D.N.UPADHYAY,J. - (1.) This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 06.10.2004 and 08.10.2004 respectively passed by the Addl. Sessions Judge, F.T.C. -II at Chaibasa in connection with S.T.No.223 of 2003, corresponding to G.R.No.237 of 2003, arising out of Manjhari P.S. Case No. 11 of 2003 whereby the appellants have been held guilty for the offence punishable under Sections 302/34, 376 (2) (g) and under Section 201 of the Indian Penal Code and sentenced to undergo R.I. for life for each of the offences under Section 302/34 and 376 (2) (g) of the Indian Penal Code and 7 years under Section 201 of the Indian Penal Code.
(2.) The facts in brief, as it appears from the F.I.R., is that the appellants were having friendship with the deceased and they had been in visiting term to the house of the informant. It is disclosed that on 28.06.2003 at about 4 p.m. the appellants took Jema Mai Birua (deceased) with them. Jema Mai Birua (daughter of the informant) did not return home. Thereafter the informant with his family made a search but could not succeed to find out Jema Mai Birua. On 29.06.2003 in the afternoon Menjo Kui (P.W.7) informed that she had seen dead body of Jema Mai Berua hanging with the branch of 'Jamun' tree. Receiving such information, the informant rushed to the place and saw the dead body of his daughter Jema Mai Berua hanging with the branch of said tree. The police arrived at the place and recorded fardbayan of Selai Birua (P.W.5). On the basis of fardbayan of Selai Birua, Manjhari P.S. Case No.11/2003, under Sections 376/302/34 of the Indian Penal Code was registered. The informant had noticed blood on the finger and found the undergarment wet and simen like thing was visible on it. The police after due investigation submitted charge -sheet against the appellants, under Sections 376 (2) (g), 302/34 of the Indian Penal Code and accordingly cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.T.No.223/2003. Charges under Sections 376(2) (g)/302/34 and 201 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether 12 witnesses and Dr. S.C. Arun as Court witness No.1 has been examined. The prosecution has proved postmortem report, seizure list, inquest report, swab test report etc. The learned Sessions Judge placing reliance on the evidence and documents available held the appellants guilty and inflicted sentence as indicated above.
(3.) Learned Counsel for the appellants has assailed the impugned judgment on the ground that nobody had seen the appellants taking the deceased from her house. There is no eye -witness to the occurrence. The entire prosecution case is banking upon the evidence of P.W.5 and P.W.9. Jambira Kunkal (P.W.3) has turned hostile whereas Chaitan Gope (P.W.4) has been tendered. Chumburu Birua (P.W.6) is the hearsay witness. It is apparent from the evidence on record that appellants were having cordial relation with the family of the informant and they were having friendship with the deceased. No objection from any corner was ever raised against the visit of appellants in the house of informant. No motive has been assigned behind the murder of Jema Mai Birua. No mark of violence has been found on the person of deceased to suggest that she was subjected to gang rape. Since the deceased felt herself always comfortable with the appellants, question of committing rape on her does not arise and that could not be a motive for the appellants to commit murder. Nothing incriminating has been recovered from possession of any of the appellant. Learned Addl. Sessions Judge has erred in holding the appellants guilty by placing reliance on the circumstantial evidence which is not consistently and unerringly pointing out towards the guilt of appellants. The appellants are languishing in jail since about 13 years.;