D.N. Patel, A.C.J. - (1.) This criminal appeal has been preferred by the appellant-accused, being aggrieved and feeling dissatisfied with the judgment and order of conviction and sentence dated 27th August, 2010 and 31st August, 2010 respectively passed by learned Additional District & Sessions Judge, FTC-VI, East Singhbhum, Jamshedpur in Sessions Trial No. 373 of 2008, whereby, this appellant has been convicted for the offence of murder of Mrs. Duli Murmu. This appellant has been punished for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code for rigorous imprisonment for life and fine of Rs.5,000/- and in case of default, further rigorous imprisonment for the term of one year has been imposed.
(2.) The case of the Prosecution: The case of the prosecution is that on 11th April, 2008 at 13:00 hours (i.e. 01.00 P.M) the informant Thakur Hansda (P.W-4) gave fardbeyan to police that he brings fire wood from the forest and sells them and yesterday on 10th April, 2008 at 20.00 hours (i.e. 08:00 P.M) when he was in his residence, he heard the sound of Bachhao-Bachhao, after hearing this he came outside from the house, taking torch in his hand and saw his mother-in-law Duli Murmu (deceased) lying beside the road and was demanding water and in the light of torch he saw Kandu Murmu and Guru Murmu who were the son of Late Chotu Murmu were holding 'Thenga' in their hands and after seeing the informant both ran away. The informant then gave water to his mother-in-law, who told him, that two brothers Kandu Murmu and Guru Murmu had severely assaulted her with 'Thenga' and stones and after saying that, she expired. The informant further alleged that he did not know the reason of occurrence. He claims that Kandu Murmu and Guru Murmu had killed his mother-in-law. Six witnesses were examined by the prosecution:- JUDGEMENT_27_LAWS(JHAR)4_2018_1.html Six witnesses were examined by the prosecution:-
(3.) Arguments canvassed by the learned counsel for the appellant: Learned counsel for the appellant submitted that the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. The learned trial court has not properly appreciated major omissions and contradictions in the depositions of the prosecution witnesses. It is also submitted by the learned counsel for the appellant that the so-called eye witness P.W.4 is not eye witness, at all because there are major contradictions in his deposition. Looking to the First Information Report, deceased died on road, whereas, as per his deposition, she was in the house. Moreover as per the First Information Report, there was oral dying declaration before P.W.4, whereas, as per deposition especially examination-in-chief, this witness has never mentioned any thing about oral dying declaration given by deceased. This is a major contradiction in his deposition. This aspect of the matter has not been properly appreciated by the learned trial court. The place of occurrence has also been changed by P.W.4 than what is mentioned in the First Information Report. Even otherwise also, he is a close relative of the deceased i.e. P.W.4 is son-in-law of the deceased and, therefore, he was much interested in conviction of this appellant. It is further submitted by the learned counsel for the appellant that looking to the deposition of P.W.3, she is a daughter of the deceased and highly interested witness. She has also narrated the place of occurrence different than what is narrated in the First Information Report. The deceased demanded water after getting injury in her house. Nobody knows whether P.W.3 talks about her house means her husband's house or her mother's house. Even otherwise also, the prosecution has failed to prove how the dead body was shifted from house to road, looking to the depositions of the prosecution witnesses. It is further submitted by the learned counsel for the appellant that P.W.1 is the hearsay witness and not the eye witness, at all. Moreover, P.W.1 do not know even the deceases was a male or female especially looking to his examinationin-chief. This reflects that he is a got up witness. Moreover looking to the deposition given by P.W.1, the place of occurrence is changed. Looking to paragraph 2 of his deposition, it appears that he has given third place of occurrence because as per First Information Report, the deceased expired on road, as per depositions of P.W.3 and P.W.4 it is a house and as per P.W.1, free fight has taken place inside the house of this appellant. Thus, every witnesses are changing the place of occurrence meaning thereby to they are got up witnesses and they are unreliable or untrustworthy witnesses. These aspects of the matter have not been properly appreciated by the learned trial court while convicting and punishing this appellant. It is further submitted by the learned counsel for the appellant that most valuable right of this appellant is cross examination of the Investigating Officer to prove major omissions and contradictions in the depositions of the prosecution witnesses which has been taken away by not examining the most crucial witness, who is the Investigating Officer so far as place of occurrence is concerned. It is also submitted by the learned counsel for the appellant that one of the prosecution witness- P.W.3 has stated that there were blood stain in the house. This aspect of the matter could not be cross examined properly from the Investigating Officer because he was never examined by the prosecution. Thus, there are major omissions and contradictions in the depositions of the prosecution witnesses and non-examination of the Investigating Officer is fatal to the prosecution and, hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. This appellant is in judicial custody since 23rd May, 2008.;