IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.287 of 2005 ======================================================= Against the judgment of conviction and order of sentence dated 30th January, 2002 passed in Sessions Trial No. 908 of 1999 by Sri Vinod Kumar Sinha, 3rd Additional Sessions Judge, Jamui ======================================================= Barsa Saren son of Late Matal Soren, R/o village- Dumardih, P.S. Jhajha, District- Jamui………………………….... .... Appellant Versus State Of Bihar…………………………………....... .... Respondent ======================================================= Appearance : For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae For the Respondent/s : Mr. Ashwani Kumar Sinha, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH) ======================== Present jail appeal has been filed by the sole appellant challenging the judgment of conviction and order of sentence dated 30th January, 2002 passed in Sessions Trial No. 908 of 1999 by the learned 3rd Additional Sessions Judge, Jamui whereby the appellant has been convicted under section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, as per the fard-beyan (Ext. 3) of Jhari Soren (PW 5) recorded by A.S.I., Shivnath Prasad (PW 10) of Jhaja Police Station on 28.4.1999 at 11.30 AM in village Dumardiha is to the effect that on 26.4.1999 at 6.00 P.M., 3 years old son of the informant, Jitan Soren (deceased) Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 2 and the daughter Chanmuni Soren (PW 1) aged about 7 years went to ease out in front of the house in the field. In the mean time the uncle of the informant Barsa Soren administered some poisonous substance to the son of the informant, when the daughter of the informant Channmuni Soren and son Jitan Soren started crying. Thereafter, the informant’s wife Badki Tudu (PW 3) and the mother of the informant Churki Soren (PW 2) came to the victim, when they were conveyed by the victim and the daughter of the informant about the administering of the poison. When they found smell coming from the mouth and the body of the victim, then the victim was carried to the doctor, but no doctor was found, hence they returned back home with the victim, where, subsequently, he died in the night at 11.00 PM. The informant has admitted that he was at his in-laws place on 24.4.1999 and his mother went to his sasural to inform him about his child’s death and then the informant came to his house on 27.4.1999 and found his son, Jitan Soren, dead when the wife and the daughter of the informant conveyed about the occurrence. The informant then alleged that his uncle, i.e., the appellant was on inimical terms with the informant’s family and the appellant used to address the mother of the informant, as witch and the appellant also used to give life threats. On the fard-beyan two witnesses, namely, Babu Lal Murmu and Babu Lal Hembrum signed as attesting witness, though they have not been examined. On the Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 3 basis of aforesaid fard-beyan, FIR (Ext. 4) was subsequently drawn as Jhajha P.S. Case No. 38 of 1999 on 28.4.1999 at 5.00 PM. The police, after investigation, submitted charge sheet and thereafter, on cognizance being taken, the case was committed to the court of sessions. 3. The prosecution, in order to prove its case, has examined 10 witnesses. Out of which PW 1 is Chanmuni Soren the daughter of the informant, PW 2 is Churki Soren, the mother of the informant, PW 3-Barki Tuddu is the wife of the informant, PW 4 is Chotki Besra, PW 5-Jhari Soren is the informant- the father of the deceased, PW 6-Tanak Hansda who is a contractor (caste leader), PW 7-Jhopa Hansda is an independent witness, PW 8 is Doctor Binod Kumar Singh who conducted post mortem, PW 9-Pramod Kumar Jha is the Assistant Director of the Forensic Science Laboratory, Patna who has proved the viscera report (Ext. 2) and PW 10 is Sheo Nath Prasad, the I. O. of the case. 4. The informant i.e., PW 5, is admittedly, not an eye witness to the occurrence of administering of poison, as he has admitted that he was at his in-laws house and he came back to his house on 27.4.1999, after the death of his son and that he came to know about the occurrence through his wife, daughter and mother. 5. The most vital witness and the only eye witness to the occurrence is PW 1-Chanmuni Soren, who was with the Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 4 victim in the field, when both went to ease out together. PW 1 in paragraph 2 of her evidence has specifically stated that while they went to ease out, the appellant came with some medicine in the bottle and administered the same to the victim. Though this witness was 9 years old at the time of her deposition and was about 6 1/2 years of age at the time of occurrence, but considering the fact that it is the consistent case of the prosecution that PW 1, at the time of occurrence, raised alarm and conveyed the entire things to other prosecution witnesses and from the nature of queries made by the Court, it appears that this witness was capable of understanding the questions asked and has given very cogent reply, hence, PW 1 has rightly been found competent to depose. 6. PW 2 is the mother of the informant and according to the mother of the victim, she reached at the place of occurrence on the ‘hulla’ being raised by PW 1, but the appellant fled away from the scene. Hence, the evidence of this witness only lends credence to the circumstances in which the poison was administered as she also came to know through PW 1 about the actual occurrence. 7. PW 3 is the wife of the informant. She also reached at the spot on the alarm of PW 1 and saw the appellant fleeing away from the place of occurrence. Though in paragraph 6 she claims to have seen the administering of poison but it appears from paragraph 9 of her evidence that she could only see the Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 5 appellant fleeing away from the place of occurrence. 8. PW 4 is the another family member of the informant and has deposed in paragraph 1 that as soon as this witness alongwith PW 2 and PW 3 reached, the appellant fled away from the place of occurrence, when he was caught by the contractor (caste leader). Hence, the evidence of this witness also suggests that the appellant was at the place of occurrence. 9. PW 6 Tanak Hansda, is the caste leader of the community and in paragraph 2 of his evidence, he has admitted that the appellant was caught, and then the appellant confessed his guilt that he had administered poison to the victim and it was this witness who admits in paragraph 7 of his evidence that he handed over the appellant to the police which has also been admitted by the I. O. (PW 10 paragraph 16). 10. PW 7 is the independent witness who admits that the appellant confessed before him also that he administered poison though he admits in paragraph 5 that he has not seen the actual administering of poison. 11. PW 8 is the doctor. He had not found any ante mortem injury nor he was able to give definite opinion about the cause of death hence, the viscera was preserved. 12. PW 9 is the Assistant Director of Forensic Science Laboratory, Patna who accepts that the viscera was transmitted on 22.7.1999 and the viscera reflects the presence of Alluminium Phosphide, a poisonous substance. Though the Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 6 viscera was received on 27.7.1999, after about three months of the preservation of the viscera, but the identity of the viscera has not been challenged hence, the evidence of PW 9 suggests the prosecution version that the victim was administered poison. 13. PW 10 is the I. O. who in paragraphs 10 and 16 of his evidence has stated that the appellant admitted that he administered pesticides to the victim and also admits in paragraph 11 of his evidence about transmission of the viscera to Forensic Science Laboratory. 14. No defence witnesses have been examined. 15. Though it was contended that the FIR was lodged after inordinate delay, it is true that the occurrence was of 26.4.1999 at 6.00 PM, whereas the fard-beyan was recorded on 28.4.199 at 11.30 AM and subsequently the FIR was registered at 5.00 PM. The FIR reflects that the police station was situated 25 kilometers away from the place of occurrence. Moreover, the evidence of PW 5 is itself explanatory that he was at his in-laws house and when he came back, he approached the police. The delayed lodging of the case has also to be considered in view of the fact that the occurrence took place in the remote hilly areas of tribal belt and the informant was informed about the occurrence after the death of the victim boy. 16. It is contended that PW 10 in paragraph 13 of his Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 7 evidence has admitted about the entry of Sanha in Diary No. 616 which has also not been brought on record. But in our view, from the prosecution case, as gets reflected from the first information report, it appears that the first information report was given to the police by PW 5 and there is nothing on record to suggest that any Sanha entry was made by PW 10. 17. It has also been contended by the learned counsel for the appellant that the motive has not been proved. Though the informant admits that the appellant used to address the informant’s mother as witch but the same has been denied by the mother of the informant in her evidence and others have also stated that there was no enmity. Hence, the motive has not been proved. 18. In our view when there is direct and convincing evidence on record, then the motive takes a back seat. 19. Considering the evidence of PW 1, who saw the appellant administering poison to the victim and the evidence of PWs 2, 3 and 4, who saw the appellant fleeing away from the place of occurrence, coupled with the report of FSL, duly proved by the Assistant Director of the FSL, Patna (PW 9) that the viscera contains Alluminium Phosphide (a poisonous substance), we are of the view that the prosecution has been able to prove its charge against the appellant beyond the shadow of all reasonable doubt. The impugned judgment of conviction and order of sentence needs no interference by this Patna High Court CR. APP (DB) No.287 of 2005 dt.13-12-2011 8 Court, as the evidence has been properly considered in the right perspective. 20. In the result, this appeal fails and the judgment of conviction and order of sentence passed against the appellant is upheld. 21. The appellant is in custody he will serve out the sentences awarded to him. 22. Mr. Arun Kumar Tripathi, Advocate was appointed as Amicus Curiae and has assisted the Court very well on behalf of the appellant. Hence, he is entitled to get the prescribed fee from the High Court Legal Services Committee, Patna. Let a copy of first and last page of this judgment be handed over to him for needful. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 13th December, 2011 Avin/N.A.F.R.