D.N.PATEL, J. - (1.) THE present appeal has been preferred against the judgment of conviction and order of sentence dated 25.11.1994 and 2.12.1994 respectively passed by 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No.277 of 1993, whereby the present appellants have been punished to undergo life imprisonment for the offence under section 302 to be read with section 34 of the Indian Penal Code. Against the judgment of conviction and order of sentence, the present appeal has been preferred by the present appellants.
(2.) THE fact of the prosecution case is unfolded hereunder: On 8th of January, 1993 at about 6 p.m. the deceased as well as his son were passing through a village from the market area, the appellant no.1 -original accused no.1 abused the deceased and started altercation with the deceased and there was free fight between the appellant -accused no.1 and the deceased. The incident has taken place in the market on road. From nearby houses, rest of the appellants rushed towards the appellantaccused no.1, was not having any weapon in his hand. The appellants - accused were not knowing that the deceased and his son (informant P.W.4) were going to pass from the market area. Thus, the whole incident has taken place suddenly and because of free fight between the appellant no.1 and the deceased. Rest of the accused came there. The appellant no.2 (original accused no.2) was having lathi in his hand. Other two accused were not having weapons in their hands. It is a case of the prosecution that the appellant no.2 (original accused no.2) gave lathi blow on the head of the deceased, namely, Ismail Ansari and thereafter the deceased had fallen down and he was initially taken to Mandar Hospital where no F.I.R. was filed. Thereafter he was taken to R.M.C. Hospital where he was not survived by plenty efforts, where also, no F.I.R was filed and upon his death, F.I.R was lodged on 9th of January, 1993 at 14.00 hours at Bariatu Police Station. Investigation was carried out, charge sheet was filed, Sessions Trial No.277 of 1993 was instituted against the appellants -accused. The evidence was recorded and the appellants were convicted for life imprisonment for an offence under section 302 to be read with section 34 of the Indian Penal Code and, therefore, the present appeal has been preferred by the appellants -accused. We have heard learned counsel appearing for the appellants, who has mainly submitted that there are lots of omissions and contradictions and improvements by the prosecution witnesses in their depositions. This aspect of the matter has not been properly appreciated by the trial court and hence, judgment of conviction and order of sentence passed by the trial court is to be quashed and set aside.
(3.) IT is also submitted by learned counsel for the appellants that P.W.2 is not an eye witness. In fact, the injury upon the deceased has been caused by P.W.4, who was also having a lathi in his hand.;