ASAYA MUNDA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) APPELLANTS have preferred this appeal against the judgment and order of conviction and sentence Judicial Commissioner, Khunti, in Sessions Trial No. 241 of 1996, whereby and whereunder, both the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/ - each and in default to undergo imprisonment for a further period of six months. Both the appellants have further been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. The learned 3rd Additional Judicial Commissioner, Khunti, however, ordered that the sentences in respect of each count shall run concurrently.

(2.) THE prosecution case has arisen on the basis of the fardbeyan (Ext. 4) of Yogen Nat (PW 5), recorded by S.K. Jha, SI of Tamar Police Station, on 3.10.1995 at 17.30 hours in village Ghanshyampur khalihan Tand. On that basis formal First Information report was drawn and charge - sheet was submitted under Sections 147, 148, 302, 307, 324, 341 and 337 of the Indian Penal Code against Asaiya Munda (appellant No. 1), Matius Munda (appellant No. 2), Masidas Munda, Johan Munda, Mansi Munda and Paulus Munda. In course of trial Paulus Munda having died, the trial against him was dropped. The other accused persons were acquitted whereas both these appellants were convicted by the learned Court below for the offences under Sections 302/34 and 307/34 of the Indian Penal Code and sentenced thereunder.

(3.) THE learned 3rd Additional Judicial Commissioner, Khunti. examined altogether 12 witnesses, produced by the prosecution. PW 1 Jairam Swasi and PW 2 Chhotu Swasi went to the place of occurrence and saw the dead body of Mahim Nat and injured PW 5 Shiv Charan Swasi lying there. The IO went there and prepared the inquest report on which they signed (Exts. 1 and 1/3 respectively). They are also witnesses on the seizure list, prepared by the IO. When the IO went to the house of the appellants, he seized farsa and prepared seizure list on which they signed (Exts. 1/1, 1/2 and 1/5). PW 3 Yogeshwar Swasi and PW 4 Ram Kanhai Munda also went to the place of occurrence where the dead body was found. In their presence the IO seized blood stained soil, prepared seizure list on which they gave Charan Swasi, who were watching the Lac trees along with deceased Mahim Nat, are the eye - witnesses, although having enmity with the appellants. PW 7 Nakul Swasi saw the appellants fleeing away from the place of occurrence. When he went there, he was informed that the appellants caused murder of Mahim Nat and injured PW 6 Shiv Charan Swasi. PW 8 Bishnu Nat saw the dead body at the place of occurrence. He does not know the assailants and, as such, he was declared hostile by the prosecution. PW 9 Sohrai Swasi could not identify appellant Asaiya Mudna in the Court in the course of his evidence. He is hearsay witness, who was informed that appellants murdered Mahim Nat and injured Shiv Charan Swasi. He went there and saw the dead body of Mahim Nat and injured Shiv Charan Swasi, lying there, having bleeding injury on his neck. PW 11 Dr. Binod Kumar Pandit has examined PW 6 injured Shiv Charan Swasi and issued injury report (Ext. 3). Dr. Niranjan Minz. who conducted the autopsy on the dead body of Mahim Nat, could not be examined, as he could not be traced out. He had gone in course of treatment of his son to Bombay and since thereafter he had not returned to R.M.C.H., Ranchi. He was also not available in M.G.M. College and Hospital, Jamshedpur. Dr. Ram Sewak Singh (PW 10) was posted along with him as Assistant Professor in the same department and, as such, he is acquainted with the writings and signature of Dr. Minz. who has proved the post -mortem report (Ext. 2), prepared in the pen and signature of Dr. Minz. In this case PW 12, a formal witness. Shaligram Choudhary (Constable), has proved the fardbeyan (Ext. 4), inquest report (Ext. 5), seizure lists (Exts. 6 and 6/1) as also the case diary (Ext. 7), as the IO of this case could not be examined by the prosecution.