D.N.PATEL, J. - (1.) THIS criminal appeal has been preferred by the appellant against the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Sabibganj in Sessions Trial No. 14 of 1997 dated 17th September,1999, whereby, the present appellant -accused has been punished to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code, for committing murder of Raska Murmu, who is husband of PW 6 -informant.
(2.) IF the case of the prosecution is unfolded, the relevant facts are as under : It is the case of the prosecution that on 4th January, 1997 at about 13.00 hours, incident has taken place when PW 6 with her husband, namely Raska Murmu, were coming from hill side and when they came near the house of one Dariya Kisku the present appellant -accused was standing with lathi and he caused injury to Raska Murmu on right temporal region and by this injury, he has fallen down and thereafter, he expired. Thereafter, FIR was filed by PW6, namely Meroo Pawariya on 5th January, 1997 at 13.45 hours at Bathait Police Station, District -Sahibganj. Investigation was carried out, statement of witnesses was recorded, charge -sheet was filed and Sessions Trial No. 14 of 1997, was registered against the appellant -accused and upon evidence, the appellant -accused has convicted for an offence punishable under Section 302 of the Indian Penal Code. Against this order, the present appeal has been preferred. We have heard learned counsel appearing for the appellant -accused, who has argued out the case, in detail, and submitted that there are enough omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the trial Court and, hence, the judgment and order of conviction and sentence, passed by the trial Court, deserves to be quashed and set aside. It is also submitted by the learned counsel for the appellant -accused that prosecution has failed to prove the prosecution case beyond reasonable doubt. So called eye -witnesses PW 3 and PW 4, who were earlier examined, cannot be re -examined as PW 6 and PW 7. Neither even any motive is proved by the prosecution. Investigating Officer has not been examined. Place of occurrence is also not proved. Only one lathi blow has been given, which is a hard and blunt substance and in absence of any motive, the, appellant -accused could not be punished for an offence punishable under Section 302 of the Indian Penal Code. This aspect of the matter has not been properly appreciated by the trial Court and hence, the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. So called eye -witness PW 9 is also not an eye -witness at all, because he is not referred in FIR nor PW 6 and PW 7, who are alleged eye -witnesses of the incident have shown his presence. Thus, the case of the prosecution is full of improvements, omissions and contradictions.
(3.) WE have heard learned A.P.P. for the State, who has submitted that the prosecution has proved an offence of murder of Raska Murmu beyond reasonable doubt with the help of eye - witnesses, who are examined as PW 6 and PW 7 as well as PW 9. All these three witnesses have narrated the whole incident, in detail. Place of occurrence is also proved by the prosecution with the help of these witnesses. Weapon used by the accused has also been narrated by these witnesses. Looking to the FIR also, there is consistency in the prosecution version right from the FIR, the place of occurrence, weapon used by the accused and the narration of other eye - witnesses. Medical evidence is also corroborating to the depositions given by the eye -witnesses. Initially, PW 3 and PW 4 were examined, who have turned hostile, but, subsequently an application was given by the State on 6th March, 1998 for recalling of the witnesses on the ground that PW 3 and PW 4 were examined, but, they were never Meroo Pawariya and Talamai Marandi and therefore, an order was passed by the trial Court for re -examination of the witnesses on 21st September, 1998 and thereafter, correct witnesses, namely Meroo Pawariya was examined as PW 6 on 21st September, 1998 and Talamai Marandi was examined as PW 7 on 21st September, 1998 and these two witnesses have narrated the whole case, in detail. They have also stated that they are giving the evidence for the first time in the Court. They have also identified the accused in the Court. Never any objection has been raised by the defence side upon the order passed by the trial Court dated 21st September, 1998, nor looking to the cross - examination of these two witnesses PW 6 and PW 7 any suggestion has been made by defence about their recalling the earlier examination. Thus, PW 6 and PW7 are correct eye -witnesses examined by the prosecution and they are rightly relied upon by the trial Court as trustworthy witnesses and therefore, no error has been committed by the trial Court in appreciating the evidences of PW 6, PW 7 and PW 9 to be read with medical evidence given by PW 1, to be read with Exhibit -1 post -mortem report and Exhibit -3 FIR and the appellant -accused is rightly punished for the offence punishable under Section 302 of the Indian Penal Code and this Court may not interfere with the order of conviction and sentence, passed by the trial Court and therefore, the present appeal deserves to be dismissed.;