D.K.SINHA, J. - (1.) THE sole appellant, Sukra Oraon, has preferred this appeal against the judgment of his conviction under section 302 of the Indian Penal Code and order of rigorous imprisonment for his life passed by the 1st Additional Sessions Judge, Gumlajn Sessions Trial.,No. 213 of 1997 on 8,6.2001 and 1.6.2001 respectively.
(2.) THE prosecution was launched on the basis of the fardbeyan of the informant, Jatro Orain (P.W. 4) recorded on 21.5.1997 at about 10 a.m. at village Naditoli within Gumla police station. She narrated in her fardbeyan that in the night intervening 20/21.5.1997 her son, Etwa Oraon (since deceased) after having his supper went to sleep in the courtyard whereas the. informant (mother of the deceased) retired to bed at the door of the cattle shed. In the midnight at about 12 O'clock she woke up on hearing some sound and found the appellant, Sukra Oraon assaulting his son Etwa Oraon as a result of which he started screaming, whereupon the assailant - appellant scolded him in abusive language to keep quiet and escaped. She identified Sukra. Oraon by seeing him as also from his voice at the time of assault and immediately rushed there and found excessive bleeding from her son's head. He was trembling and within a short while he succumbed to his injury. She raised alarm and pursuant to that, the co -villagers Jhirga Oraon (P.W. 1), Changre Oraon (P.W. 2), Bandhan Oraon (P.W 3) and Fagua Gope (not examined) arrived at the scene to whom she narrated the occurrence and they found her son dead sustaining injuries. Disclosing the genesis of the occurrence, the informant narrated that in the morning of 17.5.1997 (Saturday) the appellant, Sukra Oraon after entering into her house had removed Rs. 600/ - and a bycycle stealthily and on the same day he was apprehended with the cycle by the witnesses for which a Panchayati was convened in the village but he did not appear in Panchayati. Rather, he escaped giving out threat that he would commit their murder and also that he would set their house on fire. On the basis of such threat of the appellant the informant had reason to believe that the appellant, Sukra Oraon committed murder of her son Etwa Oraon by inflicting injury with the sharp cutting weapon. On the statement of Jatro Orain (Ext. 2) Gumla RS. Case No. 108 of 1997 was registered and Gumla Police proceeded with the investigation. The police prepared the inquest report of the dead body of the deceased and sent the dead body for post mortem examination. After investigation the police submitted charge -sheet for the offence under section 302 of the Indian Penal Code and accordingly, charge was framed against the appellant under section 302 of the Indian Penal Code by the trial court to which the appellant pleaded not guilty and claimed to be tried. Mr. B.M. Tripathy, the learned counsel for the appellant submitted that the appellant was convicted on the basis of the solitary testimony of P.W. 4 i.e. the mother of the deceased who claimed" to have identified the assailant in the dead of night from a considerable distance without disclosing any source of illumination. Implication of the appellant in the instant case by the informant (P.W. 4) is based upon conjecture and suspicion as she woke up from her slumber on hearing certain sound and by that time the assailant had already escaped. Though she claimed to identify the appellant as assailant with attribution that he dealt several blows from his weapon but conspicuously the nature of weapon used was not mentioned in her fardbeyan and the trial court failed to take into consideration this aspect. The complicity of the appellant has been speculated by the informant as the perpetrator of the crime only on account of previous enmity between the appellant and Etwa Oraon. Mr. Tripathy emphasized that the other witnesses viz. P.Ws. 1, 2, 3 and 6 are hearsay witnesses who derived information none other than the informant but for want of corroborative evidence of the so -called eye witness P.W. 4 it was not safe for the trial court to sustain the conviction of the appellant. The Investigating Officer did not collect any material as to whether any Panchayati was actually held in the village in respect of recovery of the alleged stolen cycle of the deceased from the possession of the appellant.
(3.) MR . Tripathy further pointed out that the place of occurrence as alleged by the informant could not be established by the Investigating Officer in his objective finding as there was no seizure of blood stained mat from the courtyard on which Etwa Oraon was sleeping and sustained bleeding injury from his head on account of assault. Even no lamp or earthen lamp was seized from the house of the informant. Mr. Tripathy exhorted that the witnesses produced on behalf of the prosecution were partisan who shared the interest of the informant by narrating the version what they derived from her as such their testimony ought lo have been scrutinized by the trial court with due care and caution. Failure of Justice has been occasioned by not scrutinizing the testimony of RW. 4 who claimed to be the solitary eye witness of the occurrence.;