CRIMINAL APPEAL No.543 (DB) OF 2006 ------ Against the judgment of conviction and sentence dated 7th April, 2006 passed by Sri Onkar Nath Sinha, Additional Sessions Judge, Fast Track Court No.4, Nalanda at Biharsharif in Sessions Trial No. 544 of 2001/64 of 2005. ----- MANOJ KUMAR SON OF SRI LAKHAN PASWAN RESIDENT OF VILLAGE PACHWARA, P.S. & DISTRICT NALANDA ------ APPELLANT Versus THE STATE OF BIHAR ------ RESPONDENT ------ For the appellant : Mr. Akhileshwar Pd.Singh,Advocate For the State : Mr. Ashwini Kumar Sinha, Addl.P.P. For the informant : Mr. Dhananjay Kumar, Advocate ----- 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,J. The sole appellant Manoj Kumar has been convicted under Section 302 of the Indian Penal Code and 27 of the Arms Act by judgment dated 7th April, 2006 passed by Additional Sessions Judge, Fast Track Court No.IV, Nalanda at Biharsharif in Sessions Trial No. 544 of 2001/64 of 2005 and has been sentenced to undergo rigorous imprisonment for life for offence under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for six months for offence under Section 27 of the Arms Act. Both the sentences have been ordered to run concurrently. 2. Rakesh Kumar, brother of the 2 deceased, has given his fardbeyan at his house in his village Pachwara, P.S. and District Nalanda at 5.00 A.M. on 27th June, 2001 that in the preceding night he was sleeping in the room situated at the roof of the house. His sister Bibha Kumari aged about 16 years went to sleep in her southern room, as usual, after taking dinner. His aunt Pratima Devi, wife of Rajendra Prasad and her daughter Anju Kumari aged about 17 years, cousin sister of the informant, also went to sleep in their house. At about 1.00 A.M. in the night, informant’s cousin sister Anju Kumari came out from her room to attend the call of nature and she noticed a person standing near the door of southern room. She cried and on her alarm, the informant came. Pratima Devi also came out from her room and noticed the appellant standing at the door of informant’s sister. On their alarm, appellant Manoj Kumar entered into the room of informant’s sister Bibha Kumari because the door was open at that time. Appellant Manoj Kumar bolted the door from inside after entering into the room. Villagers Naresh 3 Singh, Prakash Singh and others arrived on hearing alarm and they tried to get the door opened but the door was not opened. Bibha Kumari was also trying to open the door but appellant was protesting. Meanwhile, at about 1.30 A.M. in the night informant and others heard sound of firing from inside the room and thereafter no sound of Bibha Kumari was heard. Informant suspected that appellant Manoj Kumar has killed Bibha Kumari by using fire arm. The information was sent to police. Thereafter, the police came and fardbeyan of the informant was recorded which resulted in the present case i.e. Silao (Nalanda) P.S.Case No. 255 of 2001) against the appellant. 3. The matter was investigated into and after completion of investigation, chargesheet was submitted. Cognizance was taken and as the offences were triable by the Sessions court, the case was committed. In Sessions court, charges were framed and explained to the accused who pleaded innocence, so the trial proceeded. 4. The defence of the appellant was 4 of innocence and also that he was in love with the deceased. So he has been falsely framed in this case by the informant and his persons. 5. In order to prove its case, the prosecution has examined altogether 12 witnesses including a court witness. The witnesses examined are : P.W.1 Govind Prasad, a cultivator, P.W.2 Naresh Singh, also a cultivator, P.W.3 Anju Kumari, a student, P.W.4 Shashi Kant Bhushan, an unemployed, P.W.5 Pratima Devi, house wife, P.W.6 Prasadi alias Prakash Singh, a cultivator, P.W.7 Rakesh Kumar, a student and the informant of this case, P.W.8 Jagdish Upadhyaya, a retired Sub-Inspector of Police and Investigating Officer of this Case, P.W.9 Dr.Sita Ballab Sharan, Civil Assistant Surgeon who conducted the autopsy over the dead body of the deceased, P.W. 10 Haresh Kumar, Advocate’s clerk and P.W.11 Sanjay Kumar, an another Advocate’s clerk. 6. The defence has also examined three witnesses. D.W.1 is Dulari Devi, she was working in Speed Education. P.W.2 Uday 5 Shankar Sharma, a constable and P.W.3 Lakhan Paswan, a cultivator. The court witness was Nawal Kishore, ASI of Nalanda police station. 7. The prosecution has exhibited some documents also. Ext.1 is the signature of Govind Prasad on the seizure list. Ext.2 is signature of Govind Prasad on the Inquest report. Ext.1/1 is signature of Naresh Singh on the seizure list. Ext.3 is signature of Rakesh Kumar on the fardbeyan. Ext.4 is fardbeyan in the writings and signature of S.I.Jagdish Upadhaya. Ext.5 the Inquest report is in the writing and signature of S.I.Jagdish Upadhaya. Ext.6 is seizure list which is in the writings and signature of S.I.Jagdish Upadhaya. Ext.6/1 is signature of Manoj Kumar on the seizure list. Ext.7 is the writings and signature of Jagdish Upadhaya on the Memo. Ext.7/1 is writing and signature of Sergeant Major Rajendra Prasad. Ext.8 is sanction order of the District Magistrate, Nalanda. Ext.9 is post mortem examination report in the writings and signature of Dr.S.B. Sharan. Ext.4/2 is the endorsement on 6 the fardbeyan by Sri Shashidhar Upadhaya. Ext.10 is the signature of Shri Shashidhar Upadhaya on the formal F.I.R. 8. A slip containing the signature of deceased Bibha Kumari has been marked as `X’ for identification and letters in the writings of deceased Bibha Kumar has been marked as `X/1’ to `X/3’ for identification. Photographs have been marked as `Y’ and `Z’ for identification. `Z/1’ is another letter for identification. 9. On behalf of defence, the writings and signature of Padma Kumari on the forwarding report of Nalanda P.S.Case No. 181 of 2001 has been marked as Ext.A. The Endorsement on fardbeyan in the writings and signature of Sri Yogendra Prasad has been marked as Ext.A/1. The writing of Padma Kumari and signature of Sri Yogendra Prasad on the formal F.I.R. has been marked Ext.B. The written report and forwarding of Nalanda P.S.Case No. 182 of 2001 in the writings of Padma Kumari has been marked as Ext.C. The writings of Padma Kumari and Yogendra Prasad on the Formal F.I.R have been marked 7 as Ext.D. The writing and signature of Manoj Kumar in the F.I.R. of Nalanda P.S.Case No. 181 of 2001 has been marked as Ext.E and orders of Sessions Trial No. 289 of 2002 from 23.5.2001 to 25.6.2001 has been marked as Ext.F. 10. According to trial court, the prosecution was able to prove the charges against the appellant beyond the shadow of all reasonable doubts, so he was convicted and sentenced, as mentioned above. 11. In this appeal, it has to be seen whether the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts or not. 12. The case of the prosecution is that in the night of the occurrence, the informant, other family members and the deceased went to sleep in their respective rooms after taking dinner. The informant’s sister Bibha Kumari slept in the southern room whereas the informant slept in the room on the roof. The door of her sister’s room was open. The informant’s cousin sister Anju Kumari (P.W.3) and her mother Pratima Devi 8 (P.W.5) slept in their house. It was 1.00 A.M. in the night when Anju Kumari opened her door so that she can attend the call of nature. She noticed a person standing near the outer door of Bibha Kumari. She cried as a result thereof, the informant and his aunt Pratima Devi arrived there. At the sight of the informant and others, accused Manoj Kumar entered into the room of Bibha Kumari (deceased) and locked the room from inside. On alarm, P.W.2 Naresh Singh, P.W.6 Prasadi alias Prakash Singh and others arrived there. All of them tried to open the door but they could not succeed. At about 1.30 A.M. in the night, sound of firing with the voice of deceased came out and thereafter voice of Bibha Kumari became silent. The police was telephonically informed by the informant and after arrival of the police the door was opened and appellant Manoj Kumar was apprehended with pistol and Bibha Kumari was found lying dead on her bed in pool of blood. 13. The informant (P.W.7) has supported his statement given in the fardbeyan when his evidence was being 9 recorded. He has proved the signature on the fardbeyan which was marked as Ext.3. He also proved the signatures of Naresh Singh and Govind Prasad on the fardbeyan and the fardbeyan has been marked as Ext.4. This witness has further proved the inquest report which has been marked as Ext.5. It contains the signature of Govind Prasad which has been marked as Ext.2. Signature of Govind Prasad on the seizure list has been exhibited by this witness as Ext.1 and seizure list has been marked as Ext.6. The signature on the seizure list of Manoj Kumar has been marked as Ext.6/1. This witness in course of his evidence has given detailed description of the house which, according to him, was of five rooms. There was one room in north facing south whereas two rooms were in the south facing north. In the first floor in the south, there were two rooms. According to informant, Shashi Kant Bhusan, his wife and his children were sleeping in the ground floor. Anju was sleeping in the room of northern side. The informant was sleeping alone on the roof. 10 14. Pratima Devi (P.W.5) while being examined has stated that she was sleeping along with her daughter Anju Kumari in the house. Her daughter Anju woke up at about 1.00 A.M. in the night to attend the call of nature. This witness woke up on the alarm of her daughter and she saw a person standing at the outer door of Bibha Kumari who on seeing her and others entered into the room of Bibha Kumari. 15. P.W.1 (Govind Prasad) has stated that on the date of occurrence, in the night he was sleeping in his house. On alarm being raised, he went to the house of the informant and came to know that Manoj Kumar has been caught. He came to know that firing was made by Manoj Kumar from his gun but in the later portion of his evidence, he has stated that the appellant was present there. This witness has not seen the occurrence but when he reached the place of occurrence, he found the appellant there and Bibha was lying dead. From the evidence of this witness it appears that he was present when the room of Bibha was opened and at that time the appellant was 11 there and he was having a pistol in his hand. 16. P.W.2 (Naresh Singh) was at his house on the date and time of occurrence. On hearing alarm, he rushed to the house of the informant and he noticed assemblage of 4 to 5 family members of the informant and they tried to got opened the door. He also assisted the informant and others for opening the door but it was not opened. In the meantime, sound of firing was heard. The police was telephonically informed. The police came and opened the door. Appellant was found in possession of a pistol and Bibha was found lying dead. The pistol and live cartridges were seized by the police. One fired cartridge was also found in the room. Seizure list was prepared upon which this witness has put his signature which has been proved as Ext.1/1. 17. P.W.6 (Prasadi alias Prakash Singh) has stated that on hearing alarm he went to the place of occurrence and when he reached there, he saw that P.Ws. 1,2 and others were engaged in opening the door. Meanwhile, he heard sound of deceased Bibha 12 Kumari and also of firing. Thereafter, the sound of Bibha became silent. The police was informed, they came and the door was opened by them. The appellant was found there. This witness has claimed his presence at the time of firing itself but from his evidence it appears that he was only present when the police opened the door and found the appellant there with pistol and Bibha was found lying dead. 18. P.W.3 (Anju Kumari) is family member of the informant and the deceased. She is cousin sister of the informant. According to her, at about 1.00 A.M. in the night she had been to attend the call of nature but suddenly she found a man standing who on her cry entered into the room where Bibha Kumari was sleeping. On hulla raised by this witness many persons including Shashi Kant came and they tried to open the door but they could not succeed. From inside the room, Bibha was crying. Thereafter sound of firing was heard. When the door was not opened, the police was informed. The police came and thereafter door was opened. Bibha was found killed and the 13 appellant was present with fire arm. According to this witness, Bibha was a student of I.Sc. 19. P.W.4(Shashi Kant Bhushan) has stated that while he was sleeping in the night in his house, he heard cry and that cry was of Anju. At that time, Bibha was shouting for help from inside her room which was closed from inside. This witness and others tried to open the door but could not succeed. Thereafter sound of firing was heard. This witness has not been named by the informant but it appears that he has tried to become an eye witness which is not the case of the prosecution. 20. P.W.5 (Pratima Devi) has stated that she was sleeping in her house and on alarm, she came out in the Angan and she saw a man standing outside the room of Bibha Kumari who on hearing hulla entered into the room of Bibha Kumari and closed the door from inside. Alarm was raised. Thereafter, persons assembled there tried to open the door but they could not succeed. Meanwhile, sound of firing was heard. When police came, 14 the door was opened. Bibha Kumari was found lying dead and appellant was found with fire arm. In her cross-examination, this witness has stated that she was living in her separate house. If this version of this witness is accepted, then it appears that she has not seen the occurrence and it appears that she has exaggerated the fact that she has seen the appellant entering into the room of Bibha Kumari and she is not an eye witness of the occurrence but she has seen the appellant with the fire arm in the room of Bibha Kumari where Bibha Kumari was found killed. 21. Investigating Officer has been examined as P.W.8. He has stated that he was posted at Nalanda Police Station on 27.6.2001 and in the morning at about 4.00 A.M. he received information that in village Pachwara, a girl has been murdered. S.D.entry No. 488 dated 27.6.2001 was recorded. The police rushed to the village. It reached at the house of the informant at about 4.45 A.M. Investigating Officer was shown the room which was closed from inside. After intense 15 effort, appellant Manoj Kumar opened the door. Then Investigating Officer entered into the room and Bibha Kumari was found dead on the bed. He also found a pistol and cartridge in possession of appellant Manoj Kumar. Fardbeyan of informant Rakesh Kumar was recorded which was singed by informant Rakesh Kumar and witnesses Naresh Singh and Govind Prasad. Inquest report and seizure list were prepared and signatures of the witnesses were taken. This witness has described the house where the occurrence has taken place. He found blood inside the room. This witness has proved the requisition of examination of pistol and cartridge which has been marked as Ext.7 and report of the Sergeant Manjor has been marked as Ext.7/1. Sanction order of the prosecution has been marked as Ext.8. According to this witness, there was only one house in which the informant and Shashi Kant Bhushan were residing. 22. The defence has taken plea that all the papers were prepared at the police station. In fact, there was no seizure at the time of occurrence. The informant and other 16 witnesses have not given correct version about the occurrence. 23. P.W.9 is Dr.Sita Ballabh Sharan who has found one lacerated wound with black and inverted margin 1/4” in diameter situated on left temporal region (wound of entry) and one lacerated wound inverted margin 1” in diameter situated on right temporal region of head with peeping brain tissue (wound of exit). According to opinion of the doctor, the death was within 24 hours. Post mortem report has been marked as Ext.9. From the evidence of the doctor, it is proved beyond all reasonable doubts that death of Bibha Kumari occurred on the date and time as given by the prosecution. It has also proved beyond all reasonable doubts that the death was on account of use of fire arm. The Pistol has been marked Material Ext.M and four cartridges; three live cartridges and one khokha were marked as Matrial Exts. M/I to M/IV. 24. It has been argued on behalf of the appellant that the produced fire arm and cartridges were not the same which were 17 alleged to have been seized. The paper pasted on the pistol was having no signature of any Magistrate or any Police Officer. The cartridges were kept without any marking and no paper was pasted. So the production of the fire arm and cartridges was vague. 25. From the evidence of the Investigating Officer, it appears that on the date of occurrence, fire arm and cartridges were seized. The seizure list bears the signature of the accused/appellant. The signature of the appellant on the seizure list goes to show that the pistol and cartridges were seized in his presence on the date and time of the occurrence as alleged. 26. The defence has examined some witnesses and by proving some letters it has been argued that, in fact, Bibha Kumari, was in love with the appellant. So he had no motive at all to kill her. It has also been argued that Silao (Nalanda) P.S.Case No. 181 of 2001 was lodged against Shashi Kant Bhushan and others which was investigated into and on account of that case, the appellant has been falsely implicated in this 18 case. 27. No doubt, there is contradiction between the evidence of P.W.3 Anju Kumari and informant Rakesh Kumar regarding their presence when the appellant has entered into the room of Bibha Kumari but only on account of this minor contradiction, the entire evidence cannot be thrown out. There is consistent evidence that from the room of Bibha Kumari, sound of firing was heard vis- à-vis the door was closed from inside and it was opened only after arrival of the police and in that room the appellant was present with fire arm. On these points, the witnesses are consistent. Minor contradictions in the evidences of the witnesses cannot create doubt regarding presence of the appellant in the room of Bibha Kumari where her dead body was found lying in pool of blood and appellant was present there with fire arm. 28. Argument has been advanced on behalf of the appellant that before recording fardbeyan of the informant, sanha was also lodged and non-production of Sanha has created doubt in the prosecution version. 19 29. Non-production of Sanha can create doubt in the prosecution version if the circumstances exist which can create some doubt regarding some facts which are not sufficient in itself to prove the charges. Some witnesses have stated that the police was telephonically informed and thereafter it came but the Investigating Officer has stated that after hearing some information, he came after Sanha entry. This itself is not a ground to disbelieve the prosecution version regarding presence of the appellant in the room of the deceased at the time of occurrence. Some may come earlier, some may come later and they may have their own perception about the time and manner about their arrival but this cannot create a hole in the prosecution. 30. Argument has also been advanced on behalf of the appellant with regard to the post mortem report. The doctor has found digested food. According to prosecution case, after taking meal, the deceased Bibha Kumari went to sleep and death was about 1.30 A.M. in the night. This submission has no leg to 20 stand because the deceased had gone to her own room after taking dinner and it was not such a long gap which could not create doubt that taking dinner was not much prior to the occurrence. 31. Presence of the appellant inside the room of deceased Bibha Kumari is corroborated by the witnesses who have been examined on behalf of the prosecution. The door of the deceased was opened only after arrival of the police who found the deceased Bibha Kumari in pool of blood and appellant was found there with fire arm. One fired cartridge was also there. The material exhibits have proved the seizure of fire arms and cartridges from the appellant. Seizure list bears the signature of the appellant which has amply proved that seizure of arm was in his presence. The defence that the appellant had no motive at all to kill the deceased is of no help to create any doubt regarding veracity of the prosecution case which has remained consistent that on the date and time of occurrence appellant Manoj Kumar has killed Bibha Kumari by use of fire 21 arm. 32. Learned Additional Public Prosecutor appearing for the State assisted by learned counsel appearing for the informant has argued that the judgment of conviction and sentence is perfectly correct and requires no interference by this Court. 33. Taking into consideration the entire evidences on record and in the facts and circumstances of the case, I am of the view that prosecution was able to prove the charges beyond the shadow of all reasonable doubts and as such, the judgment of conviction and sentence passed by the trial court requires no interference by this Court. It is accordingly upheld. 33. In the result, there is no merit in this appeal and the same is dismissed. D.K.Singh,J. ( Shyam Kishore Sharma, J. ) I agree. ( Dinesh Kumar Singh,J. ) Patna High Court,Patna The 5th March,2010 Tahir/(NAFR)