KISHORE KINDO AND OTHERS Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been preferred by the original accused No. 1,2,3 and 4 of Sessions Trial No. 225 of 1998 against the judgment and order of conviction and sentence dated 14th July, 2006, passed by the Additional Sessions Judge, Simdega. These appellants have been convicted for the offence punishable under section 302 I.P.C. to be read with Sec. 149 I.P.C. and sentenced to undergo life imprisonment. They are further convicted u/s 307/149 I.P.C. and sentenced to undergo life imprisonment. Further, these appellants have been convicted under section 148 I.P.C. and sentenced to undergo Rigorous Imprisonment for 3 years. These appellants have also been convicted for the offence punishable under section 452 of the I.P.C. and sentenced to undergo Rigorous Imprisonment for five years. Further, these appellants have also been punished for the offence punishable under Sec. 302 I.P.C. but no separate sentence has been awarded under this head. All the sentences were ordered to run concurrently.

(2.) It is the case of the prosecution that on 8th April, 1998 at 5.15 a.m. the informant Prakash Kishore Bilung (P.W.4) gave fardbayan to Police that on 7th April, 1998 (on Tuesday) at 8 P.M. he was sitting in the courtyard of his house along with his father Moris Bilung, mother Julias Bilung and sister Shanta Bilung and at that time Pushpa Bilung was cooking meal. The informant further alleged that Sabina Tete who is the daughter of Lujarus Tete of village Dumar Toli had come to his house as a guest and she was also sitting there with whom the informant was to be married. The western door of his house in the back of his courtyard was open. At about 8 P.M. his co-villager Sukra entered into the house through the back door, to which the informant asked him what is the matter then he told him that some people wanted to have talk with him and then he came near to him and started seeing here and there in the courtyard. At that moment through the back door, Mikhail Kindo with his five sons and his wife with other two unknown persons came near to them and they were holding Katar, Tanghi, Dagger, Bhujali and Danda in their hand. The informant further alleged that Leo Kindo, Kishore Kindo, Xavier Kindo, Issak Kindo and Bhauwa Kindo and two unknown young persons were armed with Katar, Tangi, Dagger, Bhujali and Danda and then Kishore Kindo started uttering that as to why he had not withdrawn the case against Amit. At that time mother of Kishore Kindo entered his house by using filthy language and then all of them started abusing him and then the family member of informant forbade them from abusing them and they also started fleeing away from there then the aforesaid accused persons chased them and started assaulting them indiscriminately and as a result of which his father was seriously injured and further they turned towards him and when his mother and Sabina Tete wanted to save him, all of them seriously injured them and they fell down near the gate and then the accused persons also seriously injured him and his sister Shanta Bilung and to save himself the informant entered into the house of the tenant. Thereafter informant raised alarm for their protection but nobody came there due to fear of accused persons as they were threatening that whoever came there in their protection they would be done to death and therefore nobody came there. Thereafter in the morning the informant felt that the accused persons had left the house so he came out of the house and saw that his father Moris Bilung, his mother Julias Bilung and guest Sabina Tete were dead and he found multiple injuries on their bodies and blood was coming out from their body. The informant further alleged that the reason behind the incident was that in the month of last Dec. Issak Kindo and his friend Basant has assaulted him for which a case was instituted and that case was going on in the court and since that case was not withdrawn because of which his parents and Sabina Tete with whom he was going to married were killed. Details regarding eight witnesses examined by the prosecution is given below in a tabulated form . <IMG>JUDGEMENT_133_LAWS(JHAR)4_2014.jpg</IMG>

(3.) It is submitted by the counsel for the appellants that the learned trial court has not properly appreciated the omissions, contradictions and improvements in the depositions of the prosecution witnesses and hence the judgment and order of conviction and sentence passed by the learned trial court deserves to be set aside. It is submitted by counsel for the appellants that in this case there is a belated First information Report filed by the informant (P.W.4). The incident has taken place at about 8 p.m. on 7th April, 1998, whereas statement before police was given at about 5.15 a.m. on 8th April, 1998 and the F.I.R. was lodged on 8th April, 1998 at about 9.30 a.m. at Simdega police station being Simdega P.S. Case No. 31 of 1998. Neither any explanation has been given by any witness much less by P.W. 1 and P.W.4 about the delay in lodging F.I.R. nor P.W.8, who is the Police witness and the investigating officer, has explained the delay in lodging the F.I.R. This aspect of the matter has not been properly appreciated by the learned trial court. It is further submitted by the counsel for the appellant that no independent witness has been examined by the prosecution. The incident has taken place nearby the house of the victims. On perusal of the narration of P.W. 1, it appears that there were several tenants residing near the place of occurrence, but not a single independent witness have been examined by the prosecution. This aspect of the matter has also not been properly appreciated by the trial court. It is further submitted by counsel for the appellants that only two eye witnesses have been examined, who are P.W.1 and P.W. 4. They are brother and sister and are close relatives of the deceased. Their depositions are inconsistent and there are lot of improvements in their depositions too . By putting their depositions vis a vis the depositions given by P.W.8 and P.W.6, major improvements and contradictions in the depositions of P.W.1 and P.W.4 make them unreliable and untrustworthy witnesses. This aspect of the matter has also not been properly appreciated by the learned trial court and hence judgment and order of conviction and sentence passed by the learned trial court deserve to be quashed and set aside. It is further submitted by the counsel for the appellants that seizure lists which are proved by the witnesses including P.W.8 have no value at all in the eyes of law because no Forensic Science Laboratory report have been placed on record about the blood group of the blood found upon the weapons. It is further submitted by the counsel for the appellants that prosecution witnesses, especially P.W.1 and P.W. 4 have given general and omnibus narration about the whole incident. There is no specific narration by these two witnesses that who caused what injury upon which deceased. Thus, general and omnibus type of evidences have been given by the so called eye witnesses. Lastly, it is submitted by counsel for the appellants that behaviour of these appellants in jail is very cordial and as they have not committed any offence in jail, hence the judgment and order of conviction and sentence passed by the trial court deserves to be set aside.