- (1.) THE appellants two in number, who were arrayed as A1 and A2 before the Sessions Judge in S.T. No. 79 of 1994, on being convicted under Section 302 read with Section 34 I.P.C, were sentenced to imprisonment for life. A1 Kujri Sundi is the son of second appellant Jena Sundi. They were residents of village Sarjamdih. The deceased Budhni Kui is the wife of Dani Gagrai P.W.1 and they were also residing in the same village. The son of Kujri Sundi, the first appellant, died and the appellants had a suspicion that the deceased Budhni Kui is a witch and that she must have performed some witchcraft leading to the death of the son of the first appellant, which is said to be the motive for the occurrence, which took place at 2.00 p.m on 14.9.1992.
(2.) AT about 2.00 p.m. on 14.9.1992, the deceased Budhni Kui was harvesting paddy in her field. The paddy field was near her house at a distance of 300 yards. Jangal Gagrai P.W.2, who is the son of the deceased, proceeded to the paddy field taking food for his mother. P.W.1 Dani Gagrai and P.W.4 Somnath Gagrai, the other son of the deceased, were in the house. While P.W.2 was proceeding towards the field to give food to his mother, he saw the second appellant Jena Sundi holding the hands of his mother and the first appellant, taking a knife, stabbing her. According to the prosecution, the occurrence was also witnessed by P.W.1 Dani Gagrai and P.W.4 Somnath Gagrai. The fardbeyan, the Ext.3, was given by P.W.1 Dani Gagrai at 11.00 a.m. on 15.9.1992, on the basis of which a formal F.I.R, Ext.4, was registered by the police. The investigation of the crime was taken up by P.W.6, Pradip Kumar Singh, who, on reaching the scene of occurrence, conducted inquest over the dead body of Budhni Kui and prepared inquest report, Ext.5. He sent the dead body to the hospital with a requisition to the Doctor to conduct autopsy. 3. On receipt of the requisition, P.W.5 Dr. Arun Kumar conducted autopsy on the deceased Budhni Kui and found two following injuries: (i)Incised wound 3 1/2" x 1/2" x bond deep over right temporal region. (ii) Incised wound 2 1/2" x 1/2" x 1 1/2" over upper part of neck right side. P.W.5, the Doctor, issued Ext.2, the post mortem certificate, with his opinion that death is on account of head injuries which would have resulted in shock and hemorrhage. 4. After the completion of investigation, final report was filed against the appellants, who denied the incriminating circumstances when they were questioned under Section 313 Cr.P.C. 5. Learned Counsel appearing for the appellants submits that P.Ws.1 and 4 could not have been present at the scene of occurrence and the said fact is writ large on the face of the evidence of P.W.4 and according to the counsel, P.W.2 also could not have been present on the date and time of incident as he was at the school where he was studying. Counsel, therefore, submits that the trial court ought to have acquitted the appellants by rejecting the evidence of the above witnesses. On the above submission, we have heard Mr. M.B. Lal, learned Counsel appearing for the State. 6. It is not in dispute and in fact, it is not disputed that Budhni Kui died on account of homicidal violence. The same stands established through the evidence of Dr. Arun Kumar, who was examined as P.W.5, and the Ext.2, the post mortem certificate, issued by him. We accordingly, on the medical evidence, hold that Budhni Kui died on account of homicidal violence. 7. The prosecution before the trial court examined three witnesses as P.Ws.1, 2 and 4 and they are Dani Gagrai, Jangal Gagrai and Somnath Gagrai respectively. P.W.2 Jangal Gagrai and P.W.4 Somnath Gagrai are the sons of the deceased and P.W.1 Dani Gagrai is the husband of the deceased. It is the evidence of P.W.2 that while he was proceeding to the field, taking meals for his mother, he saw the second appellant holding the hands of his mother and the first appellant picking out a knife and stabbing her. According to the prosecution, the occurrence was also witnessed by P.Ws.1 and 4. We will now Lake up the evidence of P.Ws.1 and 4 to find out whether they were present and witnessed the occurrence. P.W.4, in his chief examination, though stated that he saw the occurrence, admitted in cross -examination that he was in the house at the time of occurrence and later on hearing the cries, he rushed to the place of occurrence and found his wife Budhni Kui lying with injuries. He has also admitted that the details of the occurrence were given to him by P.W.2 Jangal Gagrai. The above evidence of P.W.4, therefore, shows that P.W.4 was not present at the time of occurrence and reached there at later point of time. P.W.4 in his evidence further stated that he went to the place of occurrence accompanied by his father Dani Gagrai, which means that P.Ws.1 and 4 went to the place after the occurrence was over and that the details of the incident were furnished to them by P.W.2. We, therefore, reject the evidence of P.Ws.1 and 4 and hold that they were not present and witnessed the occurrence. 8. We are now left with the evidence of P.W.2 Jangal Gagrai. Learned Counsel strenuously contends before us that Jangal Gagrai admittedly being a student was in his school at the time of occurrence and in support of the said argument, our attention was drawn to the evidence of P.W.2. P.W.2 in his evidence stated that he had been to school on the date of incident. This admission of P.W.2 by itself will not be a reason for us to reject the case of the prosecution that P.W.2 could not have been present at the scene of occurrence at the time when the deceased was stabbed. Though P.W.2 admitted that he went to the school, there is no evidence to indicate that P.W.2 was in the school till 4.00 p.m. If the defence wanted to prove that P.W.2 was in the school at the time of occurrence, then it ought to have marked the Attendance Register and also ought to have examined either the Principal or the Class Teacher of P.W.2 to prove that P.W.2 was in the school at 2.00 p.m. on 14.9.1992. Section 103 of the Evidence Act states that burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The defence having taken the plea that P.W.2 was in the school ought to have proved the said fact in terms of Section 103 of the Evidence Act by not only examining the authority of the school but also by marking the Attendance Register. In the absence of any such evidence, we cannot but conclude that P.W.2 had come to his house and went to the field taking meals for his mother. We accept his evidence and hold that he was present and witnessed the occurrence. Once we come to the conclusion that P.W.2 is an eye -witness, then we find no reason as to why we should reject his evidence. The fact that P.W.2 is the son of the deceased cannot by itself be a reason to throw away his evidence. On the contrary, we find his evidence to be natural and trust worthy. We, therefore, accept his evidence and hold that the deceased was stabbed to death by Kujri Sundi. In view of the above discussion, we uphold the conviction and sentence of the first appellant Kujri Sundi under Section 302 I.P.C. 9. Now we have to consider whether Jena Sundi, the father of the first appellant, shared the common intention of his son in causing the death of Budhni Kui. The evidence of P.W.2, as we have referred to above, indicates that while he was proceeding to the scene of occurrence, he saw the second appellant holding the hands of his mother and the first appellant, taking a knife, stabbing her. This evidence of P.W.2 will not conclusively establish that the second appellant shared the common intention of the first appellant. We do not know as to what transpired before the occurrence since P.W.2 was at the spot only when the deceased was about to be stabbed. In the absence of any evidence that the second appellant knew that the first appellant is going to stab the deceased, the mere fact that the second appellant was holding the hands of the deceased by itself will not go to show that the second appellant was in the knowledge that the first appellant is having a knife and going to stab the deceased with the said knife. It is also possible that the second appellant would have been holding the hands of the deceased with a view to beat her and while doing so, the first appellant would have taken a knife and stabbed the deceased and the second appellant could not have any knowledge that the deceased will be stabbed by the knife itself. In any event, the second appellant is entitled to the benefit of doubt and therefore, we acquit the second appellant Jena Sundi of the charge of murder. 10. In the result, we acquit the second appellant Jena Sundi by setting aside the conviction and sentence imposed upon him and we uphold the conviction and sentence of the first appellant Kujri Sundi under Section 302 I.P.C. It is reported that the second appellant Jena Sundi is on bail. He is discharged from his bail bonds. With the aforesaid modification, this appeal is partly allowed.;