B. B. Mangalmurti, J. - (1.) This appeal is directed against the judgment of conviction dated 25th September, 2006 and order of sentence dated 27th September, 2006 passed by Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.23 of 2004 wherein appellant Kapil Yadav alias Kapildeo Yadav has been convicted under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life.
(2.) The prosecution case in short is that fardbeyan of Champa Devi wife of deceased Lai Babu Sao was recorded by S.I. Adityapur Police Station on 23.11.2003 at 23.45 hours that her husband was doing the work of a mason having two wives first being informant Champa Devi and another named Pawan Devi. Both were living in two separate houses. The further case is that accused was also doing the work of mason and belongs to the same village that led to friendship between the deceased and accused. After return from the work place both used to eat and drink together. Accused Kapildeo Yadav by establishing relationship of Bhabhi with second wife of deceased sometime used to joke with her. This relationship between the accused and Pawan Devi was not being approved by the deceased. One day, when he returned in the evening he found that accused was already in his house having conversation with Pawan Devi. He objected to it saying that in his absence behavior of accused could not be taken in good taste and after some utterance he drove out the accused from his house. Because of this, the accused developed grudge against the deceased. On the fateful day at around 21.05 p.m., accused came in his house where the deceased, informant, his son, son-in-law and Sautan Pawan Devi were sitting and called the deceased on the pretext of doing some urgent conversation and took him to the side of railway line. Initially her husband was not ready to accompany and refused to go but when accused insisted him then he accompanied him near the railway line which was situated 100 yards towards the south side. Informant, having suspicion in her mind, along with her son Munna Sao, Roshan Sao and son-in-law Manoj Sao also followed them towards that side. After five minutes she heard the cry of her husband and then all went towards the railway line and saw in the light of three cell torch which was being held by her son-in-law that Kapildeo Yadav was assaulting the deceased with a Tangi and after seeing them, flew towards the South side. When informant reached there, she found blood oozing from the head of her husband and there were several injuries on his person. He died on the spot. Her son and son-in-law tried to chase accused Kapildeo Yadav but he escaped due to darkness as also concealed himself in the bushes. When her son raised alarm then neighbours assembled there and saw the deceased lying on the side of the railway line. Informant claimed that Kapildeo Yadav murdered Lal Babu Sao using axe on the head causing multiple injuries. Accordingly, formal FIR was registered being Adityapur P.S. Case No.275 of 2003 dated 23.11.2003. After investigation, charge-sheet was submitted against sole accused under Section 302 of the Indian Penal Code.
(3.) After commitment of case, charge was framed under the aforesaid Section. The prosecution altogether examined 09 witnesses whereas defence has not examined any witness. The court held that because of non-examination of the investigating officer, whole case of the prosecution cannot be thrown out and finding cumulative effect of all the evidences on behalf of prosecution witnesses, relied on the evidences of PW-1, PW-2, PW-3, PW-4, PW-5 and PW-9 and held that the accused has committed murder of the deceased Lai Babu Sao and held the accused Kapil Deo Yadav guilty under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life with the set off clause.;