JUDGMENT
D.P. Singh, J.
1. The sole appellant Jatal Rabidas stands convicted under Section 304, Part II of the Indian Penal Code and sentenced to serve rigorous imprisonment for six years by the Sessions Judge, Jamshedpur in Sessions Trial No. 172 of 1998.
2. The brief facts leading to conviction of the appellant are that in the noon at about 12.00 hours on 11th February, 1998, the informant while working in his agricultural field, heard some cries and saw the appellant assaulting a lady with fists and kicks mercilessly. It is further alleged that the appellant thereafter took a stone and assaulted the lady on her head resulting in bleeding injuries, saying that he will not leave her. The informant raised alarms and went towards the appellant to rescue the lady. Other witnesses attracted by the alarms raised by the informant also came rushing there, seeing which the appellant tried to run away. However, the appellant was caught hold by the villagers and the injured lady was brought to hospital for her treatment where she succumbed to her injuries.
3. This incident was reported by the informant to Birsa Nagar (Telco) Police Station in Telco Main Hospital on 12.2.1998. On the basis of which, Telco Police Station Case No. 36 of 1998 dated 12.2.1998 was registered against the appellant under Section 302 of the Indian Penal Code. The police finally charge- sheeted the appellant and he was committed to the Court of Sessions , for his trial. The trial Court after framing charge on 3.8.1998 against the appellant under Section 302 of the Indian Penal Code conducted the trial and ultimately found him guilty under Section 304, Part II of the Indian Penal Code.
4. The main contentions raised before me in the memo of appeal are that the order of conviction is liable to be set aside as the facts have not been proved beyond doubts. It is asserted that no independent witness has corroborated the factum of assault and in absence of the Investigating Officer the defence stands prejudiced. It is further asserted that the motive for killing has not been proved and the lower Court ignored the defence of the appellant that he was innocent.
5. Mr. A.K. Sahani, learned counsel for the appellant assailed the impugned judgment on the grounds that the witnesses including the informant are hearsay witnesses. According to them, the appellant has not been seen by PW 1. PW 2, PW 3, PW 5 and PW 6, none of them are eye-witnesses of the occurrence. He has drawn my attention towards their statement that they run towards the place of occurrence on hearing cry of PW 4 Paran Mahto, the informant. So far as evidence of PW 4 is concerned, the counsel for the appellant has drawn my attention towards the admission of the witnesses in the cross-examination that when the last assault was made, none of the witnesses was there except him and they reached after two minutes. It was further contended that the police has not examined him again.
6. The other points raised by the counsel for the appellant was that the material exhibit said to be seized by the police i.e. three stones were not produced before the Court. The prosecution case was further criticized on the basis of the formal witnesses proving the First Information Report and the fardbeyan of the Investigating Officer.
7. Mr. S.K. Sahay, learned amucus curiae tried to go through the evidences adduced before the trial Court and impressed upon this Court that all witnesses were hearsay and cannot be considered as eye-witness of the occurrence.
8. I have gone through the evidence on record and the impugned judgment vide paragraph Nos. 9 to 19 minutely. The alleged occurrence took place in the open field during noon when the informant was tending his potato field. He has specifically mentioned that on hearing cry, he found that the old man was hitting a lady. He has further stated that when he run towards the lady, the appellant finally gave a blow on the head of the lady with a stone and thereafter he tried to run away. According to him, he raised alarms on which other witnesses residing nearby and taking bath in the nearby pond rushed and caught hold of the assailant, who is the appellant in this case. He has supported the prosecution case that the injured lady was taken to house of PW 2 Lambodhar Rabidas from where they brought her to Telco Hospital for treatment and she could not survive. The evidences of PW 1. PW 2 and PW 5 are clear on these points that they came to the place of occurrence on alarms raised by PW 1 and saw the appellant fleeing from the place of occurrence while the deceased was lying with bleeding injury in the field. The evidence of PW 8 Dr. Niranjan Minz, supports the prosecution story with the post-mortem report (Ext. 2) that he found lacerated wounds on right parieto occipital region, right external ear and scalp left parieto occipital region having defused contusion on both sides of brain. This evidence cannot be discarded just on the grounds that that the deceased suffered injuries with hard and blunt substance like stone and she died due to these injuries. The evidences of PW 1, PW 2, PW 3, PW 5 and PW 6 support the prosecution version that they came rushing on alarms raised by PW 4 and saw the appellant fleeing from the place of occurrence immediately. Therefore, they cannot be said the hearsay witnesses of the occurrence, rather, their immediate presence makes them proper and competent witness of the occurrence.
9. The defence taken by the appellant before the trial Court is rather innocence, but he has not denied that the deceased was his wife and just before the occurrence they were coming back from the house of Raj Kumar Rabidas (PW 1). This witness is related with the appellant and he frankly admitted that though he has not seen the occurrence himself but the deceased
Radhika Rabidas was found injured and he has helped the others to take her to Telco Hospital. The learned trial Court has found that the assault by the appellant was not made with intention to kill but he knew that such assault may result in her death and accordingly, found him guilty under Section 304, Part II of the Indian Penal Code. I do not find any material on record to disagree with the findings of the lower Court.
10. At this stage, this Court has been informed by the counsel for the appellant that the appellant has already remained in custody from April 1998 and also served the sentence.
11. In view of the above facts and circumstances, I find that the present appeal has got no merit and is, accordingly, dismissed. Let the appellant, if he has already served the sentence, be released henceforth, if not wanted in any other case.