Kakku Mishra vs The State Of Bihar
2023 Latest Caselaw 4560 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.529 of 2014
    Arising Out of PS. Case No.-30 Year-2010 Thana- VIJAYEPUR District- Gopalganj
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Kakku Mishra Son of Sri Jai Ram Mishra resident of Puraina, P.S.- Vijaipur, District- Gopalganj

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Nazir Alam, Adv. For the Respondent/s : Mr. Abhimanyu Sharma APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 14-09-2023

We have heard Mr. Nazir Alam, learned

advocate for the sole appellant, Kakku Mishra, and Mr.

Abhimanyu Sharma, learned APP, for the State.

2. The appellant has been convicted under

Section 302 of the I.P.C. vide judgment dated

02.05.2014 passed by the learned 1 st Additional

Sessions Judge, Gopalganj in Sessions Trial No. 373 of

2010 and by order dated 06.05.2014, he has been

sentenced to undergo imprisonment for life, to pay a fine

of Rs. 50,000/- and in default of payment of fine, to Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

further suffer simple imprisonment for two years. The

Trial court has also directed that 80% of the fine amount

be paid to either the Informant or the heir of the

deceased.

3. The deceased is the grand-son of one Jhunki

Devi (P.W.1) who is the Informant the case.

4. The allegation against the appellant is of

having gone to the house of the deceased who had been

residing with P.W.1 along with his brother/Rattu Mishra

(since deceased) and of having stabbed the deceased by

means of a knife. He is also alleged to have assaulted

Sheo Narayan Ram (P.W.2) with a Lathi on his head,

though the injury suffered by P.W.2 was found to be

simple in nature.

5. The occurrence according to the F.I.R. took

place because of the deceased having protested against

the appellant and his brother for misbehaving with the

women folk of the village who had gone to offer prayers

in the village temple. This had happened at about 10 Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

O'clock in the day on 26.04.2010. The occurrence took

place in the night of 26.04.2010. The F.I.R. has been

lodged on 27.04.2010 at about 2 PM in the night

intervening between 26th/27th of April, 2010.

6. Jhunki Devi (P.W.1) has made a brief but

categorical statement in the F.I.R. which was recorded

by Yogendra Paswan (P.W.11), the I.O., alleging that

the appellant and his brother had misbehaved with the

women folk of the village at the temple. This was

objected by her grand-son (deceased) but the dispute

which erupted at that time had been settled because of

the intervention of the villagers. Later in the night, on

the same day, the appellant and his brother came to her

house and she saw the appellant repeatedly giving knife

blows to her grand-son who was sleeping. After receiving

injuries, the grand-son rant out of the house but fell

down near the Darwaja of one Vijay Pratap Mishra

(P.W.8) who during the Trial has turned hostile. On the

call of P.W.1, P.W.2 came but he too was assaulted by Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

the appellant by means of a Lathi after taking the Lathi

from the hand of his bother/Rattu Mishra.

7. On the basis of the aforenoted Fardebeyan of

P.W.1, a case vide Vijaypur P.S. Case No. 30 of 2010

dated 27.04.2010 was registered for investigation under

Section 302/34 of the I.P.C.

8. The police after investigation submitted

charge-sheet against the appellant and he was put on

Trial.

9. The Trial Court after having examined 11

witnesses on behalf of the prosecution has convicted the

appellant and sentenced him as aforesaid.

10. The case has been supported only by two

witnesses viz. the Informant (P.W.1) and the other

injured viz. Sheo Narayan Ram (P.W.2).

11. Jhunki and Sheo Narayan Ram (P.Ws. 1 &

2 respectively) have supported the prosecution case in

totality. P.W.1 knew about the reason for the assault.

The deceased had fought with the appellant and his Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

brother in the morning at Kali Temple of the village.

Irked by this act of the deceased, the appellant and his

brother had committed the crime.

12. There appears to be some casteist

overtones in the allegation but so far as the act of

assault is concerned, P.W.1 was a witness to it. There is

no reason to disbelieve the P.W.1 about her having

witnessed the occurrence as admittedly the deceased

was sleeping in the house in which the P.W.1 also

resided. She, on seeing the assault, raised alarm

whereupon Sheo Narayan Ram (P.W.2) arrived from the

neighborhood. He too was assaulted.

13. Similar statement has been made by P.W.2

who though claims to have seen the occurrence but his

presence at the P.O. at the time of assault on the

deceased appears to be slightly doubtful. In his

examination-in-chief, he has admitted that he came on

the call of P.W.1. By that time, if P.W.1 is to be

believed, the deceased had already been hit by the knife Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

and he had run away from the P.O. in order to save his

life but died near the house of P.W.8. The P.W.2 has

clearly stated in his cross-examination that he was

assaulted on his head by the appellant who grabbed the

Lathi from the hand of his brother/Rattu Mishra and this

act took place after the assault on the deceased by

means of knife by the appellant.

14. Though P.W.2 may not have seen the actual

assault but there is nothing on the record to disbelieve

his statement that it was the appellant who was inside

the house of P.W.1 and P.W.1 had raised an alarm on

seeing the appellant hitting the deceased by means of a

knife. That the appellant assaulted P.W.2 on his head

clearly demonstrates that the appellant had gone inside

the house of the P.W.1, perhaps on her call. It was only

after P.W.2 was assaulted on his head that the appellant

and his brother ran away.

15. Hiraman Ram, Uday Bhan Ram, Ram

Bhawan Kushwaha and Vijay Pratap Mishra (P.Ws. 3, 5, Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

6 & 8) respectively have not supported the prosecution

case and have been declared hostile.

16. Vijay Pratap Mishra (P.W.8) is the person

before whose house the deceased had fallen down on

the ground after being injured.

17. No questions were asked from the I.O.

(P.W.11) as to whether any statement was made by

P.W.8 during the course of investigation.

18. Dr. Nurul Basar (P.W.9) has examined

P.W.2 and has opined that the injury on his head was

caused by hard and blunt substance and the nature of

injury was simple.

19. Dr. Shashi Kumar Gupta (P.W.10)

conducted the postmortem examination on the deceased.

He found rigor mortis in all the limbs. There was one

incised wound found in front of the upper abdomen

located 3" above the umbilicus. The injury was cavity

deep and of the dimension of 1"X1". The time elapsed

since death was opined to be 24 hours. The postmortem Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

examination was held at 11 AM on 27.04.2010. In the

opinion of P.W.10, the death was caused because of

hemorrhage and shock as a result of the injury received

by the deceased by a sharp cutting weapon. The P.M.

report clearly confirms that the deceased died of the

knife injury.

20. The deposition of P.Ws. 1 & 2 thus establish

beyond doubt that it was the appellant who had caused

the fatal knife injury on the deceased.

21. The P.O. which is the house of the deceased

also stands proved.

22. Though there is some discrepancy in the

medical testimony as compared to the ocular version of

P.W.1 that the deceased was attacked several times by

the knife but the Doctor found only one incised wound

which proved to be fatal, but according to Mr.

Abhimanyu Sharma, the learned APP, P.W.1 is an old

lady who saw the attack from a distance and might have

misunderstood the scuffle between the appellant and the Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

deceased as repeated strikes by knife on the deceased.

23. Such minor discrepancy does not lead to

any other inference except the fact that either P.W.1 did

not see clearly that there was only one knife attack or

that there has been some embellishment in the

accusation. In either case, it would not render the

prosecution case doubtful on any score.

24. This takes us to the deposition of I.O.

(P.W.11) who confirms that he had registered the F.I.R.

on the fardebyan statement of P.W.1. According to

P.W.2, the deceased was taken by the I.O. (P.W.11) to

the Hospital for his treatment which fact also has been

proved by the deposition of the Doctor (P.W.9) who

examined him.

25. P.W.11 has though admitted that he did not

seize the cot on which the deceased was sleeping at the

time of occurrence but, such lapse would not render his

deposition unbelievable.

26. The prosecution therefore has been able to Patna High Court CR. APP (DB) No.529 of 2014 dt.14-09-2023

prove the case against the appellant in its entirety.

27. There is no reason for us to interfere with

the judgment and order of conviction and sentence.

28. The appeal thus is dismissed.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          18.09.2023
Transmission Date       18.09.2023