JUDGMENT :

SHREE CHANDRASHEKHAR, J.

1. Four persons, namely, Bansia Siddhu, Samsen Hansda, Lorence Marandi @ Lowrence Marandi and Bishnu Kumar Mandal were named as accused in the written report dated 12.03.2010 given to the police by Upanand Gupta, who was posted as Jailor at Central Jail, Dumka. On the basis of his written report, Dumka (Town) P.S. Case No. 37 of 2010 was lodged against the above-named accused persons under section 376(2)(g) and section 302/34 of the Indian Penal Code. In Sessions Trial No. 159 of 2010, the appellants have faced the trial on the charge under section 376(2)(g) of the Indian Penal Code for committing gang rape with ‘L’ and ‘S’ and under section 302/34 of the Indian Penal Code for committing murder of ‘L.’ The appellants have been convicted and sentenced to R.I. for life and fine of Rs. 10,000/- under section 302/34 of the Indian Penal Code and R.I. for ten years and fine of Rs. 10,000/- under section 376(2)(g) of the Indian Penal Code.

2. During the trial the prosecution has examined 17 witnesses ‘S’ who is a victim has been examined as PW-6.

3. The case of the prosecution is unfolded in the written report of the Jailor PW-2 which according to him was typed by Lallan Kumar Bharti PW-3. In the written report dated 12.03.2010, PW-2 has stated that at about 5:00 p.m. on 12.03.2010 he received a secret information that in the kitchen of barracks which are situated inside the residential campus of the Jail Superintendent dead-body of a female mazdoor has been concealed. To verify this information he has gone to the house of the Jail Superintendent with PW-3 where he has found in the kitchen of barracks dead-body of a female aged about 32 years covered with a bed-sheet. He has seen blood and injury on her head. On enquiry, he was told that at about 7:00 p.m. the last evening Samsen Hansda and Bansia Siddhu had brought one lady for enjoyment and after sexually assaulting killed her and concealed her dead-body in the kitchen. Md. Belkasim PW-11 who was working as a labour in the quarter of the jailor has identified the dead-body of the deceased ‘L’ who according to him was engaged in the work of the under-construction garage.

4. PW-1 is the Jail Warden. He has stated that no incident has happened inside the jail premises and police has not recorded his statement. In his examination-in-chief he has stated that he has not seen the dead-body of a women and therefore he has been declared hostile. He is the inquest witness and to a court question he has stated that his signature was taken by the police the next day and when his signature was taken at that time he did not see the dead-body. PW-2 is author of the written report dated 12.03.2010. He is not an eye-witness. He has narrated in the court the manner in which he has detected the occurrence, made enquiries and information to the police. He has deposed in the court that he had received an information that Samsen Hansda and Bansia Siddhu had brought a women the last night for enjoyment and they have committed the crime. PW-3 is also not an eye-witness. He has deposed in the court that PW-2 had called at his residence at about 5:00 p.m. on 12.03.2010 and he alongwith PW-2 had gone to the residence of the Jail Superintendent where they have found dead-body of a female mazdoor. He has further stated that on enquiry he was told about involvement of Samsen Hansda, Lorence Marandi @ Lowrence Marandi and Bishnu Kumar Mandal in the occurrence. PW-4 is the Warden who has also turned hostile. PW-6 is the surviving victim but she has failed to identify the appellants in the dock and therefore she has been declared hostile. PW-9 is son and PW-10 is daughter of ‘L.’ PW-11 is the Mason, who has identified ‘L’ the victim. PW-13 and PW-14 are the seizure witnesses. PW-12 is the Assistant in the Civil Court, Dumka who has taken down statement of ‘S’ recorded under section 164 of the Code of Criminal Procedure and PW-17 is the Hawaldar who has produced material exhibits in t