CRIMINAL APPEAL No.274 OF 2004 (DB) Against the Judgment of conviction and sentence dated 27th March, 2004 and 1st April, 2004 respectively passed in Sessions Trial No. 204 of 2002 by Sri Mahendra Narayan Singh, 4th Additional Sessions Judge, Saran at Chapra. ******** AJAY PARBAT SON OF MAKESHWAR PRABAT, R/O VILLAGE- LOHARI, P.S.- CHAPRA MUFFASIL, DISTRICT- SARAN AT CHAPRA……..APPELLANT Versus STATE OF BIHAR ……………..RESPONDENT ************** For the Appellant :- Mr. Nawal Kishore Singh, Advocate For the State :- Mr. Ashwani Kumar Sinha, APP ********************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA S. K. Sharma, J. The sole appellant has preferred this appeal against the judgment of conviction and sentence dated 27.3.2004 and 1.4.2004 respectively passed in Sessions Trial no. 204 of 2002 by the learned 4th Additional Sessions Judge, Saran at Chapra whereby the appellant was convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo imprisonment for life. The prosecution case arises out of a fardbeyan dated 9.11.2001 of informant Lilawati Devi (PW 7) given before the Officer Incharge of G.R.P. Chapra, Kutchery vide G.R.P. Kutchery P.S. Case No. 240 dated 9.11.2001 under Section 302 of the Indian Penal Code that the informant Lilawati Devi on 9.11.2001 along with her Nanand Urmila Devi and son Rajesh Puri had gone to Chapra to hear a 2 religious discourse. On that date at about 2.00 P.M. she along with Urmila Devi- her Nanad and Rajesh Puri- her son were returning on foot for their house. At about 2.45. P.M. when they reached near at temple situated at South Eastern Railway Cabin of Sadha Dhala then her co-villager namely, the appellant gave a dagger blow to her son Rajesh Puri upon his back as a result thereof his son Rajesh Puri fell down and thereafter, the appellant gave Chura blow twice on him which resulted into profuse bleeding. The appellant tried to escape through railway track. After hearing the cry of the informant and others the persons of the locality and villagers chased and the accused/appellant was caught by police on the railway platform but son of the informant died. The previous enmity of the informant with Ajay Prabat- the appellant related to a case of assault was the reason of the present occurrence. After institution of the case the investigation was started and the police found the case to be true under Section 302 of the Indian Penal Code and submitted Chargesheet accordingly. Thereafter, cognizance was taken and the case was committed to the court of Sessions where the charge under Section 302 of the Indian Penal Code was framed and explained to the appellant. He pleaded his innocence and claimed to be tried. The defence of the appellant was of false implication on account of enmity. The prosecution in order to prove the case has examined altogether 8 witnesses. They are: PW 1 Budhan Ram, PW 2 Ramesh 3 Kumar @ Ramesh Kumar Sah, PW 3 Shiv Kumar @ Shiv Kumar Manjhi, PW 4 Arun Kumar Puri, PW 5 Rajendra Puri, PW 6 Urmila Devi, PW 7 Lilawati Devi and PW 8 Dr. Umesh Sharma. PWs 1 to 3 have not supported the prosecution case and they were declared hostile. PW 7 is the informant and the PW 6 is the Nanad of the informant who was going along with the deceased at the time of occurrence. PWs 4 and 5 are other eye witnesses. PW 8 is the doctor. The prosecution has proved the signature of Arun Kumar Puri on fardbeyan is Ext.-1, signature of Arun Kumar on carbon copy of inquest report is Ext.-1/1, signature of Arun Kumar on seizure list is Ext.1/2, signature of Rajendra Puri on inquest report is Ext. 1/3, signature of Rajendra Puri on seizure list is Ext.1/4, post mortem report is Ext.2, formal F.I.R. is Ext.-3, fardbeyan is Ext.-4, seizure lit is Ext.-5 and inquest report is Ext.-6. The trial court after considering the entire evidence came to the opinion that the prosecution was able to prove the charge against the appellant beyond all reasonable doubts, hence he was convicted and sentenced, as stated above. It is to be seen here that whether the prosecution has been able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. The doctor, PW 8, was posted in Chapra Sadar Hospital as Assistant Civil Surgeon. On 10.11.2001 at 9.20. A.M he conducted post mortem examination on the body of Rajesh Puri and found following 4 ante mortem injuries: (i) One incised wound 1”x 1/3” x 2” on the right side of upper part of back. (ii) One incised wound 1” x 1/2” x cavity deep on the right side of back. (iii) One incised wound 1” x 1/2” x cavity deep on lift side of chest. The death was due to shock and haemorrhage caused by sharp cutting injuries, specially of spleen and lungs, within 18 hours preceding post mortem examination. The weapon used for causing above injuries was sharp cutting weapon such as Chhura (dagger). The defence has given suggestion as to whether the doctor was an expert of weapons or not. But the doctor has stated that he is not an expert of the weapons but the ante mortem injuries received by the deceased were caused by dagger or similar weapon. The blood was oozing out at the time of post mortem examination. According to the fardbeyan, the occurrence is of 4.11.2001 at 2.45 P.M. and the post mortem was conducted on the following day at 9.20 A.M.. The death is about 18 hours prior to the post mortem examination. Hence, the time of assault and manner of assault as alleged by the prosecution has been established beyond all reasonable doubts. The place of occurrence in the present case given in the first information report is near a temple besides the railway track. PW 4 Arun Kumar Puri has stated in his evidence that while he was going by the side of the railway track and when he reached near Sadha Dhala 5 then the appellant stabbed Rajesh Puri. Similar is the evidence of PWs 5, 6 and 7 and all of them have stated that near the railway track at Sadha Dhala the appellant has stabbed Rajesh Puri. PWs 6 and 7 were cross examined at length but the prosecution has not given any suggestion as to whether the place of occurrence was the same or else. Therefore, the evidence of PWs 6 and 7 has remained intact that the place of occurrence was near the railway track at Sadha Dhala. A suggestion was given to PW 5 that the place of occurrence was not that which was stated rather it was a slightly different place but there is no variation in the evidence of PWs 4 and 5. So, according to the fardbeyan and the evidence of PWs 4, 5 and 6 it has been established that the place of occurrence was near the railway track of Sadha Dhala. The prosecution case is that the blood was found at the place of occurrence. The PW 4 has stated that from the place of occurrence the blood stained soil was seized by the Officer In charge and seizure list was prepared on which PW 4 and another witness PW 5 Rajendra Puri had singed. Signature of PW 4 on seizure list has been marked as Ext.1/2. The defence has given a suggestion to this witness but he has stated that the seizure of blood stained soil was made by the Officer In Charge. Here PW 4 has been supported by PWs 5 and 7. PW 5 has supported the factum of seizure of blood stained cloth in his presence. He has stated that the seizure list was prepared in his presence and PW 7 has also stated that the blood was found at the place of occurrence and the seizure list mentions the place where from the 6 seizure of blood stained soil was made. It mentions that seizure of blood stained soil was made from railway track near Sadha Dhala. These are the evidences with regard to seizure of blood stained soil from the place of occurrence. In the present case the Investigating Officer has not been examined but the factum of seizure has been stated by a number of witnesses and the defence has not been able to get any contradiction with regard to the factum of seizure of blood stained soil. PW 7 is the informant. She in her evidence has stated that at about 2.45 P.M. she was returning with her son (deceased) and PWs 6, 5 and 4 after hearing the religious discourse from Chapra and as soon as they reached near Sahda Dhala then Ajay Prabat- the appellant stabbed thrice to her son Rajesh Puri. Rajesh fell down and died. Thereafter, this witness ( informant ) and PW 6 Urmila Devi rushed towards Rajesh Puri and started weeping. Mean while the appellant was chased by Rajednra Puri, Arun Kumar Puri and others and he was caught. The police has brought the appellant at the place of occurrence and recorded the fardbeyan which was read over to informant. She found it to be correct and thereafter, she put her L.T.I. This witness has identified the appellant in the dock. She has stated that due to enmity her son was stabbed by the appellant. She has been cross-examined on the manner, time and other aspects of the occurrence but she has remained intact and the defence was not able to get any thing which could create any doubt on the prosecution version. On this point the informant has been supported by PWs 4, 5 7 and 6 and they have stated that in their presence the fatal blows were given by the appellant. The suggestion was given by the appellant to the witnesses that Rajesh Puri (deceased) was an accused of a case under Section 307 of the Indian Penal Code and on account of that the appellant was falsely implicated. It has also been stated that all the witnesses are interested witnesses and due to lack of independent witnesses the accused/appellant is entitled to get the benefit of doubt. The fardbeyan of the present case has been recorded immediately after the occurrence. The occurrence is of 2.45 P.M. and the fardbeyan is of 3 P.M. which was recorded at the place of occurrence itself. The appellant was caught immediately and he was brought to the place of occurrence where fardbeyan was recorded. The inquest report suggests that the death was on account of stabbing injuries. The doctor has found the ante mortem injuries as alleged by the informant and other witnesses. Seizure list was prepared at the place of occurrence itself. It incorporates the signature of the witnesses. The inquest report supports the prosecution version of the assault. The fardbeyan has been made available to the court on the very next date i.e. 10.11.2001. Submission of the learned counsel for the appellant about the implication on account of enmity is of no help to the appellant because there is consistent evidence of the eye witnesses regarding manner of assault which has led to death. The prosecution has been able to prove the case beyond all reasonable doubts and accordingly, I am also of the view that the accused/appellant is guilty for the offence 8 under Section 302 of the Indian Penal Code. His sentence of life imprisonment is correct which should have been given in the facts and circumstances of the case. In the result I find no merit in this appeal. It is accordingly, dismissed. Akhilesh Chandra, J. :- I agree (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.) Patna High Court, Patna, Dated 29th March, 2010 Avin/N.A.F.R.