ORDER :

Shree Chandrashekhar, J.

Mr. Nehru Mahto, the learned A.P.P tenders a copy of the affidavit sworn on 25.06.2019.

2. Taken on record.

3. The Superintendent of Jail, Birsa Munda Central Jail, Hotwar, Ranchi has filed this affidavit stating that appellant no.3 namely, Tumpu Bodra, son of late Moran Bodra [in Criminal Appeal (D.B) No.155 of 2010] has died on 22.07.2016 at RIMS, Ranchi in course of his treatment.

4. Accordingly, Criminal Appeal (D.B) No.155 of 2010 qua appellant no.3 namely, Tumpu Bodra stands abated.

5. These criminal appeals arise out of common judgment of conviction dated 28.11.2008 under section 302/34 I.P.C and the order of sentence dated 29.11.2008 of R.I for life and fine of Rs.5000/-against each of the appellants passed by the learned Additional District and Sessions Judge-II at Chaibasa in Sessions Trial Case No.218 of 2007 and, therefore, these appeals were heard together and now disposed of by this common order.

6. Five persons were put on trial in Sessions Trial Case No.218 of 2007 on the charge of committing murder of Pratap Bodra. In her fard-beyan Sombari Kui has stated that she received an information from her son namely, Ajay Bodra that her husband has been stoned to death by the appellants namely, Dadi Bodra [in Criminal Appeal (D.B.) No.261 of 2009] and Tipru Bodra, Nato Bodra, Tumpu Bodra and Hagru Bodra [in Criminal Appeal (D.B.) No.155 of 2010]. She came to her village and found her husband murdered. She has stated that there was a long standing partition dispute between her deceased husband and the accused persons and the accused persons were forcibly cultivating the land in dispute. On the basis of the aforesaid fard-beyan, Manjhari P.S Case No.19 of 2007 dated 16.06.2007 under section 302/34 I.P.C against the abovenamed accused persons has been registered.

7. During investigation, the investigating officer inspected the place of occurrence and seized the blood-stained soil and the stone and statement of the witness namely, Ajay Bodra has been recorded under section 164 Cr. P.C. During the trial, the prosecution has examined altogether 8 witnesses; the informant-Sombari Kui is P.W 2 and her son who has been projected as an eye-witness is P.W 3. Dr. B. K. Singh, the Medical Officer, who has conducted autopsy over the dead body is P.W 7 and the investigating officer has examined himself as P.W 4.

8. The learned Additional District and Sessions Judge-II at Chaibasa has found testimony of the child witness trustworthy and on the basis of the evidences laid before him he has held that the prosecution has successfully proved the charge under section 302/34 I.P.C against all the accused persons.

9. It has come on record that there was a long standing land dispute between the parties and the accused persons were demanding partition of land which was finally not resolved. The informant was married to Pratap Bodra but Ajay Bodra, her son, was born from her first husband. Admittedly, Ajay Bodra-P.W 3 is the sole eye-witness of the alleged incident. At the time of the occurrence he was aged about 12 years and he says that he was in his house. The house of the deceased was about 100 yards from the field of 'Niyansh' land where the accused persons have assaulted Pratap Bodra. His statement recorded under section 164 Cr.P.C contains only three sentences. His evidence in the court during the trial of Sessions Trial Case No.218 of 2007 is also cryptic. He speaks in 'Ho' language and does not know 'Hindi' language. Therefore, 'Ho' language knowing advocate was appointed as interpreter. However, the learned Judge has not taken pains to assess his maturity. In the dock, he points out towards the accused persons who assaulted Pratap Bodra with lathi and stone and in the cross-examination, he admits that there are other houses adjoining his house, however, he did not inform any villager regarding assault by the accused persons on Pratap Bodra. He travels about 10 kilometers to village-Sarengvil to inform his mother