LAKHSMAN URAON, J. - (1.) APPELLANTS have preferred this appeal against the judgment and order of conviction and sentence Judicial Commissioner, Khunti, in Sessions Trial No. 241 of 1996, whereby and whereunder, both the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/ - each and in default to undergo imprisonment for a further period of six months. Both the appellants have further been convicted under Section 307/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. The learned 3rd Additional Judicial Commissioner, Khunti, however, ordered that the sentences in respect of each count shall run concurrently.
(2.) THE prosecution case has arisen on the basis of the fardbeyan (Ext. 4) of Yogen Nat (PW 5), recorded by S.K. Jha, SI of Tamar Police Station, on 3.10.1995 at 17.30 hours in village Ghanshyampur khalihan Tand. On that basis formal First Information report was drawn and charge - sheet was submitted under Sections 147, 148, 302, 307, 324, 341 and 337 of the Indian Penal Code against Asaiya Munda (appellant No. 1), Matius Munda (appellant No. 2), Masidas Munda, Johan Munda, Mansi Munda and Paulus Munda. In course of trial Paulus Munda having died, the trial against him was dropped. The other accused persons were acquitted whereas both these appellants were convicted by the learned Court below for the offences under Sections 302/34 and 307/34 of the Indian Penal Code and sentenced thereunder. The informant (PW 5) along with PW 6 Shiv Charan Swasi and deceased Mahim Nat had gone to watch the Lac trees in Chanshyampur khalihan Tand on 3.10.1995. At about 2.00 p.m. on that day Matius Munda and Asiya Munda (both appellants), armed with farsa, Paulus Munda (since dead), armed with lathi, Masidas Munda, having stones in his hand, Johan Munda, having bows and arrows, Mansi Munda having sword, reached there along with 4 to 5 unknown villagers of Village Ghanshyampur, armed with farsa, sword, lathi, bricks and stones. They reached there to collect Lac from the trees, which wee being watched by the informant and two others. When the informant and others objected, altercation took place. The appellants abuse the informant and others. In course of altercation, appellant Matius Munda ordered appellant Asaiya Munda to assault whereupon appellant Asaiya Munda gave farsa blow on the neck of Mahim Nat, who sustained bleeding injury and died. Thereafter, appellant Asaiya Munda gave farsa blow on the neck of PW 6 Shiv Charan Swasi, causing bleeding injury on his left portion of neck. The informant Yogen Nut (PW 5), to save his life, fled away. Masidas Munda, co -accused, since acquitted, hurled stones, causing injury on his chest. He went to the village and raised alarm. On his alarm, the villagers went to the place of occurrence i.e., khalihan Tand, situated in the Jungal of Ghanshyampur and saw Mahim Nat lying dead in a pool of blood whereas PW 6 Shiv Charan Swasi had fallen down with bleeding injury on his neck. By that time the assailants had fled away. The alleged occurrence took place only due to long standing enmity and pendency of the cases, regarding the place of occurrence, which is khalihan Tand, Jungal of Ghanshyampur.
(3.) THE learned 3rd Additional Judicial Commissioner, Khunti. examined altogether 12 witnesses, produced by the prosecution. PW 1 Jairam Swasi and PW 2 Chhotu Swasi went to the place of occurrence and saw the dead body of Mahim Nat and injured PW 5 Shiv Charan Swasi lying there. The IO went there and prepared the inquest report on which they signed (Exts. 1 and 1/3 respectively). They are also witnesses on the seizure list, prepared by the IO. When the IO went to the house of the appellants, he seized farsa and prepared seizure list on which they signed (Exts. 1/1, 1/2 and 1/5). PW 3 Yogeshwar Swasi and PW 4 Ram Kanhai Munda also went to the place of occurrence where the dead body was found. In their presence the IO seized blood stained soil, prepared seizure list on which they gave Charan Swasi, who were watching the Lac trees along with deceased Mahim Nat, are the eye - witnesses, although having enmity with the appellants. PW 7 Nakul Swasi saw the appellants fleeing away from the place of occurrence. When he went there, he was informed that the appellants caused murder of Mahim Nat and injured PW 6 Shiv Charan Swasi. PW 8 Bishnu Nat saw the dead body at the place of occurrence. He does not know the assailants and, as such, he was declared hostile by the prosecution. PW 9 Sohrai Swasi could not identify appellant Asaiya Mudna in the Court in the course of his evidence. He is hearsay witness, who was informed that appellants murdered Mahim Nat and injured Shiv Charan Swasi. He went there and saw the dead body of Mahim Nat and injured Shiv Charan Swasi, lying there, having bleeding injury on his neck. PW 11 Dr. Binod Kumar Pandit has examined PW 6 injured Shiv Charan Swasi and issued injury report (Ext. 3). Dr. Niranjan Minz. who conducted the autopsy on the dead body of Mahim Nat, could not be examined, as he could not be traced out. He had gone in course of treatment of his son to Bombay and since thereafter he had not returned to R.M.C.H., Ranchi. He was also not available in M.G.M. College and Hospital, Jamshedpur. Dr. Ram Sewak Singh (PW 10) was posted along with him as Assistant Professor in the same department and, as such, he is acquainted with the writings and signature of Dr. Minz. who has proved the post -mortem report (Ext. 2), prepared in the pen and signature of Dr. Minz. In this case PW 12, a formal witness. Shaligram Choudhary (Constable), has proved the fardbeyan (Ext. 4), inquest report (Ext. 5), seizure lists (Exts. 6 and 6/1) as also the case diary (Ext. 7), as the IO of this case could not be examined by the prosecution.;