High Court
Case Details
Criminal Appeal (D.B.) No. 425 of 2002 [Arising out of judgment of conviction dated 22.06.2002 and order of sentence dated 24.06.2002 passed by learned 3rd Additional District & Sessions Judge, Dumka in Sessions Trial Nos. 177/84 & 360/02] 1. Jaggu Soren son of Pagla Soren 2. Jethun Soren son of Fuchu Soren 3. Simon Soren son of Mangal Soren 4. Mangal Soren son of Late Fuchu Soren All residents of Village Bhurandina, P.S. Dumka (Mufassil), District Dumka --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellants For the Appellants For the State : Ms. Ayushri, Advocate Ms. Supriya Dayal, Advocate : Mr. Pankaj Kumar, P.P. PRESENT: SRI ANANDA SEN, J. -----
Legal Reasoning
Simon Soren is now before this Court in appeal, as the other appellants have died, the matter for consideration is whether the prosecution has succeeded to prove the charge against him. 10. P.W. 2 and P.W. 3 are formal witnesses and not eye witness to the incidence. P.W. 10 is Chowkidar, who has not supported the prosecution case and was declared hostile. 11. The main witness in this case are Jagdish Mandal (P.W. 5), Satyanarayan (P.W. 9), who had accompanied the deceased persons as per FIR, P.W. 7- Magistrate Raut, who had also sustained injuries in the said incidence, and P.W. 8- the informant. They have consistently supported the prosecution case. 12. P.W 7 has deposed that hearing the sound of drum beat, out of curiosity, he also went to see the occurrence and saw that Jethu Soren was chasing about 6 persons. Two of them were hit by arrow and when they fell down they were killed by axe. He has named Jethu to have discharged the arrow. This witness has not named the present appellant to be involved in the incidence or that he was member of unlawful assembly. His testimony however, proved the prosecution case that members of the informant party were pursued, and two of them were killed in cold blood. 13. P.W. 8 is the informant of the case. He has deposed that when he came to know that his uncles- Bibhuti Mandal, Banarsi Mandal and others had gone to Village Bhurundia, he also followed them and joined them near the river. When they were taking water in the house of Jagannath Paharia, they heard beating of drum by the Santhal tribals who had assembled there. He has deposed that Jethu and Simon struck with arrow, Bibhuti and Banarsi, as a result, they fell down. His testimony cannot be accepted regarding the manner of assault as he has stated in para 24, that he witnessed the incidence from 300 yards. It is not possible to give such a vivid account of the occurrence having watched it from such a long distance. 14. P.W. 4 has deposed that Bibhuti Mandal, Banarsi Mandal, Jagdish Mandal and Satyanarayan Mandal on hearing the beat of drum started fleeing. This witness claims to have seen the incidence from 200-250 yards. He has deposed that Bibhuti Mandal fell behind and was surrounded by Mangal Soren, Jethu Soren, Simon Soren and others. He has added that he could not see Bibhuti being assaulted, but 3 saw him lying after the incidence. In para 16 also, he has deposed that after the arrows started being shot, he went away. In para 19, he has admitted that he did not disclose that he had seen the incidence to any of the co-villagers. Hence, his testimony also cannot be accepted in view of the wavering nature of his testimony and the distance from which he claimed to have to seen the incidence. 15. It is consistent case of the prosecution that four persons of the informant party were pursued out of whom, two Bibhuti and Banarsi were killed and two namely Jagdish and Satyanarayan Mandal made good their escape. Jagdish Mandal (P.W. 5) has deposed about the occurrence that he had gone to see his agricultural field along with Banarsi, Bibhuti and Satyanarayan and were sitting in the verandah of Mangal Soren when the attack took place. He has named this appellant- Simon Soren and others who were armed with arrow, charged upon them. Simon shot the arrow which struck Bibhuti and they fell down and thereafter, he was done to death. Satyanarayan (P.W. 9) has corroborated the testimony of P.W. 5 regarding the manner of assault. He has deposed that among others, Simon had also shot arrow from which Bibhuti Mandal got injured and fell down. It has also been deposed by him that this appellant and Jethu has struck arrow from which Banarsi was hit and he fell down. Both these witnesses have been cross-examined at length and there is no reason to disbelieve their account. 16. Much has been argued on behalf of appellant regarding the manner of assault as to who had shot the arrow and where the particular arrow struck which of the deceased. Fact of the matter is that there is specific charge against this appellant along with others that they had formed an unlawful assembly and then being armed with traditional weapons, attacked both the deceased and his other two companions when they had gone to see their agricultural field for harvesting. Law is settled that when a criminal act is done in prosecution of the common object, each member of the unlawful assembly is constructively liable for the act committed in pursuance thereof. When multiple persons join in the assault, it is neither possible nor it is the requirement of law that distinctive role of each of the assailant should be delineated by the witnesses with exactitude. Here, we have credible and consistent evidence that Simon was one of the members of the unlawful assembly and he had also shot arrows which hit the informant party. In view of direct evidence against appellant- Simon Soren of his having participated in the assault, there is no infirmity in the judgment of conviction and sentence passed by the learned trial Court, which has been dealt in detail the prosecution 4 evidence and the reasons for placing reliance on it. Judgment of conviction and sentence is affirmed. Criminal Appeal stands dismissed.
Arguments
SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 22.10.2024 Pronounced On: 28.10.2024 Per Gautam Kumar Choudhary, J. Appellants- Jethun Soren and Simon Soren are in appeal before this Court against the judgment of conviction and sentence passed under Section 302 of the IPC, whereas Jago Soren and Mangal Soren under Sections 302/149 of the IPC. Appellant nos.1, 2 and 4 have died and the Criminal Appeal on their behalf has abated vide order dated 25.09.2024 and this appeal is heard only on behalf appellant no.3- Simon Soren. 2. As per the prosecution case, on 18.10.1981, uncles of the informant namely Bibhuti Mandal, Banarsi Mandal, Kschir Sagar Mandal, Jagdish Mandal and Satyanarayan Mandal had gone to village Bhurundia for harvesting paddy crop. Informant had followed and joined them near the river. On the approach of the informant party, local Santhal tribal assembled by beat of drum armed with bows, arrows, axe etc. and called on to kill them. At this, informant and his uncles started fleeing, who were pursued by the assemblage. It is alleged that Jethun Soren struck Bibhuti Mandal with arrow and thereafter, Simon Soren also struck him by arrow. Banarsi Mandal was also struck with arrow by Jethun Soren and Simon Soren. When both of them fell down, the informant, Jagdish and Satyanarayan saw from 1 distance, that they were hacked to death by accused persons. Jethun Soren also assaulted him with a big piece of stone and an axe. Chowkidar of the Village, Ramjeevan Roy, gave water to the deceased- Bibhuti Mandal. 3. On the basis of the statement of the P.W. 8, case was registered against the above four named accused persons and Pagla Soren and Rohra Soren under Sections 147, 148, 149, 324, 302, 323/34 of the IPC. Police on investigation submitted charge sheet and the accused persons were put on trial. Altogether 12 witnesses were examined on behalf of prosecution and relevant documents including post-mortem examination report, have been adduced into evidence and marked as Exhibit 1 – 9. 4. Judgment of conviction and sentence has been assailed on the ground that the prosecution witnesses are related witnesses and their testimony has vital contradictions. P.W. 2 has not disclosed the name of assailant as it appears from the inquest report. The testimony of P.W. 4 cannot be relied as he had said in para 16 that once the arrows started being shot, he had retreated to his home. Chowkidar (P.W.10), who is said to have given water to Bibhuti Mandal, has not supported the prosecution case and was declared hostile. 5. 6. Learned A.P.P. has defended the judgment of conviction and sentence. Homicidal death of Bibhuti Mandal and Banarsi Mandal, has been established by the objective findings of the Autopsy Surgeon (P.W. 1), who conducted the autopsy on the dead body on 19.10.1981. Doctor found three incised wounds caused by sharp cutting weapon, two injuries in the front of head and one on back of head, two penetrating injuries caused by sharp weapon over the sub- mandibular area other on the lower part of the chest over the dead body of Bibhuti Mandal. Multiple abrasions were also found on the body which were caused by hard and blunt substance. Death was due to incised wound on the back side of the head and the multiple abrasions on the chest. 7. On the same day, post-mortem over the dead body of Banarsi Mandal was conducted in which seven abrasions over the whole body, two penetrating wounds on the chest, fracture on the right wrist, bruise on the chest was found. Death was caused due to penetrating wound of arrow and bruise over the right side of the chest caused by hard and blunt substance. 8. Place of occurrence has been established by the eye witnesses account and the Investigating Officer (P.W. 12) in para 4, to be situated in Bhurundia agricultural filed where both the dead bodies were found to be lying and blood- 2 stain marks were found in the field. 9. Homicidal death and the place of occurrence has been proved by the prosecution. With regard to the author of crime, considering the fact that only
Decision
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) (Ananda Sen, J.) Ananda Sen, J. I agree. High Court of Jharkhand, Ranchi Dated, 28th October, 2024 AFR/Anit 5