Judgment:
1. The present appeal arises against the impugned judgment of conviction and order of sentence dated 28.9.1991 passed by 2nd Additional Sessions Judge, Singhbhum at Chalbasa in Sessions Trial No. 3 of 1990 whereby, the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life.
2. The prosecution story in short is that the appellant Manghi Ho went to the house of Anand Singh Kuntia (Munda) [PW-9] of village Soma Pancho at about 7.30 p.m. and informed him that he has killed a man by means of a danda. On this Information, PW 9 went to the place of occurrence and saw that a man was lying dead. Then he along with the witness Susil Chaki (PW-5) took the accused to the Police Station and there the Police recorded the statements of PW-1 which was registered as FIR.
3. In the FIR, it was alleged that Dilki Kui of his village, aged about 45 years, was remarried with Satari Sundi (deceased) but after the said marriage, Satari Sundi started ill treating his wife Dilki Kui and was also not providing proper food to her. On getting ill treatment, Dilki Kui came back to village Soma Pancho from village Nardanda. Thereafter, Satari Sundi (deceased) came to village Soma Pancho and went to the house of Suni Kui (PW-2) for taking 'haria' (Rice Beer). While taking rice beer, Satari Sundi started abusing the villagers of Soma Pancho. In the meantime, the appellant, son of Dilki Kui from her first husband came there and he started assaulting Satari Sundi by means of lathi of karam on his head due to which he fell down. He further gave four lathi blow on Satari Sundi as a result of which he died on the spot. The villagers who were there at Haria shop, did not dare to save Satari Sundi out of fear.
After killing the deceased, the accused/appellant Manghi Ho fled away from the place of occurrence. The reason for the occurrence was that the deceased Satari Sundi had deserted his mother Dilki Kui, after the marriage.
After registration of the FIR the investigation was taken up and thereafter, charge-sheet was submitted and the accused was sent up for trial. The accused/appellant pleaded not guilty.
4. In course of trial, altogether seven witnesses were examined on behalf of the prosecution to establish the charges against the appellant. The Investigating Officer and the doctor who held the post-mortem-examination of the deceased did not appear to depose in the case. The learned trial Court, on the basis of the evidence and materials on record, convicted and sentenced the appellant as already stated hereinabove.
5. Mr. R.C. Khatri, learned Counsel appearing for the appellant submitted that the conviction and sentence against the appellant is absolutely bad in law since there is no evidence at all on the record so as to connect the appellant with the alleged offence of murder of Satari Sundi.
6. In order to appreciate the contention of the learned Counsel for the appellant, we have gone through the entire evidence on record and we find that out of seven prosecution witnesses examined during trial, the only eye-witness who was named in the FIR namely Somi Kui has not been examined by the prosecution. The informant Anand Singh Kuntia (Munda), who has lodged the FIR is not an eye-witness to the occurrence rather according to him, it was the appellant who told him that he had killed the deceased by means of lathi
7. The witnesses to the FIR namely Susil Chaki (PW-5) has been tendered. Sunil Kui (PW-2) and Ram Singh Kuntia (PW-4) have been declared hostile whereas Gangi Kui (PW 3), Susil Chaki (PW 5) and Jatu Singh Kunti (PW-6) have been tendered for cross-examination. A.D. Mukherjee (PW-7) is an Advocate Clerk and a formal witness who has proved the documents i.e. the FIR. seizure list etc. Therefore, the only witness who requires to be considered is PW-1, the informant. Admittedly, this informant is not an eye-witness to the occurrence and whatever he has stated in his evidence is on the basis of the statements made by the accused/appellant. His statement has not been corroborated by any other witness or evidence on record.
As already noticed above, the Investigating Officer and the doctor who held the post-mortem-examination on the dead body of the deceased have not been examined in the case. We find that in course of investigation, the blood stained 'karam' lathi from which the appellant is said to have assaulted the deceased, was recovered on his being pointed out but the same cannot be used against the appellant since due to non-examination of the Investigating Officer, the defence could not get a chance to cross-examine him on the said point.
8. In view of the discussions and findings above, in our view, the prosecution has totally failed to establish the charge beyond all reasonable doubts against the accused/appellant. Therefore, the conviction and sentence passed by the trial Court against the appellant cannot be sustained.
9. Accordingly, this appeal is allowed and conviction and sentence passed against the appellant for the offence under Section 302 of the Indian Penal Code is hereby set aside.
10. The appellant, who is on ball, is discharged from the liability of his ball bonds.