Naik Vs. State of Bihar  INSC 321 (11 May 2000)
Y.K.Sabharwal Y.K.SABHARWAL J.
appellant has been convicted for the offence under Section 302/34 I.P.C. by
Court of Sessions and sentenced to undergo life imprisonment. The conviction
and sentence has been confirmed by the High Court in appeal. The conviction is
based mainly on the testimony of two eye witnesses PW-2 and PW-3. The incident
took place at about 9.00
P.M. on 21st March, 1992. The appellant is said to have
given 5/6 dagger blows to deceased Triveni when Triveni was caught hold by Jaleshwar
and Jogender. These two persons are absconding and, therefore, they could not
be prosecuted. On learning that his son was being assaulted, PW 2, Dipu Gope
the informant went to place of occurrence and on way deceased Triveni joined
him. When they reached the place of occurrence, Triveni asked about the son of
PW-2 whereupon Triveni was taken to nearby pipul tree and the aforesaid two
persons caught hold of Triveni and the applicant gave dagger blows as earlier
stated. Triveni succumbed to the injuries and died on the spot. The other eye
witness PW-3 is the person with whom son of PW-2 was taking liquor when he was
assaulted on outraging modesty of the wife of Jaleshwar.
has also stated to have witnessed the incident of stabbing by the appellant.
appellant has not been able to shake the credibility of the eye-witnesses. No
material contradiction in the case of the prosecution has been shown to us.
Under these facts and circumstances, the non-examination of the Investigating
Officer as a witness is of no consequence. It has not been shown what prejudice
has been caused to the appellant by such non-examination.
the evidence on record it stands proved that there was sufficient light at the
place of occurrence to identify the appellant. We are also unable to accept the
contention of learned counsel for the appellant that the conviction deserves to
be converted to be one under Section 304 I.P.C either Part-I or Part-II thereof
because there was no pre-meditation. The pre-meditation can develop on the spot
as well. It all depends upon the facts and circumstances of the case. In the
present case, the deceased was given 5/6 dagger blows. In view of the evidence
on record the contention for converting the sentence as aforesaid cannot be
find no infirmity in the impugned judgment. The appeal is, therefore,