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2014 DIGILAW 867 (PAT)

Kishori Bhandari v. State of Bihar

2014-08-11

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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ORAL JUDGMENT Per: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH, J. The sole appellant has filed this appeal being aggrieved by the order of conviction and sentence passed by the Additional Sessions Judge III, Madhubani in Sessions Trial No 28 of 1989 being judgment and order dated 31.03.1992 by which appellant, having been found guilty for an offence punishable under Section 302 of Indian Penal Code (IPC), has been sentenced to undergo rigorous imprisonment for life. 2. The prosecution case is based upon the Fardbayan of Basudeo Sahani (PW 4), the father of the deceased Chandeshwar Sahani. It is alleged that about 6 am, on 17.11.1988, the deceased had gone to answer nature of call and, thereafter, after washing his mouth and face in the field, he was returning to the house when the appellant Kishori Bhandari and three others, named in the Fardbayan, caught hold of the deceased and Kishori Bnandari, the appellant brutally and fatally stabbed him. The informant, the father and other family members saw the entire occurrence from their house which was in close vicinity across the road. They all rushed to the spot. By then, the accused escaped. This Fardbayan was recorded by one Nisar Ahmad (PW 6), Assistant Sub Inspector of Police (ASI) of Basopatti Police Station (PS) of District – Madhubani who had gone there having heard rumours about the dead body of Chandeshwar Sahani having been thrown on the roadside. After recording the Fardbayan, inquest was prepared and the Fardbayan was sent to the PS for registering the formal first information report (FIR). Allegedly, the appellant, thereafter, surrendered before Kaluahi Police Outpost and was taken into custody and later remanded. After investigation, police submitted charge-sheet only against the appellant and did not find the allegations, so far as the other persons are concerned, to be correct. On basis of the aforesaid, the learned Chief Judicial Magistrate, Madhubani took cognizance of offence punishable under Section 302 of IPC and committed the case to the Court of Session where, after hearing the parties, charge under Section 302 of IPC was framed against the appellant who pleaded not guilty and desired to be tried. 3. In order to prove its case, prosecution has examined, in all, nine witnesses. PW 1 is Dr Munindra Bhatta who has conducted the post mortem examination and submitted the post mortem report. 3. In order to prove its case, prosecution has examined, in all, nine witnesses. PW 1 is Dr Munindra Bhatta who has conducted the post mortem examination and submitted the post mortem report. He has duly proved the post mortem report and the injuries found on the deceased Chandeshwar Sahani. There were seven injuries and he has duly clarified in the cross-examination that they were all caused by sharp penetrating weapon (chura). PW 2 is Rajbanshi Sahani, the brother of the deceased. He is an eye witness who had seen the occurrence from his house and supports the allegations. He states that before others could reach the place of occurrence, his father had reached. Others came later after the accused had escaped. He denies the suggestion that in fact the deceased had been killed elsewhere and his body was dumped at the roadside. PW 3 is Baua Lal Sahani who is the uncle of the deceased. He claims to be an eye witness and states that upon hearing shouts, he came out of the house and saw that the appellant stabbed his nephew. The witnesses and his other nephew rushed to the place of occurrence. In his cross-examination, he points out that the informant (PW 4) has reached the place of occurrence before him and others, including him, had immediately followed. He admits that inspite of seeing the appellant stabbing the deceased, no one made an attempt to arrest and detain the appellant. He denies the suggestion that merely because he is uncle of the deceased, he is giving false evidence. He denies the suggestion that deceased was of lose character and was killed by someone else and his body was dumped on the roadside. PW 4 is the informant Basudeo Sahani, the father of the deceased Chandeshwar Sahani. He has stated that the appellant had earlier also threatened to kill the deceased and other family members for which informatory petition had been given by him before the Subdivisional Officer. In the cross-examination, he admits that the incident had occurred in front of a tea shop of Pitambar Bhandari. He remains unshaken in the cross-examination. PW 5 is Kaushal Kishore Singh who is named in the Fardbayan as being one of the persons who had seen the occurrence. In the cross-examination, he admits that the incident had occurred in front of a tea shop of Pitambar Bhandari. He remains unshaken in the cross-examination. PW 5 is Kaushal Kishore Singh who is named in the Fardbayan as being one of the persons who had seen the occurrence. Let it be noted that PW 5 is also a witness who has signed the FIR, signed the inquest report and signed the seizure list. He does not claim to be an eye witness. PW 6 is Nisar Ahmad, the IO. He states that he was, at the material time, ASI posted at Basopatti PS, District – Madhubani. At about 8.30 am, he had heard rumours about body of Chandeshwar Sahani being there on the roadside having been murdered. Upon this, he went to the place of occurrence which is situated at Village – Chachraha which is about 14 kilometers away. He proves the Fardbayan as recorded by him and the formal FIR. In his examination-in-chief, he states that after recording the Fardbayan, preparing the inquest report and the seizure list, inspecting the place of occurrence, he came to Kaluahi Police Outpost where he found the appellant having surrendered. He was taken to Basopatti PS for being produced for remand. He admits having seized blood-stained mud from the place of occurrence as per seizure list but admits that he had not sent it for forensic examination. He had taken statement of informant and other witnesses who had all supported the prosecution story of the appellant having brutally assaulted and killed the deceased. He did not remember whether at the time when he went, the tea shop was opened or not. We then have PW 7 Sunil Kumar Singh who is a formal witness. We then have Satya Narayan Singh who is a Clerk in the office of the Public Prosecutor and proves a Sanha which was lodged at the Kalvahi Police Outpost. PW 9 is Jagdish Prasad again who is a formal witness who has proved the informatory petition allegedly filed by the informant. 4. The defence examined three witnesses. They have deposed that they had learnt that the deceased had been killed elsewhere and his body was dumped on the roadside in the night. They are not witnesses either to the killing of the deceased or the body being dumped. 5. 4. The defence examined three witnesses. They have deposed that they had learnt that the deceased had been killed elsewhere and his body was dumped on the roadside in the night. They are not witnesses either to the killing of the deceased or the body being dumped. 5. Upon these evidences, learned counsel for the appellant submits that the prosecution story cannot be believed for in the FIR, it is stated that three boys were holding the deceased while the appellant stabbed. This story has been totally given a goby. 6. We have examined the evidence on record. True it is that the Fardbayan mentions that they were three persons who were holding Chandeshwar Sahani on the ground while the appellant stabbed him. It is true that police, upon investigation, found no material against any other person other than the appellant and, as such, it was the appellant alone who was charge-sheeted. When we come to the trial, the prosecution has stuck to the same story that is only the appellant attacking fatally the deceased. There is no mention of any other person. Obviously, the inclusion of two other names in the FIR was an exaggeration, as found by the police. The prosecution, thereafter, did not rely on that exaggerated version. But the common denominator is that it was the appellant who brutally and fatally stabbed the deceased. That part is consistent with the evidence. Thus, this deviation and/or exaggeration is not fatal to the prosecution case. 7. Next, it is submitted that there are no independent witnesses to the occurrence. Learned APP Shri Ajay Mishra rightly submitted that the incident is of about 6-6.30 am on 17.11.1988. That is a cold winter morning. The informant agrees that having heard the shouts, they all came out to see what had happened and after the appellant had stabbed Chandeshwar Sahani and left, several other villagers also came. The incident lasted for a short time. In such circumstances, there would be independent witness and that too at such early hour in winter is not natural. Therefore, having heard the shouts, the informant and his family members came, it cannot be said to be unnatural in any manner. 8. Next, it is submitted by the appellant that the IO did not find any blood at the place of occurrence. Therefore, having heard the shouts, the informant and his family members came, it cannot be said to be unnatural in any manner. 8. Next, it is submitted by the appellant that the IO did not find any blood at the place of occurrence. We are referring the submission as misconceived inasmuch as PW 6 Nisar Ahmad states that at the place where body was found, there was blood on the mud and he had seized the said mud though he did not send it for forensic examination. The seizure list is duly corroborated by PW 5 Kaushal Kishore Singh who is also a witness in the FIR and the inquest report. On the other hand, Shri Mishra, learned APP states that the prosecution evidence led in the Court is consistent. There is no suggestion given to any body about any contrary happening except that the deceased did not have good character and was probably killed elsewhere and his body was dumped on the roadside in the night. There is nothing on record to establish this suggestion even though defence has examined three witnesses in this regard. 9. Having considered the matter, in our view, the evidence being consistent and having remained unshaken, the evidence is clear. There were witnesses who have seen the occurrence wherein the appellant had stabbed Chandeshwar Sahani to death. The reason is given in the Fardyaban itself that he had suspected the deceased of having affair with his young wife. 10. Thus, there being motive, the act having been witnessed, death having been caused intentionally, we have no option but to dismiss the appeal and uphold the order of conviction and the sentence as against the sole appellant who is required to surrender in the Court below immediately. 11. Let the records be sent to the trial Court immediately. 12. As the appellant is on bail, his bail bonds are cancelled. Appeal dismissed.