- (1.) By Court. -This appeal at the behest of the appellants (Safauddin Momin and Mehiruddin alias Bhotua Momin) is directed against the judgment and order dated 18.1.1996 in S.T. No. 333 of 1 D92 passed by Shri A.P. Ram, the then Addl. Sessions Judge at Seraikella, whereby they have been convicted under sections 302/34 of the Indian Penal Code, on the charge of committing the murder of Lakhi Kant Singh Munda, in furtherance of their common intention and they have been sentenced to undergo imprisonment for life. It may be mentioned that co -accused (Kamaluddin Momin) who was being tried along with the convicts/appellants, absconded in the midst of the trial and his case was separated.
(2.) BRIEFLY put, the prosecution case, is as under : On 26.12.1991, Arjun Singh Munda and his brother (Lakhi Kant Singh Munda), the deceased, had been to Tiruldih Hat, which is at a distance of about 2 Kms. from their village home Chourah (Munda tola), within Ichagarh Police Station to sell tomatoes and milk. After selling milk and tomatoes, they were returning together from Tiruldih Bazar and near Kudha village they separated for a while and Lakhi Kant Singh Munda moved ahead, followed by his brother Arjun Singh Munda (P.W. 4). When Lakhi Kant Singh Munda came in front of the tea shop, which was situate in the outer court -yard of Ibrahim Momin of village Chourah, the appellants, who were sitting in the tea shop, came out and overpowered Lakhi Kant Singh Munda, and they inflicted several knife blows to him on the vital parts of the body, while co -accused (Kamaluddin Momin), their associate fired on his chest, with the result that Lakhi Kant Singh Munda dropped dead on the spot. The informant (Arjun Singh Munda/ P.W. 4) seeing the incident ran to his tola in the village Chourah itself and narrated the incident to his kith and kin and the villagers, who visited the scene of occurrence and found the dead body of Lakhi Kant Singh Munda, lying in pool of blood. The informant got the information sent to Tiruldih police -out - post, whereupon the police officer namely, Anil Tigga, the then Assistant Sub -Inspector of Police attached to Tiruldih Police Outpost, visited the home of the informant and recorded his fard -beyan (exhibit 4) on 26.12.1991 at about 1.30 PM. The motive for the murder of the deceased, as alleged, is that he used to live with Mahavir Gope, whose house had been set ablaze and the deceased had helped in extinguishing the fire and had deposed for Mahavir Gope in the arson case. On the basis of the fard -beyan (exhibit 4) Anil Tigga, the police officer assumed and commenced investigation of the case, sent the fard -beyan to Incharge Police Station, on the basis of which the present case came to be instituted, the formal first informant report (exhibit 3) was drawn up, the Investigating Officer visited and inspected the spot, held inquest over the dead body, sent it for the post -mortem examination and, ultimately, on completion of investigation charge -sheet was laid in court against the accused persons. The case was, ultimately, committed to the court of Sessions by order dated 14.9.1992, passed by Shri J.G. Singh, the then Sub -divisional Judicial Magistrate, Seraikella. The main defence is of innocence and complete denial of the involvement of the appellants in the murder of the deceased and of false implication. At the trial, the prosecution examined seven witnesses in support of its case, out of which P.W 1 (Prender Singh Munda), is the hear -say witness, P.W. 3 (Banshidhar Singh Munda) is a witness to the inquest, P.W. 5 (Dinbandhu Singh Munda) is a tendered witness, and P.W .7 (Chandraket Narain Singh), a court constable, is a formal witness, who has proved the formal first information report (exhibit 3), the fard -beyan (exhibit 4) and the inquest report (exhibit 5). The other P.Ws. are: PW. 2 (Hartal Singh Munda ), a cousin of the deceased, who claimed himself to be an eye -witness to the alleged assault on the deceased, P.W 4 (Arjun Singh Munda), the informant, as well as an eye -witness to the occurrence, and P.W 6 (Dr. Tulsi Mahto) who held autopsy on the dead body of Lakhi Kant Singh Munda. The defence, on the oher hand, laid no evidence.
(3.) THE trial court did not believe the evidence of P.W. 2 that he was, in fact, an eye -witness to the occurrence mainly for the reason that he was not cited in the fard -beyan, nor the informant (P.W. 4) whispered in his evidence about his presence and their company or gone to the spot at the time of occurrence, and discarded his occular testimony. The trial court, on consideration of other evidence, and mainly relying on the solitary ocular testimony of P.W. 4 as well as the medical evidence and the fact that the fard -beyan had been recorded within an hour of the occurrence, in which the appellants were named with overt -acts, held the appellants guilty of the charge under sections 302/34 of the IPC and convicted and sentenced them in the manner, as stated above.;