Deoki Nandan Prasad, J. - (1.) THIS criminal appeal in directed against the judgment of conviction dated 7.11.1990 and order of sentence dated 8.11.1990 passed by Shri Sheo Dayal Prasad, Additional Sessions Judge, Pakur, Sahibganj in Sessions Case No. 153 of 1988/79 of 1989, whereby and whereunder, the learned Additional Sessions Judge convicted both the appellants for the offence under Section 304 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years each. They were further convicted under Section 342 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year each. However, the sentences were ordered to run concurrently.
(2.) THE prosecution case in brief is that Jharia Kisku, father of the informant, had gone to Simlong Hatia on Monday and when he did not return by night, then on the next day at about 8 a.m., Parme Hansda (appellant No. 1) informed him that his father Jharia Kisku was caught while he was committing theft of one Bail in his house in the night of Monday and thereafter he was tide with rope. Thereafter the informant and others went to Baraghaghari and they found Jharia Kisku tied at the house of the Pradhan. On their arrival a Panchayati was called for. It was stated that after committing theft of one Bati, Jharia Kisku was trying to flee away and thereafter he was caught and he was assaulted and tide by rope. A sum of Rs. 100/ - was also fined by Panchayat. On enquiry from Jharia Kisku, it is found that he was brutally assaulted by the appellants by Lathi and danda by leveling false allegation of theft against him and he was tide with rope. The first information report was lodged accordingly. The police investigated into the case and submitted charge sheet in the case against the appellants. The appellants appeared before the Additional Sessions Judge where charge was framed under Sections 342 and 304 of the Indian Penal Code to which they pleaded not guilty. Although ten witnesses have been examined on behalf of the prosecution. P.Ws. 2, 4, 7 and 8 are consistent in their deposition that Jharia Kisku was brutally assaulted by the appellants by putting false allegation for committing theft of one Bati. The said witnesses when reached to the spot found Jharia Kisku tied with rope and also injuries on his person, establishing the whole prosecution case for assaulting Jharia Kisku by the appellants and also tying him with rope. It has come in evidence that then Jharia Kisku was brought in his house he died on the way near the house of Ram Lal. Jharia Kisku himself stated before all the villagers including his son after the appellants had assaulted him with lathi and danda brutally, and this statement has fully been corroborated by the medical evidence itself. The Doctor (P.W. 9) who held post mortem found as many as five injuries on the person of Jharia Kisku, which reads as under : - - "(i) One lacerated wound on right forearmulna side measuring 2" x x/2" x Bone deep. (ii) One lacerated wound on left lower leg 5" below knee joint measuring 1" x 1" x Bone deep. (iii) One abrasion on left side of forehead measuring 1" x 1". (iv) Parital bone of right side of head fractured and depressed. (v) Ligature mark on both areas. The cause of death was due to injury No. (iv). Time elapsed sine death about 48 hours".
(3.) MR . K.K. Ojha, learned counsel appealing on behalf of the appellants submitted that there is much contradictions in the evidence of the witnesses as well as there is no eye witness of the occurrence. It is further argued that the Investigating Officer has not been examined in the case.;