BADAN PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appeal has been preferred against the judgment and order dated 30.11.1994/ 3.12.1994 passed by the Sessions Judge, Bhojpur at Arrah in ST No. 307/91.

(2.) THE prosecution case as has been stated in the fardbeyan is that one Bikrama Yadav gave his fardbeyan at 9.35 a.m. before the Sub -Inspector of Police of Sinha Out -post at the house of Badan Paswan, appellant, that at about 6 a.m. when he returned from night patrolling duty, he learnt that Badan Paswan who knew witchcraft, was assaulting his wife. He went there and saw that Badan Paswan was assaulting his wife with Dab. He was chasing the people assembled there and threatening them. He was saying that he was sacrificing his wife to Goddess Durga. The occurrence was witnessed by Dharichhan Sharma, Shib Dayal Ram and many others.

(3.) THE prosecution in support of its case examined 12 witnesses, out of whom PWs 1,6,7,9 and 10 were declared hostile. PW 2 is witness to the inquest and seizure. PW 3 is the informant. PWs 5 and 8 claimed that they reached at the place of occurrence after assault. PW 11 is the Investigating Officer adn PW 12 is Doctor who held postmortem over the dead body. The oral evidence of PWs 3,5 and 8 thus is relevant for consideration. PW 3 is the informant. As per fardbeyan it appears that he claimed to be eye witness to the occurrence. However before the Court he resiled from the previous stand and he categorically stated that he did hot see the appellant committing murder of his wife. However, the witness stated that when he reached there he saw the dead body near the door. The appellant was standing therewith a Dab and was saying that he sacrificed his wife to Goddess Durga. In cross -examination the witness, however, stated that he had gone to Sinha Out -post to inform the police PW 8 is Chaukidar. who is resident of different village. His evidence is that PW 3 had disclosed about the occurrence and he had gone to the place of occurrence and saw the dead body lying on the ground. The appellant was standing there with a Dab. He was saying that he had sacrificed his wife to Goddess Durga. However, in cross -examination the witness stated that his statement was never recorded by the police. Therefore, evidently for the first time he came to depose in the Court and as such his evidence is not of any use. PW 5 is Chaukidar of different village. His evidence is that Bikrama Yadav, Chaukidar, had disclosed about the murder and as such he had gone to the place of occurrence. He had seen the appellant with Dab. He was uttering that he had sacrificed his wife to Goddess Durga. From the evidence discussed above it is manifest that evidence of PW 8 cannot be relied upon as he for the first time came to the Court to depose. His statement wa not recorded by the police. However, the witness PW 3 at the first instance in the fardbeyan claimed to be eye witness to the occurrence but he resiled from his previous statement and stated only to the effect that when he reached the place of occurrence appellant was standing with Dab in his hand and uttering that he had sacrificed his wife to Goddess Durga. PW 5 is of different village and reached the place of occurrence after the occurrence.