Shyamlal Mirdha, Nimai Mirdha and Dilip Mirdha vs State of Jharkhand

This appeal is directed against the impugned judgment of conviction and sentence passed on 5th August, 2003 and 7th August 2003 respectively by the Additional Sessions Judge IV, Jamtara in Sessions Case No. 222 of 2001, convicting the appellants for committing the offence under Sections 302/34, 307/34 and 452/34 and sentenced them to undergo R.I. for life each and fine of Rs. 3,000/each for the offence u/s 302/34 IPC; ten years each and fine of Rs. 2,000/each for the offence u/s 307/34 IPC for causing attempt to death to Geeta Rani (PW3). They are also sentenced to undergo R.I. for five years each and fine of Rs. 1,000/each for the offence u/s 452/34 IPC. However, all the sentences were ordered to be run concurrently.

The prosecution case, in short, is that Sunil Mirdha (PW11) lodged his fardbeyan on 13/01/2001 to the effect that he along with his father Sarbeshwar Mirdha (deceased) and Aunt Geeta Rani (PW3), were sitting in the house when suddenly, his eldest uncle appellant no. 1 Shyamlal Mirdha, who happens to be the Chaukidar of the village and his sons Nimai Mirdha and Dilip Mirdha (appellant nos. 2 & 3 respectively), armed with Axe, came and Shyamlal ordered to kill them then all the three appellants assaulted Sarbeshwar with Axe, who sustained several bleeding injuries. The informant raised hulla. Geeta Rani (PW3) tried to save Sarbeshwar but she was also assaulted causing several incised wounds. Appellants Nimai and Delip also made several assault by Axe on Sarbeshwar and Geeta Rani. The informant, due to fear, came out of the house and raised alarm. The villagers were away for agricultural work and when they came, the accused appellants fled away. The cause of occurrence is said to be the dispute over the distribution of the chaukidari amount, earned by the grandfather of the informant, which are to be distributed amongst five brothers of the informant''s father. It is alleged in the FIR that all the appellant had common intention to kill his father and Geeta Rani.

Mr. Indrajeet Sinha, learned counsel appearing for the appellants submitted that PW10 said that appellant no. 1 Shyamlal Mirdha was with him rearing fish in the Pond at the time of the alleged occurrence; and that there is improvement in the prosecution story in as much as PWs3, 4 and 11 did not say about the presence of the other eyewitnesses namely, PWs5, 6, 7, 8 and 12; and that the conduct of the Pws4, 5 and 6 (wife and sons of the deceased) in not attempting to save Sarbeshwar makes their presence doubtful. He lastly submitted that as per the evidence of PW6, who is an independent witness, there was ''Jhagra'' for about half an hour and, thereafter, it is alleged that the injuries were caused to the deceased by the appellants and, therefore, it cannot be said that there was intention to kill the deceased; and that only three injuries were found on the person of the deceased and he died due to lack of treatment after about eight days in the hospital; and that the appellants have remained in jail custody for about 11 years.

On the other hand, the learned APP supported the impugned judgment.

On the basis of the evidences of PW10, the plea of alibi on behalf of the appellant no. 1 was raised in the statement u/s 313 Cr.P.C., but the defence has not cross-examined any of the witnesses on such plea. Moreover, PW10 was not examined u/s 161 Cr.P.C. by the police and he came for the first time before the Court to say that appellant no. 1, was rearing fish with him at the time of alleged occurrence. Therefore, it is not possible to accept the plea of alibi, raised on behalf of the appellant no. 1.

So far as the presence of the eyewitnesses are concerned, there are corroboration in the evidences of the eyewitnesses about the presence of one or the other eyewitnesses. Moreover, it is not necessary that the eyewitnesses should name all the other eyewitnesses in their evidences specifically.

So far as the conduct of Pws4, 5 and 11 are concerned, the prosecution case cannot be brushed aside on that account. As per the prosecution case, the appellants suddenly entered into the house of the deceased armed with ''Tangi'' (Axe). The conduct differs from person to person. Whereas PWs 4, 5 and 11 did not attempt to save Sarbeshwar may be due to fear, the injured witness PW3 even being lady had tried to intervene. Only because PWs4, 5 and 11 did not try to intervene or save Sarbeshwar, their presence cannot be said to be doubtful.

So far as intention is concerned, it is to be gathered from the facts and circumstances of the case. In this case, as per the prosecution case, the appellants entered into the house of the deceased armed with Axe and they repeatedly assaulted on the vital parts of the body of the deceased by Axe. Even when PW3 tried to intervene and save him, she was also assaulted by Axe repeatedly causing injuries on her person. Only because the Doctor did not gave his final opinion regarding the nature of injuries of PW3, the injuries sustained by her cannot be disbelieved.

The prosecution case has been proved by the eyewitnesses including PW6, who is an independent witness, the Doctors Pws1, 13, 15 and 16 and the Investigating Officer PW14. There is no reason to disbelieve them.

In our opinion, the prosecution has been able to prove its case against all the appellants, beyond all reasonable doubts. No grounds have been made out for any interference by this Court with the impugned judgment of conviction and sentence, passed against them. Accordingly, this appeal is dismissed.