D.N.Patel, J. - (1.) This Criminal Appeal Has Been Preferred From Jail By The Appellant being aggrieved and feeling dissatisfied by the judgment of conviction and order of sentence dated 31st August, 2007 passed by the P.O. Fast Track CourtIII, Gumla in Sessions Trial Case No. 161 of 2005, whereby and whereunder, this appellant has been mainly convicted for the offence punishable under section 302 of the Indian Penal Code for causing murder of the deceased, for life imprisonment.
(2.) The Case Of The Prosecution Is That On 21.2.2005 At 16:30 Hrs. (4.30 p.m.) the informant Ram Prasad Yadav gave fardbeyan to police that on 21.2.2005 his brotherinlaw Mahadeo Gope (deceased) came to his house as a guest. Then informant with his brotherinlaw Mahadeo Gope moved from village Birla to Natwal. His brotherinlaw Mahadeo Gope was carrying the cot leg (Khatiya Ka Pawa) and informant was carrying it on his shoulder. About 9 a.m. during the day when they reached near Gayachanda near Kashi Tanr, he saw Ram Bhagat Korva of Sikta Toli, P.S. Dumri, District Gumla standing there and when they reached near him, suddenly, he dashed him and informant fell down with Cot leg. Thereafter, he snatched one Cot leg and attacked the informant with that, but, informant fled away from there. However, his brotherinlaw Mahado Gope was not able to flee away and one blow was given on his head due to which he fell down on the ground and then the appellant beaten him with Cot leg upon his head and other parts of the bodies. During course of fleeing, the informant, informed about the occurrence to Louva Korva, Gakhul Kavar of village Gayachanda and then he went to his village to bring his family members and villagers. When informant returned to the place of occurrence with villagers they saw that his brotherinlaw was lying dead there. Thereafter, villagers informed him that Ram Bhagat Korva was caught by the villagers of Gayachanda. The informant, informed about the occurrence to the villagers of his brotherinlaw, who also came there and saw the dead body. Ten witnesses were examined by the prosecution, which are as under: PW-1 Gokul Kavar He is a Hearsay witness PW-2 Lawa Korva Declared Hostile witness. PW-3 Fagua Korva Declared Hostile witness. PW-4 Vinay Gope He is the son of deceased Mahado Gope and is Hearsay witness. He has proved his signature in the seizure list of blood stained soil and Lungi i.e. marked as Ext.1 PW-5 Shivnath Gope He is the elder brother of deceased Mahadeo Gope and is Hearsay witness PW-6 Ram Prasad Yadav He is the informant of this case and is Eye witness of an occurrence. He has proved his signature and signature of Shivnath Gope in Fardbeyan i.e. marked as Ext.2 and 2/1 respectively. PW-7 Naghina Prasad He is a Hearsay witness. PW-8 Santosh Kumar Gupta (S.I.) He is an Investigating Officer of this case. He has proved the formal FIR in the handwriting and signature of Anand Tirkey i.e. marked as Ext.3/1 and he has proved the seizure list of blood stained soil and Lungi i.e. marked as Ext.4 and has also proved the Inquest report i.e. marked as Ext.5 PW-9 Kishore Gawala He is the Formal witness who has proved his signature in seizure list of blood stained soil and Lungi i.e. marked as Ext.1/1 PW-10 Dr.M.K.Singh He is a Doctor who has conducted the Postmortem of deceased Mahado Gope and has proved the postmortem report i.e. marked as Ext.6. The Exhibits are as under: Ext.1 Seizure list of blood stained soil and Lungi. Ext.1/1 Signature of Kishore Gawala in seizure list of blood stained soil and Lungi. Ext.2 Signature of Ram Prasad Yadav in Fardbeyan. Ext.2/1 Signature of Shivnath Gope in Fardbeyan Ext.3/1 Formal FIR in the handwriting and signature of Anand Tirkey Ext.4 Seizure list of blood stained soil and Lungi. Ext.5 Inquest report. Ext.6 Postmortem report.
(3.) It Is Submitted By Counsel For The Appellant That The Prosecution Has failed to prove the offence of murder committed by this appellant beyond shadow of reasonable doubt. It is also submitted by counsel for the appellant that the case of the prosecution is based upon only one eye witness, who is PW6, the informant. Counsel for the appellant submitted that looking to the deposition of PW6, it appears that this appellant was not known to him and no motive for murder has ever been alleged, either in FIR or in his deposition. It is also submitted by counsel for the appellant that when this appellant was not known to the informant, how he has given the name of the appellant to the villagers that he has committed the murder. Moreover, as per the narration of the incident, given by this PW6, he had run away from the place of occurrence and once, he ran away from the place of occurrence, how he has seen the whole incident, has also not been explained by the prosecution. The incident has taken place nearby Siktatoli which is a village 1 k.m. away from the place of occurrence. When this informant and the deceased were going from village Birla to Natwal at Gayachanda Kashitand, on the way this incident has taken place, from where Siktatoli is about 1 k.m. away. Prosecution has failed to examine any other witness who has seen the occurrence except PW6 and looking to his deposition he has run away from the place of occurrence first and thereafter, as per PW6, fatal assault caused by this appellant. Thus, when this appellant was unknown to him how he has given the name of this appellant to the villagers of Siktatoli. Moreover, once he has run away, he has never seen the whole occurrence. This aspect of the matter has not been properly appreciated by the learned court below. So far as P.Ws. 1, 2, 3, 4, 5 and 7 are concerned, they are hearsay witnesses. They have never seen the occurrence at all. It is also submitted by counsel for the appellant that prosecution has failed to prove the motive of the occurrence. In fact, this appellant has nothing to do with the deceased nor this appellant has anything to do with the informant and wrongly he has been roped into the offences of murder of the deceased. He has already remained in judicial custody since last 12 years and six months and as the prosecution has failed to prove the offence of murder of the deceased committed by this appellant, the judgment of conviction and order of sentence deserves to be quashed and set aside.;