D.N.UPADHYAY,J. - (1.) These Cr. Appeals have been directed against the judgment of conviction and order of sentence dated 29.04.2004 & 30.04.2004 respectively passed by the 1st Addl. Sessions Judge, Dumka in connection with S.C.No.33/2002, corresponding to G.R.No. 927/2001, arising out of Gopikandar P.S. Case No. 19/2001 whereby the appellants have been held guilty for the offence punishable under Sections 302/34, 201 of the Indian Penal Code and sentenced to undergo R.I. for life under Sections 302/34 of the Indian Penal Code and R.I. for three years under Section 201 of the Indian Penal Code. Both the sentences so passed were directed to run concurrently.
(2.) The facts in brief, as it appears from the fardbayan of Fulmuni Soren (wife of the deceased), is that on 14.10.2001 in the morning at about 8 a.m. Charan Baskey (deceased) left home along with appellant -Prabhu Hansda with a purpose to do shamanism but did not return home. On the following morning i.e. on Monday the informant went to the house of Prabhu Hansda situated at village Dalanghatu to know the whereabout of her husband. The wife of appellant -Prabhu Hansda told that her husband Prabhu Hansda had also left home on Saturday but did not return. Thereafter the informant with her relatives made search of her husband but could not succeed. Finally on Tuesday, she got dead body of Charan Baskey concealed within bush within Khil Sukra forest. On 17.10.2001, fardbayan of Fulmuni Soren was recorded and Gopikandar P.S. Case No. 19/2001, under Sections 302/201 of the Indian Penal Code was registered against Prabhu Hansda and others. Investigation was carried out. Complicity of the appellants came in light during investigation and after collecting evidence against them, charge -sheet was filed. Cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.C.No.33/2002. Charges against the appellants under Sections 302/34, 201/34 of the Indian Penal Code were framed to which they pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined altogether 9 witnesses including the informant, Dr. Shailendra Kumar, who conducted postmortem examination on the dead body of Charan Baskey, Arun Kumar Rajak -Investigating Officer (P.W.6). Learned Addl. Sessions Judge placing reliance on the evidence and documents available on record, held the appellants guilty for the offence alleged and inflicted sentence as indicated above. Cr. (Jail) Appeal (D.B.) No. 199/2007 has been preferred by appellant -Prabhu Hansda whereas remaining appellants have preferred Cr.Appeal (D.B.) No. 867/2004. Since the Counsel representing the appellants did not appear, Shri Rajesh Kumar has been appointed as Amicus Curiae to assist the Court.
(3.) The appellants have assailed the impugned judgment mainly on the ground that conviction has been recorded on the sole testimony of Lukhi Baskey, who has projected herself as an eye -witness. It is submitted that P.W.1 is a manufactured witness and she had not seen the occurrence. According to her evidence, she is a chance witness who had been to the forest for collecting dried leaves. She says that she had seen appellants, namely, Hopna Murmu, Sikhar Murmu and Kubraj Murmu hiding at a place within forest whereas Prabhu Hansda along with deceased Charan Baskey appeared at the scene of occurrence. No sooner Charan Baskey reached to the place, Kubraj Murmu inflicted knife blow to Charan Baskey. Injuries were inflicted on the neck by means of knife. Remaining accused joined hands and assaulted Charan Baskey by means of stones. Thereafter this witness fled away from the place and returned to village. It is submitted that conduct of P.W.1 is neither natural nor appreciating. She is the resident of same village where the informant resides. The appellants as well as the deceased were known to her but she did not inform the occurrence to Fulmuni Soren (wife of the deceased). She has stated that after the occurrence, police arrived at village but she did not appear before the Police to give statement. This witness has been examined after one and half months of the occurrence i.e. on 01.12.2001 as per the statement of I.O. (P.W.6) and that too when the I.O. reached her home and asked whether she had any knowledge about the occurrence only then she disclosed the occurrence to the I.O. She has not explained as to why she kept mum for one and half months though she had witnessed the occurrence. It is further submitted that evidence of this witness is not trustworthy for the reason she has stated that injury by means of knife was caused by appellant - Kubraj Murmu on the neck of deceased but the Dr. Shailendra Kumar (P.W.9) did not find any injury caused by sharp cutting weapon on the neck. Surprising aspect of prosecution case is that the Doctor himself is not sure whether injuries appearing on the person of deceased were ante mortem or postmortem. The Doctor has deposed, if the injuries were ante mortem then death was caused due to head injury, therefore, the Doctor is not very sure about cause of death and no definite opinion is available on record that death of Charan Baskey was homicidal. Lakhan Baskey (P.W.2), Fulmuni Soren (P.W.4) respectively are sons and wife of deceased. They have deposed that Prabhu Hansda took the deceased with him on Sunday morning and these witnesses have tried to bring it on record the case of last seen. Conviction cannot be recorded on such weak piece of evidence. Dead body was recovered on Tuesday, two days after the incident, fardbayan was recorded on Wednesday. It is not on record as to what happened to the deceased after he left home.;