The prosecution must prove guilt beyond a reasonable doubt; significant discrepancies in evidence warranted the appellant's acquittal.

JUDGMENT :

Pradeep Kumar Srivastava, J.

Heard learned counsel for appellants Ms. Neharika Majumdar as well as learned Additional Public Prosecutor appearing for the State Mr. Arup Kumar Dey.

2. Present appeal is directed against the judgment and order of conviction and sentence dated 04.02.2008 passed by learned Sessions Judge, Sahebganj in Sessions Trial Case No. 60/06 for the offence under Section 304 (Part I) of the I.P.C. and under Section 4 of the Prevention of Witch (Daain) Act, 1999 whereby and whereunder the appellant has been held guilty and sentenced to undergo R.I. of seven years and further sentence to undergo six months R.I. for the offence under Section 4 Prevention of Witchcraft (Daain) Act, 1999. Both the sentences have been directed to run concurrently.

FACTUAL MATRIX

3. Factual matrix giving rise to this appeal is that on 11.04.2005 at about 07:00 PM Congress Tudu (informant) along with his wife Marang Kuru Basuki was going to the house of Hopan Murmu and as they reached near the house of Munshi Tudu (appellant), then the appellant armed with an axe started abusing to informant’s wife by calling her as Daain (Witch) who has played black magic on accused’s wife due to which she is ill hand and given repeated axe blows on Marang Kuri Basuki causing her death on the spot and fled away.

The informant promptly lodged F.I.R. at Borio police station on 12.04.2005 at about 01:00 hours in the night which was registered as Borio P.S. Case No. 50 of 2005 for the offence under Section 302 of the I.P.C. and Section 5/6 of the Prevention of Witch (Daain) Act, 1999.

4. Learned counsel for the appellant has vehemently argued that except the informant who is under inimical terms with the present appellant, none of the prosecution witnesses have corroborated the prosecution story. There are material contradictions as regards genesis and manner of occurrence. Admittedly, it was a dark night and the informant has stated that present appellant has given two axe blows on the head of his wife, but at the time of post-mortem examination, only one head injury was found extended to the ear of the deceased. All other prosecution witnesses have seen the dead body of the deceased but have been unable to prove the happening of the incident in their presence. It is further submitted that admittedly, the appellant immediately surrendered at the police station on the next day morning at about 08:15 A.M. dated 12.04.2005. It is alleged by the Investigating Officer (P.W.8) that the appellant has also produced the blood stained axe by which the murder was committed. The said axe was also sent for F.S.L. for chemical examination, but there is no whisper in the report that it was stained with human blood and that of the deceased. No finger impression of the appellant was found on the handle of the axe. Therefore, the weapon used in the incident has not conclusively been proved to be used by the appellant in causing death of the deceased. The blood group of the deceased has not been mentioned and the blood group found on the seized axe has also not been opined. The appellant has falsely been implicated in this case only on the basis of suspicion and previous enmity. It is further submitted that the appellant has never surrendered before the police or produced any blood stained axe allegedly used in commission of murder of the deceased. The original production-cum-seizure list has been withheld by the prosecution without offering any valid explanation. Similarly, original confessional statement of the appellant (Munshi Tudu) showing relevant part to be proved by the prosecution has also not been brought o