CRIMINAL APPEAL No.234 OF 2006( D.B.) --------- Against the judgment of conviction and order of sentence dated 16.12 .2005, passed by Sri H.N. Gupta, the learned Additional Sessions Judge(Fast Track Court No. V), Vaishali at Hajipur in Sessions Case No. 257 of 1997. ------------ Nand Kishore Sah, resident of Village- Chak Ibrahim, P.S. Bidupur, District- Vaishali...........................................Appellant. Versus The State of Bihar.......................................................Respondent. ------------ For the Appellant : Mr. Ratna Deep Prasad, Advocate. For the State : Mr. Ashwini Kumar Sinha, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------------ S. K. Sharma & D. K. Singh,JJ. This appeal has been preferred by the sole appellant against the judgment dated 16.11.2005, passed by the Additional Sessions Judge, Fast Track Court No. V, Hajipur, Vaishali, in Sessions Case No. 257 of 1997(Bidupur P.S. Case No. 04 of 1996) whereby the sole appellant was held guilty under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life with a fine of Rs. 3,000/- and in default to undergo further Simple Imprisonment for six months. 2. The prosecution case relates to an occurrence which took place in the night on 03.01.1996 when the informant’s husband, Achuta Nand Giri was taking his meal. At that very time, Laxmi Chaudhary (another accused) and the present appellant came and called the deceased for the purpose of resolving the money matters. Laxmi Chaudhary has borrowed Rs. 2,000/- from the Gramin Bank, 2 Chaksikandar, in the name of the informant’s elder brother-in-law, Bechan Giri, 15 years earlier. In that case, due to non-payment of loan, warrant was issued and so the informant’s husband expected that the matter should be resolved. Prior to that, in that connection hot discussions had taken place in between Laxmi Choudhary and the husband of the informant. When the informant’s husband (deceased) went with the accused persons, the informant followed. When her deceased-husband reached near the house of Bhuvaneshwar Giri, then the appellant Nand Kishore Sah fired upon the chest of the informant’s husband from country made pistol and blood started oozing from his chest. The injured (deceased) was brought to Bidupur Hospital, where he was declared dead. Thereafter, a case under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act was instituted. After investigation, charge sheet was submitted under the aforesaid Sections and cognizance was taken and the case was transferred to the Judicial Magistrate, Ist Class, who after completing all paraphernalias committed the case to the court of Sessions where charge was framed and the same was explained to the appellant who pleaded innocence. Hence the trial commenced. 3. In order to prove the case, prosecution has examined altogether four witnesses. P.W. 1 is Musafir Prasad Singh. P.W. 2 is Bechan Giri. P.W. 3 is Radha Devi and P.W. 4 is Dr. Gajendra Mohan Sinha. P.W. 1 was declared hostile by the prosecution. P.W. 4 has proved post mortem report. 3 4. Defence of the appellant was of complete denial of the occurrence and also that implication was on account of dispute mentioned in the First Information Report itself. 5. The court after considering the prosecution case, defence version and after hearing the counsel for the parties came to the conclusion that the prosecution was able to prove that the accused has committed the murder of the informant’s husband. 6. It is to be seemed as to whether the prosecution has proved charges against the appellant beyond the all reasonable doubt. 7. The only two material witnesses have been examined on behalf of the prosecution. 8. P.W. 3 is the informant of the case. She is the widow of the deceased. According to her, on 03.01.1996 at about 9.30 P.M. she was present in the house alongwith her husband. At that time they were talking with each other. In the meanwhile Laxmi Choudhary and the appellant Nand Kishore Sah came. Laxmi Choudhary called the informant’s husband for settlement of dispute with regard to the money which was on account of loan taken from the Bank. That money was illegally withdrawn by Laxmi Choudhary in the name of the informant’s elder brother-in-law i.e., brother of the deceased. The informant’s husband went for settlement of the dispute. She has also further stated that on that very day in the morning, the husband had some altercation with Laxmi Choudhary with regard to the money which was taken as loan 15 years earlier. 4 This was reported to the informant by her husband. In this background, when the informant’s husband was called by Laxmi Choudhary alongwith Nand Kishore Sah then she followed them and according to her as soon as her husband reached near the house of Bhuvaneshwar Giri then on the orders of Laxmi Choudhary, this appellant fired causing fire arm injury upon the chest of her husband who fell down and blood came out. At that time, P.W. 3 has stated in paragraph no.2 of the deposition that P.W. 2 had following her. After hearing the sound of firing, villagers came out and her husband was carried out to the hospital but he was declared dead. 9. The defence has cross-examined her and a suggestion was given that her husband was working in Ludhiyana and no money was taken by Laxmi Choudhary but the informant has denied the suggestion of the defence and has stated in her evidence that on that very day her husband was taken by the accused persons and the appellant has given fatal blow. 10. P.W. 2 is another eye witness, who is elder brother-in- law of P.W.3 and he has stated that in the night he was sleeping after taking the dinner. He heard some talk of Laxmi Choudhary and Nand Kishore Sah and they were talking with Achuta Nand Giri. This witness came out and at that time he heard Laxmi Choudhary told Achuta Nand Giri that the dispute with regard to the payment of money should be settled. Upon this, Achuta Nand Giri went with Laxmi Choudhary. As soon as Achuta Nand Giri reached near the house of Bhuvaneshwar Giri then he saw that wife of the deceased 5 was coming. He further stated in his examination-in-chief that at the behest of Laxmi Choudhary this appellant fired upon the chest of Achuta Nand Giri. The motive behind this occurrence was that some amount was involved which was due against Laxmi Choudhary. That amount was subject matter of arbitration in the Panchayati which was attended by many persons. Still that amount was not being paid and so with this motive offence was committed. A suggestion was given to the witness that he was not an eye witness of the occurrence because it was dark night and he came out from the house after hearing the sound of firing. A suggestion was given to the P.W. 2 while he was being examined and he has stated in his deposition that as soon as he came out from his house he saw Achuta Nand Giri dead and fell down on the land and at that time he was having fire arm injury. His wife was weeping. 11. P.W. 4 is the doctor who in his evidence has stated that he has conducted Autopsy of Achuta Nand Giri on 04.01.1996 at 10.45 A.M. and found the following ante-mortem injuries. “(i) Lacerated wound with invented irregular blackened margin on middle of the chest. Slightly right side of chest in the third intercostals space ¼” x ¼” x chest cavity, directed backward and outward (wound of enhance). (ii) Lacerated wound with averted irregular margin on back of the right-1/2” x ½” chest cavity-communicating to injury no. 1( wound of exit).” 12. According to the opinion of the doctor, the injury was 6 caused by fire arm and that was enough to cause of death. 13. Learned Counsel for the appellant has submitted that the Investigating Officer was not examined and the statements of P. Ws. 2 and 3 under Section 161 Cr.P.C. are different version of the occurrence. It has argued that the witnesses have fabricated their evidences in the court. It has also been stated that these two witnesses are not the eye witnesses and they were hostile to the appellant because of a money matter which is admitted in the First Information Report itself. 14. No doubt, in trial the Investigating Officer must have been examined but it depends upon the facts of each and every case as to whether non-examination of Investigating Officer causes prejudice or not. 15. There may be some circumstances that non- examination of Investigating Officer may cause grave prejudice to the prosecution but in the present case the death caused by fire arm is proved and there are witnesses who have seen the appellant committing murder of the deceased at that very time and in that very manner in which it has been alleged. In our opinion no prejudice was caused to the appellant due to non-examination of the Investigating Officer. 16. It has been argued that P. Ws. 2 and 3 are not eye witnesses. P. Ws. 2 and 3 have stated that when the deceased was being called by one of the accused, Laxmi Chaudhary then he was followed by these two witnesses because they were having some 7 suspicion and so they had followed. Following by family members to someone in case of dispute are not common in the society but as deceased had told his wife Radha Devi on the day of occurrence that Laxmi Chaudhary had some dispute with regard to payment of money which was taken by him in the name of the elder brother of the deceased, P.W. 3 had followed her husband. 17. After analyzing the entire materials on record and taking into consideration the submissions of the learned counsel for the appellant and the State we are of the opinion that prosecution was able to prove the charge that on 03.01.1996 at Village- Raghopur Chaturang, P.S. Bidupur, District- Vaishali, the appellant has caused death of Achuta Nand Giri. Thus, the judgment of conviction and the sentence requires no interference by this Court. 18. In the result, we find no merit in the appeal. Accordingly, it is dismissed. (Shyam Kishore Sharma,J) I agree. (Dinesh Kumar Singh,J) PATNA HIGH COURT The 22ND February, 2010. N.A.F.R./U.K.