- (1.) THIS appeal has been preferred by the appellants, named above, against the judgment and order of conviction and sentence dated 30th June, 1997, passed by the learned 1st Additional Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 54 of 1995, whereby and whereunder, all the appellants have been convicted for the offences under Sections 320(sic -302?)/201/34 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and no separate sentence has been passed for the offence under Section 201/34 of the Indian Penal Code. However, all of them have been acquitted for the charge under Section 364/34 of the Indian Penal Code.
(2.) THE prosecution case is based on the Fard -beyan (Ext. 3) of the informant Basmati Kalundia (PW 5) recorded on 15.9.1994 at 7.00 p.m. at Village Sin Pokharia by Ramadhar Singh and First Information Report (Ext. 4) was drawn up under Section 364/34 of the Indian Penal Code. Subsequently when the dead body of Habil Kalundia, husband of the informant, was traced out, Sections 302 and 201 read with Section 34 of the Indian Penal Code were also added. The informant Basmati Kalundia (PW 5) is .a hearsay witness, who has been informed by Made Kalundia (PW 1), Dasmati Kalundia (PW 2) and Pelang Kalundia (PW 4) that her husband Habit Kalundia was done to death by these appellants in the courtyard (Angan) of Dasmati Kalundia (PW 2). The informant has alleged that on 14.9.1994 at 4.00 p.m. her husband Habil Kalundia along with Rasika Sawaiya, co -villager, had gone to Sin Pokharia Station to watch Foot -ball Match. At about 6.00 p.m. both of them returned home and again at 6.30 p.m. both of them went for walk. When her husband did not return, then in the morning she went in search of her husband. In course of search she was informed by Dasmati Kalundia (PW 2) that her husband Habil Kalundia was assaulted with axe by appellants Bago Gope, Bona alias Shiv Kumar Gope, Guddu Gope, Mati Gope and Rarnai Gope at 8.00 p.m. in her courtyard. Thereafter, they carried away the injured Habil Kalundia somewhere else. At the time of he alleged assault, in the village no male nember was present and only the females, namely, Chanda Kalundia (not examined), Pelang Kalundia (PW 4) and Made Kalundia (PW 1) had seen the alleged assault on Habil Kalundia. The informant went to the courtyard of Dasmati Kalundia and saw blood stains there. The appellants had taken her husband with an intention to cause his murder and after causing murder they concealed the dead body some where else. She does not (sic) the causing the place of occurrence from where they saw the manner of the alleged assault on Habil Kalundia and taking him away by these appellants. In this case the I.O. who investigated the case and recorded the statements of the witnesses has not been examined, which has caused prejudice to these appellants and has relied upon a case, reported in 1989 P.L.J.R. 405 (Bisundeo Mishra and 6 Ors. vs. State of Bihar). In the village, there are male members also but none of the male members of the village has been examined. The doctor (PW - 8) who conducted autopsy on the dead body of the deceased Habit Kalundia, has opined that time elapsed since death was within 48 hours from the time of post -mortem examination, which corresponds to the period in between 16.9.1994 to 18.9.1994. Thus, the time of death, as per the Post Mortem Report, does not correspond to the time of the alleged occurrence, which took place on 14.9.1994 at 8.00 p.m. The inquest report also contradicts the Post Mortem Report in material particulars. The doctor did not find any sign on the dead body that it was brought out of the water of the mines. There is delay in lodging the First Information Report, which could not be explained satisfactorily. The First Information Report was also received in court after two days i.e. on 17.9.1994. The prosecution has not explained these delay, which gives rise to concoction and embellishment in the prosecution case for false implication of these appellants and has relied upon the cases, reported in 1972 Cr.L.J. 1296 (SC) (Thulia Kali vs. State of Tamil Nadu), 1973 Cr.L.J. 185(SC) (Apren Joseph @ Current Kunjukunju vs. State of Kerala), AIR of the alleged abduction of her husband for causing his murder. She gave her L.T.I (Ext. 2) on her Fard -beyan, which was witnessed by Durga Charan Munda, who also signed on her statement (Ext. 2/1). PW 6 Dwizendra Nath Ojha submitted chargesheet against these appellants, who is not the Investigating Officer in this case.
(3.) IN course of trial, the prosecution examined altogether eight witnesses, out of them PW 7 Munishwar Singh is a formal witness who has proved the formal First Information Report (Ext. 4) and signature of Arun Kumar Singh, the then Officer In -charge, Chaibasa Mofassil Police Station. PW 8 Dr. S.S. Birua, has conducted the autopsy on the dead body of Habil Kalundia on 18.9.1994 at 11.45 a.m. and prepared Post Mortem Report (Ext. 5) in his pen and signature. PW 5 Basmati Kalundia is the informant and wife of the deceased, who is not the eye witness. PW 3 David Singh Kalundia is the witness in whose presence the dead body of Habil Kalundia was Drought out of the mines water and inquest report was prepared in carbon process on which he signed (Ext. 1).;