D.N.PATEL.J. - (1.) THE present appeal has been preferred against the judgment of conviction and order of sentence dated. 30.09.2003 and 01.10.2003 respectively passed by Additional District & Sessions Judge. Fast Track Court No.5., Dhanbad in S.T. No. 123 of 2002, whereby the present appellant -accused is mainly convicted for the offence punishable under Section 302 of the Indian Penal Code Against this judgment of conviction and order of sentence the present appeal is preferred.
(2.) IT is the case of prosecution that on 8.10.2001 at about 6.45. a.m. at Quarter No.M/436 the appellant -accused committed murder of his son and daughter, namely, Gulshan Kumar and Pushpa Kumari respectively and also caused injuries to his wife namely. Gayatri Devi, who is PW 16 and also caused injuries to his son, namely Ravi Kumar, who has not been examined as witness aged about 6 years at that relevant time by knife. First Information Report was given by PW 3. Investigation was carried out. Several statements of the witnesses were recorded, charge -sheet was rued and case was committed to the Sessions Court and upon evidences on record the learned trial Court has convicted the appellant -accused mainly for offenses punishable under Section 302 of the Indian Penal Code for life imprisonment, as well as for the offence under Section 307 of the Indian Penal Code for 10 years rigorous imprisonment. Both the sentences have been ordered to run concurrently. We have heard counsel for the appellant who has mainly submitted that the learned trial Court has failed to appreciate the facts. The prosecution has failed to prove, the case against the appellant -accused beyond reasonable doubt. Most of, the prosecution witnesses have turned hostile. The so -called eye -witness PW 16. who is wife of the deceased has also stated clearly in her deposition that appellant -accused has not caused any injury but somebody else caused injury whom she is not knowing. This witness has not been declared hostile. It is also submitted by learned counsel for the appellant that another eye -witness namely Ravi Kumar has not been examined as a. prosecution witness. Thus, there is no other material evidence on record proving the guilt of the appellant -accused beyond reasonable doubt. It is also submitted by learned counsel for the appellant that witnesses of the seizure list who are PWs 11 and PW 12 have also stated before the Court that the weapon alleged to have been recovered at the behest of the appellant -accused is not true. These PW 11 and 12 have stated clearly in their depositions that they have not seen the appellant - accused producing the weapon (knife). before the police. Thus, there cannot be any conviction based upon only on the evidence of Investigating Officer who is PW 7. This aspect of the matter has not been properly appreciated by the learned trial Court. Police is not at all eye -witness of the incident and therefore the judgment of conviction and order of sentence passed, by the trial Court deserves to be quashed and set aside.
(3.) WE have heard counsel for the State -A.P.P. who has submitted that no error has been committed by the learned trial Court in convicting the appellant for committing murder of his son and daughter, namely, Gulshan Kumar and Pushpa Kumari. The murder has taken place in the house of the appellant -accused: The weapon has been recovered on the behest of the appellant -accused. Seizure list is at Ext -6 and signature of PWs. 11 and 12 have been proved at Ext. - 9 and 9/1. It is also submitted by learned counsel for the State - A.P.P. that the whole incident has taken place in the house of the appellant -accused at early morning hours. Wife is a injured eye -witness, who is PW 16 and looking to the evidences of PW 16 to be read with evidences of PW 11 and 12 of witnesses of seizure list along with deposition of Investigating Officer, who is PW7, no error has been committed by the learned trial Court in convicting the appellant -accused and therefore the appeal may not be entertained by this Court.;