D.N.PATEL,J. - (1.) PRESENT appeal has been preferred against the judgment and order of conviction and sentence date 7th August, 2003 and 8th August, 2003 respectively, passed by the 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 520 of 1990, arising out of Bundu P.S. Case No. 9 of 1990, whereby the present appellant -accused had been sentenced to undergo life imprisonment for the offence punishable under Section 30 34 I.P.C. and has been awarded a fine Rs.10,000/ - and in default of payment fine further he has to undergo rigorous imprisonment for one year.
(2.) THE case of the prosecution is that on 19th March, 1990 at about 10p.m., father of the informant, namely Shanti Devi (P.W. 6) had come to the house of the informant for purchase of oxen. Shanti Devi (P.W. 6) is the widow of the deceased. At night, when father of the informant and the husband of the informant were counting money, accused persons, namely Usha Ram Mahato, Maheshwar Mahato and Gopal Mahato came to the house of the informant. Gopal Mahato is the father -in -law of the informant while Usha Ram Mahato and Maheshwar Mahato are the sons of Gopal Mahato, i.e. they are brother -in -laws of the informant. Accused persons started quarreling with the husband of the informant and demanded the entire money from the husband of the informant. On objection by the husband of the informant, accused persons, who were armed with weapons, such as 'Sabar, 'Tabla' and 'Lathi' entered into the house of the informant. It was alleged by the accused persons that husband of the informant was committing theft and passing the money to his father -in -law, i.e. father of the informant. One of the accused persons gave blow on the forehead of the husband of the informant and accused Gopal Mahato, having snatched the money, chased the husband of the informant. Husband of the informant was intercepted on the road and thereafter, he was assaulted by all the accused persons, Sons of the informant, i.e. P.W. 3 and P.W. 4 informed the informant (P.W. 6) that the accused persons assaulted the deceased and they have killed him. On being informed, informant with her sons and father ran away and shut themselves in a room of her house and thereafter when village Mukhiya, namely Ichha Mahato, who is P.W. 8, came to the house of the informant, whole incident was narrated to him and they stayed at the house of the Mukhiya for the whole night and went to Bundu Police Station next morning where F.I.R. was lodged on 20th March, 1990. After registering the case, investigation was carried out and after completion of investigation, charge -sheet was filed. Thereafter, the case was committed to the court of sessions where it was numbered as Sessions Trial No. 520 of 1990 and the trial proceeded. Two of the accused persons, namely Gopal Mahato and Maheshwar Mahato had already expired during the course of the trial. However, on the basis of evidence given by the prosecution witnesses, the present appellant -accused has been convicted by the learned trial court and sentenced to undergo life imprisonment for the offence punishable under Section 302/34 I.P.C. and a fine of Rs.10,000/ -. Against these judgment and orders of conviction and sentence, the present appeal has been preferred. 3. Counsel appearing for the appellant has vehemently submitted that there are material omissions and contradiction in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. Counsel appearing for the appellant has further submitted that in fact the so -called eye witnesses have actually never seen the incident at all. Counsel for the appellant has further pointed out the deposition of Fulendra Mahato (P.W. 3), who is one of the sons of the deceased, namely Khudiram Mahato. P.W. 3 has stated in his cross -examination that at the time and date of the incident his mother and his brother Sanjay Mahto (P.W. 4), who is another son of the deceased, was at another village, i.e. Village -Itki. The occurrence took place at Village -Damari. It has been further stated by P.W.3 that his grandfather had sent one Bhutnath Mahato to Village -Itki to call his mother and brother, who are Shanti Devi (P.W. 6) and Sanjay Mahto (P.W. 4) respectively. Thus, whole story of the prosecution is concocted because as per prosecution, both P.W. 6, who is the informant and P.W. 4, who is the son of the deceased are eye witness. This material fact of the prosecution has not been supported by P.W. 3. In his cross -examination, P.W. 3 has stated that he has never seen anybody killing his father. Counsel for the appellant has also pointed out that neither P.W. 4 nor P.W. 6 are the eye witnesses to the incident because they were never present at the place and time of the offence. In fact they were called from another village, namely Village -Itki, after the whole incident was over. Counsel appearing for the appellant has also pointed out that as per deposition given by P.W. 8, who is the Mukhiya of Village -Damari, neither the informant nor her sons had come to his residence. P.W. 6 and P.W. 4 were at another village, i.e. Village -Itki and they were called after the incident was over. Thus, this independent witness has also stated that neither P.W. 6 nor P.W. 4 are eye witnesses' to the incident. Counsel for the appellant had also pointed out that as per the deposition of the Mukhiya of the village (P.W. 8), Sura Mahato (P.W. 7), who was father of the informant, was also at another village, i.e. Village -Itki. He was also informed after the whole incident was over. Thus, as it appears from the deposition of P.W. 7, neither P.W. 4, P.W. 6 nor P.W. 7 were the eye witnesses. Counsel for the appellant has also pointed out that as per deposition of informant P.W. 6, Gopal Mahato has caused injury on the neck of the deceased. But, there was no injury found, as per medical evidence, on the neck of the deceased. Moreover, the conduct of the witnesses is also absolutely unnatural. If dead body of the father was lying on the road from approximately 10 p.m., it would not remain as it is on the road up till the next day. In fact, at the time of death, the so -called eye witnesses were never present at all this aspect of the matter has not been properly appreciated by the learned trial court while convicting the accused appellant and therefore; the judgment and order of conviction and sentence passed by the trial court deserve to be quashed and set aside.
(3.) COUNSEL appearing for the State, A.P.P., vehemently submitted that the whole incident has taken place on 19th March, 1990 at Village -Damari, District -Khunti, at about 10 p.m. There are four eye witnesses, who are P.Ws. 3, 4, 6 and 7. While P.Ws. 3 and 4 are the sons of the deceased Khudi Ram Mahto, P.W. 6 is his wife. The A.P.P. further submitted that looking to the deposition of these eye witnesses, they have narrated the incident in detail and initially there were three accused persons. As two of them have expired during the course of the trial, therefore, present accused appellant was the only accused, who had been awarded life imprisonment for the offence punishable under Section 302/34 I.P.C. and for a fine of Rs.10,000/ -. There is no major omission or contradiction in their evidence. This aspect of the matter was properly appreciated by the trial court and no error has been committed by the trial court in convicting the accused for the murder of Khudi Ram Mahato and therefore, this appeal deserves to be dismissed.;