STATE OF BIHAR Vs. JAI KANT TEWARY

JUDGEMENT

(1.) THIS judgment will govern both the reference and the appeal which arise out of the same judgment and order of the trial Court and, as such, have been heard together.

(2.) THE sole appellant Jai Kant Tewary was put on trial and has been convicted and sentenced to death for having committed the murder of his wife, Manju Devi, in the wee hours of 24th April, 1988. The Fardbeyan was lodged by the Chaukidar, Ayodhya Paswan, at the place of occurrence which is the house of the appellant in village Mahuli within Khaira Police Station of Hunger district at 1 p.m. on the same day. Curiously, the Fardbeyan has not been brought on record. However, as would appear from the evidence of the prosecution witnesses, the appellant is said to have given three tengari blows on the neck of the deceased resulting in her death on the spot. The occurence is said to have been witnessed by the son, Ranjit Kumar Tewary, who has been examined as P. W. 3 in the case. According to him, he was sleeping near his mother at the time of occurrence, when his father i.e., the appellant gave two tengari blows and another after he woke up. PW 2 Sundara Devi, who is none else than own mother of the appellant, stated that in the early hours of the day of occurence while it was still dark, she was sleeping in the backyard of the angan. When she reached the actual place of occurrence, she found the deceased lying dead in the angan. With cut injuries on her neck. The appellant at that time asked her to take away the dead body. According to PW 1 Sita Devi, brother 'swife i.e., bhabhi of the appellant on hearing the cries of Ranjit (PW 1) she awoks her mother -in -law i.e. PW 2 and asked her to go to the place of occurrence. She also went there and found the deceased lying dead on the darwaza. Her neck had been cut. She stated that Ranjit (PW 3) who was present there told her at that very point of time that 'Papa had cut the neck '. One more witness namely Bibu Mandal was produced but he was merely tendered for cross -examination and, therefore, I need not refer to him. The whole prosecution case thus rests on the evidence of these three witnesses.

(3.) AS regards the non -examination of the Investigating Officer, the law is now well settled. The accused can make a grievance as to non -examination of the I. O. only if prejudice is shown to have been caused to him. It appears, from the cross -examination of the prosecution witnesses that no contradiction whatsoever was pointed out to any of them, which means that their statement in Court was the same as before the police. If any contradiction had been pointed out between the two statements certainly the appellant could legitimately make a grievance that non -examination of the I. 0. has caused prejudice to him inasmuch as he has been deprived of the opportunity to bring his previous statement (before the police) on the record and to impeach the credibility of the witnesses. That grievance the appellant cannot make in this case. In view of the consistent evidence of the prosecution witnesses the sites of occurrence also cannot be in said to be in doubt. No suggestion to that effect was made to the witnesses either.