JOGAN BARAIK Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is against the judgment of conviction in a case in which the appellant was charged with committing the offence under Sec. 302 of the Indian Penal Code, 1860. The Trial Court found the appellant guilty of committing murder of one Sanicharwa (henceforth referred to as deceased victim) on 21/10/1991. The appellant was sentenced to suffer rigorous imprisonment for life. As per the prosecution case, the deceased victim had left his village Chatakpur on 21/10/1991 after sunset informing the family members that he was going to village Sidraul situated under the same Police Station i.e. Namkum to witness an entertainment programme (orchestra). The informant Ratia Baraik (P.W.3), father of the deceased, recorded in his statement made on 22/10/1991 on the basis of which First Information Report was registered that he (the deceased victim) had told his family members that one Kishore was waiting in the shop of one Prasad and that they were to go for watching a game. He did not return home till about 9:00 pm. When the F.I.R. maker, being the father of the victim, enquired from Kishore about the whereabouts of the deceased, Kishore responded that he had gone along with one Amlendra during the programme. From his deposition, we find that such enquiry was made the next morning. Amlendra was then asked about Kishore and his response was that the deceased victim had stayed with him for sometime and thereafter he (the deceased victim) went somewhere with Kishore. Thereafter, the informant caused search of the entire locality. To the north of the village Chatakpur by the side of Kachcha road, P.W.3 (informant) found the dead body of his son. The P.W.3 thereafter reported the matter to the police and his statement was recorded, following which the First Information Report being Namkum P.S. Case No. 196 of 1991 was registered on 22/10/1991 at 15:45 hours.

(2.) The appellant appears to have been implicated on the basis of the statement of one Dilip Baraik, who has deposed as Prosecution Witness No. 1. He was however declared as hostile by the Trial Court. A statement made by him under Sec. 164 of the Code of Criminal Procedure, 1973 (the 1973 Code) formed the basis of his conviction. The Investigating Officer, Mr. M.R. Mehta (P.W.5) in his deposition before the Trial Court stated:-

(3.) In his statement made before the Magistrate under Sec. 164 of the 1973 Code, he stated :-