IMPORTANT POINT
Murder – Non-examination of Investigating Officer may cause fatal blow to prosecution.

JUDGMENT

Ananda Sen, J.—This criminal appeal has been filed by the appellants, namely, Lal Mohan Singh son of Lakhi Narayan Singh, Jyoti Singh son of Doman Singh, Fani Singh son of Shiv Prasad Singh, and Pati Singh son of Doman Singh, challenging the Judgment of Conviction and Order of Sentence dated 07.12.1995 passed by the Sessions Judge, Bokaro, Camp at Tenughat in Sessions Trial No.205 of 1995 / 50 of 1989 arising out of Kasmar Police Station Case No.72 of 1988, whereby these appellants have been convicted under Sections 302/34 of the Indian Penal Code and thereafter sentenced to undergo imprisonment for life.

2. During the course of argument, it has been brought to the notice of this Court that appellants Nos.1, 2 and 4 (corresponding accused Nos.1, 2 and 3) have died. There is no petition for substitution. Thus, this appeal qua appellants Nos.1, 2 and 4, namely, Lal Mohan Singh, Jyoti Singh and Pati Singh, respectively, stands abated.

3. Informant in this case is Govind Singh. Initially was injured, but later expired. His fardbeyan was recorded in Kasmar State Dispensary, wherein he stated that on 29.08.1988, he was going to Tenughat Court. When he reached near the garden of Kishori Singh in village Thakur Para, PS Kasmar, District Giridih (Now Bokaro), all the four accused persons attacked him with a farsha (Sharp cutting weapon), lathi and iron rod. Accused Pati Singh (now dead) had given a farsa blow on the head of the deceased and the remaining three accused assaulted him with iron rod and lathi. Govind Singh raised an alarm, when Chamu Singh (P.W.6) and his son Bhola Singh (P.W.1) reached the place of occurrence and confronted the accused. The accused, thereafter, fled from the place of occurrence. Govind Singh, in an injured condition, was taken to the house of Chamu Singh, where the other family members of Govind Singh assembled thereafter he was taken to the police station to give the information. He stated that there was on going land dispute between his family and Pati Singh and a case is also pending. On the basis of aforesaid fardbeyan of Govind Singh, Kasmar Police Station Case No.72 of 1988 was instituted under Sections 341, 324, 323, 307/34 of the Indian Penal Code. Later on Govind Singh succumbed to the injuries, resulting in addition of Section 302 of the Indian Penal Code. The police, after investigation, submitted chargesheet under Sections 302/34 of the Indian Penal Code. The accuses were put on trial. They pleaded not guilty as they denied the charge.

4. Eight witnesses were examined on behalf of the prosecution, but, none were examined on behalf of the accused. Documents, like the formal First Information Report, Fardbeyan, Post Mortem Report, Injury Report were exhibited. After closure of the evidence of the prosecution, the statement of accused was recorded under Section 313 of the Code of Criminal Procedure.

5. The Trial Court, thereafter, held that all the accused including the surviving appellant are guilty of the offences under Sections 302/34 of the Indian Penal Code and convicted them under Sections 302/34 of the Indian Penal Code and also sentenced them to undergo imprisonment for life.

6. Challenging the judgment of conviction and order of sentence, learned counsel appearing on behalf of the surviving appellant, Fani Singh, submitted that there are no materials to convict this appellant. There are discrepancies in the statement of witnesses, which is vital for the prosecution. Witness No.4, who is the wife of the deceased, claims that this appellant Fani Singh was armed with a rod, whereas the eye witness P.W.6, namely, Chamu Singh, stated that this appellant assaulted the deceased with the help of lathi. According to him, this deviation is vital for the prosecution so far as it relates to nature of weapon used by this appellant. He submitted that the occurrence took place in the village, but, surprisingly, all the witnesses on the point of occurrence are related to the deceased, whi