D.N.PATEL, J. - (1.) BOTH these appeals have been preferred by original accused no. 1 and original accused no. 2 respectively of Sessions Trial No. 65 of 1990 as they have been punished for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code by learned Additional Judicial Commissioner I, Khunti vide judgment of conviction and order of sentence dated 16th July, 2002.
(2.) IT is the case of the prosecution that P.W. 8 Prakash Sanga informant had given his fardbeyan on 17th September, 1986 that on 16th September, 1986 he saw his brother in law Walter Purty and Habil Purty (original accused no. 2) were quarreling with each other, at evening hours. The reason for quarreling was that Habil Purty was demanding money for liquor from the driver of the trucks, which were passing through. This was objected by Walter Purty and, therefore, threat was given by Habil Purty to Walter Purty and on the same day at about 08:00 p.m. when Walter Purty was going to missionary school (because he always used to sleep in the said school) from Sarwada Mission Chowk, he was assaulted by dagger by Habil Purty (original accused no. 2 - appellant in Criminal Appeal No. 736 of 2002). Younger brother of Habil Purty, namely, James Purty (original accused no. 1 appellant in Criminal Appeal No. 491 of 2002) had blocked Walter Purty from the front side and, thereafter, Habil Purty had assaulted Walter Purty by dagger. Walter Purty attempted to run away, but, there was injury on his stomach, which made him senseless and because of dagger blows, Walter Purty expired on the spot. After recording of the fardbeyan, investigation was carried out, several statement of the witnesses were recorded, chargesheet was filed and the case was committed to the Sessions Court being Sessions Trial No. 65 of 1990 and on the basis of the evidences given by P.W. 1 to P.W. 10 and on the basis of other documentary evidence on record, the learned trial court has convicted both the accused for the offence of murder of Walter Purty and they have been sentenced for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code. Against the judgment of conviction and order of sentence passed by learned Additional Judicial Commissioner I, Khunti, original accused no. 1 has preferred Criminal Appeal No. 491 of 2002 and original accused no. 2 has preferred Criminal Appeal No. 736 of 2002. We have heard learned counsel for the appellants, who has submitted that the prosecution has failed to prove the offence of murder beyond reasonable doubt. There is no allegation against James Purty original accused no. 1, who is appellant in Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that James Purty has not caused any injury to the deceased -Walter Purty. Not a single eye witness or any other prosecution witness has stated that James Purty has caused any injury upon the body of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court. Moreover, it is submitted by learned counsel for the appellants that the prosecution has failed to prove common intention on the part of original accused no. 1 sharing with original accused no. 2 and, therefore, the judgment of conviction and order of sentence passed by learned trial court for James Purty (appellant in Criminal Appeal No. 491 of 2002) deserves to be quashed and set aside. It is further submitted by learned counsel for the appellants that bail was granted to James Purty by suspending the sentence while admitting the Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that looking to the postmortem report, which is at Ext. 1, there is no incised wound, which is capable of being caused by the so called weapon alleged in the hand of James Purty. It is alleged by the prosecution that James Purty was having Tangi in his hand. Tangi is a sharp cutting instrument and there is no corresponding injury upon the body of the deceased, as per postmortem report at Ext. 1 and, therefore also, there was no common intention shared by James Purty with Habil Purty. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by the trial court for James Purty deserves to be quashed and set aside.
(3.) IT is also submitted by learned counsel for the appellant in Criminal Appeal 736 of 2002, which is preferred by original accused no. 2 that P.W.1 is not an eye witness of the incident, at all. Learned counsel for the appellants has pointed out that P.W.8, who is claiming to be an eye witness, is ousting the presence of P.W.1 at the time of incident. Similarly, P.W.8 is not an eye witness because P.W.1 has stated in his cross examination that at the time of murder of deceased, no one was there other than P.W.1. Thus, the depositions of P.W.1 and P.W.8 are in contradiction with each other. It is also submitted by learned counsel for the appellants that the postmortem report has not been proved, at all and the doctor has not been examined, in this case and, therefore, original accused no. 2 could not have been convicted for the offence of murder of deceased. Learned counsel for the appellants has relied upon the decision rendered by the Hon'ble Supreme Court reported in 2008 (11 12) SBR 268 as well as the decision rendered by this Court reported in 2006 (3) JLJR 6. On the basis of these two judgments, learned counsel for the appellants submitted that if the doctor is not examined then postmortem report cannot be relied upon and, hence, the trial court could not have convicted original accused no. 2 or even original accused no. 1 for the offence of murder of deceased. It is also submitted by learned counsel for the appellants that P.W.3, P.W.4, P.W.5, P.W.6 and P.W. 9 have not supported the case of the prosecution either because P.W.3 and P.W.4 are hearsay witnesses or because P.W.5 and P.W.6 are tendered witnesses and P.W.9 is a hostile witness. Thus, the prosecution has failed to prove the offence of murder of deceased by these two appellants beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court and, hence also, the judgment of conviction and order of sentence passed by learned trial court deserves to be quashed and set aside.;