BINDESH PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant was convicted and sentenced in Sessions Trial No. 10 of 2012. Thereafter, he preferred the present Appeal under Sec. 374(2) of the Code of Criminal Procedure, 1973 ( hereinafter referred to as the "Cr.P.C."). The appellant by judgment dated- 16.07.2013 was convicted for commission of offence under Sec. 302 of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C.") and by order dated: 20.07.2013 he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000.00. In case of default in payment of fine he has been directed to further undergo simple imprisonment for one year. The appellant was tried and convicted by learned Sri Jitendra Nath Singh, learned Adhoc Additional Sessions Judge - VI , Ara, Bhojpur in Sessions Trial No. 10 of 2012 (arising out of Agion Bazar P.S. Case No. 43 of 2011 corresponding to G.R. No. 2660 of 2011).

(2.) Short fact of the case is that on 24.08.2011 at 6.15 Hours Sub Inspector of Police Sri Manoj Kumar Shrivastava, S.H.O. Agion Bazar P.S. (P.W. 8) recorded fardbyan of Kanchan Kumari (P.W. 6). The informant gave her fardbyan on her roof near the dead body of her mother - Bimla Devi in presence of her maternal grand father -Baijanath Pandey ( P.W. 2) and maternal uncle - Raju Pandey (P.W. 3). She stated that her father was employed in a factory in Himachal Pradesh where he was doing the work of labourer and on previous day he had gone to his work place i.e. Himachal Pradesh from his village. In the same night i.e. in preceding night of 23.08.2011 at 10.00 P.M. after taking meal, since it was Summer, as usual she along with her mother- Bimla Devi (deceased) and her younger brother -Vishal, aged about 4 years, went on roof for sleeping. In the night suddenly she heard the cry of her mother - Bimla Devi and she awoke and saw that one person was caught by her mother and after getting free he started fleeing away towards Eastern side of the roof and her mother in injured condition fell down and started squirming. In the flash of torch light she identified the person who was fleeing away. The said accused was her co-villager: Bindesh Pandey, aged about 24 years. She stated that Bindesh Pandey after crossing her roof jumped on her pattidar's roof namely - Bhagsarna Kunwar and from there he fled away. While he was fleeing away he left his blue colour small torch on the roof of informant. After alarm being raised by the informant, from the Southern side of her roof her pattidars i.e. cousin uncle - Krishna Nand Pandey (P.W. 5) and Ram Narain Pandey (P.W. 4) and also aunt arrived. The informant further stated that her mother died while speaking that [1] [Bindeshwar had assaulted her]. The occurrence had taken place at about 11.45 P.M. After some time through mobile she gave information about the occurrence to her maternal grand father (P.W. 2) and maternal uncle (P.W. 3) who were resident of Hat Pokhar. After getting information they reached the village of the informant in the same night. The informant further stated that Bindesh Pandey (appellant) earlier at about one year back had stolen buffalo from the door of her uncle- Ram Narain Pandey (P.W. 4) but no case was instituted against him since he was by nature criminal. The informant claimed that Bindesh Pandey - appellant of same village i.e. Khambha Dihara, Police Station -Agion Bazar, District - Bhojpur for committing crime with ill intention had come to her roof who was identified and on being opposed he had killed her mother. The fardbyan was read over to her and after finding it correct she put her signature in presence of two witnesses namely: Baijnath Pandey (P.W. 2) and Raju Pandey ( P.W. 3).

(3.) On the basis of the said fardbyan on the same day i.e. on 24.08.2011 at 12.15 P.M. a formal F.I.R. vide Agion Bazar P.S. Case No. 43 of 2011 was registered for offence under Sec. 302 of the I.P.C. against the sole appellant. During investigation accusation was found true, and as such, on 19.10.2011 charge -sheet was submitted against appellant and on the same day learned Chief Judicial Magistrate, Ara took cognizance of offence. Thereafter, the case was committed to the court of Sessions on 04.01.2012 and it was numbered as Sessions Trial No. 10 of 2012. On 23.07.2012 charge under Sec. 302 of the I.P.C. was framed against the appellant and to prove its case on behalf of prosecution altogether eight witnesses were examined. Out of eight witnesses, P.W. 1 - Chand Govind Pandey, P.W. 2 ( Baijnath Pandey), P.W. 3 - Raju Pandey, P.W. 4 - Ram Narain Pandey, P.W. 5 - Krishna Nand Pandey are hearsay witnesses, who were informed by P.W. 6 - Kanchan Kumari ( informant) regarding the occurrence as well as the name of culprit. Beside this, P.W. 1 stood witness to seizure list in respect of recovery of blood stained knife, which was used in the crime, and it was marked as Ext. 1. He also put signature on seizure list in relation to dry blood obtained from the place of occurrence, which was marked as Ext. 1/1. P.W. 2 - Baijnath Pandey is witness to the fardbyan and his signature was marked as Ext. 2 and he also proved the signature of Raju Pandey on the fardbyan, which was marked as Ext. 2/1. Raju Pandey (P.W. 3) had proved his signature on the seizure list which was in relation to seizure of plastic torch of the appellant which was marked as Ext. 3. P.W. 5 (Krishna Nand Pandey) is another witness to the seizure list relating to torch, broken bangle and broken thread and his signature was marked as Ext. 3/1. Informant - Kanchan Kumari in the case was examined as P.W. 6. Since the case is based primarily on solitary evidence of P.W. 6 it is necessary to discuss her evidence in detail.