D.K.SINHA,J. - (1.) THIS State Appeal is directed against the judgment and order dated 11.09.1996 passed by the 1st Additional Sessions Judge,.Jamshedpur in Sessions Trial No. 442 of 1989 whereby the respondents. Babulal Prasad and Surya Kant Patel @ Surya herein were acquitted from the charge framed under Sections 302/201/34 I.P.C. against them.
(2.) THE prosecution story in short was that the informant Sub - Inspector of Police of Bistupur Police Station received a call in the mid night of 24th March, 1989 at about 2 a.m. that a dead body was lying on the flank of road towards north which led to Circuit House Area. As the place as pointed out was within the jurisdiction of Bistupur Police Station, the informant on such information immediately rushed to the pointed place and found the information true as a dead body smeared in blood was found lying with the bleeding from his injuries including from nose which appeared to be of a young man aged about 20 years. The informant further gathered that though the deceased was shot dead else but the dead body was brought and thrown in the bush in order to conceal the evidence of murder. The police registered Bistupur P.S. Case No. 88/1989 on 24.03.1989 at 4.30 a.m. on the basis of the self-statement of the informant Bhuwaneshwar Sharma against unknown. The Investigating.Officer after investigation submitted charge-sheet against four accused persons viz (1) Babulal Prasad, (2) Surya Patel (3) Ashok Nagpal and (4) Mohan Sindhi. As two of them namely Ashok Nagpal and Mohan Sindhi died at the initial stage of trial, there remained only Babulal Prasad and Surya Patel i.e. the respondents herein who were charged for the offence under Sections 302/201/34 I.P.C. and were acquitted after trial. The main contention of the Appellant-State as is evident from the memo of appeal is that though all the 9 witnesses who were produced and examined on behalf of the prosecution had supported the prosecution case but the Trial Court discarded their evidence without reasoning including the testimony of P.W. 1, who was the eyewitness. The State-Appellant further raised the points in the memo of appeal that the Trial Court disproved the prosecution case only on the ground that some of the witnesses were not examined in the Court whose statements were recorded under Section 161 Cr.P.C. and their names did not appear in the list of witnesses. The witnesses produced and examined on behalf of the prosecution were impartial and independent in the nature and the defence failed to show any enmity with the accused so as to draw an adverse inference. The statement of P.W. 1 recorded under Section 161 Cr.P.C. was consistent with his statement recorded under Section 164 Cr.P.C. and he had substantiated his earlier statement in the Trial Court also but the trial court disbelieved credence of his such statements without rhyme and reason. According to the trial Judge the statement of P.W. 1 was contrary to the testimony of P.W. 3 hence not reliable as held by the Court though both the witnesses had corroborated the testimony of each other thereby supporting the prosecution case. Further, the statement of P.W. 1 Gurnam Singh was corroborated by the Doctor P.W. 7 who had held postmortem examination of the deceased having found corresponding gun shots injuries on the person of the deceased. Finally, it was added that the Trial Court came to an erroneous finding that non-examination of the wife of.P.W. 1 and his cousin Trilochan Singh to whom P.W. 1 had narrated the occurrence first point in time caused prejudiced to the defence, but how, the Court did not explain in the judgment.
(3.) THERE are certain facts relevant to the present appeal which needs mention that after appearance of the Respondent No. 1 and 2, the appeal was admitted for hearing by the order dated 31.03.1998 and the lower court record was called for which could not be dispatched for long nine months. Yet, this appeal was heard in absence of case record on the basis of memo of appeal, impugned judgment and the arguments on behalf of the parties.;