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Judgment
Hon''ble Shri Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 29.11.1995 passed in Session Trial No. 258/94 by the Additional Session Judge, Manendragarh. By the impugned judgment, the appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:-
Appellant- Sonsai is son of appellant- Beer Singh. The case of the prosecution is that on 11.4.1994, in the evening, appellant- Beer Singh took deceased- Ishwar for meals to his house. When the deceased did not return till 10.00 p.m., his mother- Foolmatiya Bai (PW-1) and his wife (not examined) went to the house of the appellants. According to these witnesses, they saw that the appellants were assaulting the deceased by lathi. When they tried to intervene, they were also assaulted. Foolmatiya Bai (PW-1) made cries, but nobody came for their rescue. Thereafter they returned to their house. Foolmatiya Bai (PW-1) narrated the story to her brother-in-law''s (dewar''s) son- Uditya Narayan (PW-7). Uditya Narayan (PW-7) lodged the First Information Report (F.I.R. - Ex.-P/7). The police party came to the village, inquest (Ex.-P/1) was prepared and the dead body was sent for post-mortem examination. The Autopsy Surgeon, Dr. S.N. Suhane (PW-10), found 60 external injuries on the dead body of the deceased. There were fractures on right tibia fibula and right 2nd & 3rd ribs. He opined that the cause of death was shock as a result of external haemorrhage and combine effect of the above injuries and it was homicidal in nature. The post- mortem report is Ex.-P/13. The case of the prosecution was based on eye-witness account of Foolmatiya Bai (PW- 1) and Uditya Narayan (PW-7) who lodged the F.I.R. (Ex.-P/7). The learned Session Judge found the evidence of these witnesses to be reliable and convicted & sentenced the appellants as aforementioned.
Mr. Abhay Tiwari, learned counsel appearing on behalf of the appellants, argued that Foolmatiya Bai (PW-1), the sole eye-witness, was not reliable; Uditya Narayan (PW-7) did not mention the name of appellant- Sonsai in the F.I.R. (Ex.-P/7), though he was duly briefed by Foolmatiya Bai (PW- 1).
On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.
We have heard learned counsel for the parties at length and have also perused the records of the session case.
Foolmatiya Bai (PW-1) is mother of deceased- Ishwar. She deposed that on the fateful night, Beer Singh came to their house and took the deceased for meals. When the deceased did not return till late night, she, along with the wife of the deceased, went to the house of the appellants and saw that the appellants were assaulting the deceased in their courtyard. When they tried to intervene, appellant- Beer Singh pushed her and assaulted her daughter- in-law. Thereafter they returned to their house.
Uditya Narayan (PW-7) is cousin of the deceased. He deposed that his aunt (Foolmatiya Bai - PW-1) came to his house and told that Beer Singh had committed murder of deceased- Ishwar. On this information, he went to the police station and lodged the F.I.R. (Ex.-P/7).
We have gone through the contents of the F.I.R. (Ex.- P/7). It does not contain the name of appellant- Sonsai. It only contains the name of appellant- Beer Singh. Uditya Narayan (PW-7) was not an eye-witness He lodged the F.I.R. on the information of Foolmatiya Bai (PW-1). Foolmatiya Bai (PW-1) claims to have narrated the incident to the villagers and she also claimed that she had sent Uditya Narayan (PW-7) along with the village Kotwar to lodge the report. If she had seen that both the appellants were assaulting the deceased, in normal human conduct, she would have stated the names of both the appellants to Uditya Narayan (PW-7) and there would not have been omission of the name of appellant- Sonsai in the F.I.R. (Ex.-P/7) which was lodged by Uditya Narayan (PW-7) who was duly briefed by the eye-witness, Foolmatiya Bai (PW-1), on whose sole testimony the conviction is based. We are of the view that in the above facts and circumstances of the case, omission of name of appellant- Sonsai in the F.I.R. (Ex.-P/7) was fatal to the prosecution.
Apart from the above important omission in the F.I.R. (Ex.-P/7), we further note that Foolmatiya Bai (PW-1) whose case diary statement was recorded on 12.4.94, i.e. on the next day of the incident, did not mention the name of Sonsai in her statement.
For the above discussion, we do not approve the conviction of appellant- Sonsai. We are of the view that for the above reasons, appellant- Sonsai deserves to be acquitted.
So far as appellant- Beer Singh is concerned, evidence of Foolmatiya Bai (PW-1) is intact against him. His name is mentioned in the F.I.R. (Ex.-P/7) and discoveries & seizure have been made from his possession. Not only this, he alone had come to the house of Foolmatiya Bai (PW-1) in the evening and had taken the deceased with him. There were 60 external injuries and above fractures on the dead body of the deceased. Therefore, we do not find any infirmity regarding conviction and sentence awarded to appellant- Beer Singh.
For the foregoing reasons, Cr.A. No. 65 of 1996, filed by appellant- Sonsai, is allowed. The conviction and sentence awarded to appellant- Sonsai u/s 302 IPC are set- aside. He is acquitted for the charges framed against him. Cr.A. No. 66 of 1996, filed by appellant- Beer Singh, is dismissed.