D. N. Patel - (1.) This appeal has been preferred by the accused being aggrieved and feeling dissatisfied by the judgment dated 15.12.2017 and order of conviction dated 16.12.2010 passed by the Additional District & Sessions Judge, Fast Track Court, Simdega in Sessions Trial No.133 of 2007. This appellant has been convicted by the learned Trial Court for the offence punishable under Section 302 of the India Penal Code and is sentenced to life imprisonment and fine of Rs.500/- and in default further simple imprisonment for one month, which has been awarded by the order dated 16.12.2010.
(2.) Case of the Prosecution is as under :- The case of the prosecution is that on 06.08.2007 at 10.00 hrs (i.e 10.00 a.m.), the informant Victoria Dungdung (P.W. - 10) gave fardbeyan to police that yesterday on 05.08.2007 she had gone to Proah Hat and her husband Albert Dungdung (deceased) and her three daughters Macy Dungdung, Anjela Dungdung and Kristina Dungdung were in the house. At about 4.00 p.m. when she returned to her house, she found her husband dead in injured condition and blood was oozing from his body and her three daughters were crying. On query her daughters told her that at about 2.30 to 3.00 p.m. there was an altercation between their uncle Salestin (accused) and their father for some woods of Mango and their uncle was demanding money for wood. Thereafter Salestin Dundung brought a Dabia (sharp edged weapon) from his house and assaulted on the head of their father with Dabia several time. Consequently their father fell down near the door of the house and died. The informant further alleged that previously also there was a quarrel between her husband and Salestin Dungdung for land and tree. She further claims that Salestin Dungdung had killed her husband with Dabia. Ten witnesses were examined by the prosecution JUDGEMENT_106_LAWS(JHAR)11_2017_1.html Exhibits - Ext.1 - Fardbeyan Ext.1/1 - R.O & A.C in his handwriting and signature of Shanta Prasad (I.O) Ext.1/2 - T.Tanger P.S. Case No.40/07 in his hand-writing and signature of Shanta Prasad (I.O) Ext.1/3 - Signature of Victoria Dungdung in Fardbeyan. Ext.2 - Formal FIR Ext.2 - Formal FIR. Ext.3 - Carbon report of Inquest report. Ext.3/1 - Signature of Lorentus Dungdung in Car-bon Copy of inquest report. Ext.4 - Arrest memo of accused Salestin Dungdung Ext.5 - Seizure list Ext.6 - Charge-sheet Ext.7 - Forwarding report of accused. Ext.8 - Signature of Joseph Dungdung in the seizure list of blood stained soil and Dabia. Ext.8/1 - Signature of Lorentus Dungdung Ext.9 - Post-mortem report.
(3.) Argument canvassed by the counsel for the appellant. - Counsel appearing for the appellant has submitted that there are major omissions and contradictions in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court, and hence, the judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside. - It is submitted by the counsel for the appellant that prosecution has failed to prove the offience of murder committed by this appellant-accused beyond reasonable doubt. - It is also submitted by the counsel for the appellant that so called eye-witnesses, P.Ws. - 1, 2 & 3, in fact, are not the eye-witnesses at all looking to their cross-examination, as they have not seen the occurrence. Moreover, so called recovery of the weapon has also not been proved by the prosecution. The said weapon was also not presented before the trial court, neither blood-stain earth was presented before the learned trial court - It is vehemently submitted by the counsel for the appellant that not a single prosecution witness much less P.W.s - 1, 2 & 3 has stated as to how many blows have been inflicted on the part of the body of the deceased by sharp cutting weapon Dabia. - It is submitted by the counsel for the appellant that there was no intention on the part of this appellant to cause murder of the deceased and there was hot altercation between the deceased and this appellant, and hence also at the highest the case of the prosecution is covered by Section 304 Part II of the Indian Penal Code, and this appellant is in custody for the last 10 years. - Counsel for the appellant has also relied upon the decision of the Hon'ble Supreme Court rendered in the case of Surain Singh v. State of Punjab, 2017 AIR(SC) 1904. - It is submitted by the counsel for the appellant on the basis of the aforesaid evidence on the record that prosecution has failed to prove the offence of murder committed by this appellant.;