ORDER :

Three accused persons, namely, Kongress Yadav, Rinku Devi and Ghanshyam Mahto @ Ghanshyam Yadav have faced the trial in Sessions Case No. 219 of 2008 on the charge of committing murder of Jhalku Yadav and causing injuries to the prosecution witnesses. The appellant, namely, Kongress Yadav has been convicted and sentenced to RI for life and fine of Rs.5000/- under section 302 IPC, both the appellants have been convicted and sentenced to RI for five years and fine of Rs.2000/- each under section 307 IPC and all the three above-named accused persons are convicted and sentenced to SI for six months under section 323 IPC.

2. The accused, namely, Rinku Devi is not an appellant before us.

3. The informant of this case, namely, Faudi Mahto is the father of the deceased. He has been examined during the trial as PW-3 and Bishnu Mahto, the other son of the informant, has been examined as PW-2; PW-1 is the wife of PW-2.

4. The place of occurrence is in front of the house of the informant; about 25 hands away from the house of Kongress Yadav. It has come in the evidence of the prosecution witnesses that there was a dispute between the accused persons and the informant’s family with respect to the land which according to the prosecution is the place of occurrence. The accused persons have filed documents which were marked as Ext.-A and Ext.-B to establish that the land in question belongs to their predecessors-in-interest. The evidence of PW-2 reveals that when he came out of his house, he has seen the co-villagers, namely, Daso, Munshi and Sudhir, however, the Investigating Officer has not recorded their statement or any other co-villager and during the investigation the Investigating Officer has failed to inspect the place of occurrence, collect the blood-stained soil and recover the crime weapon.

5. The learned Sessions Judge has recorded a finding that the prosecution has failed to establish that murder of Jhalku Yadav has been committed in furtherance of common intention of the accused persons.

6. The prosecution has projected PW-1, PW-2 and PW-3 as eye-witness. Their evidence is corroborated by the findings recorded by the Doctor who has prepared the post-mortem examination report which has been taken in evidence without objection from the defence.

7. In his fardbeyan, the informant has stated that in the morning of 23.03.2008 Kongress Yadav, Ghanshyam Yadav and Rinku Devi; Ghanshyam Yadav is married to the daughter of Kongress Yadav, were digging earth from his land and when his son, namely, Jhalku Yadav objected to their digging earth he was assaulted by Kongress Yadav with Kulhari on his head. At that time, when the other son of the informant, namely, Bishnu Mahto and his daughter-in-law, namely, Lakhia Devi tried to intervene Kongress Yadav assaulted Lakhia Devi with Kulhari on her head and Rinku Devi assaulted Lakhia Devi with lathi. In the Court also the informant has made a specific allegation of assault on Jhalku Yadav by Kongress Yadav on his head and assault by the accused persons on all the witnesses. PW-1 and PW-2 have also supported the prosecution story about the assault on Jhalku Yadav. They have also stated that the accused persons have assaulted them as well as the informant. The post-mortem examination report which is dated 31.03.2008 would disclose that the Doctor has found one stitched wound on the head of Jhalku Yadav. The injury report of Lakhia Devi, Bishnu Yadav and Faudi Yadav were also tendered in evidence without objection by the defence; the Doctor who has examined them has not been produced during the trial. The injury report of Bishnu Yadav would reveal no external injury on him, however, he has complained of pain over his left thigh. On the person of Lakhia Devi, one sharp-cut wound over the right parietal region of the size of 3” x ½” and tenderness over her left forearm were found by the Doctor.

8. On the above evidences, we are inclined to hold that the appellants were present at the time of the occur