VISHNUDEO NARAYAN, J. - (1.) THIS appeal has been directed by the sole appellant named above against the judgment and order dated 27.3.1996 passed in S.T.No. 351/91/T.R. No. 48/94 by Smt. Shakuntala Sinha, Addl. Judicial Commissioner, Khunti whereby the appellant was found guilty for the offence punishable under Section 304 and not under Section 302 I.P.C. and he was convicted and sentenced to undergo R.I. for five years and to pay a fine of Rs. 1,000/ - and in default thereof to undergo R.I. for six months.
(2.) THE prosecution case has arisen on the basis of the F.I.R. of Chaukidar 8/6 Viruaghashi recorded by Sri N. Kumar, 0/ C of P.S. Murhu, Khunti, Ranchi on 23.3.1991 at 12.00 O'clock in the day regarding the occurrence which is said to have taken place on 22.3.1991 at 6.30 P.M. at Village Kitahatu Dauri Pirihi, P.S. Murhu, District Ranchi. The prosecution case is that the informant had produced the injured appellant along with a blood stained iron rod and has stated that the appellant had come to his house at 8.00 P.M. on 22.3.1991 and informed him that he has committed the murder of his elder brother Birsa Munda by iron rod at 6.30 P.M. and he has produced before him one blood stained iron rod from which he has committed the murder of Birsa Munda. It is further alleged that on the day of the occurrence the appellant as well as Birsa Munda deceased has gone to the market and Birsa Munda had returned to his house from the market earlier and the appellant returned to his house at 6.00 O'Clock in the evening. It is alleged that Birsa Munda came to the house of the appellant armed with Tangi (axe) and made violent marks on the wall of the house of the appellant by the said Tangi and called upon the appellant to come out of his house as he will commit his murder along with his wife and at this the appellant came out of his house armed with an iron rod and the appellant requested Birsa Munda not to assault him. The prosecution case further is that in the meantime appellant Birsa Munda gave a blow from his Tangi which was warded of by the appellant by the said iron rod but an injury has been caused near the shoulder of the appellant and again appellant requested Birsa Munda not to assault by Tangi but all in vain. It is alleged that in spite of the request of the appellant Birsa Munda again gave a blow from his Tangi which caused an injury near the ear of the appellant and at this the appellant gave a blow by iron rod on the head of Birsa Munda and he fell down and died. It is also alleged that the informant went to the place of the occurrence in the company of the appellant and found the dead body of Birsa Munda near the tamarind tree and there was profuse bleeding from his head and blood has also fallen near the place of occurrence and there was also a blood stained axe lying there. Lastly it has been alleged that genesis of occurrence is that Birsa Munda deceased wanted to demolish the portion of the house of his share and due to this there was differences between him and the appellant.
(3.) THE appellant has pleaded not guilty to the charge levelled against him and has claimed himself to be innocent and to have committed no offence and that he has been falsely implicated in this case.;