- (1.) BY Court Both the appeals have arisen out of common judgment of conviction but separate order of sentence passed against the appellants by Shri P.K. Jha, 7th Addl. Judicial Commissioner, Ranchi in Sessions Trial No. 19 of 1998/467 of 1998 whereby each of the appellants has been convicted under Sec. 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life. They were further convicted under Sec. 201 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for 5 years.
(2.) THE prosecution story as it stands narrated in the Fard Bayan of the informant Lakhan Binjhiya (P.W. 1) and recorded by Namkum Police on 8.5.1997 was that he had been to the market with his mother Savitri Devi (since deceased) on 5.5.1997, where in the market Dolka Pahan, Hindu Pahan and one Mahadeo Munda got his mother excessively drunk and all of them also consumed liquor. The informant alleged that while he along with his mother and others were returning and reached near a lonely place between Nachaldag and Pahan Toli, all the three accused pinned her mother down on the earth and committed murder by strangulating her. The appellants threatened the informant to flee away. Pursuant to such threatening he returned back to his home and narrated the occurrence only to his elder brother and none - else. On 8.5.1997 the matter was informed to Harish Chandra Singh Munda 'Pahan Raja' (P.W.7) and Matias Munda (not examined) and after extensive search the dead body of his mother could he located which was kept concealed under the earth near a river. Disclosing the genesis the informant narrated that his father Budhram Binjhiya was a Vaidya who had saved life of a person through medicine to whom the accused Dolka Pahan had administered poison and for such reason Dolka Pahan with the aid of Hindu Pahan and Mahadeo Munda committed murder of his mother and concealed the dead body. The police registered Namkum P.S. Case No. 63 of 1907 against alt the three accused persons under Sec. 302/34 and 201 I.P.C. but submitted charge -sheet after investigation only against Dolka Pahan and Mahadeo Munda pending investigation against Hindu Pahan. Accordingly, cognizance of the offence was taken and the case was committed. In the meantime charge -sheet was submitted also against the accused Hindu Pahan giving rise to two different numbers of trial viz. Sessions Trial No. 19 of 1998 and Sessions Trial No. 467 of 1998 which were amalgamated and accordingly charge were framed against all the three accused persons under Sec. 302/34 and 201 I.P.C. to which they pleaded their innocence, false implication and claimed to be tried. Altogether 9 witnesses were produced and examined on behalf of the prosecution. Besides, the signature of the informant Lakhan Binjhiya on his Fard Bayan was marked Ext. 1, his signature on the statement recorded under Section 164 Cr.P.C. Ext. 1/1, signature of P.W. 3 Karma Binjhiya on the inquest report Ext. 2, signature of P.W. 6 Soma Binjhiya on the inquest report Ext. 3, signature of the attesting witnesses Harish Chandra Singh Munda (P.W. 7) on the Fard Bayan was proved Ext. 4. Similarly, the formal F.I.R. was proved and marked Ext. 5, Ext. 6 was the inquest report, Ext. 7 was the statement of the informant recorded under Sec. 164 Cr.P.C. and the postmortem report of Savitri Devi was proved and marked Ext. 8. During course of trial the accused Mahadeo Munda died and therefore, his criminal proceeding was dropped and it continued against the remaining two accused who are the appellants herein.
(3.) MR . Gopal Sahu, learned Counsel by his common argument in both the appeals submitted that the conviction of the appellants Dolka Pahan and Hindu Pahan is based upon the solitary evidence of P.W. 1 Lakhan Binjhiya who has claimed to be the eye -witness of the alleged occurrence. The statement of the informant recorded under Sec. 164 Cr.P.C. suffers from vital contradiction on material facts inconsistent to his earlier statement before the police and subsequent statement in the Trial Court. The informant P.W. 1 was specific in his statement before the police that all the 3 accused strangulated her mother and he was threatened to run away from the place of alleged occurrence but he was more specific in his statement under Sec. 164 Cr.P.C. wherein he made substantial development by specifying the overfact that his mother was pinned down by the appellant Dolka Pahan whereas her hands were held by the appellant Hindu Pahan and it was Mahadeo Munda who strangulated his mother to death. But in his substantial evidence before the Court he exonerated the criminal liability of the accused Mahadeo Munda and for such deviation the informant was declared hostile by the prosecution. When his attention was drawn towards his earlier statement recorded under Sec. 164 Cr.P.C. he admitted having narrated before the Magistrate that it was Mahadeo Munda who strangulated his mother but during cross -examination he clearly testified that Mahadeo Munda had not committed murder of his mother and whatever he had narrated before the police and also before the Magistrate were on tutoring of the other witnesses. In view of such inconsistency Mr. Sahu submitted that the statements of P.W. 1 Lakhan Binjhiya delivered at different stages as the eye - witness of the occurrence are not worthy of credence, admittedly being tutored witness and therefore, not at all reliable to base the conviction on his solitary evidence uncorroborated by the other sources. The fact cannot be lost sight of that his age was only 13 at the time of his testimony who could be influenced by the interested persons and therefore his statements required proper scrutiny.;