D.N.UPADHYAY, J. - (1.)This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 27.06.2006 and 30.06.2006 respectively passed by the Sessions Judge, Dumka (S.P.) in connection with S.C.No.115/2005, corresponding to G.R.No.106/2005, arising out of Masalia P.S. Case No. 09/2005 whereby the appellants have been held guilty for the offence punishable under Sec. 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life. The appellants were charged for the offence punishable under Sections 302/34 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. To substantiate the charge the prosecution has examined altogether 10 witnesses and proved documents like inquest report, seizure list and postmortem report etc. The learned Sessions Judge placing reliance on the evidence and document available on record, held the appellants guilty and inflicted sentence as indicated above.
(2.)Learned Counsel appearing for the appellants has assailed the impugned judgment on the ground that informant has turned hostile and he has not supported the prosecution case. Nilendu Soren (P.W.3) and Gunadhar Kisku (P.W.8) have projected themselves as eye-witness but they are not reliable witness and no conviction can be recorded on the testimony of aforesaid two eye-witnesses. Nilendu Soren says that on 'Hulla' when he came out of the house, he had seen all the appellants causing assault to deceased-Sushil Marandi and hands and legs of Sushil were tied with a rope. He requested them not to assault, keep Sushil tied up if he has committed anything wrong and that would be decided in the morning but he was threatened by the appellants, therefore, he returned back to his house. This conduct of P.W.3 is not acceptable. He did not name any other witnesses, who were present at the time of occurrence. He did not raise alarm to attract other villagers. He did not inform anybody else to save live of Sushil Marandi. He did not inform the police even in the morning. Furthermore he has stated that the appellants had been causing assault to the deceased by means of lathi. He did not say that any of the appellant was armed with any sharp cutting weapon. According to doctor incised wound on leg of the deceased was found, therefore, ocular version of P.W.3 does not find support from the evidence of Dr. Sitaram Sah (P.W.5). In the same manner evidence of P.W.8 is not reliable and believable. To some extent he has repeated the version of P.W.3 but again he says that he was not examined by police during investigation rather statement of his sister was taken by the police. He did not bother to see dead body. This witness has also not stated that any of the appellant was armed with any sharp cutting weapon and, therefore, ocular version given by this witness, does not find support from postmortem report. Balika Hembrom (P.W.1), Sukaml Tudu (P.W.2), Shivdhan Hembrom (P.W.4) Mauso Kisku (P.W.7) are all hearsay witnesses. Biju Marandi (P.W.6) has also turned hostile. Most important aspect of the prosecution case is that I.O. who conducted investigation has not been examined. It is submitted that F.I.R., seizure list, inquest report have not properly been proved because P.W.10 has admitted that he never worked with S.I. Sidheshwar Kerai and, therefore, he had no occasion to identify writings of S.I. Sidheshar Kerai. P.W.10, who has submitted charge-sheet and proved the contents made in the case diary is also a formal witness. Due to non-examination of the I.O., place of occurrence has not been proved. The learned Sessions Judge has wrongly held the appellants guilty for the murder of Sushil Marandi.
(3.)Learned A.P.P. has opposed the argument and submitted that P.W. 3 and P.W. 8 are eye-witnesses and they had seen the occurrence and they have supported the prosecution case. They have stood to the test of their cross-examination. It is submitted that nothing has been asked to P.W. 8 to disbelieve his statement recorded under examination-in-chief.