D.N.Patel, J. - (1.) THIS appeal has been preferred against the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Fast Track Court -I, Deoghar, in Sessions Case No. 7 of 1993/272 of 2002. This appellant has been convicted for life imprisonment for the offence punishable under Section 302 of the I.P.C. for causing murder of Lodhar Mahto. The case of the prosecution is as under: The prosecution case is that on 27.1.92 at 4.30 P.M. the informant Arun Kumar Yadav (i.e. P.W. -5) gave fardbeyan to police that on 27.1.1992 at 2.10 p.m., after unloading the brick from the tractor in his field, which is situated 30 yard north -east from his house, he was reversing the tractor. At that time Shepherd of the informant namely Bhagirath Ray was returning after grazing the sheeps and when shepherd reached near the house of informant, then accused Mangal Ray, Hemlal Ray, Bharath Mahto, Lithu Mahto, Khubi Ray, Kalachand Ray, Arbind Chaudhary & Jay Naryan Mahto came near the sheep and tried to lift the sheep for slaughtering. The Shepherd protested them and went inside the house, where the father of the informant Lodhar Mahto (deceased) was taking meal with other six labourers. Then father of the informant left the meal and came outside the house and protested to it, then all accused persons went inside the house of Jhalku Mahto and Kalahari Devi, Wife of Jhalku Mahto gave one Hasua one danda to Ketki Ray from her house. Then Jhalko Mahto ordered them to kill Lodhar Mahto, then Mangar Ray gave a Hasua blow on the neck of his father and the vain was cut and blood started coming and he fell on the ground. Shiv Prasad Mahto the uncle of the informant came to save the father of informant, then Kalalchand and Hernial assaulted them with lathi. The accused persons also assaulted the Shepherd Bhagirath Ray. The father of the informant died at the spot. Thereafter the accused persons fled away, when the villagers assembled there. It was further alleged by the informant that the accused persons are criminals and they used to bring some unknown persons in their house and Jhalku Mahto is also associated with that 'Gang'. The informant with his family members used to protest it, so this occurrence took place. Ten witnesses were examined by the prosecution:
(2.) WE have heard the counsel appearing for the appellant, who has submitted that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. The so called eye witnesses of the incident are infact not the eye witnesses at all and they have not seen the incident of murder of the deceased. It is further submitted by the counsel for the appellant that there are more than one F.I.R. in this case. The medical evidence given by the doctor, Dr. A.K. Chatterjee, P.W. -9, and the ocular evidence given by the prosecution witnesses, especially P.W. 1, P.W. -3, P.W. -4, P.W. -5, P.W. -6 and P.W. -7 are not in contradiction with the medical evidence. The weapon alleged to have been used as per the medical opinion is 'Dab', which was, as per the prosecution case, in the hands of the accused - Hemlal, who expired during the course of the trial and in the hand of the present appellant, as alleged by the prosecution witnesses, was 'Sickle'. These injuries have not been caused by this appellant, even as per the medical evidence given by the P.W. -9. Infact, the eye witnesses are untrustworthy and unreliable. Moreover, the blood stained earth was sent for chemical analysis, but neither the report has been received nor the same has been adduced as an evidence before the learned trial court. The sketch map of the place of occurrence has also not been prepared by the Investigating Officer. Infact, the informant and other so called eye witnesses have falsified the prosecution case itself. Initially, there was an allegation of unlawful assembly, but the same could not have been established by the prosecution. The depositions of the so called eye witnesses are self contradictory to each other and though the other witnesses were available at the place of occurrence, only those, who are relatives of the deceased, have been examined by the prosecution. All those aspects have not been properly appreciated by the learned trial court, hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. We have heard the counsel for the State - A.P.P., who has submitted that no error has been committed by the learned trial court in appreciating the evidences given by the prosecution witnesses. The case of the prosecution is based upon several eye witnesses, who are P.W. 1, P.W. -3, P.W. -4, P.W. -5, P.W. -6 and P.W. -7, who were present at the scene of the offence. The incident has taken place on 27.1.1992 at about 14 -10 hours. The prosecution witnesses have clearly narrated the role played by this appellant in causing the murder of the deceased by sharp cutting instrument. Right from the Ferdbayan, it is the case of the prosecution that the present appellant has caused injuries on the neck of Lodhar Mahto, who is the father of the informant -P.W. -5, and due to this injury, the father of the informant expired on the spot. It is also submitted by the A.P.P. that immediate the F.I.R., this appellant is named in the F.I.R. The weapon alleged to have been used by the appellant has also been referred in the F.I.R. The name of several other witnesses have also been mentioned in the F.I.R. and they have also been examined by the prosecution and there is consistent version of all the eye witnesses. There may be minor contradiction about the time etc., but the same is because of the fact that the incident has taken place in the year 1992 and they are giving depositions after approximately 3 to 4 years. So far as the role played by this appellant -accused is concerned, all the eye witnesses have stated that the sharp cutting instrument was used by this appellant and he has caused the injury at the neck of the father of the informant, who expired on the spot. The medical evidence given by the doctor, P.W. -9, Dr. A.K. Chatterjee, is also corroborative to the depositions of the eye witnesses. Moreover, the evidences given by the P.W. -8, Investigating Officer, who has also proved the Inquest Report and Seizure List, which at Ext. -4 and Ext. -5. Thus, the depositions of P.W. -8 is also corroborative to the depositions of the eye witnesses. P.W. -3 is an injured eye witnesses, whose Injury Certificate is at Ext. 7/1. Looking to the evidences on record, the prosecution has proved the offence of murder of Lodhar Mahto to have been committed by this appellant beyond reasonable doubt and the learned trial court has rightly punished this appellant - accused vide impugned judgment and order of conviction and sentence and hence this appeal may not be entertained by this Court.
(3.) HAVING heard the counsel for both the sides and looking to the evidences on record, we see no reason to entertain this Criminal Appeal, mainly for the following facts, reasons and evidences on record: (i) It is a case of the prosecution that on 27.1.1992, P.W. -5, who is son of the deceased gave Ferdbayan to the police that on the very same day at about 2.10 P.M., when he was unloading the bricks from the tractors in his field, which is situated with 30 yards from his house at north -east side, he was driving his tractor, at that time, his shepherd - Bhagirathi Ray, was returning after grazing the sheeps and the shepherd reached near the house of the informant, at that time, this appellant accused along with other accused came near one of the sheeps and tried to lift for slaughtering. Bhagirathi Ray, P.W. -2 protested and went inside the house where Lodhar Mahto, deceased, was taking meal along with other labourers, then the father of the informant, Lodhar Mahto, leaving his meal aside and rushed out side the house and protested of taking away of the sheep. Alongwith other accused, this appellant - accused used the sharp cutting instrument and assaulted Lodhar Mahto and caused injuries on the neck and because of this injury, he had fallen down and expired on the spot. At the place of scene of offence, blood was also there as referred in the F.I.R., which was also recovered by the Investigating Officer. The name of other witnesses have also been mentioned in the F.I.R. by the informant and P.W. -5. On the basis of this Ferdbayan, the F.I.R. was lodged and the statement of the witnesses was recorded, charge sheet was filed against this appellant as well as other co -accused and the Sessions Case was committed by the concerned trial court bearing Sessions Case No. 7 of 1993 and on the basis of the evidences on record or the depositions of P.W. 1 to P.W. -10, this appellant has been convicted looking to the role played by this appellant in causing murder of the deceased whereas the others were acquitted. Two of the co -accused have also expired during the course of the trial. It appears that P.W. 1, P.W. -3, P.W. -4, P.W. -5, P.W. -6 and P.W. -7 are the important witnesses who are the eye witnesses. P.W. -3 is also an injured eye witness, whose Injury Certificate is at Ext. 7. (ii) Looking to the depositions given by the P.W. -5, who is informant and son of the deceased, who has proved his Ferdbayan as Ext. -2, has clearly narrated the role played by this appellant in causing murder of the deceased. He has stated that this appellant has used sharp cutting instrument in causing murder of the deceased and the injuries sustained by the father of this P.W. -5 were so grievous that the father of the P.W. -5 expired on the spot. We have perused the cross examination of this eye witness - P.W. -5. Looking to his cross examination also nothing is coming out in favour of this appellant. The presence of P.W. -5 at his house is natural one. Without any exaggeration, he has narrated the whole incident in detail. Though this witness is giving depositions after approximately 3 years, there are no major omissions, contradictions or improvements. The P.W. -5 is a trustworthy and reliable witness so far as his narration about this appellant in causing murder of the deceased is concerned and no error has been committed by the learned trial court in appreciating the depositions of this eye witness P.W. -5 in evaluating the role played by this appellant - accused. (iii) Looking to the depositions of P.W. 1, P.W. -3, P.W. -4, P.W. -5, P.W. -6 and P.W. -7, they are also eye witnesses and the P.W. -3 is an injured eye witness, who was also sent to the Hospital at Mohanpur and he was also examined by the doctor, Dr. Vijay Krishna Yadav, his Injury Certificate is at Ext. 7/1. They have also narrated that this appellant has used sharp cutting instrument and caused the injury on the neck of the father of the informant, Lodhar Mahto -deceased, and because of these injuries, he expired on the spot. The depositions of these eye witnesses are also getting enough corroboration to the medical evidence given by P.W. -9, Dr. A.K. Chatterjee. (iv) Looking to the depositions of Dr. A.K. Chatterjee, P.W. -9, who has carried out the post mortem on the body of the deceased, which is at Ext. -6, the injuries sustained by the deceased are as under: Injuries: One incised wound extending from right of lower part of neck to rigid side of upper part of over 3 1/2" x 3/4" x 1 1/2" deep. On further detection the underline vessel right cavity was cut on opening a chest right lung upper lobe is cut and the whole chest cavity was full of blood. Left lung was plain. Heart empty. In my opinion death was caused due to haemorrhage and shock as a result of above injuries which might have caused by sharp cutting weapon Dav.;