Dhirubhai Naranbhai Patel, J. - (1.) THIS appeal has been preferred against the judgment and order of conviction and sentence, passed by the Additional Sessions Judge, F.T.C.V., Hazaribagh in S.T. No. 188/95, whereby these two appellants have been convicted vide order dated 28th October, 2003 for the offence punishable under Section 302 of the Indian Penal Code and they are punished vide order dated 29th October, 2003 for life imprisonment and are liable to make payment of fine of Rs. 1,000/ - each. Against this judgment and order of conviction, present appeal has been preferred by both the appellants.
(2.) THE case of the prosecution is that on 18.09.1994 at 12.00 hrs the informant Ganesli Ganjhu (P.W. -6) gave fardbeyan to police that on previous night i.e. on 17.09.1994 at 8:00 p.m. his son Mahavir Manjhi (deceased) was distributing Prasad in the village and in the meantime informant saw that his co -villager Moti Ganjhu and Chhoti Ganjhu were dragging his son toward their house and thereupon the informant, his brother Ganjana Ganjhu and his sister Madia Devi came running to the house of Moti Ganjhu and saw that Moti Ganjhu and Chhoti Ganjhu were assaulting informant son Mahavir Ganjhu with Lathi and when informant tried to save his son and raised nulla then they assaulted Shanti Kumari with lathi and run away from there. Thereafter informant saw his son lying in the house of Moti Ganjhu and blood was coming out from his body. The informant further alleged that reason for occurrence is previous enmity between the deceased Mahavir Ganjhu and accused persons. Eight witnesses were examined by the prosecution. One witness was examined by the the Defence We have heard learned Counsel for the appellants, who has mainly submitted that there are major omissions, contradictions and improvements and these major omissions, contradictions and improvements have been treated as a minor one by the learned Trial Court. The so -called eye -witnesses are not the eye -witnesses of the incident at all. Moreover, it is submitted by the counsel for the appellants that PW -2 has given different versions before the police and his statement was recorded under Section 161 of the Code of Criminal Procedure, whereas, before the Court, the narration is quite different i.e. proved with the deposition of Investigating Officer, who is PW -8. 50 -60 persons were present on the date of incident and on the place of occurrence but nobody has tried to save the life of the deceased/Neither the witnesses of the FIR nor the witnesses of the inquest panchnama have been mentioned in the charge -sheet as witnesses nor they have been examined by the prosecution in the court of law. PW -3 is also not the eye -witness of the incident because he has narrated place of occurrence differently. As per this witness, murder has taken place in the courtyard of the house, whereas, as per other witnesses murder has taken place in the house of Moti Ganju. PW -3 falsifies the presence of other so -called eye -witnesses. Thus, neither PW -2 nor PW -3 is reliable and trustworthy witness. So far PW -4 is concerned, it is submitted that her statement was recorded on next date of occurrence at 10:00 a.m., whereas Fardbeyan was given at 12:00 noon on the next date of occurrence. PW -4 has stated that she reached first at the place of occurrence, whereas other eyewitnesses are not giving the presence of this witness PW -4 and she has also not stated before the police that deceased was dragged by these accused persons. This PW -4 is also not reliable and trustworthy. So far PW -5 is concerned, it is submitted by counsel for the appellants that her statement was never recorded by the police, as stated by the Investigating Officer in his cross -examination and therefore, for the first time, PW -5 is giving his deposition in the Court. So far PW -6 is concerned, it is submitted by the counsel for the appellants that he has given different versions that assault was made by appellant Nos. 1 and 2 before the police and before the Court. Moreover, PW -6 is also not an eye -witness because he has stated in his deposition that PW -4 was an injured eye -witness, whereas, no injury has been mentioned by PW -4 nor any Doctor has been examined and this PW -6 has also not tried to save the life of the deceased. Similarly, place of giving FIR is also different. Therefore, PW -6 is also untrustworthy and unreliable. PW -7 was never mentioned as witness in the charge -sheet and he has proved the injury certificate of Shanti Devi/Shanti Kumari but this lady was never mentioned as witness in the charge -sheet nor this injured eye -witness has been mentioned by the prosecution as witness. Therefore, there is no useful purpose at all for examination of PW -7. It reflects mechanical mind of the Investigating Agency and also non -application of mind on the part of the Court. So far PW -8 is concerned, it is submitted by counsel for the appellants that in para -1, it is stated by this witness that fardbeyan of PW -6 was taken at 3:00 p.m., whereas, in fact, Fardbeyan was taken at 12:00 noon. Thus, from the very beginning, this informant is knowing nothing about the incident. He has proved major omissions, contradictions and improvements but the learned Trial Court has not appreciated these major omissions, contradictions and improvements proved by this Investigating Officer nor while recording the statements of the accused under Section 313 of the Code of Criminal Procedure, Trial Court has asked the question about the dead body in the house of Moti Ganjhu. These aspects of the matter have not been properly appreciated by the Trial Court and hence, the judgment of conviction and order of sentence passed by the Trial Court deserves to be quashed and set aside. Appellants have remained in jail since approximately eleven years.
(3.) WE have heard counsel for the State -APP, who has mainly submitted that no error has been committed by the Trial Court in appreciating the evidences of Prosecution Witnesses. The case of the prosecution is based upon more than one eye -witness and they are PW -2, PW -3, PW -4, PW -5 and PW -6. The incident has taken place on 17th September, 1994. Fardbeyan was recorded by PW -6, who is the father of the deceased and the FIR has also been lodged immediately. These two appellants have been named in the FIR. Enough details have been given in the FIR by PW -6, including names of other witnesses. It is also submitted by APP, looking to the depositions of PW -2, PW -3, PW -4, PW -5 and PW -6, that they have clearly narrated the role played by these two appellants in causing murder of the deceased. On the date of occurrence, these two appellants dragged the deceased at the house of Moti Ganju and there he was severely beaten by these two appellants one by lathi and another by pressing the chest of the deceased Mahavir Ganju, as a result of which he expired on the spot - that was a Puja day. Immediately, persons, who are eye -witnesses and seen the incident, have caught Moti Ganjhu red -handed. Chhoti Ganjhu ran away and he was arrested later on. It is submitted by APP that there are minor omissions, contradictions and improvements in the deposition of these witnesses because date of occurrence is 17th September, 1994, whereas they are giving their depositions after approximately about thirty -six months. Looking to the depositions of these witnesses, it has been consistently stated by these witnesses that appellant No. 2 Chhoti Ganju has caused injury by lathi and appellant No. 1 Moti Ganjhu pressed the chest of the deceased. But looking to the deposition given by PW -1 Dr. A. Ganguli, who has carried out post -mortem on the body of the deceased, has observed several injuries and opined that they were caused by lathi and by pressing the chest. This deposition is getting enough corroboration by the medical evidence given by PW -1. It is further submitted by APP that the investigating officer has been examined as PW -8. He has proved Fardbeyan, FIR including Panchnama, place of occurrence, and manner of occurrence as narrated by the prosecution witnesses when he recorded the statement under Section 161 of the Code of Criminal Procedure, which is corroborated to the depositions given by the eye -witnesses and no error has been committed by the Trial Court in appreciating these evidences. The prosecution has proved the offence of murder of Mahavir Ganjhu committed by these two appellants beyond reasonable doubt and therefore, this appeal may not be entertained by this Court.;