Lakshman Uraon, J. - (1.) The appellants have preferred this appeal against the judgment and order dated 29.1.1993 and 13.2.1993 respectively passed by Shri S.K. Lal, 3rd Additional Judicial Commissioner, Ranchi in S.T. No. 694/1991 whereby and whereunder they have been convicted under Ss. 148 and 302/149, IPC, sentencing them to go R.I. for life for the offence punishable under Sec. 302/149, IPC and R.I. for one year each for the offence punishable under Sec. 148, IPC, ordering that both the sentences in each count in respect of each convict will run concurrently.
(2.) The prosecution case as per the fardbeyan, of PW 1, Tijan Devi, recorded in village Rohandih at 10 p.m. on 18.7.1990 by Manzur Ali, PW 6, S.I. of Sikidripur P.S., is that on 18.7.1990 at about 7 p.m. husband of the informant -Jagmohan Mahto (since deceased) came to his house then the -found that Dharmu Mahto (not appellant) was digging the earth in front of his house. Her husband when objected then Dharmu Mahto abused him in filthy language. Thereafter, Parsuram Mahto, armed with kudal, Bhikhari Mahto having kulhari in his hand and the others namely, Babu Ram Mahto, Dharmu Mahto and Phulendra Mahto, each armed with lathi, rushed towards Jagmohan Mahto. When Parsuram Mahto ordered to kill him then all the appellants and Dharmu Mahto jointly assaulted with kudal, kulhari and danda on the head of Jagmohan Mahto causing grievous injuries on his person. The informant raised huila then the villagers, Fago Mahto, PW 4, Tirath Nath Mahto, PW 5, Salo Devi (not examined), Fago Devi, PW 2 and others went there and saw the alleged occurrence. When the villagers assembled then the accused -persons fied away. The alleged occurrence took place only due to land dispute in which the informant had got the decree in her favour. Due to that reason her husband was done to death. The prosecution has examined altogether eight witnesses in this case out of them PW 1, Tijan Devi (informant), PW 2, Fago Devi, PW 4, Fagu Mahto and PW 5, Tirath Nath Mahto, are the eye -witnesses of the alleged occurrence. PW 3, and PW 8, Laki Ram Mahto and Suresh Mahto, are the seizure -list witnesses in respect of the seizure of blood -stained spade and blood -stained soil. PW 6, Manzar Ali, is the I.O. of this case and PW 7, Dr. Ramsewak Sahu, conducted the post -mortem examination on the dead body of Jagmohan Mahto.
(3.) The learned counsel for the appellants has submitted that one defence witness, DW 1, Kailu Yadav, has been examined to deny the complicity of these appellants in the alleged offence. It was submitted that although there are several families residing near the house of the informant but the prosecution had not examined the independent witnesses. The P.O. has not been established by the prosecution witnesses as to whether it is in front of the house of the informant or somewhere else. It was also submitted that Dharmu Mahto is alleged that he was digging the earth with feudal. That kudal or khurpi has not been seized rather it has been alleged in the FIR that Dharmu Mahto also came armed with Lathi and assaulted Jag Mohan. PW 6, Manzar All, I.O., of this case has mentioned that the P.O is the road of village Rehandih running from East to West which is adjacent to the field of Jaleshwar Mahto in the South. In the East there is the house of Chandrasekhar Mahto and in the West there is one small temple. His nearby neighbours have not been examined as witnesses. The I.O. has also mentioned that the filed belongs to the informant which is at a distance of five hands from the P.O, where PW 1, the informant, has deposed that there is a kathal tree near the P.O. and on the South there are flower trees, in the East there is barren land and in the North and South there are big trees. PW 4, Fagu Mahto has deposed that the P.O. is at a distance of 15 -20 hands from his house where there are 17 -18 houses of the villagers. Those villagers were the independent persons but they have not been mentioned as witnesses by the I.O. whereas only relatives of the informant have been chosen as prosecution witnesses. It was also argued that PW 1, the informant, had gone to the P.S. and informed the Police that would have been the FIR whereas PW 6, I.O. has deposed that he came to know about this occurrence while he was on patrolling duty at village Kutte. He had not received any information regarding the assailants and the deceased prior to the fardbeyan of PW 1, Tijan Devi, recorded by him! Seizure - list witnesses, PW 8, Suresh Mahto, has denied that spade was seized in his presence in the house of Baburam Mahto. Seizure - list, Ext. 7, is not the original but the carbon copy. It was also submitted that there is discrepancy and contradiction in the evidence of the witnesses regarding the manner of the alleged occurrence PW 1, Tijan Devi, has stated that Rambabu Mahto first of all assaulted Jagmohan Mahto by means of lathi followed by tangiblow. The other appellants, Parsuram Mahto, Dharmu Mahto and Phulendra Mahto thereafter assaulted with their respective weapons. PW 6, and PW 4, Manjur All and Fagu Mahto have stated that it was Parsuram Mahto who made first assault on the person of Jagmohan Mahto. The learned Court below has relied the evidence of PWs 1, 2, 4 and 5, who have deposed inimically against the appellants.;