RONGON MUKHOPADHYAY, J. - (1.) This criminal appeal is directed against the judgment and order of conviction dated 17.01.2006 and sentence dated 18.01.2002 passed by the learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 224 of 1990/61 of 2001, whereby and where under, the appellant has been found guilty and convicted for the offence punishable u/s 307 and 341 of the Indian Penal Code (I.P.C.) and has been sentenced for rigorous imprisonment (R.I.) for 7 (Seven) years u/s 307 I.P.C. and further R.I. for 1 (one) year and Rs. 2000 fine for the offence punishable u/s 341 I.P.C. and in default of payment of fine further R.I. for one month. Both the sentences are to run concurrently.
(2.) The prosecution case in brief is that on 6.4.1988 at about 5.00 p.m. the informant was going from door to door for inviting villagers for a feast. It is alleged that as soon as the informant reached near an alley besides house of Lakhiram Marandi, the appellant came there and started assaulting by means of Lathi. In the meantime, the witnesses Bhonde Tudu and Rashbihari Tudu reached there and tried to pacify the appellant, but he assaulted them also with Lathi and Katta and causing injury to them. According to the informant, the incident had taken place due to previous enmity between the parties. Based on the aforesaid allegation Nala (Bindapathar) P.S. Case No. 48 of 1988 was instituted. After investigation charge-sheet was submitted against the appellant pursuant to which cognizance was taken u/s 341,323 and 326 I.P.C. and the case was transferred to Court of learned Judicial Magistrate, 1st Class, Jamtara for trial and disposal. In course of trial after recording the evidence of the witnesses, it was found that the case was exclusively triable by the Court of Sessions and accordingly the case was transferred to the Court of Sessions. The charge was framed u/s 341/323 and 307 of the I.P.C. against the appellant to which he pleaded not guilty and claimed to be tried.
(3.) The prosecution in course of trial had examined as many as seven (07) witnesses. P.W. 1 Rashbihari Tudu is an eye witness to the occurrence. In course of examination he has stated while he was returning home along with Bhoalde Tudu, near the house of Saina Tudu (informant) they saw the appellant assaulting the informant with Lathi. This witness as well as Bhonde Tudu tried to pacify the matter, but the appellant had also assaulted them resulting in injuries suffered by them. P.W. 2 Bhonde Tudu had deposed in similar lines to that of PW 1. P.W. 3 Subodhan Tudu has stated that he had seen the appellant assaulting the informant with Lathi. He had also witnessed the assault committed at P.W. 1 and 2. P.W. 5 Babujan Tudu is also an eye witness to the occurrence who had seen the appellant assaulting the informant as well as P.W. 1 and 2 with Lathi. P.W. 5 Shivlal Tudu has deposed that he was in his house and when he came out on hearing commotion when he saw that the appellant was assaulting the informant. He has further deposed that P.W. 1 and 2 were trying to calm down the commotion and they were also assaulted by the appellant. P.W. 6 Tahir Mian is a formal witness. P.W. 7 Dr. Shyam Kumar Jha had examined the informant as well as P.W. 1 and 2 and had given his report. He had also examined the appellant and he found that the injuries suffered by the appellant were simple in nature. ;