- (1.) This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 16th August, 2004 and 18th August, 2004 respectively, passed by the Additional Sessions Judge, Fast Track Court No. 1, Chaibasa in connection with Sessions Trial Case No. 68 of 2004 corresponding to G.R. Case No. 538 of 2003, Hatgamharia P.S. Case No. 35 of 2003, whereby both the appellants have been held guilty for the offence punishable under Sec. 302/34 Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
(2.) The facts of the case as per fard -beyan of Randai Kui recorded on 28.12.2003 at about 6:05 a.m. at Village Hurdubsai within P.S. Hatgamharia is that on 27.12.2003 she left home at 9 a.m. and went to the house of Mangal Singh Korha for discharging her duty. Her husband Duka Purty (deceased) and son Gobind Purty were present at home. At about 5 p.m. Gobind Purty reached there and informed that appellant Banmali Khandayat and his wife Dudumai Khandayat have taken his father with them on the pretext of providing rice beer. He further informed that the appellants had been causing assault to Duka Purty by means of tangi and other weapons in their house. On receiving such information, the informant rushed to the house of the appellants and saw the accused persons having tangi and Bhala in their hands. When the informant tried to save her husband she was given a push by the appellants and they fled away. The matter was reported to the police and fard -beyan of Randai Kui was recorded. On the basis of fard -beyan Hatgamharia P.S. Case No. 35 of 2003 dated 28.12.2003 u/s. 302/34 Indian Penal Code was registered against the appellants. The police after due investigation submitted charge sheet and, accordingly, cognizance was taken. Since the offence for which the accused persons were charge sheeted, is exclusively triable by the Court of Sessions, the case was committed to the court of Sessions and registered as Sessions Trial No. 68 of 2004. The prosecution in order to substantiate the charge has examined altogether eleven witnesses. The learned Additional Sessions Judge after considering the evidence and documents on record held both the appellants guilty for the offence punishable u/s. 302/34 I.P.C. and sentenced them as indicated above.
(3.) Learned counsel for the appellants has assailed the impugned judgment of conviction and sentence mainly on the ground that the material witnesses examined are not reliable and there statement is not consistent. The material witnesses PW 3, P.W.5, P.W.6 and P.W.8 had given their statements on the basis of information received by them from Gobind Purty who is minor son of deceased. The aforesaid prosecution witnesses have stated, when they reached to the place of occurrence they had seen the appellants present in the house. Appellant namely Banmali Khandayat was holding a tangi in his hand while his wife Dudumai Khandayat was having a spear without handle. It is pointed out that the statement of witnesses on the point of weapons held by the appellants is not consistent. Some of the witnesses have stated that Dudumai Khandayat was having Barchi, somebody has stated she was having Bhujali. Likewise, the statement of witnesses is also not consistent with regard to the weapon held by the appellant Banmali Khandayat. All the aforesaid witnesses have said that they were informed about the occurrence by Govind Purty son of deceased do not appear to be correct. The boy was hardly 3 -4 years at the time of occurrence. At the time of occurrence aforesaid witnesses were not present at one place rather they were present either at the place of their work or at their residence. The informant PW -8 has stated that when he reached to the place of occurrence nobody was present. If such statement of the informant is correct, presence of remaining witnesses stand falsified. The learned counsel for the appellants has referred the post -mortem report proved by PW -11 which indicates that only one injury was detected on the person of deceased, but, the witnesses have gone to the extent of saying, when they reached to the place of occurrence they had seen assault caused to the deceased by the appellants. Since evidence of so -called eye witnesses has not been corroborated by post -mortem report, reliance should not have been placed for holding the appellants guilty for the offence punishable under Sec. 302 I.P.C.;