- (1.) This appeal is directed against the impugned judgment of conviction and sentence passed on 5th August, 2003 and 7th August 2003 respectively by the Additional Sessions Judge IV, Jamtara in Sessions Case No. 222 of 2001, convicting the appellants for committing the offence under Sections 302/34, 307/34 and 452/34 and sentenced them to undergo R.I. for life each and fine of Rs. 3,000/each for the offence under Section 302/34 IPC; ten years each and fine of Rs. 2,000/each for the offence under Section 307/34 IPC for causing attempt to death to Geeta Rani (PW3). They are also sentenced to undergo R.I. for five years each and fine of Rs. 1,000/each for the offence under Section 452/34 IPC. However, all the sentences were ordered to be run concurrently.
(2.) The prosecution case, in short, is that Sunil Mirdha (PW11) lodged his fardbeyan on 13/01/2001 to the effect that he along with his father Sarbeshwar Mirdha (deceased) and Aunt Geeta Rani (PW3), were sitting in the house when suddenly, his eldest uncle appellant no. 1 Shyamlal Mirdha, who happens to be the Chaukidar of the village and his sons Nimai Mirdha and Dilip Mirdha (appellant nos. 2 & 3 respectively), armed with Axe, came and Shyamlal ordered to kill them then all the three appellants assaulted Sarbeshwar with Axe, who sustained several bleeding injuries. The informant raised hulla. Geeta Rani (PW3) tried to save Sarbeshwar but she was also assaulted causing several incised wounds. Appellants Nimai and Delip also made several assault by Axe on Sarbeshwar and Geeta Rani. The informant, due to fear, came out of the house and raised alarm. The villagers were away for agricultural work and when they came, the accused appellants fled away. The cause of occurrence is said to be the dispute over the distribution of the chaukidari amount, earned by the grandfather of the informant, which are to be distributed amongst five brothers of the informant's father. It is alleged in the FIR that all the appellant had common intention to kill his father and Geeta Rani.
(3.) Mr. Indrajeet Sinha, learned counsel appearing for the appellants submitted that PW10 said that appellant no. 1 Shyamlal Mirdha was with him rearing fish in the Pond at the time of the alleged occurrence; and that there is improvement in the prosecution story in as much as PWs3, 4 and 11 did not say about the presence of the other eyewitnesses namely, PWs5, 6, 7, 8 and 12; and that the conduct of the Pws4, 5 and 6 (wife and sons of the deceased) in not attempting to save Sarbeshwar makes their presence doubtful. He lastly submitted that as per the evidence of PW6, who is an independent witness, there was 'Jhagra' for about half an hour and, thereafter, it is alleged that the injuries were caused to the deceased by the appellants and, therefore, it cannot be said that there was intention to kill the deceased; and that only three injuries were found on the person of the deceased and he died due to lack of treatment after about eight days in the hospital; and that the appellants have remained in jail custody for about 11 years.;