CRIMINAL APPEAL No.495 OF 1988 --------- Against the judgment and order dated 11th day of August, 1988 passed by Shri Raja Ram Singh, the 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 249 of 1986 / 27 of 1986. --------- Kapildeo Yadav, son of Sri Ramchandra Yadav, resident of village – Khiridih, Police Station – Bijaypur, District - Gopalganj …………… Appellant Versus The State of Bihar ……….. Respondent --------- For the Appellant : Shri Prabhat Kumar Verma, Advocate For the State : Sushri Shashibala Verma, APP --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA --------- Dharnidhar Jha & Akhilesh Chandra, JJ. Four accused persons were put on trial by framing charges under sections 302/34 of IPC. Appellant Kapildeo Yadav has distinctly been charged under section 302 of the IPC whereas Chandi Yadav, Khubilal Yadav and Jhengat Gond were charged together under section 379 of the IPC. The trial was held in S.T. No. 249 of 1986 / 27 of 1986 by the learned 2nd Additional Sessions Judge, Gopalganj vide judgment dated 11th August, 1988. While three other accused persons, namely, Chandi Yadav, Khublal Yadav alias Khubilal Yadav and Jhanget Gond were acquitted of the charge of committing the offence under section 302 of the IPC, the present appellant was directed to suffer rigorous imprisonment for life after found guilty of 2 committing that offence. The appellant has brought the present appeal to challenge the above finding of guilt and sentence passed upon them. 2. The mother of the deceased Ram Prasad Chauhan, namely, Basmati Devi (P.W. 2) is the informant of the case and she alleged that at about 7.30 P.M. on 14.6.1986, she was taking her son for taking his meals from her cattle shed. When they were going by the ridge of a particular field, this appellant along with acquitted accused are alleged to have appeared there and is further alleged to have hurled a bomb which hit in the face of Ram Prasad Chauhan who was injured and killed on the spot. The present appellant also got injured and fell down on the ground on account of the same explosion. The informant alleged that the villagers took the appellant to hospital while they abandoned her son at the place of occurrence. 3. There is no real reason stated by the informant as to why appellant had hurled the bomb and killed her son. 4. P.W. 9 S.I. Jayesh Kumar has stated in his evidence that he picked up a rumour that some occurrence had taken place at village Khiridih and as such, he came to that village at about 10 A.M. on 15.6.1986 and recorded the fardbeyan and investigated the case. He found the place of occurrence to be the ridge of a field which was also being used as a village pathway. The occurrence had taken place on the northern side of the ridge and P.W. 9 found copious blood fallen there. The Kali temple was also 3 situated at a distance of about ten yards from that particular place where the investigating officer found the blood. In cross- examination, P.W. 9 stated that he seized blood and he had also stated that he held the inquest (Ext.4) and sent the dead body for postmortem examination and after completing the investigation, sent the accused persons for trial. 5. The defence of the appellant and other accused persons was that the informant had been set up by one Nageshwar Ahir to file the present case and that in fact the present appellant and the deceased had been injured by some persons of village Izrabari where the marriage of the brother of this appellant had been settled which was not approved by this appellant and as such, a mob of persons from that village had come to commit the offence. 6. In support of the charges nine witnesses were examined, out of whom P.W. 1 Ram Daras Chauhan is the full brother of the deceased and son of the informant. P.W. 1 is also named in the FIR. P.W. 2 Basmati Devi is the informant of the case. P.W. 3 Mahendra Chauhan is named in the FIR and he has supported the occurrence as an eye witness to it. P.W. 4 Sudama Chauhan is a hear say witness from persons having assembled there. P.W. 5 Asarfi Devi is also a hear say witness. P.W. 7 Binda Singh was a formal witness whereas P.W. 8 Nageshwar Ahir had been tendered for cross examination. P.W. 6 Dr. Harendra Prasad Singh had held postmortem examination on the dead body of the 4 deceased and had prepared the postmortem examination report (Ext.1). 7. The defence also produced four witnesses to support the plea that it was persons from village Izrabari who had come and hurled bombs injuring the present appellant and killing the deceased. The above four defence witnesses also included Dr. Mahesh Choudhary, D.W. 1 who had examined the appellant for his injuries and had issued the injury report (Ext. A). 8. On consideration of the evidence, both of prosecution witnesses and of the defence witnesses, impugned judgment was passed. 9. We have heard both sides. We find on perusal of the evidence on record that the evidence of P.W. 2 Basmati Devi has been corroborated by other witnesses, like, P.W. 1 Ram Darash Chauhan who was the son of the informant and younger brother of the deceased. He was aged about 13 years on the date of his examination and the court appears having taken precaution to test his mental faculty in order to appreciate whether he was matured enough to understand the implications of questions and to reply them properly. The court has recorded its satisfaction about the capability of the witnesses and, thereafter, proceeded to record the evidence of P.W. 1. P.W. 3 Mahendra Chauhan, like other witnesses, has also supported the evidence of P.W. 2 in its totality as also on all aspects of the prosecution story that when P.W. 2 Basmati Devi was taking the deceased Ram Prasad Chauhan for 5 his meals in the evening on the day of the occurrence, this appellant had hurled a bomb which killed him while the appellant himself got injured by that explosion. The evidence of Dr. Harendra Prasad Singh, P.W. 6 lends support to the story that the deceased Ram Prasad Chauhan was murdered on account of being injured by explosion of a bomb as may appear from the fact that P.W. 6 found lacerated wound on the face, extending from the tip of the nose including upper lip, and lower lip both sides with fracture of mandible at its lower end and maxilla on left side measuring – 4” x 3”x bone deep with blood clot in the wound with charring of wound margin. In the opinion of the doctor, the death was caused due to haemorrhage and shock, as a result of the above injuries which were caused by some explosive substance, such as bomb and that the injury was sufficient to cause death in the ordinary course of nature. 10. Thus, we find that the participation of the appellant by hurling a bomb and causing death of Ram Prasad Chauhan is established beyond all shadow of doubt. We have considered the judgment of the learned trial judge and we find that the learned court has adopted a very reasonable approach when he was separating the grains from the chaff to reject the evidence on participation of the three acquitted accused in the offence. We also find that the three acquitted persons were, of course, named in the FIR, but, the allegation which was subsequently developed against them, had not been made in the FIR. As such, the learned trial 6 judge was fully justified in reading the evidence properly and recording the finding of guilt of the appellant. 11. In the result, we find that the appeal is of no merit. The same is dismissed. The appellant is on bail. He is directed to surrender to his bond and serve out his sentence. (Dharnidhar Jha, J.) (Akhilesh Chandra,J.) Patna High Court, The 5th May, 2010 NAFR/Anil/