JUDGMENT :

Shree Chandrashekhar, J.

Three brothers, namely, Madan Mahto, Sital Mahto and Kapil Mahto have been made accused in Tatisilwai P.S. Case No. 36/09, which has been registered on the basis of the fardbeyan of Bisun Mahto, brother of Krishna Mahto. The above-named accused persons have faced the trial on the charge under section 302/34 of the Indian Penal Code for committing murder of Krishna Mahto. They have been convicted and sentenced to RI for life and fine of Rs.5000/- each under section 302/34 of the Indian Penal Code.

2. During the trial, the prosecution has examined eight witnesses; the informant is PW-6.

3. Sanju Kumari PW-2 is the sister of the deceased. She has been declared hostile at the instance of the prosecution.

4. Geeta Devi PW-1, Sarswati Kumari PW-3, Ranthu Mahto, PW-4, Phulmani Devi PW-5 and Bisun Mahto PW-6 are the eye-witnesses.

5. The learned Sessions Judge has held that ocular evidence is fully corroborated by the medical evidence and lapses during the investigation such as failure of the Investigating Officer to produce report on the blood-stained weapon and soil would not prove fatal for the prosecution.

6. Mrs. Darshana Poddar Mishra, the learned Amicus submits that; (i) the so-called eye-witnesses have not seen the actual occurrence, (ii) conduct of the prosecution witnesses in not trying to save Krishna Mahto makes their testimony doubtful, and (iii) non-examination of any independent witness though the occurrence is in the evening and the lapses during the investigation has created serious doubt on complicity of the appellants in the occurrence. Alternatively, the learned Amicus has contended that from the prosecution’s evidence it would appear that the appellants without pre-meditation, in a sudden quarrel and in the heat of passion have assaulted Krishna Mahto which unfortunately has proved fatal and, therefore, the appellants at best can be convicted and sentenced under section 304 part-II of the Indian Penal Code.

7. To fortify her submission, the learned Amicus has relied on the decision in “Nandlal Vs. State of Maharashtra” reported in (2019) 5 SCC 224.

8. In his fardbeyan, the informant has stated that at about 6:00 p.m. in the evening of 20.06.2009 after easing himself in the field when he came near his house, he saw Kapil Mahto, Sital Mahto and Madan Mahto assaulting his brother. His brother was lying on the ground and crying for help. After assaulting his brother, the accused persons thinking that he has died left him and ran away towards their house. The informant has further stated that he informed the police which brought his injured brother for treatment at RIMS. However, his brother was declared dead by the doctors. According to the informant, there was a dispute in respect of a pathway. He has been examined in the court as PW-6. In the court also he has stated about assault on Krishna Mahto by the appellants with farsa, tangi and dauli.

9. The wife of the deceased is PW-1. She has stated that in the evening of 20.06.2009 she was at home and her husband, Bishun (informant) and others were also there. At that time, a quarrel started between her husband and Kapil Mahto for the pathway. At that time Madan Mahto and Sital Mahto were also present there and they supported Kapil Mahto. She has further stated that the aforesaid accused persons went to their house and brought tangi and farsa and started assaulting her husband. When her husband became unconscious they fled away. PW-3 is daughter of the deceased. PW-4 is brother of the deceased and PW-5 is wife of PW-4. These witnesses have also claimed that they have seen the appellants assaulting Krishna Mahto. During their cross-examination, PW-1, PW-3, PW-4, PW-5 and PW-6 have remained unshaken and nothing significant could be elicited by the defence from them so as to create a doubt on their presence at the place of occurrence. They are inmates of the house and, therefore, their presence at the place of occurrence is quite natural. A little