D.G.R.PATNAIK, J. - (1.) BOTH the appellants were charged with for offences under Sections 302/34 of the Indian Penal Code for causing the death of Kishore Singh Rawani on 28.2.1992 and were sentenced by the trial court to suffer imprisonment for life.
(2.) THE deceased Kishore Singh Rawani was the husband of the informant Gayatri Devi (PW3). The case, as unfolded by her, is that on 28.2.1992 at 5.00 p.m. a quarrel ensued between her minor son Bhanu, aged six years, with Bahadur Munda son of his neighbour Raghnu Munda (appellant) on account of the injury which the later had sustained when the informant 'sson pelted stones at a tree. The quarrel between the children soon led to a fracas between the female members of both the houses Raghuni Munda intervened and he too indulged in abuses against the informant (PW3) and left the place giving out threats that he would soon take revenge. Later at about 6.00 pm. while the deceased Kishore Singh was returning home, he was accosted and restrained by both the appellants in front of their house. After restraining him, the appellant Raghuni held him while the appellant Ghunghru Munda whipped out a knife and inflicted a knife blow causing injury on the neck and also on the right side of the chest of the victim rendering him unconscious. The victim was picked up from the place where he had fallen on the ground and was taken to Hospital where he was declared dead. The matter was informed to the Police. The case was investigated by PW6 (Udai Narain Singh) who visited the place of occurrence, prepared the inquest report pertaining to the dead body of the deceased and forwarded the same to the hospital for post mortem examination. The post mortem examination on the dead body of the deceased was conducted on 29.2.1992 at RMCH, Ranchi by PW. 2 who found the following injuries: Stab wound measuring 1 3/4x 1cm on the right side of the neck situated 5 cm right to midline and 3 cms above the right clavicle. The wound had passed through the soft tissues cutting the vessels of the right side of the neck and entered into the right chest cavity underneath the right clavicle and entered into the right lung. He found presence of blood clot in the right chest. The doctor had opined that the above injuries were ante mortem caused by a sharp cutting weapon and death was due to shock and haemorrhage on account of the above injury which had occurred within 12 -36 hours prior to the time of the post mortem examination. As many as six witnesses including the informant (PW3) were examined by the prosecution at the trial. The trial court relying upon the evidence of the informant (PW3) and that of her minor son PW1 and also on the evidence of the Doctor and the investigating officer, recorded its finding of guilt and convicted the appellants for offences under Sec.302/34 IPC. The appellants have assailed the impugned judgment primarily on the ground that the finding of guilt as recorded by the trial court is entirely against the weight of evidence on record and that the trial court has erred in placing implicit reliance on the testimony of the informant and her minor son, though their testimony is not corroborated by any independent witness and that both these witnesses are highly interested witnesses. Elaborating the grounds, learned counsel appearing for the appellants explains that PW1 is a child witness and the trial court should have scrutinized his evidence with extreme caution and should have sought corroboration to his testimony from other sources, which the trial court has failed to do. Learned counsel further adds that on reading the evidence of PWs. 1 and 3, there appears vital contradiction in their testimony. Learned counsel explains that where as PW3 (the informant) claims herself to be an eye witness to the alleged assault made on her husband by the assailants, PW1 declares categorically that at the time of the occurrence, it was he alone who was present with his father, (the deceased) and except the wife of the appellant Raghnu Munda, there was no other person present at the place of occurrence and that it was on his alarm that some of the villagers arrived and his mother (PW3) also arrived later at the place of the occurrence. Learned counsel argues that if PW3 was not present at or about the place of occurrence as declared by PW1, she could not have been an eye witness to the occurrence and in this view of the matter, her claim of being an eye witness and giving the description regarding the manner of occurrence apparently suggests that she is a got up witness. Learned counsel further submits that PW3 in her deposition has not affirmed the presence of PW1 at the place of the occurrence and therefore the claim of PW1 to be an eye witness to the occurrence is also falsified. Referring to the manner of the occurrence as deposed by both the above named witnesses, learned counsel submits that PW3 claims that the assailant had dealt a knife blow on the right side of chest of her husband and similarly, PW1 also claims that the assault was made on the chest of his father, but the post mortem report indicates that the injury was on the neck of the victim, and not on his chest. Learned counsel argues further that there is no corroboration from any independent witness, although PW1 has claimed that several persons of his village had arrived at the place of the occurrence. Continuing with the arguments, learned counsel further submits that even according to the entire evidence of PWs 1 and 3, no offence under Sec.302 Indian Penal Code is made out. Learned counsel explains that there was a single blow dealt upon the deceased by the assailant and there is no such evidence or allegation that the assailant had repeated the assault. Learned counsel argues that this fact in itself is sufficient to indicate that there was no intention to cause death of the deceased nor was there any intention to cause fatal injuries, which was likely to cause death of the victim. Learned counsel submits that the circumstances could at best suggest a case under Sec.304 (Part II), for an offence of culpable homicide not amounting to murder. Learned counsel adds further that the circumstance needs to be viewed in the sequence as narrated by the witness and the genesis of the occurrence has to be considered. Learned counsel explains that even according to prosecution 'scase, the assault on the deceased was preceded by a quarrel between the children and ladies of both the families. This had caused grave provocation to the appellants and it was on account of such provocation that the deceased was assaulted, though there was no intention on the part of the appellant to cause death of the deceased.
(3.) LEARNED counsel for the State, on the other hand, while defending the judgment of conviction and sentence, submits that the evidence of PW1 and 3 read together are fully consistent and that the possibility of PW3 witnessing the occurrence cannot be ruled out merely on the ground that PW1 slated that she was not present at the place of occurrence at the time when his father was assaulted. Learned counsel explains that it is in the evidence of PW3 that just prior to the occurrence while she was standing in front of the house that she saw her husband approaching that the appellants intercepted him in front of their house which according to the investigating officer, PW6, is at a distance of 20 -25 yards from the informants house. Learned counsel explains further that the informant could see the occurrence from the distance and on seeing the assault, she and some villagers rushed to the place of occurrence and by the time they arrived at the place of occurrence, the assailant had fled away.;