BAIJ NATH KURMI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant has been convicted under Section 302 of the Indian Penal Code ("the Code", in short), sentenced to undergo imprisonment for life. THE prosecution case as coming out of the Fardbayan (Ext.1) of one Ram Bilas Pasi, the father of the deceased, is that in the morning of 5.5.1985 in his toddy shop the appellant Baijnath Kurmi along with co-accused Doma Kurmi and another unknown had gone to take toddy, which shop was being run by his son, Sheo Dayal Chaudhary, and after taking toddy worth about Rs. 10/- the appellant promised him to pay the amount after easing himself but he did not come back which fact was intimated by the deceased Sheo Dayal Chaudhary to his father when he came back. On the same day at about 4 p.m. when the informant was returning with the deceased from market along with Jag Mohan Dusadh (P.W. 1) and Ram Kewal Yadav (P.W. 3) and reached near Jhanjhariya Pokhar where temple of Durga was situated, the appellant and Doma Kurmi were seen standing at which the deceased asked for the price of toddy, payment of which was refused by the appellant. Some verbal duel appears to have taken place after which, as alleged, Doma Kurmi caught hold of the deceased and this appellant stabbed his son near the chest after which both the accused fled away. Injured was brought to Jagdishpur Hospital where he died.

(2.) IT has come in the evidence, including that of the informant (P.W. 4) that Doma Kurmi had expired during the pendency of the case, hence this appellant alone faced the trial. In course of trial the prosecution examined six witnesses out of whom the aforesaid three and one Bharat Thakur (P.W. 2) having a haircutting saloon at the place of occurrence, had taken the witness stand as eye-witnesses of the occurrence whereas P.W. 5, Dr. Kamta Prasad Rai, is the doctor who had performed autopsy upon the dead body. P.W. 6 is Raghu Bansh Prasad Singh, Sub-Inspector of Police who ultimately had arrested the appellant under the circumstances narrated in his evidence and had submitted charge sheet. However, he had not conducted major part of the investigation which was conducted by two other police officers and the portions of the case diary written by them have been marked as Ext. 2.

(3.) IN so far as the first point is concerned, no doubt that in the F.I.R. the claim is that the stabbing was done with a knife but all the witnesses have supported that stabbing was done with a scissor which was taken out from the saloon of P.W. 2. IN this regard the evidence of P.W. 4, the informant, may be seen. While claiming in his examination-in-chief that the appellant had brought a scissor from saloon of Bharat Thakur with which he had stabbed the deceased, he also clarified that at the time of occurrence it had appeared (to him) that the stabbing was done by a knife (chhura). IN cross-examination also, in para 7, this witness admitted that in his Fardbayan he had said that his son was stabbed with a 'Chhura' but he had given that statement as it had appeared to him that the stabbing was done by a 'Chhura'. He admitted that he had not told the police that the appellant had brought a scissor from the 'Saloon' of Bharat Thakur. IN this case the occurrence is said to be taken place at 4.00 p.m. IN the State dispensary 'Fardbayan' was recorded at 4.45 p.m. The F.I.R. is quite descriptive but an F.I.R. cannot be supposed to give every minute detail. IN so far as a scissor appearing to be a 'Chhura' is concerned, the edge portion of a 'Chhura' and of a scissor have almost similar appearance. If one is stabbed with a scissor, in the heat of moment to an emotionally charged father it might have appeared that the stabbing was done with a 'Chhura' particularly if he had missed to notice as to what weapon was taken out by the appellant from the hair-cutting saloon.