- (1.) THIS appeal is directed against the judgment of conviction dated 28.02.2003 and order of sentence dated 6.3.2003 passed by the learned Addl. Sessions Judge, Fast Track Court -I, Bermo at Tenughat in Sessions Trial Case No. 149 of 1987, whereby the appellants have been convicted for the charges under Section 302 read with 34 of the Indian Penal Code(I.P.C. For short) and sentenced to undergo rigorous imprisonment for life under the aforesaid sections.
(2.) THE case of the prosecution in brief as per the fardbeyan of Rupchandra Mahto (P.W. -3) recorded at Referral hospital, Jaina More on 24.4.1985 is that P.W. -3 along with his uncle Gopi Mahto (since deceased) had gone to take bath in the village pond. After taking bath P.W. -3 was standing on the bank of the pond and Gopi Mahto was washing his slippers when all of sudden appellant no.1 i.e. Debu Mahto came armed with tangi and without any provocation assaulted Gopi Mahto on the head with a tangi due to which Gopi Mahto fell in the water; that the informant wanted to bring out Gopi Mahto from the water upon which appellant no.1 gave life threat and in the meantime appellant no.2 i.e. Swapan Mahto came armed with lathi and brought out Gopi Mahto from the pond with intent to assault Gopi Mahto; that when the informant asked them not to assault then the appellants chased him with intent to assault; that the informant fled and informed Sulochan Mahto, brother of Gopi Mahto regarding the incident. Whereafter Gopi Mahto's brother Sulochan Mahto, his mother and his wife reached the pond where they found Gopi Mahto lying in unconscious state; that appellants fled away with tangi and lathi and sulochan Mahto, Vinod Mahto, Phuleshwar Mahto, Gopal Mahto, Mithan Mahto, Dara Mahto brought the injured Gopi Mahto to the hospital for treatment.
(3.) ON the basis of the fardbeyan Jaridih P.S.Case No.26/85, dated 24.4.1985 was registered under Sections 324/307/34 of the I.P.C. subsequently the injured died in course of treatment whereupon Section 302 of the IPC was added. Cognizance was taken and the case committed to Court of Sessions for trial. The appellants/accused pleaded not guilty and claimed to be tried; that 11 witnesses were examined by prosecution whereafter statement under Sections 313 of Cr.P.C. of the appellants were recorded and on the basis of the evidence of record, the learned Additional Sessions Judge, FTC -I convicted and sentenced the appellants by the impugned judgment. Sri B.M.Tripathi learned senior counsel for the appellants while impugning the judgment has submitted that the Trial Court failed to appreciate the fact that P.W. -3 i.e. the informant has stated that appellant No.1 had assaulted Gopi Mahto (deceased) on the head with the Tangi which is a heavy sharp cutting weapon but the doctor i.e. P.W. -9 who examined Gopi Mahto on the day of occurrence has stated that the injury was caused by hard and blunt substance and gave the age of injuries to be within 48 hours, which shows that the injury of the deceased was not fresh and this falsifies the fact that the alleged occurrence took place on 24.4.1985 and the testimony of P.W. -3 can not be relied upon as he is not an eye witness; that other witnesses examined are hearsay, admittedly there is no eye witness and the learned trial Court has committed error by stating that the testimony of P.W. -3 has been corroborated by the medical evidence and other witnesses adduced by the prosecution. It is argued that there is previous enmity between P.W.3 and the appellants and the trial Court should have considered the testimony of other witnesses for corroboration but the same has not been looked into by the trial Court; that the finding of the trial Court only on the basis of the testimony of the P.W. -3 is not sustainable as it has occasioned failure of justice. That the trial Court has not taken into consideration the fact that the place of occurrence is the village pond which is visited by other co -villagers and without considering this fact the trial Court has given finding on the evidence of P.W. -3 in a mechanical fashion, without any corroboration by independent witnesses and has also not considered the fact that the Investigating Officer has not been examined in the case. It is argued that the occurrence took place on 24.4.1985 and the deceased Gopi Mahto died in course of medical treatment on 29.4.1985. Thus considering the time gap between the actual occurrence and the death of the deceased the trial Court should have held that the no offence under Section 302 of the I.P.C. is made out rather the offence comes within the purview of Section 304 (II) of the I.P.C. i.e. culpable homicide not amounting to murder as there was no intervening circumstances; that the trial Court committed error in law by holding that both the appellants were guilty for the offence under Sections 302 read with 34 of the I.P.C. There is no evidence on record that both the appellants had reached the place of occurrence together neither there is any evidence on record to show that appellant no.2 had given any blow with the lathi on the deceased as such his conviction under Section 302 read with 34 of the I.P.C. is against the weight of evidence of record. It has been urged by the learned senior counsel for the defence that appellant no.1 had no intention to kill the deceased and the only evidence is that he had given a single blow which if presumed to be true for argument sake then the only intention that appellant no.1 had was to cause injury on the deceased and not to kill him. Accordingly, the judgment and conviction under Section 302 of the I.P.C. is not in consonance with the material on record and there is no material evidence to fasten the guilt under Section 302 read with 34 of the I.P.C. against the appellant no.2. hence, the said impugned judgment and conviction is fit to be set aside.;