IN THE HIGH COURT OF JHARKHAND AT RANCHI

Transcription

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.Appeal (D.B.) No.1524 of 2006 Against the judgment and order of conviction and sentence dated 14 th July, 2006, passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 225 of Kishore Kindo 2. Leo Kindo 3. Xavier Kindo 4. Issak Kindo Appellants Versus State of Jharkhand Respondent CORAM: HON BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE AMITAV K. GUPTA For the Appellants : M/s A.K. Chaturvedi For the Respondents : A.P.P. Order dated 25 th June, 2014 Per D.N. Patel, J 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 14 th 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 Section 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 Section 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 8 th April, 1998 at 5.15 a.m. the informant Prakash Kishore Bilung (P.W.4) gave fardbayan to Police that on 7 th 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

2 -2- 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 December 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.

3 -3- Details regarding eight witnesses examined by the prosecution is given below in a tabulated form. Sr. No. of the witnes s Name of the prosecution witness P.W.-1 Shanta Bilung Details She is the daughter of deceased Moris Bilung and is the injured Eye witness of the occurrence P.W.2 Rimish Kullu He has proved his signature in the three Inquest report of Moris Bilung, Sabina Tete and Julias Bilung i.e. marked as Ext. 1,1/1 and ½ and has also proved the signature of Innocent Kullu in the three Inquest report of Moris Bilung, Sabina Tete and Julias Bilung i.e. marked as Ext.1/3, ¼ and 1/5. P.W.3 P.W.4 Shashi Bhushan He is the Hearsay witness. He has proved his signature in Fardbayan i.e. marked as Ext. 1/6 Prakash Kishore Bilung P.W.-5 Dr. Krishna Deo Choudhary P.W.-6 Libnush Tete P.W.-7 Nikolash Tete P.W.-8 Rana Ram Badan Singh He is the informant of this case and is also injured Eye witness of the occurrence. He has proved his signature in the Fardbayan i.e. marked as Ext. 1/7 He is the Doctor who has conducted the Postmortem of the dead bodies of Sabina Tete, Julias Bilung and Moris Bilung and has proved the aforesaid three Post-mortem reports i.e. marked as Ext.2, 2/1 and 2/2. He has also examined injured Shanta Bilung and Prakash Kishore Bilung and proved their injury reports i.e. marked as Ext.3 & 3/1 He has proved his signature in the three seizure lists i.e. marked as Ext. 4, 4/1 and 4/2 He has proved his signature in the three seizure lists i.e. marked as Ext.4/3. 4/4 and 4/5 He is the Investigating Officer of this case. He has proved the Fardbayan i.e marked as Ext.5. He has proved the Formal FIR i.e. marked as Ext.6. He has proved the three inquest report i.e. marked as Ext. 7, 7/1 and 7/2 and has also proved the three seizure lists i.e. marked as Ext. 8, 8/1 and 8/2 and has also proved the injury report of Prakash Kishore Bilung and Shanta Bilung i.e. marked as Ext. 9 and 9/1 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

4 -4- 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 7 th April, 1998, whereas statement before police was given at about 5.15 a.m. on 8 th April, 1998 and the F.I.R. was lodged on 8 th April, 1998 at about 9.30 a.m. at Simdega police station being Simdega P.S. Case No.31 of 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.

5 -5- 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. 4. It is submitted by the learned A.P.P. that no error has been committed by the learned trial court in appreciating the evidences on record. There is no major omission, contradiction and improvement in the depositions of the prosecution witnesses. Though the witnesses have given their depositions after 14 months and though they are rustic witnesses, especially P.W. 1 and P.W. 4, they have clearly narrated the role played by these appellants in causing murder of the deceased persons. It is further submitted by the A.P.P. that there is no delay in lodging the F.I.R. Every minute and every hours delay is not required to be explained by the prosecution. P.W.4 has given his Fardbayan before the police properly. Three persons have been murdered in this case and two are injured. Statement of P.W.1 was recorded at Rourkela hospital. P.W.1, who was unconscious, was initially referred to Simdega Hospital and thereafter to Rourkela hospital. P.W. 4 is the brother of the P.W.1 and close relatives of these brother and sister have been murdered. In these set of circumstances, when P.W. 4 has given his statement at 5.15 hours in the next morning, it is not fatal to the prosecution at all. It is also submitted by the A.P.P. that the whole incident has taken place at the house of the deceased. Appellants were more than five in number and were having deadly weapons in their hands and therefore, other persons might not have come to the place of occurrence, out of fear. It is submitted by the learned A.P.P. that whenever any evidence is given by close relatives of the deceased, before it is discredited by the court, it should be scrutinized carefully. In this case, P.W. 1 and P.W.4 both are injured eye witnesses. Their injury certificates, which are Ext. 3 and 3/1 have been proved by P.W. 5 Dr. Krishna Deo Choudhary. Thus, presence of P.W. 1 and 4 at the scene of occurrence is proved by the prosecution beyond reasonable doubt. Looking to the deposition of P.W.1 and P.W. 4, it appears that they have clearly stated that these appellants came to the house of the victims. These two witnesses have also pointed out the intention of the murder to be some previous case and the appellants were insisting to withdraw the said case and as the victims

6 -6- refused to withdraw the same, these murder have taken place. Looking to the cross examination of P.W.1 and P.W. 4, it appears that nothing is coming out in favour of the appellants. Thus, it is submitted by the A.P.P. that the court has rightly appreciated the evidences on record and the prosecution has proved the offence of murder and other offences committed by these appellants beyond reasonable doubt and hence, this appeal preferred by the appellants may not be entertained by this court. 5. Having heard the counsel for both sides and looking to the evidences on record and facts and circumstances of the case, it appears that the whole incident has taken place on 7 th April, 1998 at about hours. On perusal of the F.I.R., it appears that P.W.4-informant -Prakash Kishore Bilung has stated before Simdega Police Station on 8 th April, 1998, at about 5-15 a.m. that on the previous day, at about 8 p.m., when they were in the house along with his father, mother, sister, one Pushpa Bilung and one Sabina Tete, these appellants came along with weapons. They have insisted for withdrawal of a previously registered criminal case. There was hot altercation and ultimately they caused fatal injuries to Morish Bilung, Julias Bilung and Sabina Tete, who expired on the spot and in detail he narrated the whole incident that has taken place and how they tried to run away and how these appellants have also caused injuries to him (P.W.4) and his sister (P.W.1.). P.W. 1 became unconscious, who was taken to Government Hospital at Simdega, from where she was referred to Rourkela hospital and her statement was recorded by the police under section 161 of Cr.P.C. and P.W.4 has given his Fardbayan on the next day at 5.15 a.m. and thus immediate is the F.I.R. giving all necessary details about the occurrence. Weapons were also properly narrated and how the deceased persons sustained injuries has also been narrated in the F.I.R. Even the motive was also narrated in the F.I.R.. Police has also sent this F.I.R. immediately on 9 th April, 1998 to the concerned A.C.J.M. Thus, there is no chance of false implication of anyone. Looking to the flow of narration of the incident it appears that there are two eye witnesses who are PW.1 and P.W How to appreciate the evidences given by close relatives Regarding the plea taken by the counsel appearing for appellants that the two injured eye witnesses (P.W.1 and P.W.4) are close relative of the deceased persons and therefore, they are not reliable eye witnesses, it is worth mentioning here that it has been held by the Hon'ble Supreme

7 -7- Court in the case of Vinay Kumar Rai & Anr. v. State of Bihar reported in AIR 2008 (SC) 3276 in paragraph 6 and 13, that: 6. Merely because the eye witnesses are family members their evidence cannot per se be discarded when there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. : (Emphasis supplied) 13. The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even anything... (Emphasis supplied) Therefore, what this court is expected to do is to adopt a careful approach and analyze the evidences of two injured eye witnesses, who are close relatives of the deceased persons, to find out whether they are cogent and credible. 7. Deposition of Shanta Bilung (P.W.1) : On perusal of the deposition given by P.W. 1, who is the daughter of the deceased Morish Bilung (Father) and Julias Bilung (Mother) it appears that she is an injured eye witness to the occurrence. Her presence at the place of occurrence is very natural because as a daughter she was present where her parents were residing. She has clearly narrated that on 7 th April, 1998 at about 8 p.m. these appellants came to the house of the victims along with two

8 -8- other unknown persons. They were armed with deadly weapons in their hand like Tangi- sharp cutting instrument, Dagger, Gupti and also stickhard and blunt weapon. They were insisting for withdrawal of an earlier case and when the victim side refused to withdraw the case, they started assaulting Morish Bilung, Julias Bilung and Sabina Tete. Sabina had come to the house of the victim because she was betrothed to P.W.4. and these appellants had not spared even Sabina Tete, who had nothing to do with the previous case. She was an young girl to be married to P.W.4. Therefore, looking to the deposition of P.W.1, it appears that appellants were aggressive in nature. They came to the place of occurrence with weapons and assaulted and committed three murders. They have also not spared P.W.1 and P.W. 4. P.W.1 was initially taken to Simdega Government Hospital and she was further referred to Rourkela Hospital, where her statement was recorded by the police. She was also treated by Dr. Krishna Deo Chowdhary (P.W.5 ) who gave the injury certificate (Ext. 3). Thus, it appears that she is an injured eye witness and the prosecution has proved the date of occurrence, place of occurrence and the manner in which the whole occurrence has taken place and P.W.1 being an injured eye witness, we see no reason to disbelieve her. PW 1- injured eye witness has also proved that these appellants along with one co-accused, who is original accused no.5, came together during night hours the house of PW 1 and PW 4, having deadly weapons in their hands. They insisted for withdrawal of earlier criminal case and upon refusal by the victims' side, all the members of the assembly, in prosecution of their common object, assaulted Morish Bilung, Julias Bilung and Sabina Tete so severely that all of them expired at the spot, having received multiple incised injuries. Thus, all the accused, against whom the trial has been conducted, including these appellants, who were the members of unlawful assembly, have committed house trace pass after full preparation for causing assault upon the deceased and also for causing assault upon PW 1 and PW 4. Both these eye witnesses have also sustained several incised injuries, as per the medical evidence, given by PW 5-Dr. Krishna Deo Chowdhary. We have also appreciated the cross examination of this witness, which has been read over by the counsels at length. Looking to the crossexamination of P.W.1 she has clearly stated in Para 3 and para 9 about the identity of the accused persons. In paragraph 27, 28 and 29 of her

9 -9- deposition she has stated about the weapons in the hands of the appellants and in paragraph 25 of the cross examination of this witness, she has also stated about the fact that there was sufficient light to identify these appellants. Thus, looking to her cross examination nothing is coming out in favour of these appellants. On the contrary, though she is giving her deposition approximately 14 months and though she is a rustic witness, without any major omission, contradiction and improvement she has stated the role played by these appellants in causing murder of Morish Bilung, Julias Bilung and Sabina Tete. She is, thus, a trustworthy and reliable witness and no error has been committed by the learned trial court in appreciating the evidence given by P.W.1. Looking to paragraph 32 of the deposition of this witness it appears that she was given Tangi blows five times. Tangi is a sharp cutting instrument and looking to the medical evidence given by P.W.5-Dr. Krishna Deo Chowdhary and looking to the injury certificate Ext. 3, there is enough corroboration of the deposition of P.W.1. Moreover, her deposition is also getting enough corroboration from the medical evidence given by P.W. 5 so far as these deceased persons are concerned. Thus, we have no reason to disbelieve this witness-p.w.1 Shanta Bilung, who is an injured eye witness. 8. Deposition of Prakash Kishore Bilung (P.W.4)-Looking to the deposition given by P.W.4 - Prakash Kishore Bilung, it appears that he is the informant of the case and is an injured eye-witness. He has put the criminal law in motion by giving his statement before the police at 5.15 a.m. on 8 th April, 1998 before the Simdega police station. He has narrated the whole incident that took place on 7 th April, at about 8 p.m. He has also sustained injuries. Looking to the deposition given by P.W.4 he has also stated that on 7 th April, 1998 at about 8 p.m. these appellants along with two unknown persons and also along with appellants of the Criminal Appeal no of 2006 (Anjela Kindo) came to the house of the victim with deadly weapons in their hands. They were insisting for withdrawal of the criminal case which was denied by the victim side and therefore, these appellants assaulted and ultimately Morish Bilung, Julias Bilung and Sabina Bilung died on the spot because of the injuries caused by them. P.W.1 and P.W. 4 were also assaulted and they have also sustained injuries. P.W.4 was also examined at the hospital by Dr. Krishna Deo Chowdhary (P.W.5) and her injury certificate is at Ext. 3/1. Looking to the cross-examination of this witness also nothing is coming out in favour of

10 -10- these appellants. On the contrary, in his cross examination P.W.4 has reiterated and reaffirmed his statement, made during examination-in-chief. He has proved his signature on Fardbayan, which is Ext. No. 1/7. His presence in his own house is absolutely natural. He is an injured eye witness and admittedly he is a close relative i.e. son of Morish Bilung and Julias Bilung both deceased, but, only because of that this court can not discredit his evidence. Whenever any close relative is giving deposition, his evidence should be dealt with all care and with all circumspection to be satisfied that he is a trustworthy and reliable witness and no error has been committed by the learned trial court in appreciating the evidences given by P.W.4. PW 4 is an injured eye witness. She has sustained several incised injuries, as per the medical evidence, given by PW 5-Dr. Krishna Deo Chowdhary. This witness has also proved the fact that the accused, who were tried in the Sessions Court, including these appellants, were the members of the unlawful assembly. They came together with deadly weapons in their hands during night hours on 7 th April, 1998 and all of them assaulted the three deceased and also PW 1 and PW 4, in prosecution of their common object. They have also committed house trespass in order to commit the offence of murder and attempt of murder upon P.W. 1 and PW 4. These appellants and one more accused, who was tried in Sessions Trial No. 225 of 1998, assaulted P.W. 1 and P.W. 4, who has sustained several incised injuries on the vital part of their body and skull. These injuries were endangering to the life of PW 1 and PW 4, which tantamount to an offence of attempt to murder of PW 1 and PW Corroboration of ocular evidence by medical evidence: Looking to the deposition given by P.W.5-Dr. Krishna Deo Chowdhary, it appears that he is the doctor who carried out post mortem examination of the three dead bodies. He has narrated the injuries in detail sustained by all the three deceased. The injuries are as under: (a) Injuries found on the person of Sabina Tete as given in post mortem report (Ext.2) (i) Incised wound 2 1/2 x 1 x 1 1/2 over the left side of head with multiple fracture of underlying bones with profuse bleeding. (ii) Incised wound 3 1/2 x 1 1/2 x 2 1/2 over the occipital region of head with fracture of the occipital bone into many piece with profuse bleeding cutting the skin of scalp, skull bone, menages and brain matter. (iii) Incised wound 2 1/2 x 1 1/2 x 2 1/2 over the left side of occipital region of head with fracture of the same bone.

11 -11- (iv) Incise wound 2 x 1 x 1 over the vertex of head with fracture of underlying bones. Internal injuries : On opening the skull, the skull bone was fractured at many places with cutting of meninges and brain matter with profuse bleeding from the wound. There was intra cerebral haemorrhage also. On Opening the abdomen and chest all the abdominal organs were pale in colour. All the injuries were ante mortem and caused by any sharp cutting weapon such a Tangi and all wer grievous in nature. (b) Injuries found on the person of Julias Bilung as given in post mortem report (Ext.2/1) (i) Incised wound 3 X 1 X 1 1/2 over the right molar nepion of face with fracture of right maxilliary bone. (ii) Incise wound 2 1/2 X 1 X 1 over the left side of chin with fracture of mendibul into three to four pieces with extraction of teeth of both jaws. (iii) Incise wound 2 1/2 X 3/4 X 1 over the right side of zygometic area of face i.e. (lateral to the right eye) with fracture of right zygometic bone. (iv) Incise would 3 1/2 X 1 X skin deep over the right arm about 2 to 3 above the right wrist joint with fracture of right radius and ulna. (v) Abrasion 2 1/2 X 1 1/2 with bruises over the extensor surface with fracture of both radius and ulna of left arm. (vi) Incise wound 4 X 2 1/2 X 1 over the left parietal region of skull with fracture of underlying bone with massive damage of meninges and brain matter with excessive bleeding. Internal injury : On opening the skull, there were fractures of skull bones, damage of meninges and brain matter with intra cerebral haemorrhage and massive bleeding from the wound. On opening the abdomen and chest, all the organs were pale. Brain and meningis were conjusted. (a ) Injuries found on the person of Moris Bilung as given in post mortem report (Ext.2/2) (i) Incise would 4 X 1 1/2 X 2 over the right side of occipital region of head cutting scalp. Skull bone, meningis and brain matter with profused bleeding. (ii) Incise wound 1 1/2 X 1/2 X 1/2 over the right ear dividing the right ear into two parts with fracture of right side of mendibular head. (iii) Incised wound 2 1/2 X 1 X 1/2 over the left side of occipital region of skull behind and upward of left ear. (iv) Massive bruise and echomysis over the left side of face, forehead with black staining of skin of there areas with multiple fracture of underlying bone. Internal injury On opening the skull, there were fracture of skull bone, damage and laceration of meningis and brain matter with intra cerebral haemorrhage. On opening the chest and abdomen all the internal organs were pale. Membrane of brain and brain itself were conjusted. P.W. 5 has also examined P.W.1 and P.W. 4, who are the injured eye witnesses. Injury certificates of P.W.1 and P.W.4 at Ext. 3 and 3/1 read as under: The injuries sustained by P.W. 1 are as under: (i) (ii) Incised wound 4 X 1 X scalp deep incised situated over the left side of the forehead just above the left eye suspected of the underlying bone Incised wound 1 X 1/6 X skin deep over the lobule of right ear incise the whole thickness of lobule

12 -12- (iii) Incised would 1 ½ X 1 X scalp deep situated over the occipital region of head. (iv) Incised wound 2 X 1 X scalp deep situated over the forehead suspected # of the underlying bone (v) Incised would 3 ½ X 1 X Scalp Deep, situated over the parietal region of right side of head suspected # of the underlying bone (vi) Incised wound 2 1/2 X 1/2 X Scalp deep situated over the right side of occipital region of head with suspected # of the underlying bone. (vii) Lacerated wound 4 X 1/2 X Scalp deep over the right side of occipital region of head with suspected # of the underlying bone. (viii) General condition of the patient is very very poor. Patient in shock, unconscious. B.P.= not recorded, pulse (radial) not felt The injuries sustained by P.W.4 are as under: (i) Incised wound 4 X 1/2 X 1 in size situated over the mid of forehead profuse bleeding. (ii) Incised wound 1 ½ X 1 X 1 in size, situated over the left side of head profuse bleeding (iii) Incised would 1 ½ X 1 X 1 in size, situated over the lateral side of left eye profuse bleeding. (iv) Incised wound 2 X 1 ½ X 1 in size, situated over the right side of the shoulder. (v) Incised wound 3 ½ X 1 X 1 in size, situated over the left side of parietal area of skull (vi) Incised wound 2 1/2 X 1 X Skin deep in size, over the right side of chest in auxiliary line. (vii) Incised wound 2 1/2 X 1 X Scalp deep in size, situated over the right -parieto- occipital region of head profuse bleeding. On perusal of the injury certificates, it appears that condition of P.W.1 was grave at time she was being treated by the doctor (P.W.5) and several injuries upon P.W. 4 are there on the skull. Looking to the further deposition of P.W.5 it appears that the injuries sustained by P.W.1 and P.W.4 are endangering to their lives and were capable of being caused by sharp cutting instruments. Thus, deposition given by P.W. 5 is giving enough corroboration to the deposition given by P.W. 1 and Regarding submission of the counsel appearing for the appellants that there is inconsistency in deposition of P.W. 1 and P.W.4, we can not accept this contention because looking to the deposition of P.W.1 and P.W.4 there is no inconsistency at all. On the contrary, they have given very cogent and convincing evidence before the learned trial court. They have proved the place of occurrence, date of occurrence and also the fact that these appellants were aggressive in nature, who came to the house of the victim with deadly weapons in their hands. Moreover, these two witnesses have consistently given deposition that these appellants were insisting for withdrawal of earlier criminal case, which was refused by the victim side and therefore, they all assaulted and caused the injuries sustained by Morish Bilung, Julias Bilung and Sabina Tete, who

13 -13- expired on spot. Both these witnesses, P.W.1 and P.W.4 have also stated as to how they sustained injuries and this aspect is corroborated by the medical evidence given by P.W.5. Both P.W. 1 and 4 have suffered more than half a dozen incised wounds. Thus, contention raised by the counsel for the appellants that there are inconsistency in the deposition of prosecution witnesses is not accepted by this court. On the contrary, they have given their deposition without any major omission, contradiction or improvement. Their depositions are also getting enough corroboration from the deposition given by P.W. 5 and no error has been committed by the trial court in appreciating these evidences. 11. Moreover, looking to the deposition of P.W.2- Rimish Kullu, it appears that he has proved his signature upon the inquest reports of deceased Morish Bilung, Sabina Tete and Julias Bilung. They are Ext. 1, 1/1 and 1/2. Thus, inquest Panchnama was also proved by the prosecution by the deposition of P.W.2. Similarly looking to the deposition of P.W. 3 Shashi Bhushan, it appears that he has proved his signature in the Fardbeyan marked as Ext.1/6 given by P.W. 4. Thus, veracity of the Fardbayan is not only proved by P.W.4 and investigation officer but also by P.W.3. Looking to the deposition given by P.W.6 and P.W.7-Libnus Tete and Nikolash Tete, they have proved the seizure panchnama and they have identified their signature on the seizure lists prepared by the investigating officer and those signatures are Ext. 4, 4/1, 4/2, 4/3, 4/4 and 4/5. Looking to the seizure list, it appears that several articles were seized from the place of occurrence which corroborates the place of occurrence narrated by P.W.1 and P.W.4. Thus, depositions given by eye witnesses P.W.1 and P.W.4 is getting enough and adequate corroboration by the seizure lists proved by P.W.6 and P.W.7. Looking to the deposition of P.W.8-Rana Rama Badan Singh Investigating Officer of the case, it appears that he has proved the Fardbayan, which is at Ext. 5., F.I.R. at Ext.6, three inquest reports, which are at Ext. 7, 7/1 and 7/2 and has proved his signatures of three siezure list at Ext. 8, 8/1 and 8/2 and has also proved the injury reports of both the injured eye witnesses Shanta Bilung (P.W.1) and Prakash Kishore Bilung (P.W.4). Looking to the deposition of this investigating officer P.W. 8, it appears that he has stated that immediately the Fardbayan of P.W.4 is recorded on the next morning, i.e. on 8 th April, 1998 at 5.15 a.m after the incident has taken place at 8 p.m. on 7 th April, Looking to his deposition, it appears that P.W. 1

14 -14- and P.W. 4 both were injured. P.W.1 was taken to hospital, initially to Simdega Govt. Hospital and thereafter, to Rourkela Hospital. This -13 Investigating Officer has recorded her statement at Rourkela Hospital. Inquest Panchnama was prepared and dead bodies were sent for post mortem report. Looking to his deposition, it appears that there is no major omission, contradiction and improvement in the deposition given by P.W. 1 and P.W.4. He has also stated about the place of occurrence in detail, which gives enough corroboration to the deposition given by P.W.1 and P.W.4. Thus, over all, looking to the deposition given by P.W.1 and P.W.4, which is getting enough corroboration from the medical evidence by P.W.5 and who themselves are also injured eye witnesses, it appears that the prosecution is successful in proving the offence of three murders beyond reasonable doubt and no error has been committed by the learned trial court in appreciating these evidences cumulatively. There is no discrepancy between ocular evidence and medical evidence given by P.W.1 and P.W.4 to be read with deposition given by P.W Counsel for the appellants has further argued that no F.S.L. report regarding the seized articles, Panchanama whereof has been prepared, has been placed on record and therefore, judgment and order of conviction and sentence passed by the learned trial court deserves to be set aside. We do not accept this contention mainly for the reason that case of the prosecution is based upon more than one eye witness and more particularly when they are injured eye witnesses and in the facts of the present case both are sustained more than half a dozen incise wounds and their presence at the place of occurrence is very natural and as there is no contradiction, omission and improvement in their deposition a slight error committed by the investigating agency cannot be appreciated for acquittal of these appellants. No benefit can be given to this appellants for an error committed by the investigating agency in not putting on record the F.S.L. Report. Looking to the siezure lists, which were proved by P.W.6 and P.W. 7, adequate material were seized and they are the witnesses of those seizure list articles. These articles are incriminating in nature and therefore, their deposition corroborates the deposition given by P.W.1 and P.W Learned counsel appearing for the appellants has stated that there is no specific narration by both the witnesses P.W.1 and P.W.4 as to who caused what injury upon whom and the allegation are general and

15 -15- omnibus in nature and hence both the injured eye witnesses are not reliable and trustworthy. This contention is far away from the truth, looking to the deposition of P.W.1 and P.W.4, who have clearly narrated how the whole incident has taken place without any exaggeration. They have stated that on 7 th April, 1998, at about 8 p.m. when P.W. 4 and P.W. 1 and all the three deceased were in their house, these appellants came with deadly weapons in their hands. They assaulted these three deceased, who expired on the spot, as well as two injured eye witnesses, i.e. (P.W. 1) Shanta Bilung and (P.W.4) Prakash Kishore Bilung. Medical evidences given by P.W.5 are absolutely corroborative of the deposition given by P.W.1 and P.W.4. When the witnesses are giving their depositions after approximately 14 months and when they are rustic witnesses the court can not expect a detailed narration of injuries caused by the assailants. Mathematical precision expected of the narration of the whole incident by P.W. 1 and P.W. 4 is not called for and not warranted. We are fully satisfied looking to the deposition of P.W.1 and P.W. 4-injured eye witnesses that the appellants were aggressive in nature, they came, threatened and assaulted as a result of which three persons expired on the spot while two were injured and nothing is coming out in cross-examination of the prosecution witnesses in favour of these appellants. There is enough corroboration by medical evidence to their deposition and therefore, prosecution has proved the offences of murder as well as attempt to murder under Section 307 of I.P.C. endangering the life of P.W.1 and P.W.4 with an unlawful assembly punishable under Section 149 I.P.C. beyond reasonable doubt. Court can not expect vediographic narration of the whole incident like who caused what injury with what weapon. 14. Regarding the submission of counsel appearing for the appellants that these appellants have been languishing in jail since the last 16 years and in the jail their behaviour through out has been very cordial, we fail to appreciate the same as there bound to be a cordial behaviour in jail. The court has punished these appellants for their behaviour in society against set norms of behaviour established in the society by law and the deterrent effect of their behaviour on others. Merely because their behaviour in jail is cordial can not be a reason to set aside the judgment and order of conviction and sentence passed by the trial court. 15. The prosecution also proved the offence punishable under Section