon, and Sohichar Uraon stopped them on the road near Pani Tanki at village Donga Kata and after exchange of hot words all the appellants assaulted Mohan Lakra and Boyas Kachhap by Lathi, as a result of which they sustained grevious injuries on their person., The informant on seeing this, fled away to his village and raised alarm. The villagers along with the informant came to the place of occurrence and found Boyas Kachhap and Mohan Lakra in unconscious position. The villagers took both the injured to the village but since it was late at night, they did not go to the police station, On the next morning they took both the injured to the Monohapur police station mid a Sanha entry was made on the statements of Uijay Lakra at about 10.30 A.M. and the both injured were sent to the Monoharpur State Dispensary for their treatment but on 10.8.1988 at about 5 P.M. injured Mohan Lakra died and then the Monoharpur police draw up formal F.I.R. onlO.8.1988 under Section 302/34 and 307/34 I.P.C. against all the three appellants.
3. The defence of the appellant is complete denial of the alleged occurrence and they pleaded their innocence.
4. The prosecution in order to substantiate the charges against the appellants has examined nine witnesses. Out of them P.W.6 Bode Lakra has been tendered for his cross examination by the prosecution. He has said nothing against any of the appellants.
5. P.W.1 is the informant who has stated that on 8.8.1988 he along with the deceased Mohan Lakra and Boyus Kachhap had gone to see a cinema show to Monoharpur and seeing the cinema show, they were returning to their home. When they reached at village Donga Kata, these appellant namely Mongra Uraon, Etwa Uraon and Sonichari Uraon were standing near Pani Tanki, armed with Lathi. It was moon-lit night. On certain enquiry, exchange of hot words took place between them on which Mongra Uraon started giving Lathi blows to the deceased Mohan Lakra. Mohan Lakra fell-down on the ground and thereafter Etwa Uraon and Sonichari Uraon assaulted Mohan Lakra by Lathi. They also assaulted Boyus Kachhap by Lathi. On seeing the assault, the informant (P.W.1) ran towards his village and raised alarm. The villagers namely Somra Lakra Bode Lakra and others came along with him at the place of occurrence and found Mohan Lakra and Boyas Kaclihap in injured condition and lying on the ground in the unconscious state. Thus the P.W.1 has supported his version fully as stated in the first information report, I do not find any material either in his chief or cross examination to disbelieve his version. He was present all along with the deceased Mohan Lakra and injured Boyas Kachhap at the time of the aforesaid occurrence.
6. P.W.2 Somra Lakra stated in his deposition that on that very night he was sleeping in his house. On hulla of Binuy Lakara (P.W.1), he came out of the house and came to know about, the occurrence from the informant and accompanied him for the place of the occurrence and reaching there, found the deceased Mohan Lakra and Boyas in injured condition and lying in unconscious state on the ground. Thus he has also supported the version of the informant.
7. P.W.3 Boyas Kachhap who is the injured person has also supported the prosecution case. He has clearly given out that when the exchange hot words took place between them, Mongra started giving Latin blows to the deceased Mohan Lakra. When he felldown Etwa Uraon and Sonichari Union also assaulted by a Lathi to Mohan Lakra. They had also assaulted lioyas Kachhap with Lalthi. He claims that he has also received injury on his head, on right eyebrow and on Ills finger. He has further stated after receiving the Lathiblows he also Jell down and, became unconscious. He regained his consciousness in the next morning. There is nothing in his cross examination to disbelieve his evidence.
8. P.W.4, Nandua Lakra who claims to have gone along with the villagers at the place of the occurrence and found Mohan Lakra (deceased) and Boyas Kachhap lying in injured condition and they were unconscious at that time. He has further stated that he came out of his house on the hulla of Binoy Lakra and met him on which Binay Lakra told him that Mongra Uraon Etwa Uraon and Sonichari Uraon assaulted Mohan Lakra and Boyas Kachhap by Lathi. Thus he has fully supported the evidence P.W.1 and 3.
9. P.W.5, Isaque Bet has given out that on 10.8.1988 the officer-in-charge, Monoharpur P.S. Mr. R.B. Singh prepared the inquest report of the deceased Mohan Lakra in the Hospital on which he put his signature. He has proved the inquest report as Exhibit No. 1.
10. P.W.7, Ram Balak Singh has stated in his evidence that on 9.8.1988 he was officer-in-charge at Monoharpur Police Station. On that very day Binoy Lakra P.W.1 along with villagers had brought two injured namely Mohan Lakra and Boyas Kachhap in the police station and on his statements of Binoy Lakra (P.W.1), he hus drawn up the Sanha entry No. 129 dated 9.8.88 and prepared injury report and sent both the injured two the Monoharpur Slate Dispensary. He received a report from the Monoharpur state dispensary on 10.8.88 that Mohan Lakra died in the Hospital during his treatment. Thereafter he had drawn up a formal F.I.R. on the basis of the Sanha Entry and started investigation. He went to Monoharpur stale dispensary on 10.8.08 and prepared inquest report and sent the dead body through the constables to Sadar Hospital for post mortem examination. He had recorded the statements of the injured Boyas Kachhap and others on the same day and inspected the place of occurrence also. After receiving the post mortem report, he gave the charge of investigation to Radhesyam Singh S.I.
11. P.W.9, Radhesyam Singh, S.I. completed the investigation and submitted the charge sheet against the three aforesaid convict. He has recorded the statements of the witnesses on 7.9.88 during the course of investigation, I find from his evidence that he has completed the part of the investigation and submitted the charge sheet against the aforesaid convicts.
12. P.W.8, Doctor V.K. Singh who did the post mortem examination on the dead body of Mohan Lakra and he has found the following antimorten injury on the dead body:
(i) Two stitched wound over the scalp 6' in length and 2' In long.
(ii) On di-sectgion, the skull bone was fractured brain materials were lacerated, coverings ruptured and skull cavity was contained blood clots.He opined that the injuries could be caused by Lathi blows and these injuries were sufficient Id cause death in ordinary course of nature.
13. Mr. R.K. Prasad has contended that the witnesses examined in thus case have given contradictory statements regarding the manner of the occurrence and the trial court has not considered this aspect. No doubt there are some contradictions in the evidence of prosecutions witnesses regarding number of blows giving by the appellants but at the same time it should be kept in mind that when any assault is taking place, it is not possible for any one to count the number of blows hurled by each assailant. Therefore any such contradiction should not affect the prosecution case in any manner.
14. The learned Counsel Mr. Prasad further submitted that the witnesses examined in this case are all interested witnesses. We find from the F.I.R. when the occurrence took place near Pani Tanki at village Donga Kata only Mohan Lakra (deceased), Boyas Kachhap and Bimal Lakra were present at die place of occurrence. The villagers came to the place of occurrence after the assault. Therefore except Bimal Lakra
P.W.1 and Boyas Kachhap P.W.3, no body had seen the aforesaid assault. Thus, we see no reason lo disbelieve their testimony only on the ground, that they ore interested witnesses.
15. On perusing the post mortem report and the evidence of witnesses including p.w,8 the Doctor, we find that aforesaid appellants namely Mongra Uraon, Etwa Uraon and Sonichari Uraon had giving a number of Lathi blows to the Mohan Lakra on 8.8.88 and he had sustained injuries on his person and died in the hospital on 10.8.88 i.e. after two days of the aforesaid assault.
16. I further find from the evidence of the witnesses that there was an exchange of hot words and thereafter Mongra Uraon started assaulting Mohan Lakra by Lathi. Thereafter the other two appellants also assaulted Mohan Lakra with Lathi. But the post mortem report shows that there are only two injuries on his head and he died after two days of die said ussault. It can be said safely from these circumstances that the appellants had no intention to kill him the deceased. Now the question is when there was no intention to kill, the Conviction of the appellants under Section 302/34 I.P.C. can be affirmed. Considering the entire evidence and the post mortem report, the conviction of the appellants under Section 302/34 I.P.C. is converted into under Section 304 part II I.P.C and Udey are sentenced to undergo R.I for five years each.
17. I further find that the aforesaid appellants also ussalted Boyas Kachhap by Lathi due to which he has sustained injuries. Though we prosecution has failed to bring on record the injury report of Boyas Kachhap but the eye witness P.W.1 had seen die assault on the person of Boyas Kachhap. The trial court has convicted the aforesaid appellants further for offence under Section 323/34 I.P.C. So far conviction under Section 323/34 I.P.C. is concerned it is hereby confirmed but no separate sentence is awarded for the said conviction under Section 323/34 I.P.C.
18. Accordingly, appeal is disposed, of, with alteration hi conviction and modification in sentence as indicated above. As me appellants are on bail, Bail Bonds are hereby cancelled and they are directed to surrender rorthwith to serve out the sentence.
19. The trial Court is directed to take necessary steps for taking the appellants into the custody for serving out the sentence awarded by this Court.