HARENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 8.12.1997 and order dated 9.12.1997 both passed by Shri Bihari Pandey, lst Additional Sessions Judge, Saran at Chapra, in Sessions Case No. 137/96 convicting and sentencing the appellant to undergo Rlfor life under section 302 of the Indian Penal Code (in short, IPC).

(2.) THE case of prosecution, in short, is that on 27.9.95 in the evening deceased Champa Kuer was sitting at the Darwaja of her house when appellant armed with a knife came there and saying that deceased had applied witchcraft to his wife, therefore, he would kill her gave a knife blow on abdomen of the deceased and fled away. On hulla raised by the deceased members of her house came there and took her to Referal Hospital, Taraiya for her treatment where on the same day at about 8.40 PM her fardbeyan (Ext. 7) was recorded by ASI Bishwanath Prasad (PW -7). A case under sections 324/307 IPC was registered against the appellant by drawing a formal FIR (Ext 9). While the deceased was under treatment she succumbed to her injuries on 30.9.95 and section 302 IPC was added to the case. After investigation police submitted charge sheet under section 302 IPC against the appellant who was put on trial and was convicted and sentenced by the court below as indicated above. The case of appellant before the trial court was complete denial of the charge and his false implication.

(3.) SHEO Nath Gosai (PW -2) and Malti Devi (PW -3) are admittedly brother of husband of deceased and daughter -in -law of deceased respectively and they have claimed themselves to be the eye witnesses to the occurrence. Sheo Nath Gosai (PW -2) has stated that at the time of occurrence he was in his house and deceased was sitting in the Sahan and Malti Devi (PW -3) was also there when appellant armed with a knife came there and told the deceased that she had practised witchcraft on his wife therefore, he would assault her with knife and thereafter he gave a knife blow on the abdomen of deceased who received bleeding injuries and on hulla raised by him Kanhaiya Gosai (PW -4) and Ram Ekbal Mahto (PW -1) came there and appellant fled away. He has further stated that he and others toojk the deceased to Taraiya Hospital Where fardbeyan of deceased was recorded by police on which he also put his signature (Ext. 1) and Dr. Anand Prasad Dwivedi (PW -5) who was present at the time of recording of fardbeyan also put his signature (Ext. 1/A). He has further stated that sister of appellant had died of snake bite and appellant was having suspicion that deceased had practised some magic and because wife of appellant used to remain ill he was under the impression that deceased had practised witchcraft on his wife leading to her illness. He has further stated that during treatment deceased died on the night between 29.9.95 and 30.9.95 and inquest report was prepared in his presence on which he put his signature (Ext. 2) and dead body of the deceased was sent for post mortem examination. Malti Devi (PW -3), daughter -in -law of deceased, has said that at the time of occurrence she was giving milk to her child and decease at that time was sitting at the Sahan and appellant armed with a knife came there and told the deceased that she had practised witchcraft as a result of which his sister died of snake bite and she had also practised witchcraft on his wife who always remained sick and when deceased denied the allegation appellant gave a knife blow on her abdomen and when deceased fell down and witnesses assembled the appellant fled away. She has further said that deceased was taken to Taraiya Hospital for treatment where she subsequently died. Dr. Anand Prasad Dwivedi (PW -5) in his evidence has said that on 27.9.95 he was posted as Medical Officer at Taraiya Hospital and on that day at about 8.30 PM he examined the deceased and found one extensive incised wound with part of gut and he referred the case to Sadar Hospital, Chapra for examination, treatment and report. According to him the injury was caused by sharp cutting weapon which may be a knife and he has proved the injury report prepared by him (Ext. 3). In cross examination he has said that he did not clinically examine the injured and after referring the case he did not receive any injury report from Chapra Hospital. Dr. Ram Ekbal Prasad (PW -6) has said that on 30.9.95 he was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra and on that day at about 1.30 PM he held post mortem examination on the dead body of the deceased Champa Kuer and found one ante mortem injury which was one linear stitched wound on left anterior abdominal wall and one drainage tube in left iliac fossa held with one stitch. He has further said that in his opinion the death had been due to septicaemic shock because of injury which was caused by sharp cutting weapon which may be a knife and time elapsed since death was within 12 to 24 hours. He has proved the post mortem examination report (Ext. 8). He has further said that he can not say whether the injury was sufficient to cause death of the deceased. His evidence further shows that after his examination and cross examination on 26.2.97 he was again recalled by the prosecution on 30.6.97 when he stated that the injury found on the body of the deceased was sufficient in ordinary course to cause death.