D.N.PATEL,J. - (1.) THE present appeal has been preferred by the original accused-appellants against the judgment and order of conviction and sentence dated 21st June, 2003 and 23rd June, 2003 respectively, passed by learned Additional Sessions Judge (F.T.C.-II), Chaibasa, in Sessions Trial No. 80 of 2002, arising out of Bandgaon P.S. Case No. 36 of 2001, whereby and whereunder, all the appellants have been convicted for the offence under Sections 148/302/149 of the Indian Penal Code and also under Section 3/4/5 of the Prevention of Witch (Daain) Practices Act and each of them have been sentenced to undergo rigorous imprisonment for three years for the offence under section 148 of the Indian Penal Code, rigorous imprisonment for life for the offence under Section 302/149 of the Indian Penal Code and rigorous imprisonment of a period of three months for the offence under Section 3/4/5 of the Prevention of Witch (Daain) Practices Act. However, all the sentences have been ordered to run concurrently.
(2.) IF the case of the prosecution is unfolded, the facts are as under: P.W. 2- Ram Munda is the informant and on the basis of his statement, a case was registered at Bandgaon Police Station within the district of West Singhbhum. As per his statement, the occurrence has taken place on 27th October, 2001 at about 11.00 p.m. and the First Information Report was lodged on 28th October, 2001 at 15.30 hours. It is alleged by the prosecution that the wife of Matru Bodra @ Mutari Bodra (original accused no.4-appellant no.4) had expired last month from the date of incident and Matru Bodra @ Mutari Bodra was under belief that because of the wife of the informant, who is "Daain", his wife has expired. It is the case of the prosecution that on 27th October, 2001 at about 7.00 p.m. the appellants-accused persons, armed with deadly weapons, came at the house of the informant and accused Dango Bodara opened fire from his country made pistol, with an intention to kill the informant, whereupon, he sustained injury on his right chin and blood started oozing out. The informant immediately went inside his house and closed the door, so as to save his life. Then all the assailants-accused got themselves hidden at a nearby place and again at 11.00 p.m., they came at the house of the informant, broke open the door and started searching the informant and his wife. In the meantime, mother of the informant (deceased) came at the door to rescue the informant and his wife, whereupon, the assailants started assaulting his mother, namely, Lipi Mundarin, by means of Tangi (axe). Having received the injuries, mother of the informant fell down in the Angan (courtyard) in front of the door. The injuries inflicted upon the mother of the informant (Lipi Mundarin) resulted into her death. Thereafter, all the accused persons fled away. The incident has taken place at about 11.00 p.m. At night. The informant, thereafter, went to his in-laws' house and on the next day he informed the incident at about 15.30 hours to Bandgaon Police Station. Pursuant thereto, First Information Report was lodged. After registering the First Information Report, investigation was carried out and after completion of investigation, charge sheet was submitted by the police on 12th January, 2002 for the offence under Sections 147/148/302/149/307 of the Indian Penal Code, Section 27 of the Arms Act and Section 3/4/5 of the Prevention of Witch (Daain) Practices Act against all the appellant-accused persons. Thereafter, the case was committed to the court of sessions, where it was numbered as Sessions Trial No. 80 of 2002 and the trial commenced. The trial court i.e. Additional Sessions Judge (FTC-II), Chaibasa, after appreciating the evidences on record, convicted all the appellants-accused persons mainly for the offence punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Learned counsel appearing for the appellants vehemently submitted that the prosecution case is totally a concocted case and the offences have not been proved beyond the reasonable doubts, as there are major omissions and contradictions, which have not been properly appreciated by the learned trial court and hence, the impugned judgment and order of conviction and sentence, passed by the trial court, deserves to be quashed and set aside. Learned counsel for the appellants has further submitted that in his cross- examination, P.W. 2, namely, Ram Munda, who is the informant in this case, has stated that he has never seen the whole incident rather upon information, he came to know about the assault. Moreover, there was no light at the place of occurrence. As per the case of the prosecution, the whole incident has taken place in the courtyard i.e. outside the house. It is further submitted that the so called eye witness, who is P.W. 2 and who is claiming himself to be an injured witness, has stated in his cross-examination that he was in the house and upon information gathered from other persons, he came to know about the assault and moreover, no injury certificate has every been presented by the prosecution relating to the injury, caused to P.W. 2. Thus, P.W. 2 is not a reliable witness and his so called injury is also not proved.
(3.) IT is further submitted by the learned counsel for the appellants that P.W. 3, who is wife of P.W. 2, namely, Birsi Bodra, has stated in her deposition that she was also in the house and outside the house there was no light. She has further stated that there are several big trees outside the house. Learned counsel for the appellants has stated that there is also allegation of firing by one of the appellants, but, there is no fire arm injury upon anyone i.e. neither to P.W. 2 nor upon the deceased. In her cross-examination, this witness (P.W. 3) has also stated that about the incident, the villagers had informed her. Therefore, P.W. 3 is also not an eye witness and, thus, she is not a reliable witness. It is further submitted by the learned counsel for the appellants that P.W. 6, namely, Shiv Shankar Bodra, was aged about nine years as on the date on which he gave his statement and was still younger on the date of incident. He is a child witness and grand-son of the deceased. This child witness is a partisan witness. This child witness has stated in his cross-examination that the incident has taken place at the evening hours i.e. before sunset. This witness has stated that the whole incident has taken place in the house whereas other witnesses are saying that the incident has taken place out of the house and at about 11.00 p.m. i.e. during night hours. Thus, this witness is also not a reliable witness. Learned counsel for the appellants has also submitted that P.W. 7, namely, Lipi Mundarin, is the minor daughter of the informant (P.W. 2). As per the deposition of this witness, from her house the road is 20' away. She has stated that there was light and, therefore, she has seen the whole incident. This witness is changing t[he time of murder. Moreover, this witness has stated that earlier the incident had taken place at 2 O'Clock. This time is also not tallying with the time given by the informant. Thus, different prosecution versions are coming through the prosecution witnesses. ;