Dilip Kumar Sinha, J. - (1.) THE instant Cr. Appeal is directed against the judgment of conviction and order of sentence dated 10.07.2001 passed by Shri Binay Kumar Sinha, Additional Sessions Judge, Pakur in Sessions Case No. 138 of 1998/21 of 1998 by which the sole appellant was held guilty under part -II of Section 304 of the Indian Penal Code and was sentenced to undergo R.I. for a term of 5 years.
(2.) THE prosecution story in short, as narrated by the informant Biren Dholi, was that his younger brother Ujjawal Dholi (since deceased) used to loiter around the village for the last 3/4 days like a lunatic and on the last Tuesday in such state of mind, he at random went to Hiranpur market. On the date of recording of his statement before the police i.e. on 22.08.1997, the informant was informed by one Doctor Noor of Hiranpur at about 7 a.m. that his brother Ujjawal Dholi was done to death by sorne unknown person at Hiranpur market. Pursuant to such information, he went to Hiranpur and found his brother Ujjawal Dholi dead under a Dhela tree opposite the house of the appellant Dhuni Marandi @ Lichri Marandi and there were ligature marks on the limbs and waist of the deceased appeared to be caused by rope. The informant gathered from the people that his brother was tied with the tree with the help of rope by the appellant and two other persons in the night, as a result of which, he died. On the statement of the informant Biren Dholi, Hiranpur P.S. Case No. 37 of 1997 was registered against the appellant Dhuni Marandi @ Lichri Marandi and others. After investigation, the Investigating Officer submitted charge -sheet only against the appellant Dhuni Marandi @ Lichri Marandi as the identity of other accused could not be established. The appellant was put on trial after charge was framed against her for the offence alleged under part -II of Section 304 of the Indian Penal Code. As many as 9 witnesses were produced and examined on behalf of the prosecution and the appellant produced three witnesses in her defence. In her statement recorded under Section 313 Code of Criminal Procedure she pleaded innocence, implicated falsely at the instance of the villagers and she further pleaded land dispute with the informant of the case.
(3.) MR . Shamim Alditar, learned Counsel appearing for the appellant submitted that the deceased Ujjawal Dholi was a lunatic and he was moving around different villages at random. The villagers of Hiranpur Bajar were not acquainted with the whereabouts of the deceased. The appellant had also no knowledge as to from where the deceased belong to and that she had no connection whatsoever with the deceased. There was no eye -witness of the occurrence and the chain of circumstances could not be completed around the appellant by the prosecution so as to establish the guilt of the appellant for the alleged charge. It was stated that the appellant had confessed her guilt in presence of the witnesses and the police pursuant to such confession discovered the pieces of rope from a ditch, kept concealed under water alleged to be used in tying the victim. But such revelation and discovery thereof though is relevant under Section 27 of the Evidence Act but such fact could neither be corroborated by material witness nor did not suggest that the appellant herself tied the deceased with the knowledge that her such act may cause his death.;