- (1.) THIS appeal is directed against the judgment of conviction and sentence dated 15.12.1994 by Smt. Shakuntala Sinha, Additional Judicial Commissioner, Khunti by which, it was found that the Appellant and one Karam Singh Munda, since deceased were guilty Under Section 302/34 of the Indian Penal Code, sentenced both of them to life imprisonment. This appeal has been preferred by Soma Munda.
(2.) THE prosecution case in short is that on 17.06.1992, the informant, P.W.1, Kitni Mundain lodged an F.I.R. to police that at about 5.30 P.M. in the evening while she along with her husband were grazing cattle in village Bandadih, then her brother accused Soma Munda along with Karam Singh Munda came and assaulted her husband with 'Dauli' causing his death. In her fardbayan, she has stated that there was a dispute with her Husband and her brother with regard to some jungle land and her brother was demanding 'Chanda' to file a case which, due to poverty, her husband could not gave. She returned to her house and informed the occurrence. On the basis of the said F.I.R., the police registered a case Under Section 302/34 of Indian Penal Code and after investigation submitted the charge sheet. Charges were framed by the Sessions Court and after trial both the accused were convicted as aforesaid.
(3.) IN order to prove the charge, the prosecution has altogether examined 8(eight) witnesses. P.W.1, Kitni Mundain is the informant herself. P.W.2 Chada Munda is the brother of the deceased. P.W.3, Gomya Munda, P.W.4, Binsay Munda, P.W.5, Abhiram Munda, all have stated that they came to know about the occurrence from the informant and had gone to the place of occurrence and saw the dead body of the deceased. P.W.6, Dr. Vijay Kumar Prasad has conducted the post mortem examination. P.W.7, Mago Munda saw the informant crying and weeping. After being told by the informant about the incident, she went to the place of occurrence and saw the dead body of the deceased. P.W.8, Shyam Kumar Singh is the Investigating Officer of the case. It is submitted by the learned Counsel for the appellant that in the instant case, although 8 (eight) witnesses were examined but the case is based only on the evidence of the informant, P.W.1, Kitni Mundain who claimed to be the only eye witness of the case. It is further submitted that the fardbeyan of Kitni Mundain cannot be treated as F.I.R., since as per the evidence of the Investigating Officer, P.W.8, she stated that on 18.6.1992, firstly, the incident reported to the choukidar of the village that the murder had taken place at village Bandadih and, secondly, after that the informant came and gave her statement. Thirdly, the learned Counsel appearing for the appellant has stated that if Kitni Mundain is the eye witness, she should have stated as to who assaulted first, whether this accused, Soma Munda or the deceased Karam Singh Munda? Furthermore, it is not stated as to who gave the fatal blow and who assaulted on which part because P.W.6, the doctor, has conducted the Post Mortem examination and had found 3 (three) sharp cutting injuries on the front, cutting the lungs and some part of the stomach, and fourthly, the injuries have been caused on the back of the deceased and in absence of full description about the manner of occurrence of assault, it is not safe to convict the appellant Under Section 302/34 of the Indian Penal Code. Further he has argued that the appellant has remained in jail since the inception of the case.;