- (1.) THE Sole appellant Subodh Rajwar @ Chutun Rajwar has preferred this appeal against the judgment and order dated 6.5.1996 and 14.5.1996 respectively passed by 1st Additional Sessions Judge, Dumka in Sessions Case No. 154 of 1995/94 of 1995, whereby and whereunder the appellant has been convicted under Sections 302 and 323 of the Indian Penal Code and has been sentenced to undergo RI for life under Section 302 of the Indian Penal Code and undergo RI for one year under Section 323 of the Indian Penal Code. Both the sentences have been ordered to run concurrently.
(2.) BRIEF facts leading to this appeal are that in the morning of 22.6.1994 the informant Sunita Rajwarin returned from fields after throwing cow dung to find that her husband Godal Rajwar was being assaulted with lathi by the appellant inside the angan of their house. The appellant is own brother of the deceased, residing in the common ancestral house. According to the informant her husband was asking for share in the house as well as Tali from the appellant and their mother on which this occurrence took place. She alleged that the appellant assaulted the decease with lathi on his head and chest after which he fell down vomiting blood. When she tried to save her husband she was also assaulted by the appellant. She sent the information through his son to village choukidars (PWs 2 and 3) who arrived immediately but in the meantime the appellant fled away. Villagers tried to remove the deceased for his treatment. However, he breathed his last. Raneshwar police was informed which arrived at the place of occurrence and recorded the statement of PW 1 at 13 hours on the basis of which Raneshwar P.S. Case No. 35 of 1994 under Sections 302 and 323 of the Indian Penal Code has been registered. The appellant was charge -sheeted and apprehended. During trial the appellant pleaded innocence. However the learned trial Court, considering the evidence on record found and held him guilty under Sections 302 and 323 of the Indian Penal Code. Accordingly, the appellant was sentenced to serve RI for life under Section 302 of the Indian Penal Code and RI for one year under Section 323 of the Indian Penal Code.
(3.) THE present appeal has been preferred mainly on the grounds that the learned trial Court has convicted the appellant on the basis of sole eye -witness which is not safe. According to learned amicus curiae Sri Kumar Vimal appearing for the appellant. PWs 2 and 3 village choukidars have been believed as corroborating witnesses to the occurrence. However they have admitted during cross -examination that they arrived at the place of occurrence having received information from a boy whose name they could not disclose. It was further pointed out that even when they saw appellant fleeing away from the place of occurrence they did not make any effort to arrest him. Learned AC further pointed out that police recorded the SD entry No. 297 dated 22.6.1994 which has not been brought on record, thus concealed the actual information received by the police. He further submitted that no alarm was raised by PW 1 during the occurrence nor the lathi was produced before the trial Court. As such, the learned trial Court should not have believed the eye -witness particularly in the circumstances where dispute was going on between the appellant and the deceased for family properties.;