Judgment Anwar Ahmad, J. 1. The sole appellant, Nikhil Kumar Singh, being aggrieved by and dissatisfied with the judgment of conviction dated 13.3.2002 and order of sentence dated 16.3.2002 passed by the Additional Sessions Judge, Fast Track Court-I, Gopalganj, in Sessions Trial No. 15 of 1989/105 of 2001 convicting him for the offence under sec. 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life, has filed the present appeal. 2. Yogesh Chandra Mishra, Sub. Inspector of Police, Gopalganj, P.W.10, was deputed on 19.10.1988 at Treasury Chowk, Gopalganj town for maintenance of law and order on the eve of Dushhra festival along with force consisting of Home Guard Jawans, namely Sri Anil Kumar Pandey, Sri Gandhi Ram, Sri Achhelal Yadav, Sri Mahesh Mall and Sri Chandra Shekhar Prasad Kushwaha besides a Junior Engineer of Public Works Department as a Magistrate. A statue of Durga Devi was installed at the Treasury Chowk and on 19.10.1988, the Naumi-day, there was huge rush of people. It is alleged that at about 9 P.M. the informant, Yogesh Chandra Mishra, saw a man stabbing another man with a big knife on his back. The man, who was stabbed received injury and fell down. The assailant started running away but the informant with the help of force caught hold of him and also recovered the blood stained big knife. The man arrested disclosed his name as Nikhil Kumar Singh son of Bachcha Singh of village Chhawahi Khas Police Station Manjhagar district Gopalganj and a love letter was also recovered from his possession addressed to a girl, Reshmi Kumari. The appellant, Nikhil Kumar Singh also disclosed the name of his associates as Sanjay Singh, Babloo Singh, Ajay Singh, Munna Singh and Laddu @ Intejar, who run away from there. The injured who was, later on, named Anil Kumar Gupta was immediately taken to Sadar Hospital, Gopalganj for his treatment but he died there. The informant, Yogesh Chandra Mishra along with the appellant, Nikhil Kumar Singh and blood stained knife came to the police station, Gopalganj and lodged an F.I.R. (Ext.1). A case under sections 147, 148, 149 and 302 of the Indian Penal Code was registered. Gaya Tiwari, Officer incharge of Gopalganj police station took up the investigation of the case and prepared production list of dagger and the letter (Ext.3) recovered from the possession of the appellant. A case under sections 147, 148, 149 and 302 of the Indian Penal Code was registered. Gaya Tiwari, Officer incharge of Gopalganj police station took up the investigation of the case and prepared production list of dagger and the letter (Ext.3) recovered from the possession of the appellant. He inspected the place of occurrence and picked up blood on a cotton and prepared a seizure list of the same (Ext. 3/1). He recorded the evidence of the witnesses and obtained Postmortem report. After completing the investigation, he submitted chargesheet against three accused persons, namely, Nikhil Kumar Singh (appellant herein), Roop Kishore Singh and Upendra Singh (both acquitted) showing other accused as not sent up. The above three accused persons against whom chargesheet was submitted were put on trial. 3. The defence case is of denial simplicitor. No evidence has been adduced on behalf of the defence but the certificate of Bihar School Examination Board (Ext.A) has been filed to show that he was juvenile at the time of occurrence as his date of birth stands recorded as 5.3.1974. 4. In order to substantiate the charge, twelve witnesses have been examined on behalf of the prosecution. On the petition of the prosecution under sec. 311 Cr.P.C. eight witnesses have been examined as court witness. P.W.1 is Mazharul Haque, a formal witness. He has proved the F.I.R. (Ext.1) and the signature of the informant, Yogesh Chandra Mishra (Ext.2) thereon. P.W.2 is Ramesh Prasad, a formal witness. He has proved production list of a dagger and a letter (Ext.3) recovered from the possession of the appellant. He has also proved signature of the witnesses thereon. He has further proved the seizure list of the blood stained cotton (Ext.3/1). He has also proved the dagger (material Ext.1) and blood stained cotton (material Ext.2). P.W.3 is Dinanath Prasad. He has been tendered for cross-examination. P.W.4 is Dr. Baijnath Prasad Singh who held postmortem examination on the dead body of Anil Kumar Singh. He stated that he found one stabbed injury on the back medial to the upper party of right shoulder blade "against spinus process measuring 1-1/2" x 3/4" thoracic cavity. The direction of the wound was from upward, lateral, posterior to downward inward and anteriorly." He stated that on dissection he found thorasic cavity full of blood, right lung punctured through and through having one point of entry and one of exit. The direction of the wound was from upward, lateral, posterior to downward inward and anteriorly." He stated that on dissection he found thorasic cavity full of blood, right lung punctured through and through having one point of entry and one of exit. Right autrium of the heart was punctured. In his opinion the death was caused as a result of shock and haemorrhage due to the above injury inflicted by a sharp and pointed weapon such as knife. He has proved the postmortem report, Ext. 4. P.W.5 is Naresh Prasad. He stated that he had been there to see Durgajee and saw a man stabbing Anil Kumar Singh on his back and the assailant was caught hold of by the police. He further stated that ne could not identify the assailant and hence he was declared hostile. P.W.6 is Jairam, a Hawaldar, P.W.7 is Ramnaresh Singh, Constable. They stated that on the basis of command memo issued by the officer incharge, they took the dead body to Sadar Hospital, Gopalganj. P.W.8 is Gandhi Ram, a Home Guard. He is a hostile witness. P.W.9 is Birendra Singh. He is also a Home Guard. He stated that he along with the informant, Yogesh Chandra Mishra, was on duty on the eve of Dushehra Mela at Treasury Chowk, Gopalganj where at 9 P.M. He heard hulla that a dagger blow was given. He stated that he went there and found that the informant had caught hold of a person. He did not support the other part of the occurrence and hence he was declared hostile. P.W.10 is Yogesh Chandra Mishra, S.I. of Police of Town Police Station, Gopalganj and informant of the case. He stated that on 19.10.1988 he was posted as S.I. of Police of Gopalganj Police Station and on that date he along with the police force was deputed at Treasury Chowk, Gopalganj on the eve of Dushehra festival. A statue of Devi Durga was installed towards the north of Treasury Chowk and on 9th day of Dushehra, there was large crowd. He further stated that at 9. P.M. he saw that a person stabbed another person on the back from behind. The injured person fell down and assailant with the blood stained dagger started fleeing away. He along with force chased him and arrested with blood stained dagger. He further stated that at 9. P.M. he saw that a person stabbed another person on the back from behind. The injured person fell down and assailant with the blood stained dagger started fleeing away. He along with force chased him and arrested with blood stained dagger. The arrested man disclosed his name as Nikhil Kumar Singh alias Babloo Singh, son of Baccha Singh of village Chhabhi, P.S. Majhagarh, Dist. Gopalganj. His 5-6 associates succeeded in fleeing away and their names ware, Sanjay Singh, Babloo Singh, Ajay Singh, Munna Singh and Laddu alias Intejar. On search, a iove letter written by Nikhil Kumar Gupta to one Reshmi Kumari was recovered. He stated that the person present took the injured Anil Kumar Gupta to Sadar Hospital. He further stated that he lodged the F.I.R. at the police station and production-cum-seizure list of the recoverd blood stained dagger and love letter was prepared. He further stated that the case was investigated by the Officer-in-charge, Gaya Tiwary and he has proved paragraph 1 to 143 of the case diary (Ext. 3) Command-memo was issued to take the dead body to Sadar Hospital. P.W.11 is Anil Kumar Pandey, a Home Guard. He is a hostile witness. P.W.12 is Shankar Prasad. He is also a hostile witness. 5. Apart from 12 witnesses examined by the prosecution, 8 witnesses have been examined as court witnesses. C.W.1 is Hari Nandan Prasad. C.W.2 is Sita Ram Prasad. C.W-.3 is Azad Prasad Gupta. All these three witnesses are hostile witnesses and they did not support the prosecution case. C.W.4 is Jagannath Prasad Gupta, father of deceased Anil Kumar Gupta. C.W.5 is Usha Devi, sister of the deceased. C.W.6 is Bimla Devi, mother of the deceased. They stated that one and half months ago, assault took place between the deceased Anil Kumar Gupta and Nikhil Kumar Singh in the premises of Gopalganj College in which the deceased had assaulted the appellant with knife for which the appellant lodged a case. They stated that for that reason, threatening was given to Anil Kumar Gupta and was done to death. C.W.7 is Achhay Lai Yadav, a Home Guard, he stated that he was on duty at the Treasury Chowk. He further stated that a man gave a knife blow to another man and the assailant was apprehended and the injured died. They stated that for that reason, threatening was given to Anil Kumar Gupta and was done to death. C.W.7 is Achhay Lai Yadav, a Home Guard, he stated that he was on duty at the Treasury Chowk. He further stated that a man gave a knife blow to another man and the assailant was apprehended and the injured died. He further stated that he did not identify the assailant in the dock. C.W.8 is Raghubansh Singh. He is a witness of inquest and has also proved station diary entry. 6. After appraisal of the evidence adduced during the course of trial, the Additional Sessions Judge held the appellant Nikhil Kumar Singh guilty for murder ana sentenced him to life but he did not find the other accused Upendra Singh and Roop Kishore Singh guilty and hence he acquitted them. 7. Learned senior counsel Kanhaiya Prasad Singh submitted that the appellant took the plea of juvenility in the initial stage. He submitted that the learned Additional Sessions Judge did not hold him juvenile and proceeded with the trial. During the trial, the appellant filed a revision against the order of the Additional Sessions Judge holding him not juvenile. He submitted that the Hon ble Court directed the Additional Sessions Judge to get the appellant examined by the Medical Board for the purpose and accordingly, on the order of the learned Additional Sessions Judge, a Medical Board was constituted. Learned Additional Sessions Judge directed the appellant to appear before the Board along with his lawyer and accordingly the appellant appeared before the Board but his lawyer did not appear and hence Medical Board could not examine him. Therafter, learned Additional Session Judge held the appellant not juvenile and proceeded in trial. He therefore submits that the order of the Hon ble Court was not complied with and the trial which proceeded without the report of the Medical Board was not in accordance with law and hence the entire trial stands vitiated. So he submits that the appellant deserves acquittal on this score alone. 8. Learned Additional Public Prosecutor Mr. Lala Kailash Bihari Prasad submitted that the Medical examination of the appellant could not be done by the Medical Board on account of non-compliance of the order of the Additional Sessions Judge. So he submits that the appellant deserves acquittal on this score alone. 8. Learned Additional Public Prosecutor Mr. Lala Kailash Bihari Prasad submitted that the Medical examination of the appellant could not be done by the Medical Board on account of non-compliance of the order of the Additional Sessions Judge. He submitted that the Additional Sessions Judge gave ample opportunity and time for examination of the appellant by the Medical Board but the appellant could not avail of the opportunity and hence the Additional Sessions Judge had got no alternative but to proceed with the trial. He submitted that in the facts and circumstances of the case, the Additional Sessions Judge rightly proceeded with the trial. He, therefore, submits that the submission of the learned counsel for the appellant is fit to be rejected. 9. Learned Additional Sessions Judge waited for long time for the report of the Medical Board and on account of non-receipt of the report as a result of default on the part of the appellant he proceeded with the trial. When he proceeded with the trial, no objection, it appears, was made on behalf of the appellant and he faced trial without any complaint and grievance. Further, the appellant did not move the superior court for the act of the Sessions Judge proceeding with the trial without getting the medical report of the Medical Board in respect of the juvenility of the appellant. In the circumstances, I am of the opinion that the appellant has lost his case of juvenility and hence submission of the learned counsel on this point is not sustainable. 10. Learned counsel for the appellant submits that Yogesh Chandra Mishra, S.I. of Police, Gopalganj and informant of this case was examined in chief and after formal cross-examination of two lines, his cross-examination was adjourned and thereafter he was not cross-examined as he met with an accident and died. He submits that the learned Additional Sessions Judge held that the evidence of the informant was admissible in law in accordance with the provision of Sec. 33 of the Evidence Act and after considering the evidence of the informant held the appellant guilty. He submits that in the facts and circumstances of the case, the provisions of Section 33 of the Evidence Act are not applicable in the case and hence the evidence of the informant cannot be taken into consideration. He submits that in the facts and circumstances of the case, the provisions of Section 33 of the Evidence Act are not applicable in the case and hence the evidence of the informant cannot be taken into consideration. In support of his contention, he placed reliance on a full Bench decision in the case of State vs. Baldev Kishan reported in 1953 Cri. L.J. 51 (Pepsu). He therefore submits that the evidence of the informant without cross-examination cannot be taken into consideration. He further submits that after excluding the evidence of informant P.W. 10 there is no evidence of any witness that the appellant was the assailant who stabbed the deceased with a dagger resulting in death. He therefore submits that the appellant deserves acquittal and hence the judgment of conviction and order of sentence be side aside. 11. Mr. Lala Kailash Bihari Prasad, on the other hand, submits that when the informant is cross-examined, wheter it is formal or in part, the evidence of the informant becomes admissible in law. He admits the submissions made by learned counsel for the appellant that the provision of Sec. 33 of the Evidence Act is not applicable in the case and the decision referred by him as above supports his submission. He submits that in the present case the informant was examined in chief and after some cross-examination, the case was adjourned for further cross-examination. He submitted that the informant appeared on a date for his further cross-examination but the defence did not cross-examine him and took time on the plea that a revision has been filed in the Hon ble court against the order of the Additional Sessions Judge for not holding the appellant a juvenile. He submits that had the defence cross-examined him, his revision would not have been defeated and he would not have been prejudiced. He submits that several yeras passed and thereafter the informant met with an accident and died. He, therefore, submits that in the facts and circumstances of the case, the appellant had got ample opportunity and time to cross-examine the informant but he did not cross-examine him. In the circumstances, the evidence of the informant without further cross-examination is admissible in law. He, therefore, submits that in the facts and circumstances of the case, the appellant had got ample opportunity and time to cross-examine the informant but he did not cross-examine him. In the circumstances, the evidence of the informant without further cross-examination is admissible in law. In support of his contention, he relied on the same decision of the Full Bench in the State vs. Baldev Kishan (supra) in which the question referred, "is the evidence of a witness who before the framing of the charge is examined, cross-examined and reexamined in a warrant case, but for the exercise of right to further cross-examine under Sec. 256 Cr.P.C. the accused had no opportunity, is admissible in evidence if the witness subsequently dies or cannot be found or becomes incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable." Learned A.P.P. therefore submits that the submission of the learned counsel for the appellant is not sustainable in law. 12. From perusal of the decision in the State vs. Baldev Kishan (supra) it appears that the various decisions have been considered that dealt with and lastly at paragraph 46 of the decision it has been held as follows:- "I still maintain that such a deposition is legal evidence in the case. The question of weight to be attached to such evidence is, however, different matter altogether. The balance of authority is in favour of the view that such statement should be treated as evidence in the case. The probative value of such evidence depends on the circumstances of each case. I am in full agreement with this view." 13. I respectfully concur with the view aforesaid and in the light thereof I proceed to consider the evidence of the informant P.W.10 along with the other evidence on the record. The evidence of informant, P.W.10, stands supported by the medical evidence, P.W.4, Dr. Baidnath Pd. Singh, and the oral evidence of P.W.5, Narad Prasad, P.W.9 Birendra Singh and C.W.7 Achhay Lal Yadav supporting the occurrence and arrest of the assailant though not naming the appellant. The evidence of informant, P.W.10, stands supported by the medical evidence, P.W.4, Dr. Baidnath Pd. Singh, and the oral evidence of P.W.5, Narad Prasad, P.W.9 Birendra Singh and C.W.7 Achhay Lal Yadav supporting the occurrence and arrest of the assailant though not naming the appellant. Considering their evidence I find and hold that it stands proved beyond all reasonable doubt that the appellant stabbed the deceased on back with a dagger or a big knife causing severe injury resulting in death. 14. As discussed above, I find and hold that there is no merit in appeal and the appeal is fit to be dismissed. 15. In the result, the appeal is dismissed. Chandramauli Kr.Prasad, J. 16 I agree.