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2019 Supreme(Pat) 275
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, ANIL KUMAR SINHA, JJ.
Nagendra Sah, son of Chandrika Sah - Appellant
Versus
The State of Bihar - Respondent
Criminal appeal (db) no. 964 of 2013
Decided on : 22-04-2019
Advocate Appeared:
For the Appellant : Mr. S.N.P. Sinha, Sr. Adv. Mr. J.N. Sinha, Adv. Miss Rashmi Bharti, Adv. Mr. Vikash Mohan, Adv.
For the Respondent: Mr. Ajay Mishra, A.P.P.
Headnote:
Indian Penal Code, 1860 – Section 302 & 201 r/w Section 374(2) of the Code of Criminal Procedure, 1973 – Against the sentence and order of conviction – No reason to doubt the case of death by Asphyxia due to strangulation – On the basis of evidence of P.W.9 as well as post-mortem report that firstly the deceased died and thereafter burnt – Evidence of P.W.9 and post-mortem report explicitly speaks about death not due to accident, rather firstly deceased murdered by strangulation and her dead body burnt – Dead body at the time of inquest found lying on a cot – Every possibility of noticing mark of burn or smoke on other places but nothing been indicated – Oral evidence regarding catching fire by the deceased while boiling milk further demolished on examination of the post-mortem report – Accidental death been disapproved by the doctor/P.W.9 – No reason to place reliance on any of the oral evidence whether evidence of prosecution witnesses or defence witnesses – Even though oral evidence of the witnesses as also evidence of mother and brother of the deceased goes in favour of the defence – No reliance on the oral evidence – Reliance on the medical evidence – Impugned judgment and order of sentence upheld – Appeal dismissed. (Paras 1 to 6, 8 to 14, 18 to 22 & 24 to 26)
2017 (1) PLJR (SC) 177; AIR 1992 SC 1175 – Referred to.
RAKESH KUMAR, J.
The sole appellant, husband of the deceased, after being convicted and sentenced for offence under Sections 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), has filed the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’).
2. The appellant by judgment dated 29-08-2013 has been convicted for offence under Sections 302, 201 of the I.P.C. and by order dated 30-08-2013 under Section 302 of the I.P.C., he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-(five thousand). In case of default in payment of fine, he has been directed to further undergo rigorous imprisonment for three months. Under Section 201 of the I.P.C. by the same order i.e. order dated 30-08-2013, he has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-(five thousand). In case of default in payment of fine, he has been directed to further undergo rigorous imprisonment for three months. All the sentenced were directed to run concurrently. The appellant has been convicted and sentenced in Sessions Trial No. 23 of 2013/11 of 2013 (arising out of Gobardhana P.S. Case No. 25 of 2012) by Sri Triloki Nath Tripathi, learned Adhoc Additional Sessions Judge-III, Bagaha, West Champaran (hereinafter referred to as ‘Trial Judge’).
3. Short fact of the case is that on 25-08-2012 at 10:00 hrs., the S.H.O, Gobardhana Police Station namely S.I. Rajan Kumar Pandey (P.W.10) recorded self statement disclosing therein that he himself on the statement of Mahesh Sah (P.W.5 ‘a’), son of late Shankar Sah, resident of Ramdhan Mandir, Bagaha, District-West Champaran had recorded fardbeyan and on 18-11-2011 registered Gobardhana P.S. U.D. Case No. 3 of 2011. During inquiry of the said U.D. Case, on examination of the case diary and post-mortem report, he perceived that in U.D. Case, witnesses had disclosed that death occurred due to burn injury, however on examination of post-mortem report, it transpired that deceased Sita Devi died due to pressure on her neck by hard and blunt substance in the house of her in-laws in the village Bakhri Pachrukhiya i.e. the house of Nagendra Sah (appellant). In the said U.D. case, after orders of superior officers as well as in view of supervision note, U.D. case was directed to be converted and registered as case of murder. Accordingly, on the basis of post-mortem report and direction of inspector of police, the informant prepared self-written report for lodging a case. On the basis of said self-written report, on 25-08-2012, a formal F.I.R., vide Gobardhana P.S. Case No. 25 of 2012, was registered for offence under Section 302 of the I.P.C. against the appellant. In the case, name of deceased was Sita Devi (wife of appellant).
4. After conducting investigation, chargesheet in the case was submitted on 28-11-2012 against sole appellant under Section 302 of the I.P.C., whereupon on 05-12-2012, the learned Addl. Chief Judicial Magistrate, Bagaha took cognizance of the offence. Subsequently, on 17-12-2012, the case was committed to the court of sessions and thereafter, charge under Section 302 of the I.P.C. was framed on 14-03-2013 and again charge under Section 201 of the I.P.C. was framed on 19-08-2013 against the appellant, which was denied by him and he claimed to be tried.
5. During the trial, to establish its case on behalf of the prosecution, altogether 11 witnesses were examined, who are P.W.1 Chandra Deo Mahto, P.W.2 Jaggu Yadav, P.W.3 Kismis Mahto, P.W.4 Prem Yadav, most of them were resident of village Pachrukhiya, which is the village of the appellant. P.W.5 Chandra Kali Devi is the mother of the deceased and P.W.5 ‘a’ Mahesh Sah is the brother of the deceased. P.W.6 Vijay Kumar Gupta and P.W.7 Prabhu Sah are co-villagers of the appellant and they are witnesses to the inquest report. P.W.8 Devendra Prasad had produced postmortem register. P.W.9 Dr. Ash
