IDUA MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The death reference case and criminal appeal arise out of the same judgment and order dated 31-8-1994 and 1-9-1994 passed by Sri Om Prakash Sinha. Additional Sessions Judge, Pakur, in Session Trial No. 124 of 1993/36 of 1993, whereby the learned Additional Sessions Judge has convicted the appellant, Idua Mian, of the offence punishable under section 302 of the Indian Penal Code and has sentenced him to death. He has made reference of the case for confirmation of the death sentence giving rise to Death Reference Case No.5 of 1994 and the appellant has preferred the appeal No. 486 of 1994 assailing his- conviction and by this judgment we are disposing off both the death reference and the criminal appeal. The appellant was also charged of the offence punishable under section 393 of the Indian Penal Code but the trial Court has acquitted him of that charge.

(2.) The occurrence is said to have taken place in the evening hour on 4-91992 at the house of one Gaurango Dey situated at village Bagan Para, which is 2 Kilometres south-east of the police station of Pakur in the district of Sahibganj. The case was instituted on the basis of the Fardbeyan (Ext.4) recorded by the Sub-Inspector of Police, Pakur on the statement of Tarun Dutta (PW-5) and the prosecution, as disclosed from the same, may briefly be stated as follows: On that day at about 6.30 p.m. the informant (Tarun Dutta) went to the house of Gaurango Dey (PW4) who was his friend and he found Gaurango Dey and his wife Kavita sitting in the courtyard, Gaurango Dey asked his wife to prepare tea and his wife then informed that milk was not available, and Gaurango, therefore, went to the market to bring milk. In the meantime when the informant went into the bathroom for a bath, he heard a cry of Kavita and he came out on hearing the cry, and saw that Kavita had caught hold of a person was asking, addressing to that person, Idua, why he (Idua) and his son had caught hold of her. The informant threw a chair on the appellant but in the meantime the appellant pierced a big chhura (dagger) into the lower portion of back of Kavita. The informant also caught hold of that person and raised alarm with Kavita (referred to as Bhabhi in the Fardbeyan) and the informant also was given a blow with dagger causing injury on his head. The appellant, who had been accompanied by some others fled away. On hearing the alarm several persons of the neighbourhood came and saw the culprit running away. It was also said that some neighbours and some police officers happened to reach there and after chase they caught hold of the appellant, Idua and lungi of the Idua Mian was also found with fresh blood stains. The victim Kavita was taken away to the hospital where the informant also went and there Kavita died. On the basis of the Fardbeyan (Ext. 1-) which was recorded at 8.30 p.m. by a Police Officer (PW-11) Mahaveer Mochi, a formal first information report was drawn up and the case was instituted. The investigation of the case was taken up by PW-11 (Mahaveer Mochi) and later PW-12 (Sita Ram Rai) took up charge of the investigation and submitted the charge-sheet. The appellant was then put on trial. The defence of the appellant was complete denial that he had committed the offence alleged.

(3.) A perusal of the record of the lower court would show that during the course of the trial the prosecution examined in all 12 witnesses. Out of them PW-l (Dr. Krishan Kumar) is a witness, who stated to have done post-mortem examination on the dead body of the deceased Kavita on 5-9- 1992 and PW-2 is another doctor, Bindu Bhushan, who is said to have examined the informant and 1?tated about his injuries PW3 (Om Prakash Bhagat) is a witness, who had been present at the time of holding of the inquest and seizure of some articles by the Police Officer PW-4 (Gaurango Dey) is the husband of the deceased and he figured as a witness, who claim to have learnt about the occurrence after he returned from the market and he saw his wife lying in pool of blood. PW-5 (Tarun Dutta) is the solitary eye-witness of the occurrence. PW-6 (Devendra Kumar Mandal) is another witness of seizure PW- 7 (Jyotish Kumar Pandey) is a witness, who claimed to have reached the place of occurrence soon after the occurrenceT and claimed to have seen the accused fleeing away, PW-8 (Nimal Chandra Das) is another witness of inquest and seizure. One witness Subhas Kumar Gupta (P-9) was tendered and PW-10 (Jagarnath Prasad Yadav) is a Havildar who claimed to have chased the appellant after the occurrence. The rest two witnesses PW-11 and PW12 are the police officers who had investigated into the case.