(1.) THIS Cr. Appeal has been listed for its final hearing looking to the period of custody of this appellant. Last time when this matter was enlisted, counsel for the appellant was not present and this Cr. Appeal was adjourned for today. Today when the matter is called out, counsel for the appellant is again absent. Counsel for the appellant, namely Shri Shashank Shekhar, Amicus Curiae, was appointed by this Court by virtue of order dated 16th September, 2003 because this appeal was preferred from jail. Now because of his consistent absenteeism, we hereby appoint advocate Ms. Priya Shrestha, who is on the panel of Jharkhand State Legal Services Authority and who is present in this Court and ready to argue out the case, as an Amicus Curiae to assist the Court on behalf of the appellant.
(2.) PRESENT appeal has been preferred by the appellant -accused against the judgment of conviction dated and order of sentence both dated 24th May, 2003 passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 43 of 2001 whereby the present appellant -accused has been punished for an offence under Section 302 of the India Penal Code for life imprisonment with fine of Rs. 1000/ - and in default of payment of fine, he was ordered to undergo further rigorous imprisonment for six months.
(3.) COUNSEL for the appellant has argued out the case at length and the counsel for the appellant has taken this Court to the F.I.R., deposition of the prosecution witnesses including P.W. 2, P.W. 3 and the medical evidence given by P.W. 7 and other evidences on record. It is submitted by the counsel for the appellant that there are major omissions, contradictions and improvement in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside. It is submitted by the counsel for the appellant that the date of incident is 4th October, 1999 and there is a delay in lodging the F.I.R. No explanation for the delay in lodging the F.I.R. has been given by the Investigating Officer, nor the informant has been examined by the prosecution. This aspect of the matter has also not been properly appreciated by the learned trial Court. It is further submitted by the counsel for the appellant that there is inconsistency between the ocular evidence and the medical evidence given by P.W. 2, P.W. 3 read with the medical evidence given by P.W. 7 Dr. Krishandeo Choudhary. There is also discrepancy between the ocular evidence and medical evidence so far as left side and the right side of injuries sustained by the deceased is concerned. Moreover, looking to the deposition of eyewitnesses P.W. 2 and P.W. 3, they have stated in their deposition before the learned trial Court that the place at which the murder has taken place was covered by several trees and bushes and they were not able to see each other i.e. the eyewitnesses were not in a position to see the deceased and, therefore, in fact P.W. 2 and P.W. 3 are not the eyewitnesses at all. This aspect of the matter has also not been properly appreciated by the trial Court and hence, the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 43 of 2001 deserves to be quashed and set aside.