This Cr. Appeal has been preferred against the judgment of conviction and order of sentence dated 5th August, 2006 passed by the Addl. Judicial Commissioner, XVIth, Ranchi in connection with Sessions Trial No.309 of 2004, corresponding to G.R.No.891/2004 (Angara P.S. Case No.25/2004) 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 to pay fine of Rs.10,000/- and in default of making payment of fine, he will have to suffer further R.I. for one year.

2. The prosecution case as it appears from the written report lodged by Raju Oraon (father of the deceased) in brief is that on 26.03.2004 at about 4 p.m. while Suresh Oraon was sitting near his house, appellant suddenly appeared with an axe in his hand and inflicted repeated blow causing head injury to Suresh Oraon. On 'Halla' the informant and other witnesses ran to the place and saw the appellant fleeing from the place having blood stained 'Tangi' in his hand. Suresh Oraon was removed to RIMS, Ranchi for his treatment but could not survive. On 27.03.2004 a written report was lodged and Ranchi Sadar Angara P.S. Case No.25/2004 dated 27.03.2004 under Sections 307 and 324 of the Indian Penal Code was registered. After death of Suresh Oraon, Section 302 of the Indian Penal Code vide order dated 31.03.2004 was added.

The Investigating Officer after due investigation submitted charge-sheet against the appellant under Section 302 of the Indian Penal Code and accordingly cognizance was taken and the case of the appellant was committed to the court of sessions and registered as S.T.No.309/2004.

Charge under Section 302 of the Indian Penal Code against sole appellant-Suresh Mahto was framed to which he pleaded not guilty and claimed to be tried.

3. The prosecution in order to substantiate the charges, examined altogether 07 witnesses including the informant, Doctor and the Investigating Officer.

The learned Additional Sessions Judge at the conclusion of trial, placing reliance on the evidence and documents available on record held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him as indicated above.

4. Learned Counsel for the appellant has challenged the findings of the Trial Court on the ground that blood stained axe, blood stained earth, blood stained leaf and stem of mustard plant were seized but those articles were neither sent for its chemical examination to F.S.L. nor produced in Court. The Investigating Officer had not taken step to record the statement of independent witness though availability of said witness was there. The place of occurrence as described by the witnesses does not appear to be consistent. The informant has said that the occurrence took place when the deceased was sitting besides his house whereas so-called eye-witnesses had said that they were sitting in front of the house of Jagnu. There is delay in recording the statement of eye-witnesses and that creates doubt on the veracity of those eye-witnesses. It could be said that they had been projected by the prosecution after thought. The informant (P.W. 5) and Koyali Devi (P.W. 3) are not the eye-witness and the statement which they had given in the Court appears to be inconsistent. The conduct of P.W. 1 and P.W. 2 who have projected themselves as eye-witness does not appear to be natural because they did not inform the police. Presence of these two witnesses does not find mentioned in the written report. The investigation done by the I.O. is perfunctory which could not be relied upon and, therefore, impugned judgment is liable to be set aside.

5. Learned A.P.P. has opposed the argument and submitted that case of the prosecution is fully intact. There are two witnesses i.e. Somra Oraon and Mangra Oraon and they have fully supported the prosecution case and given the actual account of the incident. At the time of assault deceased raised alarm which attracted his parent and near