Dhirubhai Naranbhai Patel, J. - (1.) THE present appeal has been preferred by this appellant, who is original accused No. 4 in the Sessions Case, against the judgment of conviction and order of sentence both dated 31st January, 2005 delivered by the 5th Additional Sessions Judge, Fast Track Court No. 2, Godda in Sessions Case No. 76 of 2003 whereby this appellant has been convicted for an offence under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment and a fine of Rs. 5000/ -, and in default of fine, to further undergo simple imprisonment for six months. This appellant has also been convicted under Section 120 -B of the Indian Penal Code and sentenced for life imprisonment. This appellant has also been convicted for an offence under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years with fine of Rs. 1000/ - and in default of fine, to further undergo 3 months' simple imprisonment. However, the sentences have been ordered to run concurrently and rest of the accused i.e. accused Nos. 1, 2 and 3, have been acquitted. Against this judgment of conviction and order of sentence, the present appeal has been preferred. It is the case of the prosecution that PW.8 informed the police on 13th February, 2003 at 8.00 p.m. at Boarijor Police Station, District Godda, that on previous day i.e. on 12th February, 2003 at about 6.00 o'clock, when she and her husband (deceased Amik Yadav) were returning from Godda Court, Pramod Yadav, Kailash Yadav, Dilip Das, Ramjee Sah, Gopal Das, Jawahar Sah, Kailu Das, Vijay Sah and Temha Yadav surrounded her husband and they were having cleaver and other weapons in their hands and they started beating her husband. Pramod Yadav chased her also and that is why she had to run away. Thereafter, she went to her house and informed PW.4 and thereafter, PW.4, PW.5 and PW.6 along with the informant came at the place of occurrence and there were bloodstains, but, the dead body could not be found out by them. The incident had taken place in the evening hours of 6.00 p.m. in the month of February, 2003. Again the informant as well as PW.4, PW.5 and PW.6 came at the place of occurrence, but, at that time, the police had found out the dead body from nearby railway track. PW.8 identified the dead body and she gave fardbeyan to the police of Boarijore Police Station which was reduced in writing which is Ext. 2. On the basis of this fardbeyan. F.I.R. was lodged, investigation was carried out, statement of several witnesses were recorded and charge -sheet was filed and the case was committed to the Court of Sessions being Sessions Case No. 76 of 2003. The learned Trial Court on the basis of the evidences given by PW.1 to PW.9 as well as on the basis of the documentary evidence on record, convicted the appellant for an offence under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment and a fine of Rs. 5000/ -, and in default of fine, to further undergo simple imprisonment for six months. This appellant has also been punished under Section 120 -B of the Indian Penal Code and sentenced for life imprisonment. This appellant has also been convicted for an offence under Section 201 of the Indian Penal Code and sentenced to undergo 5 years' rigorous imprisonment with fine to the tune of Rs. 1000/ - and in default of fine, to further undergo 3 months' simple imprisonment. However, the sentences were ordered to run concurrently. The judgment of conviction and order of sentence passed by 5th Additional Sessions Judge, Godda in Sessions Case No. 76 of 2003 is dated 31st January, 2005. Against this judgment of conviction and order of sentence, the present appeal has been preferred.
(2.) WE have heard the learned counsel for the appellant who has mainly submitted that there are major omissions, contradictions and improvements in the deposition of prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and sentence passed by the 5th Additional Sessions Judge, Godda deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that the so -called sole eye -witness, as alleged by the prosecution, is PW.8, but, looking to her fardbeyan given to Boarijore Police Station, District -Godda and looking to her deposition as PW.8, there are major omissions and contradictions in her deposition. Several persons, who were named accused in the F.I.R., have been omitted in her deposition and they are; i) Kailash Das ii) Dilip Das iii) Gopal Das iv) Kailu Das The aforesaid four persons' names have been omitted in her deposition, whereas, these names were given in the fardbeyan by the same witness. This is a major omission as per Explanation to Section 162 of the Cr.P.C. It is further submitted by the counsel for the appellant that not only there is major omission, but, there is also major improvement in the deposition given by so -called sole eyewitness PW.8, This witness has added names of four accused persons in her deposition which were never given to the police in her fardbeyan and they are; i) Arbind ii) Rajkumar iii) Indu Yadav iv) Kamleshwari Yadav Thus, these four names have been added in the deposition as accused, whereas these names were never mentioned in the fardbeyan by the same witness. Because she is the informant, this tantamounts to major improvements in her deposition. This affects the very root of the prosecution case. This also tantamounts to contradiction as per Explanation to Section 162 Cr.P.C. It is further submitted by the counsel for the appellant that in paragraph I of her deposition it is stated by this witness PW.8 that she is not knowing Ramjee Sah who is the present appellant. Thus, it is submitted by the counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the so -called sole eye -witness PW.8. Even this appellant is not known to this so -called eye -witness. It has also been stated by this witness in her deposition in paragraph I that she had run away from the place of occurrence and informed PW.4 the whole incident. This PW.4 in his deposition has never referred any role played by this appellant, nor even PW.4 has mentioned the name of this appellant in his deposition in causing murder of the deceased. Thus, before PW.4 the name of this appellant was never given by so -called eye -witness. This aspect of the matter has also not been properly appreciated by the learned trial Court. Moreover, PW.4 is a hearsay witness. This PW.4 was informed by PW.8. There are also several defects in the information given by PW.8 to PW.4 about the name of the so -called assailants. Looking to paragraph I of the deposition of PW.4, there are several accused persons referred by PW.4 in his deposition as murderers of the deceased, but, these names were never mentioned in the F.I.R. at all by the eye -witness PW.8. Moreover, looking to cross -examination of this PW.4, especially paragraph 3 it has been mentioned that the so -called eyewitness PW.8, who is referring herself as a wife of the deceased, but, this close relative of the deceased, PW.4, is referring somebody else as wife of the deceased. Thus, PW.8 is even not a wife of the deceased, but somebody Most. Devi who has been referred in paragraph 3 of the deposition of PW.4, as the wife of the deceased. Thus, it is submitted by the counsel for the appellant that PW.8 is not an eyewitness at all and whatever she has narrated before PW.4 is also not tallying with the F.I.R. which is written and signed by this PW.8, Similarly, PW.4 is also a close relative before whom PW.8 had narrated the incident immediately after the incident had taken place, PW.5 is narrating altogether another story of the incident and as per PW.5 Arbind Yadav had caused injury to the deceased. This Arbind Yadav's name was given by PW.8 (informant) to the PW.5, but, this Arbind Yadav's name is not mentioned as an accused in the F.I.R. Thus, PW.8 has narrated one story in the F.I.R., another story in her deposition, 3rd story before PW.4 and 4th story before PW.5. Every witness of the prosecution is giving different versions about the murder. This aspect of the matter has also not been appreciated by the learned trial Court. PW.6 is a hearsay witness, because he was also informed by PW.8. Thus, PW.4, PW.5 and PW.6 are the hearsay witnesses and they were informed only by PW.8. It is further submitted by the counsel for the appellant that PW.1, PW.3 and PW.7 have turned hostile. PW.9 is an universal witness. Though, he has nothing to do with the accused, though he has no connection with the victim and this bye -passer going on a road is giving deposition in the Court as PW.9 and he is peon of the Advocate. Examination of PW.9 sheer reflects non -application of mind by the trial Court. Such type of omnipresent witness ought not to have been examined by the Court. Never such witness proves anything in the Court. It is wastage of precious time of the trial Court as well as this Court. Thus, the prosecution has failed to prove the offence committed by this appellant beyond all reasonable doubts. Three accused have been enlarged by the trial Court. If looked at the F.I.R. and the deposition given by PW.8 in, the sole eyewitness, in totality, there are more than one dozen persons who have committed murder. Some names are mentioned in the F.I.R., some names have been omitted in the deposition of PW.8 and 4 -5 persons' names as an accused have been added in the deposition given by sole eyewitness PW.8. Thus, out of bundle of one dozen accused, only this appellant has been convicted by the trial Court without any evidence on record. This aspect of the matter has also not been properly appreciated by the trial Court and hence, the judgment of conviction and sentence passed by the trial Court deserves to be quashed and set aside.
(3.) WE have also heard the learned counsel for the State -A.P.P. who has submitted that no error has been committed by the trial Court in appreciating the evidence on record. The case of prosecution is based upon evidence of eye -witness PW.8. The murder has taken place on 12th February, 2003 and immediate is the F.I.R. on 13th February, 2003, this appellant has been named in the F.I.R. The prosecution has examined several witnesses from PW.1 to PW.9 and PW.8 is the informant wife of the deceased, namely Amik Yadav. Looking to her deposition, she has clearly narrated the role played by this appellant -accused. When she was returning with her husband from the Court at Godda at about 6.00 p.m. on 12th February, 2003, this appellant along with several other accused in connivance with each other and sharing common intention with rest of the accused, committed murder of the deceased. She has further staled in her deposition that one sharp -cutting instrument as well as with other weapons including cleaver, this appellant and other accused caused serious injuries to Amik Yadav and the other accused had also chased PW.8, the informant. The informant had run away from the place of occurrence and rushed to her house. She immediately informed PW.4, who is a close relative and PW.4 along with PW.5. PW.6 and informant PW.8 returned to the place of occurrence. There were bloodstains but no dead body was found out because of late night and darkness, they were unable to find out the dead body of the deceased. They returned home and on the next day morning they again came to the place of occurrence where there was a police and the police has found out the dead body which was found near Railway Track where she gave her fardbeyan which is Ext. 2, in which there are several names of the accused have been given. Four were tried in the Session Case No. 76 of 2003 and others were absconding. Looking to the deposition of PW.8 to be read with PW.4, PW.5 and PW.6, the learned trial Court has rightly convicted the present appellant for causing murder of the deceased in connivance with other accused and in furtherance of their common intention with rest of the accused and they had also thrown away the dead body on railway track and thereby caused disappearance of the offence. Therefore, they have been rightly punished for an offence under Section 302, read with Section 34 of the Indian Penal Code for life imprisonment as well as for an offence under Section 120 -B of the Indian Penal Code for life imprisonment and also this appellant has rightly been punished for an offence under Section 201 of the Indian Penal Code for five years' rigorous imprisonment, Hence, this appeal may not be entertained by this Court. Moreover, the medical evidence is also corroborative to the deposition of PW.8, eyewitness, to be read with deposition given by PW.4, PW.5 and PW.6. Moreover. Clerk of the Advocate PW.9 has also proved several documents, though, he was not cited as a witness in the charge -sheet. This universal witness has proved F.I.R. and inquest report, though he has no concern with the whole case. These types of witnesses are easily available in the lower Courts and because of their easy availability and as they are very handy, they are normally examined in the trial Courts in the State of Jharkhand.;