HARI SHANKAR PRASAD, J. - (1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 30.4.1997 passed in Session Trial No. 250/95, where - by and whereunder the learned Sessions Judge, Deoghar held the appellant guilty under Section 304, Part -I IPC and convicted and sentenced him to undergo RI for seven years and to pay a fine of Rs. 2000/ - and in default of payment to further undergo RI for one year.
(2.) PROSECUTION case in brief is that appellant and deceased Churka Hembrom were full brothers. They had thatched houses at the same places contiguous to each other and on 19.8.95 at about 2 p.m. both of them quarreled with each other for hens and in course of quarrel appellant assaulted Churka Hembrom with lathi on his head, as result of which Churka Hembrom fell down and became unconscious. His wife was, at that time sowing paddy in the field and her daughter Lurki Hebrom (PW 1), who was in the house saw the quarrel and immediately rushed to her mother, who was in the field, and informed her and wife of Churka Hembrom came to the house and saw the occurrence and raised alarm, whereupon co -villagers assembled and appellant fled away. Churka Hembrom was not taken to hospital but he was treated in the house and during course of treatment in the house he succumbed to his injufies. A case to that effect was lodged by Belful Murmu, whereupon I.O, after investigation, submitted charge -sheet under Section 302, IPC. Cognizance in the case was taken and case was committed to the Court of sessions. The learned Sessions Judge, after recording evidence both oral and documentary of the witnesses, held the appellant guilty and convicted and sentenced him as foresaid. Prosecution has examined 8 witnesses. PW 1 is Lurki Hembrom, who is daughter of deceased Churka Hebrom and the informant Belful Murmu. She has been declared hostile as she has not supported the prosecution case. PW 2 is a witness to the seizure list. He has also not supported the recovery but has stated that on a piece of paper he has put his signature (Ext. 1).
(3.) PW 3 is the informant and wife of deceased Churka Hembrom. She is not an eye witness but she deposed that there was some altercation in between her husband and appellant, whereupon appellant assaulted her husband with lathi on his head and blood started oozing out and Churka Hembrom fell down. She admits that when assault took place on her husband, she ran from the field and appellant also fled away. Appellant again came and again assaulted her husband. She admits that she was cutting grass at the time of altercation. On alarm she came there and for the first time she did not see the assault and when she came she saw her husband fallen on the ground and blood was oozing out from his head.;