IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 304 of 1989 Against the judgment and order dated 15.5.1989 passed in Sessions Trial No. 181/243 of 1987/87 by Sri Laxman Jee Jha, the learned 2nd Additional Sessions Judge, East Champaran, Motihari. ========================================================== Vidya Sagar Prasad, son of Vishwanath Prasad, resident of Village-Bisati Patti, P.S.-Motihari Town, District- East Champaran. .... .... Appellant Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellant : Mr. Umakant Prasad, Advocate. For the Respondent : Miss Shashi Bala Verma, APP. ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ******** (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ********* The sole appellant has challenged the judgment and order dated 15.5.1989 passed in Sessions Trial No. 181/243 of 1987/87 by Sri Laxman Jee Jha, the learned 2nd Additional Sessions Judge, East Champaran, Motihari, convicting him under Section 302 of the Indian Penal Code for causing the murder of Baidyanath Prasad and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution case is based upon the oral statement (fardbeyan) of Smt. Chandrakala Devi (P.W.-9) wife of the deceased Baidyanath Prasad, which was recorded by Mahesh Chandra Verma (P.W.- 12), the Inspector of Police-cum-Officer-in-Charge of Town Police Station, Motihari, on 30.4.1986 at 7.45 am., regarding an occurrence which is alleged 2 to have taken place on the same date at about 6 am. It is alleged that on the relevant date and time of occurrence Baidyanath Prasad came down to take bath in the courtyard on the ground floor of the house situated in mohalla- Bisatipatti as on account of low pressure, the pipe water was not reaching the upper storey of his house. He asked the informant to bring oil. The informant went upstairs and as soon as she arrived with oil on the verandah of the courtyard through the staircase, the appellant Vidya Sagar Prasad her nephew came out of his room armed with a Nepali Khukhari (Exhibit-XI) and struck the deceased Baidyanath Prasad twice with the same, as a result of which, the deceased sustained severe cut injury on his neck and also sustained injury on his left scapula. The injuries resulted into profused bleeding. The injured Baidyanath Prasad fell down and was writhing restlessly in pain. The informant rushed to her husband and while trying to hold him up raised shouting, whereupon neighbours Chandra Shekhar Pathak (not examined) and Suresh Pathak (not examined) and her relative Arun Kumar (P.W.-8) and others reached there. The appellant went out of the house and fled away with Khukhari. As a result of the aforesaid injuries, the injured Baidyanath Prasad expired just after a short-while. The fardbeyan of the informant Chandrakala Devi was duly attested by witness Arun Kumar (P.W.-8) and one Vijay Kumar. 3. Mr. M.C. Verma, who recorded the fardbeyan of the informant forwarded the same to the police station for institution of a case under Section 302 of the Indian Penal Code and took up the investigation himself. A formal F.I.R. was, thereafter, drawn by Mr. B.P. Tiwari (not examined), Circle Inspector, Town Police Station, Motihari, on 30.4.1986 itself at 8.15 a.m. 3 4. It is to be noted here that a telephonic message was received regarding the occurrence on 30.4.1986 at 7.30 am from some one at Motihari Town police station where it was entered in station diary. The said station diary entry no.834 dated 30.4.1986 has been proved by the Investigating Officer and marked as Ext-9. Mr. M.C. Verma, on receipt of the telephonic information, proceeded along with the police party to the place of occurrence. On his arrival in the common house of the appellant and the deceased, he saw the dead body of Baidyanath Prasad. 5. In course of investigation, an inquest report (Exhibit-5) was prepared by P.W.-12 at the place of occurrence itself. The Investigating Officer has noted two injuries on the person of the deceased, one deep cut bleeding injury was found behind the neck from the right side and the other cut injuries was found on left scapula. The dead body was sent for post mortem examination and doctor Chandra Shekhar Prasad (P.W.-10) conducted the post mortem examination at 11.30 am on 30.4.1986 on the dead body of the deceased at Sadar Hospital, Motihari and found the following injuries on his person:- (i) One incised wound on the right side of neck 10” x 4” x upto middle of cervical vertebra, Trachea and Thyroid. (ii) All the muscles of right side of neck completely incised. (iii) All big and smaller blood vessels front side of neck completely incised. (iv) Cervical Vertebra (between C2 and C3) and Cord incised. (v) Trachea, Thyroid incised Oesophagus incised. The post mortem report (Exhibit-2) has got some relevance. According to the doctor, as noted in the post mortem report, the bladder was found empty and rigor mortis was found present on the dead body of the 4 deceased. The doctor conducting the post mortem opined that the time elapsed since death was within 36 hours approximately. 6. In course of investigation, the I.O. prepared first seizure list at 8.30 am on 30.4.1986 at the place of occurrence itself with respect to seizure of blood stains found on the floor of the courtyard and verandah, an old blood stained „Genara‟ (a kind of cloth made bed) on which the dead body was kept, a blood stained „Dhoti‟ by which the dead body was covered, etc. The witnesses to the first seizure are Yogendra Prasad (not examined) and Mohan Prasad Gupta (P.W.-1). P.W.-1 has proved his signature on the said seizure list, which has been marked (Exhibit-1). The second seizure list was prepared on the same day at 9 am with respect to seizure of a Nepali Khukhari and a case of Nepali Khukhari, which were seized from a municipal drain near the house of one Rajendra Prasad Verma. The witnesses to the second seizure are Mohan Prasad Gupta (P.W.-1) and Anil Kumar (P.W.-2). Their signatures on the seizure list have been proved and marked as Exhibit-1/1 and 1/2 respectively. Both the seizure lists have been marked as Exhibits-7 & 7/1 respectively. The Investigating Officer summoned one Ashok Kumar Verma (P.W.-6), a Photographer, who took photographs of the deceased from different angle. The five negatives of the deceased have been proved and marked as Exhibits- I to V and the five photographs (positives) of the deceased have been proved and marked as Exhibits-VI to X. The material exhibit Khukhari has been proved and marked as Exhibit-XI. The Investigating Officer had also prepared a rough sketch map of the place of occurrence which has been proved and marked as Exhibit-6. The station diary entry no. 834 dated 30.4.1986, on the basis of information received at the 5 police station, has been brought on record and marked as Exhibit-IX. The endorsement with signature of C.J.M., Motihari on the letter sent to the Director, Forensic Science Laboratory, Bihar, Patna with list of exhibits is marked as Exhibit-X. The receipt of Incharge Officer of Forensic Science Laboratory, Patna of Exhibit-X is marked as Exhibit-XI. Carbon copy of application given to the C.J.M., Motihari for remand of the appellant in the present case from another case in which he was already in custody by Sub- Inspector of Police, D.N. Thakur (P.W.-15) is marked as Exhibit-XII and another carbon copy of application submitted to the C.J.M., Motihari by the I.O. in this regard has been marked as Exhibit-XII / I. The blood stained Bhujali, blood stained Dhoti, some blackish crust, one cloth piece said to be underwear piece, bearing radish brown stains, a Gamachha (a kind of towel) bearing radish brown stains, the Genara (a kind of cloth made bed) bearing redish brown stains were all sent in separate paper packets to the office of the Director, Forensic Science Laboratory, Patna for serological analysis in the forensic science laboratory. The description of articles sent for forensic science test have been marked Exhibit-XIII. The serological examination report has been brought on record and marked as Exhibit-XIII / I. All the articles sent for analysis contained human blood as per the report submitted by the F.S.L. 7. On conclusion of investigation, the Investigating Officer (P.W.- 12) submitted charge sheet against the appellant, pursuant to which, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. The trial court framed charge against the appellant under Section 302 of the Indian Penal Code for committing murder of the deceased 6 Baidyanath Prasad. The appellant did not plead guilty to the charge and claimed to be tried. The defence of the appellant is of innocence and false implication merely on suspicion due to previous grudge and enmity. The further defence is that Baidyanath Prasad was killed by some unknown person in the preceeding night which was not seen by anyone and the Khukhari (Ext- XI) is not the weapon by which the offence is alleged to have been committed. 8. In order to substantiate the charge, the prosecution examined 15 witnesses in all. P.W.-1 Mohan Prasad Gupta is a neighbour of the informant and the deceased. He reached at the place of occurrence on shouting of the informant and found the dead body of the deceased lying a pool of blood. He came to know regarding name of the assailant from the informant. He was a witness to the seizure of blood stained of underwear, Dhoti, Gamchha and Genara, which were seized by the police at the place of occurrence. He proved his signature on the seizure list which was marked as Exhibit-I. He has also stated that the Khukhari and its case were recovered by the I.O. in his presence from a municipal drain and were seized in his presence. He became a witness to the said seizure also and proved his signature on the seizure list which was marked as Ext-I/I. In cross- examination, he has stated that the municipal drain from where the Khukhari, was seized, was at a distance of 200 yards from the house of the informant. 9. P.W.-2 Anil Kumar is also a neighbour of the informant. He has stated in his deposition that while he was walking in the morning on 30.4.1986 outside his house, he saw the appellant running away with a Chhura in his hand, which he threw in the drain and fled away. The Investigating Officer had examined him in course of investigation and the Khukhari and its 7 case were recovered from the municipal drain in his presence. A seizure list was prepared in this regard to which he became one of the witness. He has proved his signature on the seizure list which was marked as Exhibit-I / II 10. P.W.-3 Sanjay Kumar is son of the informant and the deceased as well as cousin of the appellant. He has stated that at the time of occurrence, he together with his relative Arun Kumar (P.W.-8) was sleeping on the roof of the third floor of the house. On the second floor, his parents used to live. His mother and sister shouted from the courtyard of the ground floor, on which, he went down-stairs. His mother and sister were crying and uttering that the appellant was running away after killing Baidyanath Prasad. When he came in the courtyard, he found his father squirming on the floor in a pool of blood. His neck bore sharp cut injury. He found blood scattered all around the courtyard. Immediately, thereafter, his father died. His statement was recorded by police. 11. P.W.-4 Jagdish Prasad is elder brother of the deceased and uncle of the appellant. He has stated that late Sukhdeo Prasad had three sons. The deceased Baidyanath Prasad happens to be the second son of late Sukhdeo Prasad of village-Saphi situated within Turkouliya police station of East Champaran district. Jagdish Prasad himself was eldest son of late Sukhdeo Prasad and Vishwanath Prasad, who died after 1-½ year of the occurrence was his youngest brother. The appellant was eldest son of Vishwanath Prasad. The joint family of Sukhdeo Prasad including his three sons was possessed of lands and two houses, one at village-Saphi and another in Motihari town situated in mohalla-Bisatipatti. According to him, about 5 to 6 years ago a partition had taken place in the family as a result of which the lands and both 8 the houses were partitioned among the three brothers in equal share. Some of the movable properties like, jeep, tractor, pumping set, tyre and cart, etc., were given to the deceased Baidyanath Prasad in lieu of which, he had to pay a sum of Rs. 25,000/- in cash to his youngest brother Vishwanath Prasad. The deceased Baidyanath Prasad claimed that he had paid the entire sum of Rs. 25,000/- to his brother Vishwanath Prasad but it was not an admitted position. The appellant used to say that the deceased had not made payment of the entire due amount and Rs. 14,000 to 15,000 was still due to be paid. This issue was a bone of contention between the parties, as a result of which a discord was there between the deceased and the appellant. He has further stated that the appellant, who used to live at village-Saphi, was seen by him going to Motihari by cycle, carrying a „Jhola‟ on 29.4.1986 in the evening and the appellant did not return back. He has further stated that prior to the occurrence, in question, the appellant had also assaulted him by means of Chhura, as a result of which, he was not on talking terms with the appellant. P.W.-4 admittedly is not a witness to the incident in question. 12. P.W.-5 Vijay Kumar is also another son of the deceased and informant as well as cousin of the appellant. He has stated that on 30.4.1986 he was in village Saphi. He came to know there that his father was killed by the appellants. On receipt of the message, he rushed to Motihari where he reached at about 10.00 am. The Investigating Officer displayed a Khukhari to him and he told the Investigating Officer that it was the same Khukhari which the appellant used to keep beneath his pillow while sleeping. He found his father dead and his mother and sister disclosed him regarding the entire incident. 9 13. P.W.-6 Ashok Kumar Verma is a Photographer by profession. He has stated in his deposition that on 30.4.1986, the Officer-in- Charge of Motihari town police station ordered him to take photograph of the deceased in mohalla-Bisatipatti at Motihari. He took five photographs of the deceased from different angle. He has proved the five neatives of the photograph, which were marked as material Exhibits-I, II, III, IV and V. He enlarged those negatives and the positives, were also proved by him, which were marked as material Exhibits-VI to X. 14. P.W.-7 Bindeshwari Prasad was an employee of Bharat Prasad, who owned a utensil shop in mohalla-Bisatipatti. On the relevant date and time of occurrence i.e. on 30.4.1986 in between 6-6.15 a.m. while he was brooming the said utensil shop, he saw the appellant running away in southern direction with a Khukhari in his hand. 15. P.W.-8 Arun Kumar is a relative of the informant and the deceased. He was sleeping together with P.W.-3 Sanjay Kumar, son of the deceased on the roof of third floor of the house in the night of 29.4.1986. In the morning at about 6 a.m. on 30.4.1986, he heard shouting of the informant and her daughter Simple Kumari, who were crying that appellant was running away after slaughtering the deceased. P.W.-3 Sanjay Kumar went down stairs and P.W.-8 Arun Kumar saw the appellant running away with Khukhari in his hand from the rooftop of the house. He, thereafter, came down and found the dead body of the deceased. 16. P.W.-9 Chandrakala Devi is the informant and wife of the deceased. She has reiterated the facts narrated by her in the F.I.R. Apart from what has been stated in the F.I.R., she has also deposed that while the 10 appellant was fleeing away, her daughter Simple Kumari (P.W.-11) caught hold of her collar but the appellant threatened her that she would also be killed. Simple Kumari, thereafter, out of fear released the appellant. She identified the Khukhari (material Exhibit-XI) in the court. When the deceased died, she put the dead body on Genara (a kind of cloth made bed) in the verandah of the courtyard. She has stated that the appellant was also facing criminal prosecution in Sitamarhi for assaulting his brother-in-law and father- in-law. On this point the defence did not even cross-examine her and thus, the fact that the appellant was being prosecuted at Sitamarhi for causing assault upon his brother-in-law and father-in-law stood admitted. 17. P.W.-11 Simple Kumari is daughter of the informant and the deceased. When her deposition was recorded on 28th May, 1988, she was aged about 14 years, which means that, at the time of occurrence she was aged about 12 years. She has stated that in April, it was a morning school. She was coming down stairs for going to her school. Her mother was ahead of her. When she came down, she saw the appellant armed with Khukhari running away. She caught hold of the collar of the appellant but, on threatening, she released him and he ran away. The alleged Khukhari was stained with blood. She found her father dead in the courtyard. Her mother told her that the appellant had killed her father. 18. P.W.-10 is the doctor who conducted the post mortem examination of the deceased in Sadar Hospital, Motihari on 30.4.1986 at 11.30 a.m. and issued the post mortem report (Exhibit-2). 19. As noted above, P.W.-12 Mahesh Chandra Verma was the Police Inspector-cum-Officer-in-Charge of Motihari Town police station, on 11 30.4.1986. He had recorded the fardbeyan (Exhibit-3) and investigated the case. He has stated that on 30.4.1986 at about 7.30 a.m., he had received information on telephone regarding the occurrence, on the basis of which, he had made an entry in the station diary which was numbered 834 dated 30.4.1986 (Exhibit-9). On receipt of the information, he went to the police station, recorded the fardbeyan on the basis of which formal F.I.R. was drawn by the Circle Inspector, B.P. Tiwary. The writing and signature of B.P. Tiwary on the formal F.I.R. was identified by him and marked as Exhibit-4. He prepared the inquest report at the place of occurrence. He has proved his writing and signature on the inquest report which was marked as Exhibit-5. He inspected the place of occurrence, seized incriminating articles and prepared the seizure lists. He had also prepared sketch map of the place of occurrence, recorded the statement of witnesses and ultimately submitted charge sheet in this case. 20. P.W.-13 Ram Pravesh Singh, a constable of Motihari town police station, has proved the station diary entry no. 834 dated 30.4.1986 which was marked as Exhibit-9 in this case. 21. P.W.-14 Kishundeo Singh is a Havildar, who was posted in Motihari Town police station in the year 1986. He has stated that on 11.5.1986, the Investigating Officer had handed him over one packet together with a letter to deliver the same in the Forensic Science Laboratory. 22. P.W.-15 Devendra Narain Thakur was an Additional Officer- in-Charge of Motihari town police station in the year 1986. He has stated that Mr. Mahesh Chandra Verma (P.W.-12) was the Officer-in-Charge of the police station and he was investigating the present case in obedience to his 12 order. When, in course of investigation, it came to knowledge that the appellant was lodged in Sitamarhi jail, he went to Sitamarhi in order to take his remand in the present case. On 14.8.1986, he submitted an application in the court of C.J.M., Sitamarhi, praying therein to remand the accused in the instant case. The learned Chief Judicial Magistrate had asked for a custody warrant from him. Thereafter, he came back to Motihari and filed an application in the court, duly signed by Mahesh Chandra Verma. The appellant was, thereafter, remanded pursuant to the custody warrant issued by the court. The carbon copy of both the applications, so filed, have been proved and marked as Exhibit-12 & 12/1 respectively. 23. The Investigating Officer (P.W.-12) has described the place of occurrence in his evidence which has remained unchallenged in material particulars throughout his cross-examination. According to him, the place of occurrence was three-storied pucca house of Baidyanath Prasad facing west, situated in mohalla-Bisatipatti. The courtyard of the house measured 7 ½ ft. in length and 6 ½ ft. in width. On the south-western corner of the courtyard, he found a water tap where one „Lux soap‟ was also found lying on the western verandah of the courtyard, which was 5 ft. in width. The dead body was found lying in a pool of blood. The blood was spread in an area of 47” from north to south and 20” from east to west on the north-western corner of the said verandah. The blood was also spread inside the courtyard in an area of 40” x 90” on its north-western corner. The blood was also found on the northern verandah of the said courtyard. The main exit door of the house was situated on the western verandah. One room situated on the north-eastern corner of the eastern verandah of the courtyard on the ground floor, was pointed out to him 13 to be the room of the appellant. The southern verandah of the courtyard was 40” in width, over which staircase for going up-stairs was situated. The main exit door was situated just in front of that stair-case. Outside the house, there was a road running from north to south. The Investigating Officer had also prepared rough sketch map (Exhibit-6) of the place of occurrence. 24. From the deposition of witnesses, it is apparent that the actual commission of murder of the deceased was seen by Chandrakala Devi (P.W.- 9) alone. However, P.W.-11 Simple Kumari reached at the site immediately after the commission of murder and even managed to catch hold of the appellant who was armed with the weapon of crime carrying blood marks, but the appellant managed to escape after threatening her. P.W.-3 Sanjay Kumar and P.W.-8 Arun Kumar are the other two witnesses, who were present in the same house where the crime was committed. P.W.-8 saw the appellant fleeing away with the weapon of crime from the roof of the third floor where he was sleeping and both P.W.-3 and P.W.-8 immediately came to know that it was the appellant who had committed murder of the deceased from the informant and P.W.-11 Simple Kumari. P.W.-2 Anil Kumar and P.W.-7 Bindeshwari Prasad are the two neighbouring persons who had seen the appellant running away with Khukhari in his hand immediately after the offence was committed. P.W.-2 Anil Kumar had also seen the appellant dumping the Chhura in the drain, while running away after committing the offence. P.W.-4 Jagdish Prasad and P.W.-5 Vijay Kumar are the other two witnesses, who are brother and son of the deceased as well as uncle and cousin of the appellant respectively. P.W.-4 has narrated about the partition in the family and the fact that the appellant was having grudge against the deceased. P.W.-5 is 14 admittedly a hearsay witness. The fact that the deceased Baidyanath Prasad was killed is not challenged by the appellant. 25. Learned counsel for the appellant submits that the prosecution case is doubtful on account of the fact that though the alleged occurrence is said to have taken place at 6 am on 30.4.1986 and the place of occurrence was at a distance of only 1 km from the police station as would appear from the formal F.I.R., there is no reasonable explanation as to why no one went to the police station to inform regarding the occurrence. 26. The further contention,