Dhirubhai Naranbhai Patel, J. - (1.) BOTH these appeals have been preferred by the original accused Nos. 1, 2 and 3 of S.T. No. 235 of 2001. These appellants have been convicted by the Additional Sessions Judge, F.T.C. No. 1, Bermo at Tenughat for life imprisonment for causing murder of Lalku Singh and they have been punished for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code.
(2.) THE case of the prosecution is that on 21.05.2001 at 17.00 hours (i.e. 5.00 p.m.) the informant Teju Singh (P.W. -2) gave fardbeyan to police that on 21.05.2001 at 2 p.m. when he was in his house, Kamal Singh of his village informed him that his father was lying dead near Harlodih Tola and people of that area is trying to nab the killers. After hearing this informant with his nephew Gopal Singh, villagers Gautam Singh and Arjun Mahto rushed towards Harlodih and saw that the people of Harlodih had nabbed one person, who disclosed his name as Meghlal Singh and also disclosed the name of his associates as Kamal Singh and Arjun Singh. It was further stated by Meghlal Singh that he along with Kamal Singh and Arjun Singh had gone to attend the Bhogta Mela which was going on in village Jhunjhko and in the Mela, Lalku Singh was seen. Then Kamal Singh told them that he suspected that Lalku Singh was the brain behind his missing father, so he should be done away with and then they followed Lalku Singh and at 12.45 p.m. when Lalku Singh was returning from Jhunjhko and reached near Joria Nala, they attacked on Lalku Singh with Lathi, which they collected in the midway. After receiving injury Lalku Singh fell down. Thereafter people of that locality after seeing the incident rushed to the spot and chased them and two of them managed to escape and he was caught. He also stated that he has inflicted knife injury in the face of Lalku Singh. It was further stated by the informant that information was sent to police station and he also disclosed the name of the villagers of Harlodih who were instrumental in catching the culprit and the witnesses to this incident were Nizam Ansari, Manager Manjhi, Fulchand Soren and others. Ten witnesses were examined by the prosecution. One witness was examined by the prosecution It is submitted by the counsel for the appellants in both the appeals that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the trial court and hence, judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellants that the informant who is P.W. -2 Teju Singh has not seen the incident at all. He is a hearsay witness and he was informed by P.W. -3 Kamal Singh and partly he was informed by the accused, namely, Megh Lal Singh (appellant of Cr. Appeal (DB) No. 243 of 2004). Thus no truth is coming out in the FIR. Moreover, the so -called eyewitnesses of the incident who are P.W. -3, P.W. -7 and P.W. -8 are also not the eyewitnesses of the incident at all, looking to their cross examination. In fact, whole incident has taken place first and thereafter they have seen the incident and thereafter they reached at the place of occurrence and therefore, they are not the eyewitnesses. These three eyewitnesses have also not seen the three appellants using the weapons for causing the murder of the deceased. In fact, they rushed later on at the place of occurrence. Hearing alarm of Lalku Singh (who died later on) and when appellants were running away one of them namely Megh Lal Singh was caught. Thus even as per these three witnesses P.W. -3, P.W. -7 and P.W. -8 they were not the eyewitnesses of the incident at all. This aspect of the matter has 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. There are also major omissions and contradictions about the weapon alleged to have been used by these appellants. In the light of the evidence given by P.W. -9 Dr. Prabhu Narayan Jha, F.I.R. has not been proved by the prosecution. It was P.W. -1 Ratan Nayak, who has been examined by the prosecution. His name was not reflected in the chargesheet at all and he is the peon/clerk of the Advocate, who has no knowledge about the lodging of the FIR. Thus the whole case of the prosecution is got up story against these appellants. Other witnesses namely P.W. -2, P.W. -4 and P.W. -5 are the hearsay witnesses. Thus the prosecution has failed to prove the offence of murder committed by the appellants beyond reasonable doubt. Nizam Ansari, who is referred in the F.I.R. as witness has not been examined by the prosecution at all. Medical evidence and ocular evidence are in great contradiction with each other and hence also, judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside.
(3.) COUNSEL for the appellants have relied upon the decisions, reported in, •, 2009 (1) JLJR 582 •, 2009 (1) JLJR 463 • : 1993 Cr.L.J. 551 •, 1986 East. Cr. Cases 648 •, 1993 (3) Cr.L.J. 3364;