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PETITIONER: BAHADUR NAIK

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       11/05/2000

BENCH: S.R.Babu, Y.K.Sabharwal

JUDGMENT:

     Y.K.SABHARWAL J.

     The 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. PW-3  has  also  stated to have witnessed  the  incident  of stabbing by the appellant.

     The  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.

     From  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

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evidence  on  record  the   contention  for  converting  the sentence as aforesaid cannot be accepted.

     We  find  no infirmity in the impugned judgment.   The appeal is, therefore, dismissed.