- (1.) These Cr. Appeals have been directed against the judgment of conviction and order of sentence dated 3rd April, 2006 and 4th April, 2006 respectively passed by the Addl. District & Sessions Judge, F.T.C. -I, Chaibasa in connection with S.T. No. 390 of 1999(S) & S.T. No. 390 of 1999(A), corresponding to G.R. No. 399 of 1997 (Manjhgaon P.S. Case No. 26 of 1997) whereby the learned Addl. Sessions Judge, F.T.C. -I at Chaibasa has held the appellants guilty under Ss. 302/34, 307/34 of the Indian Penal Code and sentenced them only under Sec. 302/34 of the Indian Penal Code and directed them to undergo R.I. for life for the offence punishable under Sec. 302/34 of the Indian Penal Code.
(2.) The prosecution case as it appears from the fardbayan of Shakuntala Kui recorded on 27.07.1997 at 13:30 hours at village Haldiya Munda Sai is that on 27.07.1997 Krishna Chandra Hembrom (deceased) along with son of the informant was present in his field and ploughing of the field with the help of labourers was going on. In the meantime, the appellants along with other co -accused, who are named in the F.I.R. armed with Bhujali, Spade etc. came to the field, surrounded the deceased -Krishna Chandra Hembrom and hurled repeated blow by means of weapon which they were holding. Krishna Chandra Hembrom after receiving injury tried to flee away but could not succeed and fell down after covering some distance. In course of assault one of the labourer Lakhinder had intervened to save but he was also given Bhujali blow and sustained injury in his abdomen. It is disclosed that Krishna Chandra Hembrom died at the spot whereas another injured Lakhinder Hembrom died in course of treatment. The informant is the sister of deceased -Krishna Chandra Hembrom. On the basis of fardbayan of Shakuntala Kui, West Singhbhum (Sadar) Majhgaon P.S. Case No. 26/1997 dated 27.07.1997 under Ss. 447/324/307/302/34 of the Indian Penal Code against the appellants and other named accused was registered. These appellants, co -accused Mangal Singh Hembrom and Krishna Chandra Pingua had been absconding and their attendance could not be secured till submission of charge -sheet, as a result, showing them absconder charge -sheet against Krishna Chandra Pingua, Sona Ram Hembrom, Moti Lal Pingua & Dashmati Kui was submitted. Accordingly, cognizance was taken and the case was committed to the court of sessions. On the date of commitment i.e. on 06.10.1999 Sona Ram Hembrom, Krishna Chandra Pingua, Motilal and Dashmati Kui were available on record but rest of the accused were absconding. The case of all the accused was committed to the court of session. Appellant -Sagar Pingua was apprehended on 01.03.2004 and faced trial vide S.T. No. 390/1999(S). So far appellant -Ganesh Pingua is concerned, he was arrested and forwarded to jail custody on 21.1.2005 and faced trial vide S.T. No. 390/1999(A). Charges against the appellants were framed under Ss. 302/34 and Sec. 307/34 of the Indian Penal Code and they were put on trial. In Connection with Sessions Trial No. 390/1999(S) in which the appellant -Sagar Pingua was facing trial, the prosecution has examined altogether 08 witnesses whereas in Sessions Trial No. 390/1999(A) in which Ganesh Pingua (appellant) had been facing trial, the prosecution has examined altogether 09 witnesses to substantiate the charges. At the conclusion of trial, learned Addl. Sessions Judge, F.T.C. -I has held the appellants guilty and sentenced them as indicated above. Appellant -Ganesh Pingua has preferred Cr. Appeal No. 706/06 whereas Cr. Appeal No. 707/2006 has been preferred by appellant -Sagar Pingua. Both the appeals were tagged together and heard today and disposed of with this common judgment.
(3.) Learned Counsel for the appellants has assailed the impugned judgment of conviction and sentence on the ground that former accused, who were on record have been acquitted. Except the informant and her son Satya Narayan Tiriya rest of the so -called eye -witnesses had been examined in earlier Sessions Trial to which they did not deny. They have admitted that on earlier occasion when they were examined they had not supported the prosecution case. They had not disclosed either names of the accused or manner of occurrence. The aforesaid witnesses who have claimed that they had been engaged in ploughing the field by the deceased, did not stick to their statement recorded U/s 161 of the Cr.P.C. as a result acquittal was recorded. Now, during trial of these two cases in which conviction has been recorded, they have said that they were brought by informant -Shakuntala Kui to the Court and they have deposed what was tutored to them by the informant. Considering aforesaid aspect no reliance could be placed on the statement of aforesaid witnesses and the learned Addl. Sessions Judge has committed error by holding the appellants guilty placing reliance on the testimony of such witnesses. It is further submitted that the informant in her cross -examination has admitted that she had witnessed the occurrence from a distance of about half kilometre. Had it been so, she had no occasion either to identify the accused or to speak about the weapon which they had been holding. The informant is also highly interested witness because she is the own sister of the deceased -Krishna Chandra Hembrom and land dispute prevailing between the parties has also been admitted. Satya Narayan Tiriya, who happens to be son of the informant was hardly aged 12 years at the time of occurrence. He has admitted that after assault commenced he fled away from the place but in his deposition in the Court he has tried to give eye -witness account of the occurrence. Last but not the least, it was submitted that witnesses namely Lal Mohan Gope, Satrughan Chatar, Sagar Gope and Robind Hembrom had been examined in both the Sessions Trial against both the appellants but the statement of these witnesses is not consistent. Therefore, they are not credible witnesses and no reliance could be placed on their testimony for holding the appellants guilty for the offence of murder. Non -examination of the I.O. has caused great prejudice to the appellants.;