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and the learned Addl. P.P. for the State.

2. This jail appeal is directed against the Judgment of conviction dated 2nd February,2006 and Order of sentence dated 04.02.2006, passed by the learned Additional Sessions Judge, (F.T.C.), Latehar, in Sessions Case No. 84 of 2005, whereby the appellant has been found guilty and convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- only, in default of payment of fine, simple imprisonment for six months for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for six months and to pay a fine of Rs. 2000/- only, in default of payment of fine simple imprisonment for two months for the offence under Section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999, and both the sentences were directed to run concurrently. 60% of the fine deposited was directed to be given to the informant, Gopal Lohra, husband of the deceased.

3. Prosecution case is based on the fardbeyan of one Gopal Lohra (P.W.1), the husband of the deceased, wherein he states that on 14.01.2005, he was engaged in digging earth when Kaila Lohra came and informed him that his wife has been struck with Gandasa (sharp cutting weapon) by the appellant and she is lying in injured condition. On the basis of this information he rushed to his house. On reaching the house he saw his wife lying in a pool of blood and there was injury mark on her body. With the help of Kaila Lohra he brought his wife on a cot to Latehar hospital for treatment, where she is being treated. He states that the appellant is his brother who was branding his wife regularly as witch (DAAIN), which was objected by his wife; hence the assaulted his wife.

10. P.W.-4 is Gopal oraon, he has been declared hostile. Though he has been declared hostile, yet he has supported the prosecution case to the extent that he had seen Mahesh Lohra at the place of occurrence with blood stained Gandasa and he uttered that he has inflicted Gandasa blow to the deceased since she is a witch (DAAIN) and on saying this the appellant left the place of occurrence

11. P.W.-5 Biraj Muni Devi, she stated that on hearing scream she went to the house of Gopal Lohra where she saw Mahesh Lohra had cut the head of the deceased with Gandasa and she had fallen on earth and blood was oozing out from from the wound. She further stated that she along with other witnesses had seen the entire occurrence. She has further stated that on seeing them the appellant, carrying the Gandasa ran away, saying that the deceased was a witch (DAAIN) hence he has killed her. She further stated that she informed about the occurrence to her husband Kaila Lohra (P.W.2) with instruction to inform P.W.1, Gopal Lohra, the husband of the deceased. The husband of the deceased reached and took the injured to Latehar Hospital and later on this witness came to know that the injured died. She stated that the name of the deceased was Jaleshwari Devi. She reiterated that as the appellant was branding the deceased as witch, the appellant had committed the murder. In her cross-examination she stated that on hearing scream she went to the place of occurrence. She admitted that she did not see the appellant assaulting the deceased with Gandasa. She has admitted that there was a land dispute between the parties.

20. Learned Amicus Curiae argued that the prosecution has not been able to prove this case beyond all reasonable doubt. She submits that the charge under section 3/ 4 of the Prevention of Witch (DAAIN) Practices Act, 1999 is unfounded and without any basis. She submits that even no evidence has come that the appellant has branded the deceased as witch (DAAIN). She argued that there being no specific allegation against the appellant, he could not have been convicted under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999. She submits that the prosecution has heavily relied upon the evidence of P.W.5 and P.W.3 , but these two witnesses are not the eye witnesses. As per the learned counsel these witnesses reached the place of occurrence when the assault had already taken place, thus, it cannot be said that this appellant committed murder of the deceased. She also argues that the statement of the accused cannot be taken in evidence as it is a confessional statement, which is before the police and is inadmissible. She further argues that death occurred four days after the assault and in midst of treatment and it has come in evidence that due to paucity of fund better treatment could not be extended to the deceased and that may be the cause of death. She submits that there is no motive to commit murder of the deceased. She further submits that this appellant has been falsely implicated because of some land dispute between the parties, which is substantiated by the witnesses also. She submits that the statement of the deceased was not recorded though she was in a conscious state. Doctor (P.W.8), who treated the deceased when she was injured has categorically stated that the injured was in conscious state and thus, non-recording of the statement of the injured is fatal to the prosecution case. She submits that the seizure list witnesses have also not supported the case of the prosecution. Hence, she claims that on these grounds, the conviction of the appellant cannot be sustained and he is liable to be acquitted.