Virender Singh, C.J.

The present appeal arises out of the judgment dated 17.12.2013 and conviction dated 23.12.2003 passed in S.T. No. 416 of 2002 whereby both the appellants (for short hereinafter to be referred as the accused) are found guilty for the offence punishable under Section 302/34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life.

2. Since the appellants are in custody for the last 13 years, preference has been given to the instant appeal for its final hearing.

3. Prosecution story, as set out in the fardbeyan of the informant Bagi Devi (wife of the deceased) (P.W.4), recorded on 06.06.2002, at about 08.00 p.m. is that on the same day, i.e., 06.06.2002, at about 10.00 a.m., a quarrel took place between the wife of accused Madan Singh Munda and a girl of Phakir Nayak of Sarigao. Jagarnath Singh (the deceased) went there and settled the dispute. At the same time, fight started between the deceased and accused Madan Singh Munda. It is thereafter, the informant brought her husband to her home. In the evening, when the deceased sitting in his courtyard with the first informant and their child, at about 5 O’ clock, accused Madan Munda and Ramesh Singh Munda came there. Ramesh Singh Munda was holding a knife in his hand. As soon as the accused persons came, Madan Singh asked “will you fight with me”. In the meantime, accused Ramesh took a wooden stake (Balli) from the courtyard and hit on the back of the head of the deceased, consequently he fell on the ground and the wooden stake also divided in two pieces. The informant asked both the accused as to why they were fighting and told them to sit and talk, upon which accused Ramesh threatened to keep her mouth shut otherwise she would also be beaten. Thereafter both the accused persons stabbed the deceased with knife on his chest one by one when the deceased was already lying senseless on the ground. Thereafter both of them ran towards the informant to kill her, however, she along with her son (P.W. Lakshaman Singh) ran away. After some time, she came back to her house with Dharamnath Munda and saw the deceased lying dead with stabbed marks of knife on his person.

4. On the basis of the aforesaid fardbeyan F.I.R. was lodged being Murhu P.S. Case No.32 of 2002 under Sections 302/34 I.P.C. against the accused. After investigation, police submitted chargesheet under Section 302/34 I.P.C. against both of them for which they faced trial under Section 302/34 I.P.C. and now convicted and sentenced as indicated hereinbefore.

5. In all, 7 witnesses, viz. P.W.1 Lohara Nayak, P.W.2 Dharamnath Munda, P.W.3 Lakshaman Singh Munda, P.W.4 Bagi Devi, P.W.5 Dr. Ajay Kumar Jha, who conducted Post Mortem examination of the body of the deceased, P.W.6 Dukhu Singh and P.W.7 Gonda Munda have been examined by the prosecution. The Investigating Officer of the case has not been examined.

6. On the other hand, the defence has not examined any witness in support of their case and it is a case of simple denial.

7. Heard learned counsel for both the sides and perused the trial court record.

8. Learned counsel for the appellants submitted that the learned Court below has failed to consider the fact that there is a contradiction in the statement of witnesses with regard to assault by the accused persons with different weapons. He further pointed out that as per the statement of P.W.4 at Para 2, it has been stated that accused persons assaulted the deceased with Baithi whereas she has stated in her fardbeyan that the deceased was assaulted by knife.

9. Learned counsel has also made an attempt to bring certain contradiction, vis-à-vis the medical evidence and the eye version account drawing the attention of the Court to the Post Mortem Report.

10. Learned counsel further submitted that due to non-examination of the Investigating Officer, the appellants could not bring on record the earlier statement of the witnesses recorded during the investigation, which has caused prejudice to