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2012 DIGILAW 1233 (PAT)

Sudisht Rai, S/o Rupann Rai v. State of Bihar

2012-09-04

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT (MIHIR KUMAR JHA) The sole appellant, having been convicted for offence under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life by the impugned judgment dated 24.8.1990 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No. 51 of 1989 has filed this appeal. 2. The prosecution case in short giving rise to the impugned judgment of conviction and sentence lies in a very narrow compass. The informant Megha Rai (P.W.5) in his Fardbeyan to the police recorded on 1.5.1985 at 10.15 A.M. had stated that in the early morning at 6.30 A.M. on 1.5.1985, there was an altercation with regard to plucking of mangos from the mango tree situated in the plot of his house. In this regard, he had given detailed narration of the incident taking place in the morning wherein the son of the appellant Ram Pravesh Rai was claiming to be plucking the mangos from the mango tree allegedly belonging to the prosecution party and it is said that when the mother of the informant had seen the son of the appellant plucking mangoes, she had forbidden him not to do so and had also warned the appellant and his wife as with regard to plucking of mango by the son of the appellant. The informant has stated that it was thereafter only that the wife of the appellant had started hurling abuse in the name of the mother of the informant and when the mother of the informant had made a protest as with regard to being abused in respect of her mangos being plucked by the son of the appellant, the appellant also is said to have joined his wife and started hurling abuse on the mother of the informant. It is said that when the appellant had intervened and had started hurling abuse, the brother of the informant Chandrika Rai (deceased) had arrived at the place and had forbidden the appellant not to abuse his mother and on this, firstly the wife of the appellant having brought a Lathi had given a blow on the brother of the informant Chandrika Rai and when his brother had caught hold of the Lathi, the appellant having brought a Bhala had given a blow in the chest of Chandrika Rai. 3. 3. It is said that the injury caused by Bhala by the appellant had made his brother Chandrika to run away by pressing his wound from his own hand whereafter he was made to lie on a mat in his house (Palani) and then arrangements were being made for his being taken to Sahebganj Hospital and he (Chandrika Rai) had succumbed to his injury within five to ten minutes of the assault. The informant in his Fardbeyan had named Ramadhar Rai (not examined), his own mother Sonafi Kuer (P.W.9), his Bhabhi Gyanti Devi (P.W.1), Gagan Deo Rai (P.W.7), Kishun Rai (P.W.11), Pasa Rai (PlW.2) and Wakil Rai (P.W.3) to be the persons who had seen the occurrence. The said Fardbeyan was also recorded in the presence of village Mukhia (P.W.4) and one Shambhu Singh (not examined) and had resulted into institution of Sahebganj P.S. Case No. 36 of 1985. 4. The police, having instituted the said case, had ultimately submitted a charge-sheet against the appellant and after the case was committed to the court of sessions, the present Sessions Trial No. 51 of 1989 was instituted and constructed wherein the sole appellant was convicted and sentenced in the manner indicated above leading to filing of this appeal. 5. In view of the fact that the learned counsel for the appellant who had filed this appeal had remained absent, this Court had requested Mr. Amish Kumar, an advocate of this Court, to appear as Amicus Curiae. 6. Mr. Amish Kumar, while assailing the impugned judgment, has submitted that the prosecution case would not inspire confidence, inasmuch as, the informant, who claimed to be an eye witness, had turned hostile and the two lady witnesses PW1 and PW9 who according to the informant had arrived at the place of occurrence only after the actual assault had taken place could not be relied as eye witnesses either with regard to the place or manner of occurrence. He has also criticized the evidence of other eyewitnesses who according to him had also arrived at the place of occurrence after the fatal blow was already given on the deceased. Apart from the criticism of the witnesses, Mr. He has also criticized the evidence of other eyewitnesses who according to him had also arrived at the place of occurrence after the fatal blow was already given on the deceased. Apart from the criticism of the witnesses, Mr. Kumar has also stated that when there was clinching evidence in the form of deposition of D.W.1, the Amin that the mango tree, in question, on account of which the entire occurrence is said to have taken place, had actually belonged to the appellant and his family members as such the prosecution case could not have got any support even on the point of genesis. 7. He has also submitted that even if the allegation of manner of assault against the appellant is accepted to be true, the absence of corresponding injury in the hands of the deceased on account of blow given by the wife of the appellant would further belie on the manner of occurrence. He has also tried to make out a case that as it was a free-fight on account of sudden provocation and without premeditation and the offence alleged against the appellant would not be one under Section 302 I.P.C. but only under Section 304 Part-2 I.P.C. In this regard he has also placed reliance on the judgment of the Apex Court in the case of Shivappa Buddappa Kolkar Alias Buddappagol Vs. State of Karnataka & Ors. reported in 2004(13) SCC 168 . 8. Per contra, Ms. Shashi Bala Verma, learned A.P.P. appearing on behalf of the State, has submitted that it is an open and shut case, inasmuch as, there are unimpeachable oral and documentary evidence including the evidence of P.W.1 (Bhabhi) and P.W.9 (Mother), the two most natural witnesses whose presence at the place of occurrence was there right from the genesis of the occurrence which had also remained unshaken in their cross-examination. She has also submitted that even if the informant had turned hostile, that would, by no stretch of imagination, would effect adversely affect the prosecution case. She has also submitted that even if the informant had turned hostile, that would, by no stretch of imagination, would effect adversely affect the prosecution case. She has also drawn attention towards the evidence of doctor (P.W.8) which in her opinion is quite specific as with regard to the injury on the vital part in the chest and near the heart caused by a sharp pointed weapon which is fully corroborated from occular evidence of Bhala being the weapon in the hand of the appellant which was also seized by the police soon after the occurrence. 9. She has also contended that if there was an altercation with regard to plucking of mango irrespective of the ownership of the mango tree belonging to the appellant or to the prosecution party, the same could not have led to inflicting of Bhala injuring by the appellant on the chest of the deceased when the deceased or the other members of the prosecution party had no weapon in their hand and since the deceased had died on account of Bhala injury on his chest, the conviction could be only under Section 302 I.P.C. and not under Section 304 part-II I.P.C. She has, therefore, submitted that the impugned judgment of conviction and sentence of the appellant would require no interference from this Court. 10. In order to appreciate the aforementioned submissions of both the parties, it would be necessary to first take into account the evidence on record. The prosecution, in order to prove its charge, had adduced altogether eleven witnesses. P.W.1, Gayanti Devi is the Bhabhi of the deceased. P.W. 2, Pasa Rai is an eye witness, P.W.3, Wakil Rai is also an eye witness, P.W.4, Ram Babu Rai the mukhiya of the village is an attesting witness to the fardbeyan as also witness to the Inquest Report. P.W.5, Megha Rai is the informant, P.W.6, Umakant Baitha is the Investigating Officer who had taken charge of the case on 13.07.1985 and had completed the remaining portion of the investigation from the stage where the first Investigating Officer P.W. 10, Chandrika Prasad Singh had left it. P.W.7 is Gagan Deo Rai, who was tendered by the prosecution. P.W. 8 is Dr. Manoranjan Kumar Srivastava who has conducted the post mortem on the person of the deceased. P.W.9, Sonafi Kuer is the mother of the deceased and is an eye witness to the occurrence. P.W.7 is Gagan Deo Rai, who was tendered by the prosecution. P.W. 8 is Dr. Manoranjan Kumar Srivastava who has conducted the post mortem on the person of the deceased. P.W.9, Sonafi Kuer is the mother of the deceased and is an eye witness to the occurrence. P.W. 10 (Chandrika Prasad Singh) is the first Investigating Officer and P.W. 11, is Kishun Rai who is a hearsay witness. The prosecution has also proven Exhibit-1 and Exhibit-1/1 bearing signatures of Ram Babu Rai on fardbeyan as well as on Inquest Report. Exhibit-2 is the fardbeyan, Exhibit-3 is the First Information Report, Exhibit-4 is the Inquest Report, Exhibit-5 is the Post Mortem Report, Exhibit-6 is the Search List, Exhibit-6/1 is the signature of Ram Babu Rai on the Search List and Exhibit-6/2 is the signature of Shambhu Singh on the Search List. 11. The defence, as noted above, has also led its evidence by examining Bhekha Rai, Amin as D.W.1 as also approved his report Exhibit-A, B & C. As a matter of fact, in view of the aforesaid defence of the appellant as also from the trend of the cross-examination, it appears that apart from the denial of the occurrence in the manner alleged, the appellant had also sought to make out a case of ownership of the mango tree and further exercise of right on private defence in the light of plucking of mango being an obstruction caused by the prosecution party itself. 12. As we have noted above, the informant P.W.5 has turned hostile by stating that there was a scuffle (marpit) between the appellant and the deceased and the death of the deceased Chandrika Rai took place in such a scuffle. Thus, on account of the informant turning to be hostile this court for the present will very cautiously examine. It is however well settled that evidence of as a hostile witness cannot be totally ignored and the same can be used for the limited purpose of corroboration of the other witnesses. In this background if the evidence of P.W.5 is taken into consideration it becomes clear that the police had arrived at the place of occurrence within three to four hours of the occurrence on a rumor regarding death of the deceased. In this background if the evidence of P.W.5 is taken into consideration it becomes clear that the police had arrived at the place of occurrence within three to four hours of the occurrence on a rumor regarding death of the deceased. As a matter of fact from the First Information Report, lodging whereof is not questioned by the defence at any point of time, it is also well established that in the earliest version given by the informant (P.W.5) to the police, he had named three things, namely, an altercation taking place on account of plucking of mango followed by an attack on the deceased Chandrika Rai in which Bhala injury was given by the appellant and the said occurrence was witnessed by a number of persons including his mother and his Bhabhi with others. The prosecution has infact cross examined the informant as with regard to his earliest version given in his F.I.R. and the same could not be dislodged by him inasmuch as he had stated that geus ,slk c;ku vo'; fy[kk;k Fkk ysfdu ,slh ?kVuk Lo;a ugha ns[kh FkhA 13. In this background if the evidence of Bhabhi (P.W.1) and the mother (P.W.9) is taken into account, the prosecution case can still survive even after informant turning hostile in course of trial inasmuch as P.W.5 ( Megha Rai), the informant has himself admitted as with regard to lodging of the FIR by him a fact which has also been supported by P.W. 4, Ram Babu Rai the mukhiya of the village as also P.W. 10( Chandrika Prasad Singh), the police officer who had recorded such fardbeyan of P.W. 5(Megha Rai). Thus even if this Court would accept the deposition of P.W. 5 in Court that he had not actually seen the assault part of occurrence, the presence of the two most natural witnesses namely, P.W.1, (Gyanti Devi), Bhabhi of the deceased and P.W.9, ( Sonafi Kuer), the mother of the deceased as witness to the occurrence cannot be ruled out specially when the entire occurrence is said to have begun with advent of the mother P.W. 9, who had initially made a protest and complained to the appellant and his wife as with regard to plucking of Mango by the son of the appellant and who thereafter had been abused and challenged both by the wife of the appellant and followed by the appellant. 14. 14. In this regard if the evidence of P.W.9, the mother, whose presence right from the genesis to the actual occurrence cannot be dislodged is taken into consideration, it becomes clear that she has stood firm with regard to the plucking of mangoes from the mango tree belonging to them as also the protest with regard to the same made by her to the appellant and his wife resulting into hurling of abuses and followed by assault by the appellant and his wife. In the cross-examination also she has remained unshaken and the only criticism made against her by the learned counsel for the appellant that whereas the story of the prosecution of plucking mango was against the son of the appellant, namely, Ram Pravesh Rai, but she in her cross-examination in paragraph no.4, has named three persons which in turn would weaken the genesis and the manner of occurrence, is also not acceptable to this Court for a simple reason that the three boys about whom she had explained were non-else but the family members of the appellant inasmuch as she had stated that one of the three was the nephew of the appellant and the other two were Ram Pravesh Rai and Ram Ishwar who were the sons of the appellant. Once, therefore, this witness in his examination-in-chief had categorically asserted about the manner of assault against the appellant of causing Bhala injury on the chest of her son (deceased) and she was not subjected to any sort of cross-examination on this point, the obvious and natural inference would be that the testimony of this witness remains un-rebutted and is well acceptable. 15. The second eyewitness, Bhabhi of the deceased, namely, Gyanti Devi (P.W.1) is equally creditworthy, inasmuch as, in her examination-in-chief, she has also clearly stated not only about the entire genesis of the dispute arising out of plucking of mango but also the initial occurrence starting from hurling of the abuses and ending with the crucial and vital blow given by the appellant by Bhala on the chest of the deceased. As with regard to her evidence, learned counsel for the appellant had tried to discredit her by referring to paragraph no.4 of her cross-examination, wherein, according to him, the arrival of the other witnesses, namely, Kisun Rai, Gagan Deo Rai and Pasa Rai i.e. P.Ws. As with regard to her evidence, learned counsel for the appellant had tried to discredit her by referring to paragraph no.4 of her cross-examination, wherein, according to him, the arrival of the other witnesses, namely, Kisun Rai, Gagan Deo Rai and Pasa Rai i.e. P.Ws. 11, 7 & 2 respectively are said to have arrived at the place of occurrence only after the assault had taken place. Inasmuch as the P.W.1 was not questioned as with regard to the presence of P.W.9 or her arrival at the place of occurrence after the occurrence, even if this Court, for the time being would accept the submission of Mr. Kumar that others had arrived after the assault had taken place, the presence of P.W.9 and P.W.1 at the time of occurrence, and their catagorical statement that the vital blow by Bhala was given by the appellant on the chest of the deceased, remains completely unshaken. 16. Whatever has been stated by P.W. 9 and P.W.1, the two family members of the deceased and therefore the most natural witness to the occurrence taking place in their house by the side of the Mango Tree stands also corroborated from the evidence of P.W. 2, Pasa Rai. P.W. 2 has stated that he had seen the son of the appellant plucking Mango from the Mango Tree of the informant while he was in his maize field. He has also stated about the presence of P.W.1, (Gyanti Devi) and P.W.9 (Sonafi Kuer) at the place of occurrence and had narrated the fact with regard to the son of the appellant running away with Mangoes as soon as he had seen emergence of P.W.1 (Gyanti Devi) and P.W.9 (Sonafi Kuer). He has also supported other part of the genesis of the occurrence beginning from verbal altercation between the appellant and the lady family members i.e. P.W.9 (Sonafi Kuer) also abused by the wife of the appellant. As with regard to the manner of occurrence he has stated in his examination-in-chief that the appellant had given Bhala blow on the left portion of the chest of the Chandrika Rai (deceased) as a result whereof he had fallen on the ground and had succumbed to his injuries within 10 minutes. As with regard to the manner of occurrence he has stated in his examination-in-chief that the appellant had given Bhala blow on the left portion of the chest of the Chandrika Rai (deceased) as a result whereof he had fallen on the ground and had succumbed to his injuries within 10 minutes. In his cross-examination he has been able to thwart the suggestion of being a family member and has clearly stated that he was treating the deceased as a brother only on account of his being the villager. Though he has been sought to be questioned as with regard to his presence near the place of occurrence but he has stood firm by stating that he had a field adjacent to the Mango tree of the informant and he had seen the occurrence from a close distance. P.W. 2 ( Pasa Rai), therefore, also supports the prosecution case as an independent witness. 17. That apart, the evidence of P.W.3 Wakil Rai has been quite consistent either on the point of genesis or on the point of occurrence and nothing has been taken away from him in his cross-examination, inasmuch as, in paragraph no.5, he has not only stated that the mango tree, in question, belonged to the prosecution party but he had also specifically asserted that the assault by Bhala on the person of the deceased was given near the mango tree in his presence and after his arrival at the place of occurrence. The independent corroboration from P.W.3, who is also not a family member of the informant, to the genesis and manner of occurrence, therefore, would satisfactorily complete the prosecution case as with regard to either the place of occurrence or the manner of occurrence, which has also been fully substantiated and corroborated in the evidence of Investigating Officer (P.W.10), 18. The independent corroboration from P.W.3, who is also not a family member of the informant, to the genesis and manner of occurrence, therefore, would satisfactorily complete the prosecution case as with regard to either the place of occurrence or the manner of occurrence, which has also been fully substantiated and corroborated in the evidence of Investigating Officer (P.W.10), 18. It is however true that P.W.11 cannot be treated to be an eyewitness in view of the admission in paragraph no.10 of his cross-examination that he had reached near the deceased only when he was in injured condition and since there was only one injury on the person of the deceased, this Court would presume that P.W.11 had actually arrived at the place of occurrence after the assault had taken place but then as the P.W.11 along with P.W.2 had also stated with regard to the immediate version of the assault as disclosed to them by the two family members P.W.9 and P.W.1 this much becomes clear that they fulfil the requirement and criteria of being a truthful hearsay witness. 19. P.W.10, Investigating Officer on his part, has given a vivid description of the place of occurrence wherein he had arrived within four hours of the actual occurrence. P.W.10 in his evidence had stated that when he had inspected the place of occurrence, he had found that there were foot marks of a number of persons near the mango tree which will be coinciding with the prosecution case of there being a scuffle between the prosecution party where the mother (P.W.9), the deceased as also the appellant and his wife are said to be present. The Investigating Officer has also found some blood near the mango tree and also over the mat on which the deceased was made to lie after sustaining the injury on his chest. The further evidence of the Investigating Officer is that in course of search, he had also recovered and seized the Bhala and a Lathi with some stains of blood from the house of the appellant and a seizure list was prepared which is marked as Exbt.-6. The further evidence of the Investigating Officer is that in course of search, he had also recovered and seized the Bhala and a Lathi with some stains of blood from the house of the appellant and a seizure list was prepared which is marked as Exbt.-6. Though the Investigating Officer, has been cross-examined by the defence, nothing has been taken away from him either with regard to the objective findings of the place of occurrence or with regard to the search and seizure of the house of the appellant leading to recovery of the Lathi and Bhala. 20. In that view of the matter, if the medical evidence is taken into account, the prosecution case gets support from the postmortem report (Exbt.-5) and the evidence of the doctor (P.W.8). The medical evidence thus is quite specific as with regard to there being only one injury on the person of the deceased inasmuch P.W.8 in his postmortem report had recorded as follows:- “The following antemortem injuries found to the dead body externally and internally. No. 1. Incised and punctured wound 1" X 1/4" X heart deep on the left side of the chest in the fifth intecostal space on middle clavicular line. Opinion of sub assistant surgeon as to cause of death. Clavialar lone. On dissection the heart lung was found punctured and collapsed. The heart also was found punctured. Two part of blood were found in the thoracic cavity. Remarks by civil surgeon. 1.Cause of death is haemorrhage and shock due to above mentioned injuries. 2.Injury had been caused by sharp pointed weapon 3.Time since death is within 24 hours." There is also specific opinion of the doctor P.W.8 that the death was caused on account of hemorrhage on account of aforesaid ante-mortem injury caused by sharp cutting weapon which was found sufficient to cause death in ordinary course. Thus it can be safely held that the ocular evidence is totally in conformity and the line of the objective findings in the medical evidence. 21. Thus it can be safely held that the ocular evidence is totally in conformity and the line of the objective findings in the medical evidence. 21. The submission of the learned counsel for the appellant of there being no corresponding injury on the postmortem report in the hands of the deceased on account of the alleged Lathi blow given by the wife of the appellant in fact has already been explained in the evidence of P.W.1 itself where it was stated that when the blow of Lathi was given by a lady, the wife of the appellant, the deceased had caught hold of the Lathi. Thus when there is nothing on record to show that such Lathi blow had caused a bleeding injury or any injury in the hands of the deceased, the absence of such injury would in no way contradict the evidence on the point of assault. 22. Learned counsel for the appellant in fact had also concentrated on the evidence of D.W.1 to show that the mango tree in question, which was the genesis of the occurrence, had actually belonged to the appellant himself. The reliance placed by him on the evidence of D.W.1 or the three exhibits proven by the defence however, seems to be wholly misplaced. First of all, any report of an Amin or a Pleader Commissioner can be treated to be authentic only if he has taken a fixed point. The D.W.1 in his deposition however has admitted that he had not demarcated any fixed point before taking the measurement. Secondly and more importantly such an act of measurement or preparing the report by D.W.1 was subsequent to the occurrence, inasmuch as, such report was prepared sometime in the year 1990 much after the prosecution had already completed its evidence in this case. In that view of the matter, neither the reports exhibited by D.W.1 nor his own deposition would inspire confidence and as such, the defence case of the land or the mango tree belonging to the appellant must fail. 23. This Court is also not in a position to accept the submission of learned counsel for the appellant that the occurrence had taken place on a sudden provocation and there was no predetermined mind on the part of the appellant to kill Chandrika Rai (deceased). 23. This Court is also not in a position to accept the submission of learned counsel for the appellant that the occurrence had taken place on a sudden provocation and there was no predetermined mind on the part of the appellant to kill Chandrika Rai (deceased). The submission that there was only single blow of Bhala given and no repetition by the appellant on the person of the deceased would make out a case under Section-304 Part-II of the Indian Penal Code is also not acceptable in view of the evidence on record. As has been noted above, it is the consistent case of the prosecution that initially the mother of the deceased i.e. P.W. 9(Sonafi Kuer) had forbidden the son of the appellant not to pluck Mango from the tree. The son of the appellant thereafter had run away with Mangoes to his house and when P.W. 9, the mother of the deceased had gone only to complain about the activity of the son of the appellant, the wife of the appellant had come out and had started quarrelling with P.W.9, which was followed by her abusing P.W.9. P.W. 9, when she had made a protest as with regard to her Mangoes also being plucked by the son of the appellant, the appellant instead of pacifying the matter had joined his wife in abusing the old lady, the mother of the deceased. At this stage when the deceased had emerged and had asked the appellant and his wife not to abuse his mother, the assault had been started both by the wife of the appellant with a Lathi followed by the appellant with a Bhala and in fact when such the blow by Lathi given by the wife of the appellant did not make the deceased budge who had successfully caught hold of the Lathi brandished by the wife of appellant, the appellant having brought a Bhala had inflicted injury on the left portion of the chest, vital portion of the body. Thus, such injury caused by the appellant cannot be said to be on the spur of the moment or without premediation or having lack of his knowledge that Bhala injury caused by him could not have caused death of the appellant. 24. Thus, such injury caused by the appellant cannot be said to be on the spur of the moment or without premediation or having lack of his knowledge that Bhala injury caused by him could not have caused death of the appellant. 24. A question, infact would be that if the appellant had found that his wife had already intervened in a scuffle between his children and the mother of the deceased, was it necessary for him to arrive at the place of occurrence and assault the deceased with Bhala? It is also not in doubt that none of the members of the prosecution had any arm in their hand and all that they were asking was that the mango should not have been plucked by the son of the appellant. Thus there was no question of sudden provocation as has been argued by the learned counsel for the appellant, inasmuch as, the story of plucking of the mango had already ended by the protest made by the P.W.9, who had complained about the plucking of mango by the son of the appellant. It had been however followed by another round of hot exchange of words between the wife of the appellant and the mother of the deceased P.W.9 and if thereafter either the appellant or his wife had come armed with Bhala and Lathi respectively and had made an attempt to give injury on the deceased as a result whereof the first blow of Lathi was caught hold by the deceased, it does not lie in the mouth of the appellant to contend that his Bhala blow was without any premeditation or was on account of sudden fight. The blow of Bhala in these circumstances by the appellant on a vital portion of the body of the appellant was well premeditated by him who was aware that such injury on the chest could cause instant death of a person. In fact, that had happened as the deceased died within a few minutes of sustaining such Bhala injury on his chest. In that view of the matter, we are not in a position to accept the submissions of the learned counsel for the appellant that the case in hand would fall within the exception given under Section 300 I.P.C. and hence punishable under only Section 304 IPC. 25. In that view of the matter, we are not in a position to accept the submissions of the learned counsel for the appellant that the case in hand would fall within the exception given under Section 300 I.P.C. and hence punishable under only Section 304 IPC. 25. The reliance placed on the judgment of the Apex Court in the case of Shivappa Buddappa Kolkar (supra) also seems to be wholly misplaced, inasmuch as, from the facts collected in paragraph no.11 and 12, it would be more than clear that death in that case had been caused on account of injury both in the lungs and the right-side occipital region (head). The injury which was given by the appellant Shivappa Buddappa Kolkar was on the right-side occipital region but there was another injury in the lungs for which none was held responsible and as such, in the facts of that case, it was held that in view of the nature of injury and weapon used and the circumstances in which the injury came to be inflicted, he could not be held to be guilty under Section 302 I.P.C. Here the facts are otherwise. The only injury caused on the person of the deceased is by Bhala by the appellant on chest which is a vital portion of body. Moreover there is nothing on the record to show that such bhala injury was not on account of premeditation of the appellant. Infact once the story of mango tree belonging to the appellant had failed, his attacking the prosecution party and killing the deceased by use of weapon Bhala on the vital portion of his person (chest near the heart), would not leave anything but to hold that he was rightly convicted under Section 302 I.P.C. 26. In that view of the matter, we find no flaw in the impugned judgment and, accordingly, affirm it. Consequently this appeal fails and is dismissed. The bail bond of the appellant is also hereby cancelled and he is directed to surrender immediately for serving out the rest of his sentence.