- (1.) THE Sole appellant Shyam Besra has preferred this appeal against the judgment of conviction and order of sentence dated 14.8.2000 and 16.8.2000 passed by 6th Additional Sessions Judge, Dumka in Sessions Case No. 172 of 1998 whereby and whereunder the appellant has been convicted under section 302 of the Indian Penal Code and sentenced to undergo R.I. for life.
(2.) BRIEF facts leading to this appeal are that in the evening of 7.4.1998 the deceased Jetha Besra was being awaited by the informant in her house. Further alleged at about 8.p.m. she heard alarm raised by the deceased oh which she came out of the house alongwith P.W. 1 and P.W. 4 carrying a torch to find that the appellant was assaulting her husband with "Katu", heavy sharp cutting weapon on the village road in front of the house of Ganga Murmu. The appellant assaulted the deceased several times and fled away. The informant raised alarm on which many persons arrived and brought the deceased for his treatmenl at Sadar Hospital, Dumka. The deceased Jetha Besra succumbed to his injuries during treatment at the hospital. According to the informant the appellant has committed murder of his own brother because of dispute for family partition. Equivalent Citation:2007 -JCR -4 -485 The police arrived at Dumka Sadar Hospital and recorded her statement at 22.15 hours same day and registered Dumka P.S. Case No. 41 of 1998 under section 302 of the Indian Penal Code. The police investigated the case, got the post mortem examination conducted and finally submitted charge -sheet against the appellant. The appellant was arrested next day who pleaded not guilty and claimed false prosecution. However the learned trial court after examining the witnesses found and held him guilty for the offence and sentenced him to serve R.I. for life.
(3.) THE appellant has remained in custody throughout. The present appeal has been preferred mainly on the grounds that the learned trial court has failed to consider the improbability of the prosecution case. It is also asserted that the investigation was not conducted properly. The counsel for the appellant did not appear at the time of the rearing of the appeal. Therefore, Sri G.C. Sahu was appointed amicus curiae to assist the court on behalf of the appellant who has submitted that the learned trial court has committed mistakes by accepting the sole statement of P.W. 3, the informant in spite of all the witnesses being declared hostile, as they did not support the prosecution case. Sri Sahu further pointed out that as per informant her husband was assaulted with sharp cutting weapon but the post mortem report mentions injuries no. 1 caused by hard and blunt substance. According to Sri Sahu the prosecution has not been able to prove the case beyond all reasonable doubts particularly the manner in which the assault took place. Sri Sahu further stressed that the identification of the appellant is not proved beyond doubts because none of the witnesses except P.W. 3 has asserted that the assault was committed by the appellant.;