1. The accused appeals.
2. The appellant, Phulchand Mandal, was tried for an offence of murder on the allegation that at 7.00 p.m. on 10.8.1987, he caused the death of the deceased, Kumhan Mandal, son of Tulo Mahto, who was examined as PW 1, by strangulation. The learned trial Judge, finding the appellant guilty, sentenced him to imprisonment for life, which is being challenged in the above appeal.
3. A year prior to the date of incident, the appellant, Phulchand Mandal, was appointed by the villagers as Banrakshi but he was not discharging his duties properly and therefore, in his place, the deceased, Kumhan Mandal, was appointed about three months before the date of occurrence. The appellant, according to the prosecution, was nurturing a grievance against the deceased on account of the above fact and also threatened him on one or two occasions that he will murder him.
4. At 7.00 p.m. on 10.8.1987, the appellant went to the house of Kumhan Mandal and called him. Kumhan Mandal's father, PW 1, was in the house and he saw the appellant and the deceased going towards Samanto Bus Stand at village Chandramarni. PW 1 followed them. He found the appellant and the deceased taking liquor sitting on the veranda of a house belonging to Madan Mandal. Thereafter PW 1 became busy with his work in his shop. At about 7.30 p.m., he heard the sound 'Bachao, Bachao'. He ran to the place from where the sounds were emanating and found the appellant pushing the deceased on the ground and pressing his neck. The deceased was found trembling. PW 1, Tulo Mahto, attempted to catch the appellant from behind. On hearing the cries of PW 1, PW 5 Nageshwar Mandal, PW 7 Hemlal Mandal, PW 8 Narayan Mahto, PW 9 Naro Mandal and PW 11 Shivlal Mandal rushed to the place and saw the deceased trembling and the appellant running away from the place. Witnesses attempted to take the deceased to the hospital but he died. Ext. 3, the fardbeyan, was laid at the police station by PW 1 and investigation was taken up by the Officer. PW 13, Jitendra Kumar, Sub-Inspector of Police, on taking up the investigation, conducted inquest by preparing inquest report, Ext. 5, and sent the dead body to the Government hospital, Giridih, for the purpose of post-mortem.
5. On receipt of the requisition and the dead body, PW 12, Dr. B.P. Singh, conducted autopsy on the dead body and he found no injury on the body. He did not find any ligature, nor abrasion on the neck. He found a very small swelling along side the wind pipe. Tongue was inside the month and there was no secretion from nostril. He issued Ext. 2, the post-mortem certificate, opining that no definite cause could be given for death and death might be due to poisoning.
6. After completion of the investigation by PW 13, final report was filed against the appellant.
7. When the appellant was questioned under Section 313, Cr PC, he denied all the incriminating circumstances and no witness was examined on his side.
8. Learned counsel appearing for the appellant submits that the prosecution having failed to establish the cause of death of the deceased, the trial Court was not justified in finding the appellant guilty under Section 302, IPC. We have heard Mr. V.S. Sahay, learned counsel appearing for the State and perused the materials placed before us.
9. The case of the prosecution is that the appellant was appointed as Banrakshi and as he was not discharging his duties he was replaced by the deceased and therefore, the appellant threatened the deceased with his life. According to the prosecution, as could be seen from the evidence of PW 1, on the date of incident, the deceased was in his house and the appellant went there to invite him for a drink. It could be further seen that the deceased and the appellant went together to village Chandramarni and when PW 1 followed them, he found them taking drinks. It is the evidence of PW 1 that at about 7.30 p.m., he heard cries and when he reached the place, he found the deceased lying on the ground and trembling. According to him. he saw the appellant pressing the neck of the deceased and on the villagers coming to the place, the appellant ran away. This evidence of PW 1 at best will indicate that the deceased went along with the appellant, took drinks and the evidence goes only thus far and no more. The doctor, who conducted autopsy, did not find any external injury and he also gave the post-mortem certificate, Ext. 2, with his opinion that death might be due to poisoning. He also stated in his evidence that he did not find any abrasion or ligature mark on the neck of the deceased and therefore, it is possible that the deceased, who had taken some liquor which had been illicitly brewed and as a result of consumption of the said liquor, might have died due to poisoning. This conclusion of us is based on the medical evidence since we have pointed out that the doctor has already stated that death might be due to poisoning and not on account of any injury.
10. On the above background, we feel that the appellant cannot be convicted under Section 302. IPC and accordingly, the impugned order of conviction and sentence imposed upon the appellant is set aside. It is reported that the appellant is on bail. He is discharged from his ball bonds. This appeal is allowed. Appeal allowed.