R.K.MERATHIA, J. - (1.) THIS appeal is directed against the judgment of conviction under Section 302, IPC and order of sentence of life imprisonment, both dated 3.4.1991, passed by Shri M.P. Tiwari, 3rd Additional Sessions Judge, Jamshedpur in Sessions Trial No. 576 of 1989.
(2.) ACCORDING to the Fardbeyan, lodged by Asha Bhumij (PW 2), wife of Mangal (the deceased), on 6.2.1989 at about 2 p.m. when Mangal was unloading bricks for constructing house on his land, which he got in his share from his father, the appellant who happens to be step -brother of the deceased, with Farsa, and his son Bharat (since acquitted) with arrow came out and protested to the unloading of bricks saying that the land belonged to them. On this, there was altercation and then the appellant chased Mangal and Assaulted him by "Farsa", on his head, hands and legs, due to which he fell down. The incident was witnessed by nephew of the deceased Lobo Manjhi (PW 6); her Sautan Bharti (PW 4) and the neighbour Jhari Mahto (PW 9). The said Fardbeyan, was recorded at 4.30 p.m. i.e. after about two and half hours of the occurrence, at the Government Hospital. Appellant and his son -Bharat were put on trial and they were charged under Section 302/34, IPC. Pw 1 has proved the seizure of four arrows including one blood stained arrow from the house of the appellant. This witness has also proved seizure of blood stained soil from the house of Sushil. Pw 2 (Informant) inter alia, stated that the appellant -Mochiram, his son - Bharat and his wife were assaulting the deceased. Appellant was having Farsa in his hand. Bharat was having sword in his hand and appellants wife was having Ballam in her hand. She further said that when her husband was getting the bricks unloaded on his land, the appellant and his son came there running and started driving away Mangal. Mangal ran and entered into the house of Shibu. The accused persons started assaulting him. She and Pw 4 went to save her husband. The land on which Mangal was keeping the bricks was being possessed by him as per the partition between him and the appellant. In the cross -examination, this witness said that the quarrel continued for about an hour. She went to the police station and informed about the quarrel whereupon the police officer wrote something and came along with her. When the police officer reached at her house, the appellant was at police station. There was a Farsa injury in the hand of the appellant. Her husband died in the hospital during treatment on the same day. She stated that after the death of her husband she and the appellant jointly sold some lands. The defence has tried to make out a case of joint possession and private defence. Pw 3 is the doctor, who conducted post -mortem on Mangal. He found one abrasion over the back of loin: 13 incised wounds caused by heavy sharp cutting weapon such as Farsa and Talwar and fracture of second right rib caused by hard and blunt substance. He also found substantial quantity of alcohol in the stomach of the deceased. Pw 4, Bharti is the second wife of the deceased. She corroborated the version of Pw 2. Pw 5 has simply said that he is not the correct person. Pw 6, Lobo Manjhi, a common relative was declared hostile. He said that he went at the place of occurrence after the occurrence and the informant told him that the appellant and his son has injured Mangal who was taken to hospital. Pw 7 Kalu Singh and Pw 10 Krishna Nand Singh went with the informant and the deceased to the hospital. Pw 8 Md. Sanaullah is the Investigating Officer. He said that the place of occurrence was the house of Sushil Dutta but he does not reside there. At the time of occurrence, the door of the house was open. He was informed by one constable -Awadhesh Singh that some occurrence has taken place and on the basis of which S.D.E. No. 108 dated 6.2.1989 was recorded. When he reached at the place of occurrence, Mangal Singhs heart was beating. He was immediately sent to hospital. He did not take statement of any person present at the place of occurrence, as police were anxious to save the life of injured. No enquiry was made from the injured. At the place of occurrence, appellant was present, who was also taken to hospital as he also had sharp cut grievous injury on his hand. The doctor prepared the injury report. Appellant was taken into custody immediately. The place of occurrence was one and half kilometers from the police station. He registered a case under Section 324, IPC, on the statement of the appellant and took up investigation of the said counter case, being Mango P.S. Case No. 22/ 1989. Defence tried to show some contradictions in the statements of Pws given before this witness during investigation. Pw 9, who, as per the FIR is the eyewitness, said in his evidence that he did not see the Marpit. This witness said that he and the deceased -Mangal were accused In a case of attempting murder of the father of the appellant in which the appellant was a witness. There is a liquor shop in the house of Sushil. Pw 11 is the Judicial Magistrate, before whom, the statement of appellant was recorded under Section 164, Cr PC. Pw 12 is also a Judicial Magistrate, who wrote the said statement. DW 1 is a dresser in the hospital, who proved Ext. A, the injury report of the appellant. DW -2 proved the horoscope of Bharat Bhumji to prove that he was minor at the time of occurrence.
(3.) MR . Kashyap, learned Counsel for the appellant submitted that there are vital contradictions regarding the place of occurrence, time of occurrence and manner of occurrence. He further submitted that before the Fardbeyan, was recorded there was already a report by a police officer and therefore, the Fardbeyan, in question cannot be treated as the First Information Report. He further submitted that Awadhesh Singh, who first informed about the occurrence and the other police constables were not examined. Sushil Dutt, in whose house the alleged incident took place was not examined. He further submitted that the prosecution has not explained the in -Jury caused by hard and blunt substance on the deceased. PW 9 is not the eye -witness as projected.;