Heard the parties.

2. This criminal appeal has been directed against the judgment of conviction and order of Sentence dated 28.04.2004 and 30.04.2004 respectively, passed by the Additional Sessions Judge, F.T.C. No. IV, Dhanbad in Sessions Trial No. 111 of 1999 corresponding to Dhanbad Sadar (Govindpur) P.S. Case No. 260/1993 [G.R. No. 3731/1993] whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs. 1,000/- in default of making payment of fine further imprisonment for three months.

3. The prosecution case, as it appear from fardbeyan of Draupadi Devi recorded on 08.10.1993 at 4:30 hrs. in brief is that the informant with her husband Gopal Chandra Mahato was sleeping in a room. At about 1:00 a.m. the informant noticed some noise and woke up. In the light she had seen appellant Babaji inflicting blows by means of sharp cutting weapon (busula mainly used by carpenters) to her husband Gopal Chandra Mahato. The informant tried to rescue but could not succeed. The appellant, after causing injury, sealed over and fled away. On hulla, mother-in-law and other relatives assembled at the place and some of them had also seen the appellant fleeing from the place of occurrence. The injured Gopal Chandra Mahato was removed to hospital but could not survive.

Initially on the basis of fardbayan of Draupadi Devi, Dhanbad Sadar (Govindpur) P.S. Case No. 260/1993 corresponding to G.R.No. 3731/1993 under Sections 452, 307/34 of the Indian Penal Code was registered but after death of Gopal Chandra Mahato, Section 302 of the Indian Penal Code vide order dated 10.10.1993 was added.

4. The police after due investigation submitted charge-sheet. Accordingly, cognisance was taken and case was committed to the Court of Sessions and registered as ST. No. 111/1999. Charges under Section 452/302 of the Indian Penal Code against the appellant were framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether eleven witnesses whereas the appellant also examined one witness in his defence.

The Learned Additional Sessions Judge, at the conclusion of trial placing reliance on the evidence and documents available on record held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him as indicated above. No finding with regard to offence punishable under Section 452 of the Indian Penal Code is appearing in the impugned judgment.

5. The appellant has challenged the impugned judgment and sentence mainly on the ground that fardbayan and seizure list has not been proved in accordance with law. In absence of inquest report and non-examination of Investigating Officer, the place of occurrence has not been proved.

P.W. 11 (Tara Pado Kumar) happens to be Advocate Clerk and the prosecution has taken help from him to prove seizure list because P.W. 1 (Hari Prasad Mahato, chowkidar) who is also witness to the seizure list, has not supported the prosecution case.

The Doctor who attended first Gopal Chandra Mahato (deceased) in Patliputra Medical College Hospital, has not been examined nor any injury report is available on record. No independent witness has come forward to support the prosecution case as made out by the informant in her fardbayan. There are contradictions in the statement of family members who are P.W. 2 (Adu Mahatian-mother of the deceased), P.W. 4 (Gangadhar), P.W. 6 (Yamuna Devi-gotni) and P.W. 7 (Govinda Mahato).

According to P.W. 2 (Para-1), she reached place of occurrence after hearing alarm raised by Draupadi. She had seen the appellant fleeing from the place of occurrence having basula in his hand.

According to informant the appellant fled away after scaling over. Govinda Mahato (P.W. 7) also reached to the place of occurrence after hearing hulla and he had seen the appellant standing near door of the room of Gop