). ------------- 1. Pradhan Hansday @ Hansda, son of Late Churka Hansda 2. Birzoo v. The State of Bihar
Case Details
- 1 - IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 425 of 1993 (P) (Against the judgment of conviction dated 05.08.1993 and order of sentence dated 06.08.1993 passed by the Addl. Sessions Judge, Pakur (SBG) in Sessions Case No. 50 of 1992/103 of 1992 arising out of Littipara P.S. Case No. 0039 of 1991). ------------- 1. Pradhan Hansday @ Hansda, son of Late Churka Hansda 2. Birzoo Marandi, son of Gosin Marandi Both Residents of village Udalbani, P.S.-Littipara, Dist. Sahebganj. … … Appellants Versus The State of Bihar … … Respondent -------- For the Appellants For the State : Mr. Rajeeva Sharma, Senior Advocate Mrs. Anjana Rana, Advocate : Mr. Pankaj Kumar Mishra, A.P.P. -------- PRESENT HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND Per Sujit Narayan Prasad, J. ------- The instant Criminal Appeal is directed against the judgment of conviction and order of sentence dated 05.08.1993 and 06.08.1993 respectively passed by the Additional Sessions Judge, Pakur (SBG), District Sahebganj in Sessions Case No. 50 of 1992/103 of 1992 whereby and whereunder the accused persons have been convicted for the offence under Section 302/34 of the Indian Penal Code (in short IPC) and have been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code. 2. The instant appeal arises out of an F.I.R. being Littipara P.S. Case No.0039 of 1991 dated 28.09.1991 whereby and - 2 - whereunder it has been alleged that on 28.09.1991 at about 12:30 a.m.(night) the cries of children were heard coming out from the house of Swarup Hansda situated at village Udaiboni, P.S. Littipara, District-Sahebganj. Hearing the cries of the children, the informant came out of his house with a torch in his hand and along with him Nakul Mirdha and Toila Mirdha also came out from their respective houses with torches in their hands. They saw the accused Pradhan Hansda and Birju Marandi coming out from the house of Swarup Hansda with axe (Tangi) in their hands having wooden frames. The informant also saw that the Tangis in their hands were stained with blood. Accused persons after seeing informant and others fled away to their home. All these caused suspicion in the minds of informant and others and they went near the house of Swarup Handa and called him out but there was no response. In the meantime Amin came from behind the house from a courtyard (Dhawa) and along with him they all entered into the house. On entering the house the informant saw the dead-body of Dhunu Tudu (son-in-law of Swarup Hansda) lying in the middle of the room. Inside the room there was dead body of Meru Hansda and both were asleep on two different cots and their necks were cut with a Tangi and blood was oozing out. Inside the house towards the south the dead bodies of Swarup Hansda and his wife Dumni Hembrom were lying. Both were sleeping on a mat spread on the ground and their necks were also cut - 3 - by Tangis and there was profuse bleeding from the body of deceased persons. The informant suspected that all the four deceased were killed by accused Pradhan Hansda and Birju Marandi because they were seen coming out with blood stained Tangis in their hands from the house of Swarup Hansda. It has further been stated that Amin was sleeping in the western courtyard (Dhawa) of the house of Swarup Hansda. The informant and others got up hearing cries of the children and alarm raised by the Amin. The Amin told that several times he called Swarup Hansda to inquire that why children were crying but no reply came from the house. Many villagers gathered at the place of occurrence after hearing the news of murder of four persons. Then the informant and Choukidar Rama Paharia along with others again entered inside the house of Swarup Handa and saw the dead bodies of four deceased persons. It is the further case of the prosecution that this Swarup Hansda had kept his daughter Meru in his house along with her husband Dhunu Tudu as Gharjamai for the last 14 to 15 years. It was learnt that Swarup Hansda was likely to get all his properties recorded in the Parcha in the name of his daughter and son-in-law and the accused Pradhan Hansda, in order to prevent Swarup Hansda from doing so, killed him and his family members in collusion with his brother-in-law (Sala) accused Birju Marandi. He killed all the four deceased - 4 - persons while they were lying asleep. Deceased Swarup Hansda had one brother Churka Hansda who died much earlier and their properties were partitioned during his life time. Accused Pradhan Hansda is son of Churka Hansda who lived separately from his uncle Swarup Hansda and he wanted to get the entire properties of his uncle Swarup Hansda after his death. 3. On the statement of the informant a formal F.I.R. was drawn up. Police took up investigation and submitted charge- sheet in this case. The Addl. Chief Judicial Magistrate took cognizance in the case on 15.02.92 and committed the case to the Court of Sessions vide order dated 26.02.92. The case thereafter was transferred to the Court of the Additional Sessions Judge where the accused pleaded not guilty and claimed to be tried. 4. The prosecution, altogether, has examined nine witnesses and relying upon the deposition of P.W.5, namely, Sushil Tudu, a boy aged about 10 years and after taking into consideration the corroborative piece of evidence which has been gathered in course of examination of the other witnesses including the examination of the Doctor who was examined as P.W. 1 namely Dr. Bindu Bhushan, has convicted the accused persons after finding charges proved beyond all reasonable doubts and thereafter sentence was passed accused/appellantd to undergo rigorous imprisonment for the offence under Section 302/34 of the I.P.C. which is the - 5 - subject matter of the instant appeal.
Legal Reasoning
5. Mr. Rajeeva Sharma, learned Sr. Counsel assisted by Mrs. Anjana Rana, has submitted while assailing the impugned judgment by taking the ground that the informant, namely, Lakhi Ram Gourya, in course of trial has turned hostile and as such the reliability of the F.I.R. is in question. It has been submitted that the Trial Court while convicting the appellants mainly on the basis of deposition of P.W.5, a child having age of about 10 years, cannot be said to be justified decision, since, the aforesaid child witness has not disclosed the name of the accused persons at the time of institution of F.I.R. by the informant. It has been submitted that since the F.I.R. itself is in question and conviction since is based upon the sole testimony of P.W. 5, who is a child witness, cannot be said to be proper and as such the impugned judgment requires interference by this Court. It has further been submitted that even the Doctor has not supported the case of prosecution, since, there is discrepancy with respect to time of occurrence/death. Further submission has been made that F.I.R. has also been instituted after some delay without any explanation and, as such, relying upon the evidence of sole child witness having the age of 10 years, in such circumstances, cannot be said to be justified while convicting the accused persons. 6. Mr. Pankaj Kumar Mishra, learned Addl. Public Prosecutor has submitted that there is no illegality in the - 6 - impugned judgment passed by the Trial Court, reason being that occurrence took place at 12:30 a.m. (in night) on 27/28.09.1991. The informant, namely, Lakhi Ram Gourya has reported the occurrence by narrating the story that on hearing the cries of the children and when no response has come from inside the house and when the informant along with others have entered into the house, it was seen that there were murder of four persons i.e. mother, father, grandfather and grandmother of child witness (P.W.5) and both the accused/appellants were seen coming out with blood stained tangi in their hand from house of Swarup Hansada. It has further been submitted that so far as contention made on behalf the appellants that there cannot be conviction on the basis of deposition of the sole testimony of the child witness has not worth to consider because as the case herein, since P.W.5 is having age of 10 years and has deposed about the culpability of the accused persons, namely, Pradhan Hansda and Birju Marandi who happens to be kith and keen of the concerned family and this witness has seen through his naked eye about the commission of offence of killing of his mother, father, grandfather and grandmother. It has further been submitted that the testimony of child witness cannot be accepted only in a case when testimony of the child witness is based upon tutoring but there is no question like that as would appear from the - 7 - deposition of P.W.5. It has further been submitted that the occurrence took place at 12:30 in the night on 27/28.09.1991 and the very following day in the morning F.I.R. was instituted and as such what has been contended on behalf of the appellants about the delay in instituting the F.I.R. cannot be acceptable and that cannot be reason to vitiate the prosecution story. The learned Trial Court after taking into consideration the deposition of P.W.5, the child witness and also taking into consideration the deposition of the Doctor who had conducted the post-mortem, has correctly found the charge levelled against the accused persons to be proved. The learned Counsel in the backdrop of the aforesaid submission has submitted that the judgment impugned suffer from no illegality. 7. We have heard the learned counsels for the parties and considered the deposition of the witnesses, as provided by way of paper book, including the F.I.R. and other exhibits. 8. From the materials available on record it is evident that the prosecution in order to prove the charge has examined altogether nine witnesses. P.W. 1 is the Doctor namely Bindu Bhushan who had conducted post-mortem on dead body of deceased, namely, Swarup Hansda, Dhumi Hembrom, Dhunu Tudu and Meru Hansda. It is evident from the deposition made by the Doctor that - 8 - following ante-mortem injuries were found on the body of deceased Swarup Hansda :- i. Sharp-cut injury 2”x ½“x muscle deep on the left side of cheek on mandibular portion with fracture of left mendible. ii. Sharp cut injury 3” x ½” muscle deep on the left side of neck with damage of great vessels of neck and trachea too. iii. Sharp cut injury of 1” x ½” on the front of the left chest near the nipple x visceral depth with fracture of 3rd and 4th ribs of the left side with injury of pleura and lung. Left thoracic cavity was full of ante mortem blood. iv. Sharp cut injury 1” x ¼” x skin deep on the front of left knee joint. Following ante-mortem injuries were found on the body of deceased Dumni Hembrom :- i. Sharp-cut injury 3”x 1“ x muscle deep. Fracture of right scapula, clavicle 2nd and 3rd rib with damage of right lung. ii. Sharp cut injury 1” x ½” x muscle deep on right side of neck with damage of great vessel. Following ante-mortem injuries were found on the body of deceased Dhunu Tudu :- i. Sharp-cut injury 3”x ½“x bone deep on the left side of cheek with the fracture on left, mendible. ii. Sharp cut injury 2½” x ½” x muscle deep on the left side of neck with injury of great vessels and trachea. iii. Sharp cut injury on front of left chest wall 2”x ½” visceral deep with fracture of 3rd and 4th rib damaging pleura and lung. iv. Chest cavity full of ante-mortem blood clot. Following ante-mortem injuries were found on the body of deceased Meru Hansda :- i. Massive sharp-cut injury 10”x 5“ x muscle deep with injury of great vessels of left side of neck,. Muscle of neck lacerated with blood with a fracture of left scapula and with injury of left lung. ii. Sharp cut injury 2” x 1” x muscle deep on front of right chest wall with injury of breast tissue and fracture of 3rd and 4th rib damaging right pleura and lung. iii. Fracture of right humerus in the middle. - 9 - 9. One Mangal Hembrom was examined as P.W.2. He has deposed that he has heard about murder of four persons namely Swarup Hansda, Dumni Hembrom, Meru Hansda and Dhunu Tudu. He has deposed that he has put his L.T.I (Thumb Impression) on the inquest report which was prepared by the Sub-Inspector. He also deposed that the Sub-Inspector has seized the blood stained soil from near the four dead bodies and seizure list was prepared and he has put his L.T.I (Thumb Impression) on the seizure memo. He has further deposed that there was no seizure of any article from the house of Pradhan Hansda. He was cross examined and in his cross-examination he has stated that he put his L.T.I (Thumb Impression) on the blank paper. 10. One Sakal Marandi was examined as P.W.3 has stated that inquest report of four dead bodies were prepared by Sub- Inspector and he put his L.T.I (Thumb Impression) on blank paper. 11. One Nakul Mirdha was examined as P.W.4. and has deposed that nothing has been seized by Sub-Inspector in his presence. 12. One Sushil Tudu was examined as P.W.5 who happens to be the son/grandson of the deceased persons and has identified the accused persons in the Court and deposed that the accused persons has killed his mother, father, grandfather and grandmother. In cross-examination he has stated that he is not speaking based on any tutoring. - 10 - 13. Lakhi Ram Maraiya P.W.7, the informant has deposed that at about 12:30 a.m. in the night of 27/28.09.1991 on the date of occurrence while he was in his house heard the noise of one Amin. He came out from his house and saw that some villagers were assembled near the house of Swarup Hansda. They had gone to the house of Swarup Hansda and saw that Swarup Hansda and his wife Dumni Hembrom were found dead. However, he did not see anybody coming out from the house of Swarup Hansda. He thereafter rushed to the concerned police station where his statement was recorded on which he put his L.T.I (Thumb Impression). In cross examination he has denied what he has stated in the Fardbeyan. 14. One Toila Mirdha was examined as P.W.8. He has stated in his examination-in-chief that he has not seen commission of occurrence. He, however, has deposed that in the light of the torch he had seen that somebody was sleeping in the cot and same was stained with blood. He has stated in cross- examination that he has not said like that while he rushed towards the house of Swarup Hansda, he has seen in the light of the torch that Pradhan Hansda and Birju Marandi were fleeing away from the residence of Swarup Hansda. He has also stated that he has not said that both the accused persons were having axe. 15. Raj Balam Singh, Investigating Officer, was examined as P.W.9 has stated in his examination-in-chief that he has - 11 - recorded statement of the informant which was read over to him and thereafter informant has put his L.T.I.(Thumb Impression). Earlier he had identified the handwriting of one Kamla Kant Singh, the constable posted in the concerned Police Station who had written the Fard beyan put his signature which he identified. He has further submitted that at 4 p.m. in the evening he reached to the place of occurrence on 28.09.1991 and saw the body of deceased Swarup Hansda, Dumni Hembrom, Dhunu Tudu and Meru Hansda. He has prepared the Inquest report of deceased Swarup Hansda, Dumni Hembrom, Dhunu Tudu and Meru Hansda and took L.T.I.(Thumb Impression) of one Mangal Hembrom and Sakal Marandi. He has further stated about the place of occurrence and while giving description of the place of occurrence along with boundary has stated that blood was there. He further deposed that seizure of the blood stained soil was made which was prepared in presence of the witnesses Mangal Hembrom and Nakul Mirdha. He has further stated that he has not sent the blood stained soil and the axe for its chemical examination and after completion of the investigation he has submitted charge-sheet. He has further stated about recording of the statement of the different witnesses in course of investigation. He has taken statement of Nakul Mirdha who had stated that at about 12:30 in the night there were cries of the children coming out from the house of deceased persons due to which - 12 - he has awaken from sleep and after getting torch he came out from house and found that accused persons were fleeing from the house of Swarup Handa. Nakul Mirdha has further stated that from the house of Swarup Hansda (Pradhan) accused persons, Pradhan Hansda and Birju Marandi were coming out having Tangi (axe) in their hands stained with blood and after seeing the informant, accused persons have started fleeing away. It has been disclosed to the Investigating Officer that Sushil Tudu and Talamai Tudu have been seen while they were crying. P.W.9 further stated that witness namely Sushil Tudu has given his statement before him that he was sleeping with his father on a cot and he has been pulled away from the cot. However, the aforesaid statement has been objected by the defence. The statement of Lukhi Ram Gaurya was also recorded by the Investigating Officer who has narrated the story as was narrated by Nakul Mirdha. The Investigating Officer P.W.9 was cross-examined and stated that at time of institution of F.I.R. he was knowing the name of the accused persons. He has further stated that after reaching to the place of occurrence he has not searched out the concerned Chowkidar and he has also not tried to know about him. He has further stated that till submission of charge-sheet he has not taken any statement from Chowkidar. 16. The accused persons, appellants, herein after - 13 - conclusion of the examination of the prosecution witnesses have been subjected to statement to be recorded under Section 313 of the Cr.P.C. wherein they have denied the depositions which has come in course of the examination of the witnesses. 17. The trial court after considering the deposition, particularly, deposition of P.W.5 has found the charge against the appellants proved beyond all reasonable doubts and accordingly convicted them for commission of the offence under Section 302/34 of the I.P.C. and sentenced them to suffer rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code. 18. This Court after describing the factual aspect is now proceeding to examine the argument advanced on behalf of the appellants as recorded hereinabove. The foremost ground which has been agitated on behalf of the appellants that there cannot be conviction solely based upon testimony of child witness, if such testimony is not being corroborated with the deposition of other witnesses. 19. The proposition of law is well settled, so far as the consideration of the deposition of child witness is concerned, as has been laid down by the Hon’ble Apex Court in case of “Suryanarayan vrs. State of Karnataka”, reported in (2001) 9 SCC 129 wherein it has been held that “in the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the - 14 - prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purpose of holding the accused guilty or not”. The Hon’ble Apex Court, in the case of “Panchhi vs. State of U.P.”, reported in (1998) 7 SCC 177 has held that “the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law”. The same view is reiterated in the case of “State of U.P. vs. Ashok Dixit”, reported in (2000)3 SCC 70. 20. Further it will not out of place to mention here that while appreciating the evidence of child witness, the court are required to rule out the possibility of the child being tutored. Reference in this regard may be made of the judgment rendered by Hon’ble Apex Court in Suryanarayana v. State of Karnataka (Supra) wherein in para-5 it has been held that :- “5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, - 15 - but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.” 21. This Court, therefore, is now proceeding to examine to test the admissibility of the evidence of P.W.5 who happens to be at the age of about 10 years. This Court in order to scrutinize to see as to whether there is any tutoring of the child witness whereupon the entire conviction is based, at the risk of repetition the deposition of the P.W.5 is being - 16 - reiterated herein and from perusal of the statement so recorded it is evident that there is no question put by defence regarding statement being given by the P.W.5 on being tutored rather as would appear from the cross examination as under paragraph 6 thereof that the P.W.5 the child witness has specifically denied the suggestion by deposing that it is not correct that he has not seen the accused persons committing murder of his parents and the grandparents. He has further stated that it is not correct that what has been stated by him is based upon any tutoring. It is thus evident that if the deposition of P.W.5 will be taken into consideration in entirety, the part of the issue of tutoring in order to prove the point of inadmissibility of the deposition of P.W. 5 is not available. It further appears as per statement made in paragraph 1 and 2 of the Examination-in–chief that P.W. 5 has taken the name of Birju Marandi and Pradhan Hansda while making statement that Birju and Pradhan have killed his father by axe (Kulhari). He has further stated by identifying the accused persons that they are the persons who have killed his mother, father, grandfather and grandmother. He has further said that he had seen the accused persons while committing such offence and all the accused persons are present in the Court. 22. It requires to refer here that a question may arose that what is the sanctity of the statement of P.W. 5 who happens - 17 - to be the age of about 10 years. The question of the understanding of the P.W. 5 can be an issue but if the depositions of the P.W. 5 may be seen on his face, it would be evident that P.W. 5 has given his statement in Santhali language which were translated by one Nirmal Tudu in Hindi language. It further appears that the trial Court has assessed the intellect of mind set of P.W.5 by asking certain question from him like counting 1 to 10 and what is the date of his appearance in the Court. The trial court after convinced about his mind set that he can give statement thereafter has recorded the statement of this witness. It also further required to refer that not any question has been put on behalf of the defence regarding the mindset of the P.W.5 by raising a question that he is not competent to testify the occurrence. It is thus evident that after going through the deposition of P.W. 5 and taking into consideration the proposition of law laid down by the Hon’ble Apex Court as referred to hereinabove, this Court is of the view that since there is absence of any tutoring of the P.W.5 and as such there is no reason to disbelieve what has been deposed by the P.W.5 in support of the commission of the offence. 23. This Court is now proceeding to examine as to whether what has been deposed by P.W.5 has found corroborated from the deposition of the other witnesses including the Investigating Officer, the Doctor and the informant. - 18 - Although the informant has subsequently not supported the case of the prosecution but perusal of the statement what has been given by him before the Investigating Officer and the same is recorded by the Investigating Officer wherein he has admitted that he after hearing cries of the child coming out from the house of the deceased persons had come out of his house with the torch and seen in the light of torch that the accused persons, namely, Pradhan Hansda and Birju Marandi were coming out with the blood stained axe (Kulhari) from the house of Swarup Hansda. Thereafter he rushed to the concerned police station. The question which is being raised on behalf of the appellants that since the informant has turned hostile, the very basis of the prosecution case, i.e., institution of F.I.R., became vitiated and lost its leg. 24. In context of aforesaid contention of the learned counsel for the appellants, it is pertinent to mention here that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the investigating agency and merely because informant had turned hostile, it cannot be said that the FIR would lose all its relevancy and cannot be looked into for any purpose. Reference in this regard may be made of the judgment as rendered by Hon’ble Apex Court in Bable v. State of Chhattisgarh, [(2012) 11 SCC 181] wherein at paragraph 13 and 14 it has been held which read hereunder as:- - 19 - “13. Reverting to the submissions made on behalf of the appellant, we may refer to the fact that the FIR had been lodged upon the statement of PW 1. PW 1 did not completely support the case of the prosecution and with the permission of the Court he was declared hostile. The contention is that the case of the present appellant would also stand equated to the case of the two acquitted accused persons and the High Court has fallen in error of law in not acquitting the appellant-accused as well. It cannot be denied that the FIR, Ext. P-1 was registered upon the statement of PW 1 and he himself has not supported the case of the prosecution, which creates a doubt in the case of the prosecution. 14. Once registration of the FIR is proved by the police and the same is accepted on record by the court and the prosecution establishes its case beyond reasonable doubt by other admissible, cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary value of the FIR. The FIR, Ext. P-1, has duly been proved by the statement of PW 10, Sub- Inspector, Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW 1 and it was duly signed by him. The FIR was registered and duly formed part of the records of the police station which were maintained in normal course of its business and investigation. Thus, in any case, it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the investigating agency. Merely because PW 1 had turned hostile, it cannot be said that the FIR would lose all its relevancy and cannot be looked into for any purpose.” 25. Here in the given fact of the case if the statement of the Investigating Officer will be seen, it is the informant who has - 20 - stated before the Investigating Officer that he is the person who has given fardbayan after knowing about the death which he has seen in the light of torch after coming out from his residence after hearing the cries of the child coming out from the house of the deceased. The aforesaid submission does confirm about the institution of the F.I.R. It is further evident that he has been declared hostile in course of trial but he has not disputed the fact that he has not given fardbayan directing about the occurrence disclosing the name of the appellants. Since the prosecution is to prove charge beyond all reasonable doubt and therefore in the criminal trial the evidence in entirety is required to be considered and there cannot be in piecemeal consideration of evidence which suits the accused for his acceptance. P.W. 5 has given specific statement about the involvement of the appellants in committing crime by identifying in the Court and also by taking their names. A question may arose that an offence said to be committed under Section 302 of the I.P.C. in absence of any motive cannot be said to be attracted with the ingredients of Section 302 of the I.P.C. but that aspect is also not in favour of the appellants, since, it has come on record that it is due to handing over the entire property in the name of his daughter and Gharjamai. The accused Pradhan Hansda in order to prevent Swarup Hansda from doing so, has killed him and his family members in collusion with his brother-in-law (Sala) - 21 - accused Birju Marandi, therefore, the motive is also proved and hence the ingredients available under Section 302 of the I.P.C. is well available. This Court after taking into consideration the deposition of the P.W.5 coupled with the Investigating Officer and the post-mortem report showing therein the nature of injury and opinion of the concerned Doctor leading to the death of the four deceased, is in clear understanding that the prosecution has been able to prove the charge beyond all reasonable doubt. 26. Argument has also been advanced on behalf of the appellants that there is delay in instituting the F.I.R. and this ground also has not been taken into consideration by the Trial Court. This Court has considered the time and date of occurrence which as per the record as 12:30 in the night on 27/28.09.1991 while F.I.R. was instituted at 10:00 a.m. in the next following day as given. Thus the F.I.R. was instituted within 12 hours from the time of occurrence. In the given facts of the case where there was murder of entire family members leaving behind two minor having the age of 10 years and 5 years, there cannot be any situation to institute F.I.R. immediately after commission of offence and as such institution of F.I.R. within 12 hours cannot be said to be instituted after inordinate delay. - 22 - 27. It is also settled proposition of law that that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Reference in this regard may be taken from the judgment rendered by Hon’ble Apex Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 wherein at para 53 it has been held that :- “53. In the context of belated FIR, we may usefully refer to certain authorities in the field. In Ram Jag v. State of U.P. [Ram Jag v. State of U.P., (1974) 4 SCC 201 : 1974 SCC (Cri) 370 : AIR 1974 SC 606] , it was held as : (SCC p. 208, para 16) “16. … that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.” Further in the case of State of M.P. v. Chhaakki Lal, (2019) 12 SCC 326 at para-26 the Hon’ble Apex Court has held which reads hereunder as:- - 23 - “26. Delay in setting the law in motion by lodging the complaint or registration of FIR is normally viewed by courts with suspicion because there is possibility of concoction of the case against the accused. But when there is proper explanation for the delay, the prosecution case cannot be doubted on the ground that there was delay in registration of FIR. In this case, the delay in FIR has been properly explained and the same is not fatal to the prosecution case.” 28. This Court, therefore, in the light of discussion made herein above is of the view that argument which has been advanced about the delay in institution of F.I.R. has no substance and therefore, the same is rejected. 29. Further argument has been advanced regarding discrepancy in the medical report since time of death as were recorded while conducting the postmortem is not matching with the actual time as was recorded in the F.I.R. This Court after considering the aforesaid submission is of the view that the dead bodies were put to post-mortem after 4 p.m. on the next following day after preparing inquest report and as such even if there is some discrepancy about the time of death as per post-mortem report, the same cannot be said to be a basis to the vitiate the entire prosecution case in view of the timing as has been recorded in the inquest report by the Investigating Officer who has corroborated the time and the place of occurrence. 30. The other question has also been raised that the blood stained axe (Kulhari) and the blood stained soil were not sent - 24 - for chemical examination and as such the offence cannot be said to be proved holding the accused persons guilty of the offence. Admittedly herein, the Investigating Officer has not sent the axe (Kulhari) the instrument used for commission of the murder of deceased persons and the blood stained soil but the question is that when the other piece of evidence is available and the case is based upon the direct evidence as has been discussed hereinabove by discussing the deposition of P.W.5 and merely because the axe and blood stained soil have not been sent for its chemical examination, the same cannot vitiate the prosecution story if the case of prosecution is based upon the deposition of eye-witness. Reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in the case of Surendra Paswan v. State of Jharkhand, (2003) 12 SCC 360 wherein at para-9 it has been held which reads hereunder as:- “9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eyewitnesses. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.” - 25 - Further in the case of Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 the Hon’ble Apex Court at para 56 has held as follows:- “56. The same view was expressed by this Court in Surendra Paswan v. State of Jharkhand [(2003) 12 SCC 360]. In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eyewitnesses. 31. This Court after discussing factual aspect with the legal proposition as above has considered the judgment of conviction/sentence passed by the Trial Court and found therefrom that the Trial Court has considered the deposition of P.W.5, Investigating Officer and the post-mortem report along with the deposition of the concerned Doctor and found the charge proved against the accused persons beyond all reasonable doubt. Therefore, the judgment by which the appellants have been convicted and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 I.P.C. according to our considered view requires no interference. 32. Accordingly the instant appeal fails and dismissed. 33. The accused persons since are out of custody due to suspension of sentence under Section 389 of Cr.P.C., therefore due to confirmation of the order of conviction their bail bond stands cancelled. The Trial Court is directed to - 26 - ensure the custody of the appellants for undergoing the remaining part of the sentence. Before parting with the order it requires that the sentence which has been imposed upon the appellants to go to rigorous imprisonment for the offence under Sections 302/34 of the Indian Penal Code but without any fine such sentence has been imposed by the Trial Court. 34. The Court has considered the provision as contained under Section 302 of the Indian Penal Code wherefrom it is evident that apart from the rigorous imprisonment or sentence, the requirement of law is to inflict fine also apart from the said punishment but the same is not available and, therefore, this Court is of the view that the Trial Court has committed error in passing the order of sentence leaving apart the fine. Therefore, this Court is of the considered view that the appellants are also required to pay fine of Rs.25,000/- each, apart from the sentence already directed to undergo by the order of sentence dated 06.08.1993. 35. Let the Lower Court Records be sent back to the Court concerned forthwith along with the copy of this Judgment. (Sujit Narayan Prasad, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Dated, the 3rd January, 2023. P.K.S /Birendra/A.F.R.