STATE OF BIHAR Vs. TRILOKI SINGH

JUDGEMENT

(1.) The sole appellant herein, namely, Triloki Singh was put up for trial before the 2nd Additional District and Sessions Judge, Chapra in Sessions Trial No. 175 of 1997 charged of offence under Ss. 302 and 376/511 of the Indian Penal Code having attempted to commit rape on Samshunisha and in the process killing her minor son Naushad who clung to her out of fear at the time of occurrence. It appears from the order-sheet of the trial Court that after the arguments had been concluded in the case, the trial Court framed a charge against the appellant under S. 27 of the Arms Act on 23rd January, 1998 which was read over to the appellant to which he pleaded not guilty. The matter was then put up for argument on 2nd February, 1998 and thereafter by his judgment dated 10th February, 1998 the learned trial Court found the appellant guilty of the offence under S. 302 of the Indian Penal Code and S. 27 of the Arms Act. The trial Court then heard the parties on the question of sentence and by his order dated 17th February, 1998 he sentenced the petitioner to death u/S. 302 of the Indian Penal Code and also sentenced him to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for three months. He also sentenced the petitioner to death under sub-sec. (3) of S. 27 of the Arms Act. The trial Court, however, acquitted the appellant of the charge under Ss. 376/511 of the Indian Penal Code.The appellant has preferred Criminal Appeal No. 103 of 1998 against his conviction and sentence, while the trial Court has made a reference to this Court for confirmation of his sentence of death being Death Reference No. 4 of 1998.

(2.) The case of the prosecution is that on the night intervening the 11th and 12th June, 1996 at about midnight the appellant taking advantage of the fact that Most. Samshunisha the informant, was sleeping in her house with her minor son, since her husband was not present, entered the house of the informant with a view to commit rape on her. The informant resisted his attempt and in the process her minor son Naushad woke up and clung to his mother out of fear. The appellant threatened the informant to separate her son or else her son would be killed. Since the child clung to his mother, he took out his pistol and shot him from close range. The informant came out with her son and cried for help which attracted co-villagers to the place of occurrence and thereafter the injured child was brought to the Sadar Hospital at Chapra where he was treated for the injuries caused to him. However, the minor son Naushad succumbed to his injuries.

(3.) The prosecution has examined seven witnesses in support of its case. Most. Samshunisha, the informant, was examined as PW-2. The Fardbeyan of Samshunisha PW-2 was recorded by ASI Bishundeo Yadav of Bhagwan Bazar Police Station at 8-15 a.m. on 12th June, 1996 at Emergency Ward of Sadar Hospital, Chapra. On the basis of the said Fardbeyan a formal First Information Report was drawn up and a case was registered against the appellant under S. 448, 376, 511 and 307 of the Indian Penal Code as also under S. 27 of the Arms Act. After the death of Naushad, S. 302 was added. In her Fardbeyan the informant Samshunisha PW-2 stated that she was a resident of Village Banwari Basant. She stated the age of her son Naushad Ali to be about 10 years. Her statement is that on the preceding night while she was lying on the ground in the courtyard of her house, after cooking meal, she went to sleep. Her son Naushad also slept on the ground besides her. Another son of hers, younger than Naushad, slept on the other side. At about 12 o'clock) in the night she saw that one person entered her 'angan' after removing the gate of her house and caught hold of her and asked her to lie down. He was asking her to lie down with bad intention. She told that person as to why he was trying to do this with her since she recognised him. That person was the appellant Triloki Singh son of Pravesh Singh, Mukhia of the village. In the meantime her son Naushad woke up and clung to her uttering 'amma' 'amma'. The appellant threatened her son to keep away or else he would kill him. Thereafter he fired a shot at her son with his pistol almost touching his body. The shot injured her son on the left and right shoulder and as a result her son fell down on the ground wreathing in pain and smeared with blood. She ran out of the house carrying her son in her lap and crying for help. Her crying for help attracted Yusuf Mian (PW-1), Tulla Mian (PW-3), Qadir Mian (PW-6), Zabir Mian (not examined) and other persons of the locality who came running and saw the occurrence. She told all of them about the occurrence. After giving first aid she brought her son to Chapra Sadar Hospital in the morning where her son was being treated. Her husband was residing at her 'sasural'.