A POSTMORTEM REPORT IS ADMISSIBLE IN EVIDENCE UNDER SECTION 32(2) OF THE EVIDENCE ACT, WHICH ALLOWS FOR THE ADMISSION OF STATEMENTS MADE BY A PERSON WHO IS DEAD OR UNAVAILABLE.

Nagendra Rai and N.K. Sinha, JJ.

The appellant Udho Mahton along with four others was put on trial before the Addl. Sessions Judge, Banka, in S. T. No. 310 of 1986 who has convicted him u/s 302 I.P.C. and sentenced to undergo rigorous imprisonment for life. The other four accused persons who were tried for the offence u/s 302/149 have been acquitted of the said charge. The appellant and four others were also charged for the offence u/s 201 I.P.C. but they all were acquitted of said charge.

2. The prosecution version is that on 14.5.85 at 8. a.m. Babulal Roy (P. W. 6) and deceased Kapildeo Yadav both residents of village Barajogi police station Fulidumar, district Bhagalpur, had gone to Banka block office in connection with some work. While they were returning back to their house in the way they met accused Gajo Mahto, appellant Udho Mahton, Udheshwar Mahto and Butan Yadav of Sirade village at Samukhiya Hat. Thereafter they all proceeded towards their villages on cycles. In the way Udheshwar Yadav left for his village. Others reached at village Bajbaji at 4 p.m. and at the house of Ganauri Roy, deceased, Kapildeo Yadav, Butan Yadav, appellant Udho Mahton and Gajo Mahton took wine. After taking wine they all proceeded towards their houses in the evening. When they reached near the house of accused Gajo Mahton then he offered them to have a chicken party at his residence but Kapildeo Yadav, Babulal as well as Butan did not agree to the same and stated that they were vegetarians. While the aforesaid talk was going on the appellant Udho Mahton son of Gajo Maton proceeded towards his house and after some time came with a Bakarkatta (Hansia). Accused Saheb Mahto, Shaligram Mahto, Mahendra Mahto and others also reached there. Appellant Udho Mahton is alleged to have struck the Bakarkatta blow on the neck of Kapildeo Yadav as a result of which he cried and fell down. Thereafter the accused persons chased Babulal (P. W. 6) and Butan Yadav (P.W. 2) who after raising Hulla filed away from that place. Thereafter both of them went to the village of the deceased and narrated about the occurrence to Ganauri Mahton (P.W. 4) and others and then the villagers came to the place of occurrence but they did not find the dead body of the deceased there. Chappal of the deceased was lying there. Later on it transpired that the dead body of Kapildeo Yadav was taken to a nearby forest with a view to conceal the same. The motive for the occurrence according to the prosecution is the old enmity.

3. Bahulal Rai (P. W. 6) lodged the Furdbeyan (Ext. 2) before the A.S.I. Uday Bhanu Singh (P. W. 10) of Fulidumar police station on the same day at 11.30 p.m. on the basis of which a formal F.I.R. (Est. 1) Was drawn up against the accused persons for the offences u/ss. 147, 148, 149, 302 & 201 I.P.C. P.W. 10 visited the place of occurrence in the early morning of 15.5.85 which is at a distance of about 50 yards cast from the house of this appellant. The I.O. found copious blood at the place of occurrence as well as two Chappals belonging to the deceased. He searched for the dead body which was found in the hill which is at a distance of about 2 Kms. from the place of occurrence. He also found blood marks at several places between the place of occurrence and the place where the dead body was found. Seizure list with regard to the blood stained earth (Ext. 3) was prepared. He also held inquest over the dead body in presence of the witnesses. He examined the eye witness and thereafter submitted chargesheet. The accused persons the thereafter were put on trial which ended in the conviction of the appellant and acquittal of other accused as stated above.

4. The defence of the appellant is that he has been falsely implicated in the case. According to him the occurrence did not take place in the manner as alleged by the prosecution.

5. The prosecution has examined 11 witnesses in all in support of its case. Out of whom P.W.2 Butan Pd. Yadav is the only eye witness i