DHARMENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present Appeal was preferred against the judgment of conviction dated 24.07.2012 passed by Sri Triloki Nath Tripathi , learned Adhoc Additional Sessions Judge IInd, Samastipur ( hereinafter referred to as "trial judge") in Sessions Trial No. 458 of 2011 / 212 of 2012 (arising out of Samastipur Sadar Muffassil P.S. Case No. 490 of 2011). By the said judgment the learned trial judge has convicted the sole appellant for offence under Section 302 of the Indian Penal Code , 1860 (hereinafter referred to as "I.P.C.") and section 27 (1) of the Arms Act, 1959 ( hereinafter referred to as the "Arms Act"). The appellant by order dated 25.07.2012 was sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 5,000/- under section 302 of the I.P.C. and in default of payment of fine he was directed to further undergo rigorous imprisonment for six months. The appellant was sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 5,000/- under section 27(1) of the Arms Act and in default of payment of fine he was directed to to undergo rigorous imprisonment for further six months. The appellant is in custody and it is evident from order dated 17.10.2016 that learned counsel for the appellant had prayed for granting time for filing petition for early hearing of the matter, however, when the Appeal was taken up for hearing , none appeared on behalf of the appellant. Since the appellant was in custody for such a long time, the Court preferred not to defer hearing and requested Miss Anujashree Roy, learned counsel to assist the Court as amicus curiae and she agreed for the same.

(2.) Short fact of the case is that on 11.8.2011 at about 11.00 Hours (11.00 P.M.) the Sub Inspector of Police -cum- S.H.O. Muffasil, Samastipur Police Station, namely Sri Ajit Kumar Singh /P.W. 10 recorded fardbyan of Smt. Archana Mishra /P.W. 8 ( mother of the deceased )/ informant. The fardbyan was recorded near the post- mortem house in Sadar Hospital , Samastipur . The informant in her fardbyan disclosed that on 11.8.2011 in the morning at about 8.00 A.M. she got information that her daughter/ Prerana Kumari , who was married with Dharmendra Kumar / appellant about two years back was killed by her husband by fire arm injury. She disclosed that her daughter had solemnized love marriage with the appellant against wishes of her family. She stated that, as per information, her daughter was killed by fire arm injury. After getting such information she along with Sunil Kumar Singh /P.W. 5, who was Sarpanch of her village went to the Sadar Hospital, Samastipur and saw that her daughter /Prerana Kumari was having injury on right temporal region and it appeared that the said injury was due to fire arm and she was killed by her husband /Dharmendra Kumar. The informant disclosed that her daughter was blessed with a female child about 1 years back. After marriage they were not on visiting term. The informant stated that she had heard that Dharmendra Kumar and his brothers and others were criminal minded. There was some dispute in between the husband and her daughter. The informant stated that occurrence had taken place on last 10.08.2011 at about 4.00 Hours (4.00 P.M.) . She disclosed that her husband had gone out of station and she claimed that her daughter was killed by Dharmendra Kumar/ appellant by fire arm.

(3.) The fardbyan was read over to her and thereafter, she put her signature. The fardbyan was also got signed by Sunil Kumar Singh / P.W. 5 . After recording fardbyan, Police drew formal F.I.R. on the same date i.e. 11.08.2011 at 12.45 Hours vide Samastipur Sadar Muffassil P.S. Case No. 490 of 2011 under section 302 of the I.P.C. and section 27 of the Arms Act only against appellant /Dharmendra Kumar. In the case, inquest report regarding dead body of deceased was prepared near the postmortem house in Sadar Hospital, Samastipur. It is a peculiar case in which though formal F.I.R. was lodged on 11.08.2011 at 12.45 Hours (P.M.), only on the next date i.e. 12.08.2011 police submitted charge -sheet and on the same date cognizance order was passed. After cognizance and supply of police papers, the case was committed to the court of Sessions on 26.08.2011 and charge in the case was framed on 26.09.2011. Since charge was framed under section 302 of the I.P.C. and section 27 of the Arms Act against the appellant and the appellant denied charge and claimed to be tried, the prosecution to establish its case examined altogether ten witnesses.