P.MERATHIA,J. - (1.) This appeal arises from the judgment of conviction and order of sentence dated 24.02.2005 and 26.02.2005 respectively passed by the Learned Additional Sessions Judge, Fast Track Court No. IV, Jamshedpur, East Singhbhum in Sessions Trial No. 368 of 2003 / G.R. No. 762 of 2003, convicting the appellant under sections 302/34 IPC and sentencing him to undergo R.I. for life .
(2.) THE prosecution case in brief is that the informant -Santosh Gupta (PW -6), younger brother of the deceased -Ashok Gupta, lodged a fardbeyan on 05.05.2003 at 00.30 hrs at hospital before the police that his family owns a Tata -407 truck for their livelyhood. In the previous night i.e. on 04.05.2003, he along with his brother (deceased) was sitting in the courtyard. At about 10.30 AM Dharmendra Singh, Jitendra Bhagat and one Nepali along with 2 -3 boys entered into his aangan. The appellant threatened Ashok, to which he wanted to give reply, but the appellant assaulted him with sword in his hand with intention to kill him, but Ashok sustained injuries on his left hand when he tried to save himself from such assault. The informant also tried to save Ashok, but he was caught by other persons. In the meantime, Dharmendra and Nepali assaulted the deceased with Bhujali in their hands and they all went away extending threatenings. Ashok sustained bleeding injuries. On hulla, neighbours assembled. Ashok was taken to the hospital where he died. It was further alleged that the deceased told the informant that the appellant had asked for the truck which he do not gave and on this, there was quarrel between them. Mr. Sri Krishna Murari, learned counsel appearing for the appellant, assailed the impugned judgment on various grounds and submitted as follows: PW -6 has not been believed as an eyewitness by the trial court; PWs - 1 and 7, the other eyewitnesses projected by the prosecution, are also not the eyewitnesses; moreover, their version that the deceased disclosed the names of the assailant was not mentioned in the FIR; other accused persons against whom also there were charges under section 34 IPC, having been acquitted, the appellant should also have been acquitted. He further submitted that the appellant should be given the benefit of doubt. He lastly submitted that the appellant is in jail for about nine years and he is suffering from AIDS.
(3.) ON the other hand, learned counsel for the State supported the impugned judgment.;