- (1.) THE above Appeals have been preferred against the common Judgment and Order of conviction and sentence dated 22.03.2005 passed by Sri Gautam Mahapatra, Additional Sessions Judge, F.T.C. No. 3, Palamau at Daltonganj in Sessions Trial No. 24 of 2003 corresponding to Chhatarpur P.S. Case No. 38/2001 [G.R. No. 563/2001] whereby and whereunder the appellants namely Ram Prasad Yadav and Aruni Yadav [In CRIMINAL APPEAL (DB) NO. 478 OF 2005] have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs.1,000/- each, and in default of WITH ACQUITTAL APPEAL NO. 27 OF 2005 payment of fine, further to undergo six months imprisonment whereas, the respondents Kaila Yadav, Balkesh Yadav, Awdhesh Yadav and Arbind Yadav [In ACQUITTAL APPEAL NO. 27 OF 2005] against whom Acquittal Appeal has been referred, have been acquitted.
(2.) THE prosecution case in short is that Fardbayan of Ram Kumar Prasad was recorded on 02.05.2001 at 7:30 hrs. at village Namudag within Police Station ? Chhatarpur in which he has stated that on 02.05.2001, in the morning at 5:00 a.m. his father left home on his bicycle for going Chhatarpur after instructing him to come behind and accordingly, the informant followed his father. It is alleged that Rakesh Yadav was restrained by all the accused persons who are appellants and respondents respectively in the instant appeals; Aruni Yadav, who was armed with Tangi, gave a blow on the head of Rakesh Yadav. In the result, he fell down whereafter, Ram Prasad Yadav hurled repeated Tangi blows on the neck and other parts of the body of Rakesh Yadav. THE remaining accused who are respondents in the instant Acquittal Appeal, were instigating the former accused to kill Rakesh Yadav. It is disclosed that Rakesh Yadav, after sustaining injuries, died at the spot and the informant, who happens to be the son of the deceased, raising alarm, ran towards the house. He disclosed the incident to the villagers and inmates and then returned back to the place of occurrence and then found his father dead. On the basis of Fardbayan, Chhatarpur P.S. Case No. 38 of 2001 under Section 302/34 of the Indian Penal Code against the accused persons named in the F.I.R., was registered and the investigation commenced. After completing the investigation, chargesheet was submitted against all the six accused and they were put on trial. The prosecution, in order to substantiate the charge, examined altogether 14 witnesses whereas, the convicted appellants have examined Bablu Yadav (D.W.-1) in his defence. Arjun Kumar (P.W.-1) happens to be the hearsay witness and he has supported this fact that he heard about murder of Rakesh Yadav and he had gone to see the dead body. He did not support further case of the prosecution and, therefore, declared hostile. In his cross examination, he says that daughter-in-law of the deceased told him to inform Ram Kumar Prasad (Informant) and, thereafter, he went to village ? Khada on his scooter and met the informant near the village.
(3.) KHELAWAN Yadav (P.W.-2), Sukhdev Yadav (P.W.-3), Mithilesh Yadav (P.W.-4) are also hearsay witnesses and they had reached to the place after knowing about the incident and they had witnessed seizure of bicycle, Gamcha and blood stained soil made from the place of occurrence. Jitendra Yadav (P.W.-5), Pramod Yadav (P.W.-6) and Ram Kumar Yadav (P.W.-10 ? Informant) are the sons of deceased. Jitendra Yadav and Pramod Yadav are the witnesses to whom Ram Kumar Yadav informed about the incident and also disclosed the names of assailants and, thereafter, P.Ws. 5 and 6 reached to the place of occurrence and further assisted in the investigation. Umesh Chandra Yadav (P.W.-7), Laldev Yadav (P.W.-8), Ramdeo Bhagat (P.W.-12) had gone to the place of occurrence after knowing the murder of Rakesh Yadav and P.W.-7 is also a witness to the inquest. These witnesses have disclosed in their cross examination that Ram Kumar Yadav (Informant ? P.W.-10), had gone to his sister's house situated at a different village and he was informed and brought by Arjun (P.W.-1) on a scooter. Vinay Kumar Sharma (P.W.-13) has been declared hostile and he has said nothing. Manoj Kumar (P.W.-14) is a Constable, who has proved the formal F.I.R.. Dr. Kundan Prasad (P.W.-11) had conducted postmortem examination on the dead body of Rakesh Yadav on 02.05.2001 at 4:30 p.m. and found the following injuries:- (1) 4" x bone deep sharp incised wound on the right side of forehead. (2) 3" x bone deep incised wound on the right side of mandible. (3) 10" incised wound widely gapped and extending on the right side of neck from the cheek to the back of neck cutting cervical vertebra, food and wind pipe completely and vital blood vessels on right side leaving only a small portion of the neck on the left side. The injuries were caused by heavy sharp cutting weapon and cause of death was due to shock and haemorrhage as a result of above said injuries. In his cross examination, the Doctor has said that injury no. 3 is not only possible by Gandasa but the same may be possible by Tangi. To make it clear, he says that it is not a fact that injury no. 3 is not possible by Tangi. No food material was found in the stomach of the deceased. About six hours is taken in digesting the food.;