LAKSHMAN URAON, J. - (1.) THE appellants, named above, have preferred this appeal against the judgment and order of conviction and sentence dated 25th May, 2001, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 241 of 1997, arising out of G.R.No. 268 of 1997, whereby and whereunder, both the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
(2.) THE prosecution case has arisen on the basis of the Fardbeyan (not proved) of the informant Shantu Baitha (PW 8), recorded on 20.4.1997 at 15 hours at Jhalki Garha Bujitoli by Sri Birendra Kumar, Officer -in -Chargei Palkot Police Station (not examined). On that basis formal First Information Report (not proved) was drawn up and after investigation charge against both the appellants was framed under Section 302/34 of the Indian Penal Code. The appellants denied the charges levelled against them although no defence witness was examined. Madan Baitha son of Shantu Baitha on 19.4.1997 at about 6.00 a.m. had gone to Village -Nathpur in the house of his maternal uncle and Matisa along with these appellants Jubai Singh and Naro Thakur to participate in a party, which was organized by the Mousa and maternal uncle of the deceased Madan Baitha, on the occasion of amicable/partition of their ancestral property. Madan Baitha did not return home at night; who was purposely not searched, believing that he might have stayed in the house of his maternal uncle or Mousa. But in the morning of 20.4.1997 at about 11.00 a.m. Etwa Kharia (not examined) informed that Madan Baitha had been murdered whose dead body is lying at Jhalki Garha Patra. The informant went to the house of these appellants Jubai Singh and Naro Thakur to enquire about his son Madan Baitha but they were not found in their respective homes. The informant suspected that both these appellants, who had gone to Nathpur Village along with his son Madan Baitha, might have murdered his son. The prosecution in order to substantiate the charges, examined 14 witnesses. Out of them PW 1 Jugo Devi is the mother of the deceased whereas PW 2 Etwari Baitha is the Mousi and PW 3 Chcirku Baitha is the Mousa of the deceased. PW 4 Kandra Gope and PW 5 Chaman Dhobi are hostile witnesses. PW 6 is Dr. Ganesh Prasad, who has conducted the autopsy on the dead body of Madan Baitha and Ext. 1 is the Post Mortem Report. PW 7 Harkhu Baitha, uncle of the deceased, has signed on the Fard -beyan. PW 8 Shantu Baitha (informant) is the father of the deceased. PW 9 Govind Thakur, a formal witness, has proved the production of Farsa (Material Ext. 1). PW 10 Shiv Prasad, a boy of 10 years, while washing his buffaloes in a pond, found a Farsa, which was produced before the villagers. PW 11 Bhola Singh and PW 12 Manrakhan Prasad are the seizure list witnesses. PW 13 Parshuram Singh and PW 14 Shushant Kumar Mishra are the formal witnesses, who have proved the formal First Information Report (Ext. 3) and case diary (Ext. 4).
(3.) THE learned 1st Additional Sessions Judge relied the circumstantial evidence that Madan Baitha went to Village Nathpur along with these appellants and participated in a feast organized by his maternal uncle and Mousa. PW 2 is the Mousi and PW 3 is the Mousa Charku Baitha, who have also deposed that deceased had gone to their house along with these appellants and at 5.00 p.m. they left the Village -Nathpur. The doctor (PW 6) has conducted the autopsy on 21.4.1997 at 10.30 a.m. and opined that the death might have occurred in between 24 to 48 hours. From the time of post -mortem examination. PW 10, a minor boy, has produced one Farsa, which was seized and seizure list was prepared in presence of the witnesses i.e. PW 12 and PW 13, the means of assault, which corroborates the injuries found by the doctor (PW 6), who conducted autopsy. Relying the circumstantial evidence, the learned 1st Additional Sessions Judge, Gumla, convicted both the appellants, as they were last seen along with the deceased and sentenced them thereunder.;