S.J.MUKHOPADHAYA, J. - (1.) THE appellants have preferred this appeal against the judgment dated 30th June, 1997 passed by Sri R.R. Verma, learned Vth Additional Judicial Commissioner, Ranchi in Sessions Trial no. 510 of 1995 arising out of Silli P.S. case no. 18 of 1995m, corresponding to G.R. Case no. 819 of 1995. The learned court below held the appellant(s) Dasai Kumar, Rijhua Kumar and Hirua Kumar guilty of the charges u/s. 302 I.P.C. read with section 34 I.P.C., convicted them and sentenced to undergo R/l for life.
(2.) INFORMANT , Bhagat Kumar (P.W. 1), brother of the deceased, Jagat Kumar lodged F.I.R. on 7th April, 1995 at about 4.30 A.M. (early morning) and reported that Yesterday (6th April, 1995) at about 8 P.M. his brother, Jagat Kumar (deceased) was taking meal in the house of Shristi Kumar (P.W. 5) and the informant was sitting outside his darwaza (house). The accused persons, who were distant relative, namely, Dasai Kumar, Rijhua Kumar and Hirua Kumar, came there armed with tangi (Farsa). The accused, Dasai Kumar entered the house of Shristi Kumar and other accused, Rijhua Kumar and Hirua Kumar waited outside the door of Shristi Kumar with Farsa in their hand. They asked Jagat Kumar to come out. And then, the accused, Dasai Kumar gave one Farsa blow on the head of his brother, Jagat Kumar. Thereafter all the three accused persons dragged out Jagat Kumar from the room and inflicted Farsa blow a number of times on the head and hand of Jagat Kumar. The informant requested not to kill him but the three accused persons did not gave any heed to his request. Jagat Kumar died instantly whereinafter the three accused persons dragged the dead -body of Jagat Kumar and left it on the road. In course of trial, the prosecution produced altogether 11 witnesses in order to substantiate the charges, framed against the accused persons. P.W. 1, Bhagat Kumar, who is the informant and brother of the deceased, is the solitary eye witness, who was present at the place of occurrence when the alleged occurrence took place. P.W. 3, Sushila Devi, who is the mother of the deceased, initially claimed to be the eye witness but in her cross -examination, she accepted that she has not seen the occurrence. She further stated that she and her son (P.W. 1), Bhagat Kumar deposed as they were tutored by Shristi Kumar. P.W. 2, Dhirendra Mahto and P.W. 9, Chaita Mahto are the seizure list witnesses of blood stained soil. P.W. 4, Lakhi Charan Mahto and P.W. 8, Sri Pado Mahto are the inquest report witnesses. Three of the witnesses, namely, P.W.5, Shristi Kumar; P.W.6, Sombari and P.W. 10, Harihar Lohar @ Komar were declared hostile by the prosecution. P.W.7, Dr. Tubi Mahto held post -mortem on the body of the deceased and P.W.11, Bhola Pandit, A.S.I., Chutia was the Investigating Officer. Learned Vth Additional Judicial Commissioner, Ranchi relied on the evidence of solitary eye witness (P.W.1) and deposition as was made by P.W.3 and convicted all the three accused persons u/s. 302/34 I.PC. and sentenced to undergo R/l for life.
(3.) LEARNED counsel for the appellants submitted that the testimony of solitary eye witness (P.W.1), brother of the deceased, is contradictory, not corroborated by any other evidence, therefore it should not be trusted. He further submitted that the medical evidence being opposed to the ocular evidence, one can doubt the testimony of solitary eye witness (P.W.1). P.W.1, Bhagat Kumar, informant -brother of the deceased is the solitary witness amongst the witnesses examined on the point of occurrence. He supported his statement as was made in fard beyan. He stated that the occurrence took place in the month of 'Chart, about 8 months back at about 8 P.M., he was in his Aangan (court yard), in front of the house of Shristi Kumar. Shristi Kumar and Jagat Kumar (deceased) were taking meal together inside the house of Shristi Kumar Bulaki Ram Versus Jatru Mahali which he was watching. Accused Rijhua Kumar and Hirua Kumar came with tangi in their hand. Accused, Dasai Kumar entered the room of Shristi Kumar and gave Farsa blow on the head of Jagat Kumar. His head was cut. Accused, Hirua Kumar gave blow and the accused; Rijhua Kumar also cut the deceased. Thereafter, when they dragged the deceased near the door of Rijhua Kumar, he rushed to Thana to report. He reported the Daroga that his brother has been slitted. Report was written by the Daroga in the early morning. In the cross -examination, P.W.1, stated that the accused went to the house of Shristi Kumar through his Aangan and he also accompanied them. He further stated that the Farsa blow was given from the side of its edge. He further stated that the occurrence took place at about 8 RM. and after the incident, he went to Mukhiya, Mangal Mahto, who asked him, go to police station. RW.3, Sushila Devi is the mother of the deceased. She stated that his son, Jagat Kumar (deceased) had gone to take meal in the house of Shristi Kumar. On hearing hulla, she went to the house of Shristi Kumar. Accused Dasai Kumar, Rijhua Kumar and Hirua Kumar had tangi in their hand; they gave blow on the head, mouth and hand of Jagat Kumar. She wanted to save but the accused persons did not heed to her request. In her cross -examination, P.W.3 stated that there was a difference between the - deceased and informant on the point of wife of the accused, Rijhua Kumar, who had been kept by deceased, Jagat Kumar. On the question of her hearing, she accepted that she being short of hearing, was not able to hear the voice coming from outside the court room. She contradicted her statement and stated that she went to the house of Shristi Kumar having been called for by Shristi Kumar. She also stated that she (P.W.3) and her son (P.W.1) deposed before the court as were instructed by Shristi Kumar (P.W.5). She also accepted that she had not seen the occurrence. From her (P.W.3) deposition, it is clear that P.W.3 is not an eye witness. Whatever she (P.W.3) and her son (P.W.1) deposed before the court, were not of their own but as they were tutored by Shristi Kumar (P.W.5). P.W. 2, Dhirendra Mahto and P.W.9, Chaita Mahto, who are seizure list of blood stained soil witnesses, could not say the material which were seized in their presence. They stated that they were asked by police to sign on a paper which they signed. Similar statement was made by P.W.4, Lakhi Charan Mahto and P.W. 8, Sri Pado Mahto, who are the witnesses of inquest report and stated that they have not signed the documents after reading them, as the police obtained their signatures on blank papers. P.W.5, Shristi Kumar, whose house is stated to be the place of occurrence, denied the fact that the deceased, Jagat Kumar was called by him to take meal. He stated that he could come to know of death of Jagat Kumar on the next day morning. He was declared hostile by the prosecution.;