- (1.) THE present appeal arises out of the judgment dated 24th November, 2005 passed by the Additional Sessions Judge at Ghatsila in Sessions Trial No. 574 of 1996 whereby the learned Additional Sessions Judge Ghatsila convicted the appellant for the offence under Section 302 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for life.
(2.) THE prosecution case in short is that on 10.8.1996, Chandrai Majhi (deceased), after taking his meal, went to sleep in his house. At that time, he was alone in his house because his wife had gone to her parent 'shouse and the two children of the deceased were in the house of the informant Huding Majhi who was the younger brother of the deceased Chandrai Majhi. it is said that at about 12.00 in the night, the informant Huding Majhi heard the cries of the deceased Chandrai Majhi raising hulla. The other neighbours namely Durga Ho (PW 3), Girdha Majhi (PW 2), Raisen Majhi (PW 1) the son of the deceased also arrived there near the house of the deceased. At that time the informant saw his brother Hopo Majhi (Appellant) coming out with a tangi from the house of Chandari Majhi. The appellant Hopo Majhi threw his tangi near the house of the deceased Chandrai Majhi and thereafter fled away towards the forest. When the informant and others went inside the house of Chandrai Majhi they saw the neck of the deceased Chandrai Majhi had been cut and he was lying in a pool of blood and he died there. The motive behind the occurrence was alleged that the deceased Chandrai Majhi had given his entire land on contract (Thika) and because of the said dispute of land, the appellant committed the murder of his brother Chandrai Majhi by means of tangi. The defence case is of false implication and denial of the occurrence.
(3.) IN order to establish the charge, altogether seven witnesses were examined. PW 1 is Raisen Majhi, the son of the deceased Chandrai Majhi. He has stated in his evidence that his father was murdered by the appellant Hopo Majhi in his house at 12.00 in the night in the year 1996 when he was sleeping in the house of his uncle. In his cross -examination, he has stated that at the time of murder, he was sleeping. This witness did not speak a word that he either saw the appellant near the place of occurrence or that he was fleeing away from the place of occurrence when he arrived at the place of occurrence. PW 2 is Girdha Majhi. This witness has also stated that on hearing hulla, he came to the house of Chandrai Majhi and he saw that Chandrai was murdered. In cross - examination, he has clearly stated that at the time of murder, he was sleeping in his house and he did not see the commission of murder. This witness has also not stated that he saw the appellants at or near the place of occurrence of that he was seen fleeing away from the place of occurrence so as to connect the appellant from commission of alleged murder. PW 3 is Durga Ho. In his examination in chief, he has stated that at the time of alleged occurrence, he was sleeping in his house and after hearing hulla, he reached at the place of occurrence. Therefore, his evidence is also of no use to connect the appellant from the alleged offence of murder of deceased. PW 4 is the informant who is the brother of the deceased as well as the brother of the appellant. From perusal of his evidence, it appears that what he had stated in the FIR was not stated by him in the Court during trial. Meaning thereby, in the FIR he had allege that he saw the deceased coming out of the house of the deceased Chandrai Majhi holding a tangi on the alleged date and time of occurrence and he threw tangi at the place of occurrence and thereafter, fled away from there. But, in Court, these facts have not been sated by him in his evidence. Therefore, it appears that the allegations made in FIR were not substantiated by the informant in the Court during trial. PW 5 Tusu Majhi is the widow of the deceased. She has admitted in his evidence at the time of alleged occurrence, she was at her parent 'splace in another village. PW 6 Dr. Ratneshwar Prasad Sinha is the doctor who has formally proved the post - mortem report of another doctor namely Dr Nawal Kishore Sinha who had conducted post -mortem examination. PW 7 is Mithilesh Kumar, a formal witness. The Investigating Officer has not been examined by the prosecution for the reasons best known to it.;