CRIMINAL APPEAL (DB) No.214 OF 1988 ***** Against the judgment and order dated 8.4.1988, passed by Sri Ram Kishore Singh, learned 10th Additional Sessions Judge, Munger, in Sessions Case No.215 of 1985. ***** 1. SARJUG MANJHI 2. JAGDISH MANJHI 3. YOGENDRA MANJHI 4. KAILASH MANJHI 5. KISHUN MANJHI: ..... ..... APPELLANTS Versus THE STATE OF BIHAR: .... ..... RESPONDENTS ***** For the Appellants: Mr. Arun Kumar Tripathi, Amicus Curiae. For the S t a t e: Mr. Lala Kailash Bihari Prasad, Public Prosecutor. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE MADHAVENDRA SARAN ***** S K Katriar & M. Saran, JJ. The five appellants are aggrieved by the judgment dated 8.4.1988, passed by the learned 10th Additional Sessions Judge, Munger, in Sessions Case No.215 of 1985 (State of Bihar Vs. Saryug Manjhi and five others), whereby they have been convicted under section 302 read with Section 149 of the Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for life. Appellant no.1 (Sarjug Manjhi), appellant no.3 (Yogendra Manjhi), 2 and appellant no.5 (Kishun Manjhi) have been further convicted under sections 147 and 323 of the IPC, and have been sentenced to undergo rigorous imprisonment for one year each under both counts. Appellant no.2 (Jagdish Manjhi) has been further convicted under sections 148 and 324 of the IPC, and have been directed to undergo rigorous imprisonment for one year under section 148, IPC and rigorous imprisonment for two years under section 324, IPC. Appellant no.4 (Kailash Manjhi) has been further convicted under sections 148 and 323 of the IPC and has been directed to undergo rigorous imprisonment for one year. All the sentences have been directed to run concurrently. It may be stated for the sake of completion of record that one Gareri Manjhi, a co-accused before the learned trial court, has been acquitted and his case does not arise for our consideration. 2. According to the Fardbeyan (Exhibit-1) of Anup Lal Manjhi (P.W.5), recorded on 10.5.1983, at 10.00 P.M., with Dharhara Police Station, district Munger, that one Kishun Manjhi (appellant no.5), a resident of his village has been given two cows by the Dharhara Block which were not to be found for 15-20 days. On 10.5.1983, at about 7.00 P.M., Kishun Manjhi came to the place of the informant and 3 charged him of theft of cows which the informant denied and led to exchange of hot words. This was followed by very abusive language at the instance of the appellants. Appellant no.1 (Sarjug Manjhi) gave a call to assault the informant after entering into his house. Appellant no.2 (Jagdish Manjhi) was armed with a bhala. Kailash Manjhi was wielding Bijar (bow and arrow). Appellant no.1 (Sarjug Manjhi), appellant no.3 (Yogendra Manjhi), and appellant no.5 (Kishun Manjhi) were wielding lathis. Appellant no.2 (Jagdish Manjhi) thrust a bhala towards the informant which he wanted to catch hold of, and he suffered scratches on his neck and blood started oozing out. Appellant no.2 had delivered another bhala blow on the informant which hit him on his left armpit and the other accused persons delivered lathi blows. The appellants also delivered lathi blows on his father, Bango Manjhi. It is further stated in the Fardbeyan that Punai Manjhi (P.W.2), who was purchasing some articles in the shop of Anandi Sao across the road, was also struck by the Bijar released by appellant no.4 (Kailash Manjhi) and was injured. He was only trying to intercede and pacify the appellants. On hearing hulla, co- villagers, namely, Badri Manjhi (P.W.3), Samar Manjhi and others reached there and saved and 4 protected the informant’s side from further assault. On the arrival of the co-villagers the appellants fled away. The informant’s father was seriously injured, was unable to work and his condition was critical. On these allegations formal F.I.R. was drawn bearing Dharhara P.S. Case No.0071 of 1983, dated 10.5.1983, under sections 147, 148, 324, 323 and 307 of the IPC. It is further relevant to state that Bango Manjhi died at about 12.00 in the night. 3. Investigation commenced, inquest report (Exhibit-4) was prepared and the dead body was sent for post-mortem. The post-mortem report is marked Exhibit-2. Anup Lal Manjhi, the informant (P.W.5), was also referred to the Medical Officer for examination of his injuries. The medical report is marked Exhibit-3. On conclusion of the enquiry, charge-sheet was submitted, cognizance was taken by the learned Additional Sessions Judge, who framed charges by his order dated 5.6.1986. He framed the charges against the appellants as well as Gareri Manjhi under section 302 read with section 149 of the IPC. Charges were also framed against Gareri Manjhi and Jagdish Manjhi (appellant no.2) under section 324 of the IPC. Charges were also framed against Sarjug Manjhi (appellant no.1), Yogendra Manjhi (appellant no.3), Kailash Manjhi (appellant 5 no.4), and Kishun Manjhi (appellant no.5) under section 323 of the IPC. 4. The prosecution examined nine witnesses in support of its case. P.Ws.1 to 5 are eye- witnesses including Anup Lal Manjhi (P.W.5), the informant. P.W.6 is Naresh Prasad Sharma, the Officer in-Charge of Dharhara Police Station, who had taken charge of the investigation on 27.1.1985, from Chandraa Bhushan Choudhary. P.W.7 is Dr. Jagdish Sinha who had conducted the post-mortem examination on the dead body and the post-mortem report is marked Exhibit.2. P.W.8 is Sri Niwas Mishra who has examined the injuries of P.W.5 (Anup Lal Manjhi). P.W.9 is Jogeshwar Prasad Verma who was posted as Assistant Sub-Inspector of Police on 10.5.1983 in Dharhara Police Station. The Fardbeyan was recorded in his hand-writing. He had conducted the investigation, had prepared the inquest report, and had forwarded the dead body for post-mortem. 5. The prosecution has proved the following documents: Exhibit-1: Fardbeyan proved by P.W.5, and also testified by P.W.9. Exhibit-2: The post-mortem report prepared by P.W.7. Exhibit-3: The Injury report regarding P.W.5, prepared by P.W.8. 6 Exhibit-4: The inquest report proved by P.W.9. 6. The defence examined one witness, namely, Mahabir Bind (D.W.1). 7. The accused persons in their statements under section 313 of the Code of Criminal Procedure denied the occurrence and submitted that they were innocent and claimed to be tried. 8. The learned trial court found that the appellants were guilty of the murder of Bango Manjhi. He also found them guilty of causing injury to Anup Lal Manjhi (P.W.5). He found that the loss of the cows of Kishun Manjhi (appellant no.5) was the reason for the altercation leading to the death of Bango Manjhi and injuries to Anup Lal Manjhi (P.W.5). He accordingly convicted the appellants herein and sentenced them in the aforesaid manner. However, on account of lack of adequate evidence, Gareri Majhi was given the benefit of doubt and was acquitted. 9. P.W.1 (Dip Narain Manjhi) is the agnate of the informant. He has deposed to the effect that about three years and two months ago, on a Tuesday, he was at his Darwaja at about 7.00 P.M. He noticed that the appellants were using abusive language against Bango Manjhi which led to exchange of hot words, whereupon Jagdish Manjhi (appellant no.2) had delivered two bhala blows on Anup Lal Manjhi which 7 injured him. He has also deposed to the effect that Jagdish Manjhi had delivered a bhala blow to Bango Manjhi (deceased). Sarjug Manjhi (appellant no.1), Yogendra Manjhi (appellant no.3), Kailash Manjhi (appellant no.4), and Kishun Manjhi (appellant no.5), had delivered lathi blows on Bango Manjhi. They took to their heels after delivering the blows. He has further stated to the effect that Kishun Manjhi had received two cows from the local block office which were stolen. Kishun Manjhi had charged Bango Manjhi of theft of cows leading to the problems between the two sides. Bango Manjhi died then and there on account of the injury which he had received. Anup Lal Manjhi had gone over to the police station to lodge the F.I.R. accompanied with P.W.1. He identified the five appellants who were in the dock. He has stated in his cross-examination that he has given the location of his house and has claimed to be an eye-witness. He has also deposed to the effect that darkness had not descended at the time of the occurrence and it was quite clear and visible. The abusive language at the instance of the appellants was spoken in his presence. P.W.1 and P.W.5 are agnates, and their houses are separate, but share a common Angan. He has also stated that the shop of Anandi Sao is about 10-15 steps away 8 from the house of Anup Lal Manjhi. The two are separated by a lane (Gali) flanked by houses. He has further deposed during the course of his cross- examination that when he went towards the place of occurrence, he had found 5-6 persons apart from the accused persons, namely, Badri Manjhi (P.W.3), Punai Manjhi (P.W.2), Jhigan Manjhi, Natho Manjhi, and Samar Manjhi. He has also stated to the effect that the assault had commenced with lathi blows followed by bhala blows. The assault was over within a period of half an hour to one hour. They were delivering lathi blows on Bango Manjhi. The assault (ekjihV) had taken place on the road. He has deposed to the effect that blood was found on the ground covering an area of 2-3 cubits (2-3 gkFk). He has also deposed to the effect that he had gone there again after half an hour of the occurrence, at that time Bango Manjhi was fighting for breath (gqdqj&gqdqj dj jgk Fkk). He had noticed about 10-15 injuries on the person of Bango Manjh all of which were bleeding. He has also stated that Sarjug Manjhi (appellant no.1) is engaged in the business of loud-speaker. He has, however, denied the suggestion that Sarjug Manjhi at the time of the alleged occurrence was engaged in installing loud-speaker at village Sandalpur. P.W.1 has supported the core of the prosecution case and 9 is particularly noticeable for the reason that he has deposed to the effect that Jagdish Manjhi (appellant no.2) had delivered a bhala blow on Bango Manjhi followed by lathi blows on him by other appellants. We must state that this part of his deposition is a little different from the version stated in the Fardbeyan which in substance is to the effect that only lathi blows had been delivered on Bango Manjhi and does not state that bhala blow was also delivered on Bango Manjhi. It is further noticeable that he has in his examination-in-chief deposed to the effect that after the blows had been delivered on Bango Manjhi, he died on the spot. He has, however, stated in his cross-examination that, after the assault (ekjihV) was over, he had gone into the house of Bango Manjhi after half an hour, and he had found that Bango Manjhi was gasping for breath. It is a mere repetition to state that the Fardbeyan stated that after the assault was over and the appellants took to their heels, Bango Manjhi was lying in a critical condition. 10. P.W.2 is Punai Manjh. He is a co- villager and claims to be an eye-witness. He has deposed in his examination-in-chief that about three years and two months ago on Tuesday at about 7.00 P.M., he was purchasing some articles in the shop of 10 Anandi Sao. He noticed that Kishun Manjhi was abusing Bango Manjhi in the presence of Jagdish Manjhi, Kailash Manjhi, Yogendra Manjhi and Sarjug Manhi, then all of them started assaulting Bango Manjhi and his son Anup Lal Manjhi. Jagdish Manjhi was wielding a bhala and Kailash Manjhi was in possession of Bijar (bow and arrow). The genesis of the occurrence theft of two cows of Kishun Manjhi and they were charging Bango Manjhi of the same. He has further deposed to the effect that Gareri Manjhi (since acquitted by the learned trial court) had released an arrow from his Bijar which struck him on his back. Gareri Manjhi was also present along with the other appellants. He had got himself treated in the hospital. Bango Manjhi died on account of the injuries. He identified all the six accused persons who were in the dock. He has stated in his cross-examination that he has given the location of the shop of Anandi Sao. He was watching the occurrence from the shop. The place of occurrence and the shop are close to each other. He had received Bijar injury while he was standing at the shop and had become unconscious. He remained unconscious till about 12.00 in the night. Bango Manjhi had died before P.W.2 had received the Bijar injury. After P.W.2 had regained 11 consciousness, he had gone over to Bango Manjhi who was lying dead on the road. He had found injuries on the dead body. He had found a Bijar injury in his stomach. Blood was oozing out from his head and the body was full of injuries. Blood was oozing from his stomach as well as his head. The earth was soaked with blood. Gareri Manjhi had struck the Bijar from the house of Anup Lal Manjhi, and P.W.2 had received the Bijar injury while he was in the shop of Anandi Sao. He has also deposed to the effect that he has no enmity with Gareri Manjhi. He had shown his injury to the police officer and had thereafter gone over to Dharhara hospital for treatment the following day. He has also stated that one of the accused persons had a bhala in his hand, another one had a Bijar and the rest had lathis. He had noticed Gareri Manjhi at the time when he released the Bijar. He continued to be in possession of Bijar. He has further stated that Anup Lal Manjhi has one group to which he belongs, and the accused persons belong to another group. They treat Sarjug Manjhi as their leader. P.W.2 has also stated to the effect that Jagdish Manjhi had delivered a bhala blow on Bango Manjhi. He has on the whole supported the core of the prosecution case, appears to be a truthful 12 witness and the prosecution has not been able to elicit any significant contradiction in his deposition. 11. P.W.3 (Badri Manjhi), is an agnate of the informant. He has stated in his examination- in-chief that the occurrence had taken place about three years and three months ago on a Tuesday, late in the afternoon. While he was in his residence, he had heard the noise of quarrel. He went over towards the place of quarrel and found that Sarjug Manjhi, Jagdish Manjhi, Yogendra Manjhi, Kishun Manjhi, Kailash Manjhi and Gareri Manjhi were present there. Sarjug Manjhi was the order-giver and had called upon his associates to assault, whereupon Jagdish Manjhi and Yogendra Manjhi had delivered bhala blows on Anup Lal Manjhi. Sarjug, Kishun, Kailash had delivered lathi blows on Bango Manjhi who died on account of the injuries at about 12.00 in the night. Gareri Manjhi had injured Punai Manjhi by Bijar. The entire occurrence had taken place on account of theft of cows. Kishun Manjhi was blaming Anup Lal Manjhi of the theft of cows. Anup Lal Manjhi had replied that he is prepared to give the cows if five persons allege to that effect which had led to assault. He recognised all the six accused persons in the dock. 13 He has stated in his cross-examination that he had made statement before the police. The Police officer had recorded his statement at about 6.00 A.M. on the next day. He had stated before the police that Gareri Manjhi had injured Punai Manjhi with his Bijar. He has further stated that he had gone over to the place of occurrence after hearing the quarrel over theft of cows. When he had reached there, he found that Dipan Manjhi, Prakash Manjhi, Somar Manjhi and Kesho Manjhi were present there. They were unable to silence them. After he had reached there, he had noticed that Anup Lal Manjhi was engaged in the quarrel which had gone on for 2-4 minutes. All the six accused persons were present there and were also wielding weapons. P.W.3 felt afraid that “ekjihiV“ may take place and, therefore, stood aside. After receiving the bhala blow, Anup Lal Manjhi had rushed to Dharhara. He had taken Bango Manjhi into his residence and he passed away at about 12.00 in the night. He has also spoken of the two groups, one of Anup Lal Majhi to which he belongs, and the other group of the accused persons. Both the sides are on dining terms. P.W.3 has, inter alia, stated that both Jagdish and Yogendra had delivered bhala blows on P.W.5, whereas the Fardbeyan says that Jagdish 14 Manjhi had alone delivered one bhala blow each on P.W.5. Except this minor contradiction of two bhala blows by Jagdish Manjhi alone, or one bhala blow each by Jagdish Manjhi and Yogendra on P.W.5, the prosecution has not been able to elicit any significant contradiction in the deposition of P.W.3. On the whole he seems to be a truthful and reliable witness. 12. P.W.4 is Shakunwa Devi and is the wife of P.W.5. She appears to be a completely illiterate witness and is not aware of her age also. She has stated in her examination-in-chief that the occurrence had taken place about three years ago on a Tuesday at about 7.00 P.M. She has stated to the effect that she was at the shop of Anandi Sao. Her house is close by. Kailash Manjhi and Kishun Manjhi came to her and stated abusive language against her and threatened that she should produce her husband failing which he would be done to death. Bango Manjhi, her father-in-law, appeared. She has further stated that Kishun and Kailash wanted to unleash the cows but Bango Manjhi said that he will not allow the same. This was followed by assault by the accused persons on Bango Manjhi and Anup Lal Manjhi with Bhala, Bijar and lathis. She has also stated to the effect that Yogendra Manjhi had delivered a 15 Kulhari blow on her father-in-law. Sarjug Manjhi was the order-giver. Kishun Manjhi and Kailash Manjhi had also delivered lathi blows on Bango Manjhi who died at about 12.00 in the night. The occurrence had taken place because of theft of cows. She identified all the six accused persons who were present in the dock. She has stated in her cross-examination that the abusive language had commenced at the shop of Anandi Sao and her husband and father-in-law were not present then. Assault took place soon after the “xkyh&xykSt“ had commenced. They have no quarrel with Badri Manjhi and others. About 10-15 persons were present, when the accused persons had started using abusive language against P.W.4. She has deposed to the effect that her father-in-law had received three Bijar injuries in his stomach. The head had been injured by Kulhari. A number of injuries were caused by lathi also, perhaps 50-100 lathi injuries. 3-4 bhala injuries were also delivered on the back and thigh. Her father-in-law died on the spot. No case had been registered on account of theft of cows. It appears that P.W.4 is an entirely illiterate and rustic woman. She is not aware even of her age. The most remarkable thing about her deposition is that there is no mention of her 16 anywhere else in the entire materials on record including the Fardbeyan. It appears to us that there is a reluctance amongst the members of that section of the society to expose their women to such public affairs, particularly the rough and tumble of litigation. She claims to be an eye-witness, has supported the core of the prosecution case, namely, the entire occurrence took place on account of the grievance relating to theft of cows, the sudden appearance of the accused persons on the place of occurrence, the commencement of the quarrel with abusive language, followed by assault on Anup Lal Manajhi and Bango Manjhi. She has stated the kind of weapons used by the accused persons and has in addition spoken of the use of a Kulhari. There is a minor contradiction in her evidence, inasmuch as the Fardbeyan and the other witnesses have deposed to the effect that the abusive language had first started against Bango Manjhi and Anup Lal Manjhi, whereas P.W.4 has stated that they had started abusive language first against her. But for the difference of version with respect to the details, she has supported the core of the prosecution case. 13. P.W.5 (Anup Lal Manjhi) is a very important witness and is the informant. He has stated in his examination-in-chief that the 17 occurrence had taken place about three years ago on 10.5.1983, at about 7.00 P.M.. He was at his Darwaja. Kishun Manjhi had received a pair of cows from the Dharhara Block which were stolen about 10-20 days ago. Kishun Manjhi and Kailash Manjhi had appeared at the time of the occurrence and had started alleging about theft of cows followed by use of abusive language against Anup Lal Manjhi. Jagdish Manjhi was present with bhala, Gareri Manjhi with Bijjar, Yogendra Manjhi and Sarjug Manjhi with lathis. Sarjug Manjhi was the order-giver, whereupon Jagdish Manjhi delivered two bhala blows on him which landed on two portions of his body as a result of which he fell down. Kishun Manjhi, Yogendra Manjhi, Gareri Manjhi. Kailash Majhi, and Sarjug Manjhi assaulted his father. He went over to the police station along with Bipul Manjhi. His Fardbeyan was recorded at Dharhara police station at 10.00 P.M. It was recorded in the hand-writing of the Jamadar Saheb which was read over to him and he had affixed his signature on it. He identified his signature on Exhibit.1. He was forwarded to Dharhara hospital where his injuries were treated. His father died on account of the injuries in the mid-night. He identified all the six accused persons in the dock. 18 He has stated in his cross-examination that he has given a description of the neighbourhood as well as shop of Anandi Sao. He has stated in his cross-examination that Kishun Manjhi and Kailash Manjhi had charged him of the theft of his cows. P.W.5 had complained of the same to the Mukhiya, who did not hold any Panchayati. He had not filed any Sanha as to the false allegation against him. The accused persons had engaged in using abusive language at the residence of P.W.5 which had gone on for about 2 minutes, followed by assault. Nobody had interceded. Assault had commenced after five minutes of the commencement of abusive language. About 5-10 men, and about 5-10 women, of the village were present at the time of the occurrence. He has stated that he had received three bhala injuries and 2-4 lathi blows, as a result of which he had fallen down. They did not assault him after he had fallen down and thereafter they assaulted his father. Punai Manjhi alias Prakash Manjhi had attempted to intercede and received Bijar injury from Gareri Manjhi. No other person had tried to intercede. Blood had oozed out of his injuries. Rain had taken place at that night at about 10.00 to 11.00 P.M. and had continued for about 1 to 11/2 hours. 19 P.W.5 is the informant and has fully supported the prosecution case, except that he has stated in his deposition that he had received three bhala injuries, whereas the Fardbeyan states that he had received two bhala injuries. Furthermore, he has not stated in his deposition of the bhala injury or the Bijar injury on his father. We consider these to be minor contradictions. On the whole, he has impressed us as a truthful witness and the prosecution has not been able to elicit any significant contradiction in his deposition. 14. P.W.6 is Naresh Prasad Sharma, was the Officer in-Charge of Dharhara Police Station, i.e. on 1.2.1985. He had undertaken