Ramlal Kumhar v. State Of Bihar — 1999 DIGILAW 255 (PAT)

Judgment A.K.Prasad, J. 1. This criminal appeal at the behest of the sole appellant is directed against the judgment and order dated 3.10.1989 in ST. No. 90/86 passed by Shri B.N. Singh, Sessions Judge, Gumla whereby and where-under he has been convicted under Section 302 of the IPC, and sentenced to imprisonment for life. 2. Briefly put the prosecution case as made out in the FIR (Ext. 1) is as under : On 28.7.1984 in the morning Pius Bilung, the informant had gone along with his father Karma Bilung, the deceased, to the paddy field, which is adjacent East to village Kringloya for weeding out grass. After working in the field, around 4 p.m., they left for their home and when on way they were passing through a gali in front of the house of the appellant, latter started to abuse the deceased for using the gali. At that time, Karmu Kumhar, father of the appellant, invited the deceased to have tobacco in his house. The deceased stood in front of the dar-waja of the appellant and started to chew tobacco, and in the meantime the informant proceeded a few steps ahead and on hulla he returned to the darwaja of the appellant. As soon as he came to the darwaja he witnessed the appellant giving balua blows to his father deceased on left neck and near the right elbow. The deceased sustained deep wound on neck that bled profusely. The deceased fell unconscious on the spot on sustaining the wounds. At that time, Balchand Lohar (PW 2), his co-villager, arrived on hulla and witnessed the assault on the deceased and snatched the balua from the hand of the appellant whereupon the appellant fled through his house in South direction. Karmu Kumhar, father of the appellant, was pressing the neck of the deceased who lay injured on the spot. Balchand Lohar (PW 2) lifted the deceased and started carrying him home but on way near Karanj tree, which is at a short distance from the house of the appellant, deceased fell from the hold of PW 2. The informant leaving behind the deceased at that place, went to his village Bantaria and narrated the occurrence to his family members and villagers, who arrived there and saw the deceased and knew about the occurrence. The informant leaving behind the deceased at that place, went to his village Bantaria and narrated the occurrence to his family members and villagers, who arrived there and saw the deceased and knew about the occurrence. The informant thereafter went to Pasia P.S., which is at a distant of about 15 k.m. from the place of occurrence, in the company of Mahendra Indwar (PW 3), his co-villager and lodged the FIR (Ext. 1) about the incident around 9 p.m. 3. On the basis of the FIR (Ext. 1), the present case was instituted, the of ficer-in-charge of the PS. commenced the investigation and after completion of investigation charge-sheet was laid in Court against the appellant and Karmu Kumhar, father of the appellant. 4. The case was, ultimately, committed to the Court of Sessions by SDJM, Gumla on 4.10.1985. 5. The co-accused, Karmu Kumhar, father of the appellant, died during the pendency of the sessions case. Hence the trial proceeded against the sole appellant. 6. At the trial the prosecution examined 7 witnesses in support of its case. Out of them PW 4, Kailash Choudhary, is a witness on inquest. The other PWs are : PW 1 Plus Bilung, the informant, PW 2 Balchand Lohar, PW 3 Mahendra Indwar, PW 5 Mariyan Kharia, PW 6 Mitil Khariyain, widow of the deceased and PW 7, Dr. Basant Lal who held autopsy on the dead body of Karma Bilung. PWs 1, 2 and 5 claimed to be eye-witnesses to the occurrence. 7. The main defence is of innocence and false implication. The defence did not examine any witness. 8. On consideration of the evidence and materials on record and mainly relying on the ocular testimony of PWs 1,2 and 5 as well as the medical evidence, the Trial Court held the appellant guilty of the charge under Section 302 of the IPC, for committing the murder of Karma Bilung and convicted, and sentenced him under Section 302 of the IPC in the manner as stated above. 9. The point which falls for consideration is whether the prosecution has been able to bring home the charge under Section 302 of the IPC to the accused-appellant beyond shadow of reasonable doubt. 10. 9. The point which falls for consideration is whether the prosecution has been able to bring home the charge under Section 302 of the IPC to the accused-appellant beyond shadow of reasonable doubt. 10. Learned counsel for the appellant has assailed the impugned judgment and his contended that in fact, PWs 2 and 5 are not eye-witnesses to the actual assault on the deceased; that PW 5 is not a cited witness in the FIR (Ext. 1), that there are vital contradictions in the evidence of PWs 1, 2 and 5, that PW 1 is a child witness and he has made development in the prosecution case in Court that the appellant had offered tobacco to the deceased for chewing, while in FIR it is alleged that it was offered by the appellants father; that his testimony is inconsistent with the medical evidence and in the FIR it is alleged that the deceased has sustained balua wound on left neck but no wound on the neck was found by the doctor; that original post-mortem report of the deceased has not been produced and its carbon copy (Ext. 2) is quite faint; that the Investigating Officer has not been examined in the present case; that accused-appellant was not properly examined by the Trial Court under Section 313 of the Cr PC and the circumstances which appeared in evidence against him were not put to him in the examination; that there is vital error in his examination under Section 313 of the Code, inasmuch as the date of occurrence was mentioned in the question put to him to be 30.7.1984 instead of 23.7.1984 which has caused prejudice to the defence and, in the circumstances, he has contended that the impugned conviction and sentence cannot be sustained. 11. Learned APP appearing for the respondent-State, on the other hand, has supported the impugned judgment. 12. At the first instance it is to be considered whether death of the deceased was homicidal. PWs 1, 2 and 5 have testified to the effect that the deceased sustained balua wounds and he died as a result of it. PWs 3, 4 and 6 have stated that there were cut wounds on the person of the deceased. PW 7, Dr. PWs 1, 2 and 5 have testified to the effect that the deceased sustained balua wounds and he died as a result of it. PWs 3, 4 and 6 have stated that there were cut wounds on the person of the deceased. PW 7, Dr. Basant Lal, who held autopsy on the dead body of Karma Bilung on 25.7.1984 at 2 p.m. has stated that he found the following ante-mortem wounds on his person: "(1) One incised wound 4-1/2" x 1-1/2" x 2-1/4" on the left side of the head. On dissection the skin, Fascia muscles, skull bone Meninges and a part of brain matter were found cut with blood and clots present. (2) Incised injury 2-3/4" x 1/2" x 1-1/4" on the left side of face. On dissection the skin, Fascia, muscles, left maxillary bone (sick) and a part of the left ear were found cut. (3) Incised injury 1-1/2" x 1-1/2+ x 1" on the right elbow. On dissention the right humerous bone was found partially cut. (4) Incised injury 2-1 /4" x 1 /2" x 1 /4" on the front of left side of chest. (5) Incised injury 1-3/4" x 1 /2" x 3/4" on the left elbow with left humerous bone found partially cut." He has opined that all the injuries were caused by sharp cutting weapon as balua and injury No. 1 was sufficient to cause death inordinary course of event. According to him, the death was caused due to shock and haemorrhage as a result of ante-mortem wounds and the time elapsed since death was within one to two days of the postmortem examination. He has proved the carbon copy of the post-mortem report, which was prepared by him along with original in the same process and bears his signature, Ext. 2. It is to be treated as original document. It is true that he admits in his cross-examination that carbon copy of the post- mortem report (Ext. 2) is not quite visible but he asserts to have read it. The ocular testimony and the medical evidence establish beyond doubt that Karma Bilung met with a homicidal death. 13. Now crucial point which arises for consideration is whether the appellant was instrumental in the murder of the deceased. The prosecution story rests on the ocular testimony of PWs 1, 2 and 5 on the point. The ocular testimony and the medical evidence establish beyond doubt that Karma Bilung met with a homicidal death. 13. Now crucial point which arises for consideration is whether the appellant was instrumental in the murder of the deceased. The prosecution story rests on the ocular testimony of PWs 1, 2 and 5 on the point. One may now proceed to discuss and analyse their evidence. It is true that the age of PW 1, Pius Bilung, the informant, at the time of occurrence was 9-10 years. It is also true that he is the son of the deceased. Bearing in mind both these factors one has to carefully scrutinise his evidence. He has stated in his chief-examination that on the fateful day while he was returning from paddy field in the company of his father (deceased) and had reached near the house of the appellant, which is situated at Naditola, the appellant stopped his father-deceased and invited him in his house for chewing tobacco whereupon he (PW 1) and his father-deceased stayed at the house of the appellant and the appellant offered tobacco, which his father began to chew and at that moment the appellant dealt several balua blows to the deceased-father and BalChand Lohara (PW 2) snatched the balua from him. He has further stated in the chief-examination that Bal Chand Lohara (PW 2) started to carry his wounded father but on way near Karanj tree he died whereafter he went home and narrated the incident to his family members and villagers. He has further stated that he went to Basia PS in the company of PW 3, Mahendra Indwar and lodged the FIR (Ext. 1) which was recorded by Daroga and on finding it correct he appended his thumb mark to it. It has come in cross-examination of PW 1 that his paddy field is at a short distance from the house of the appellant. He has reiterated in the cross-examination that his father had entered the house of the appellant on invitation to have tobacco while he stayed outside. He has not been cross-examined by the defence on the point of actual assault on the deceased. PW 6, Mitil Khariyain, mother of the informant, has corroborated his testimony that in the evening on the day of occurrence he had returned home and disclosed to her that appellant had inflicted cut wounds to the deceased. 14. He has not been cross-examined by the defence on the point of actual assault on the deceased. PW 6, Mitil Khariyain, mother of the informant, has corroborated his testimony that in the evening on the day of occurrence he had returned home and disclosed to her that appellant had inflicted cut wounds to the deceased. 14. The medical evidence corroborates the testimony of PW 1, Pius Billing, that deceased had sustained wounds caused by balua. PW 3, Mahendra Indwar has testified to the effect that he had taken PW 1 to the PS on his motorcycle where the police officer recorded his FIR and he put his signature on it as a witness. The FIR was lodged within 5 hours of the occurrence. The appellant is named in the FIR. It corroborates the testimony of PW 1 that appellant is the assailant of the deceased. 15. A criticism has been made by the learned counsel for the appellant that in the FIR it is alleged that Karmu Kumhar, the appellants father had invited the deceased and offered tobacco to him, but in evidence the informant (PW 1) has stated that the appellant had invited and offered tobacco to the deceased. The attention of PW 1 was not drawn to this part of the statement during cross-examination. The evidence of PW 1 was recorded after 4-1/2 years of the occurrence. Due to efflux of time he might have failed to properly recollect as to whether the appellant or his father had invited or offered tobacco to the deceased. At any rate it is a natural and minor contradiction which does not affect the substratum of the prosecution case. 16. It has been pointed out by learned counsel for the appellant that in the FIR (Ext. 1) it is stated that deceased had sustained deep wound on the neck also, but no wound on the neck was found by the doctor and this makes it doubtful that PW 1 had, in fact, witnessed the assault on the deceased. The doctor (PW 7) had found incised injury on the left side of face of the deceased with left maxillary bone and a part of the left ear cut. The informant, PW 1 was a boy of tender age. He must have been perplexed, in shock and horror to witness the occurrence of assault on the deceased. The doctor (PW 7) had found incised injury on the left side of face of the deceased with left maxillary bone and a part of the left ear cut. The informant, PW 1 was a boy of tender age. He must have been perplexed, in shock and horror to witness the occurrence of assault on the deceased. It is in evidence of PW 3, that PW 1 had fainted at the police station. The deceased had suffered as many as 5 wounds. The wound suffered by him on the left of his face with the left ear cut is in close proximity to the neck. There was profuse bleeding from the wound. PW 1 might have perceived it to be a wound caused on the neck. In given situation it is a normal error of observation. 17. It has next been contended by appellants counsel that PW 1 has stated during cross-examination that he had gone to the PS after three days and this gives rise to the inference that FIR was lodged in the night of 25.7.1984, and not on 23.7.1984 itself. This statement may have been made by him under stress of cross-examination. The FIR was received in the Court of ACJM, Gumla on 25.7.1984. Originally, the case was registered under Sections 307 and 324/34 of the IPC and subsequently Section 302 of the IPC was added. Had the FIR been recorded after three days of the occurrence there would have been no occasion to subsequently add Section 302 of the IPC on 25.7.1984. There is no plausible material to aspect the defence version that FIR is ante-dated. 18. The FIR was lodged within five hours of the occurrence. The informant (PW 1) had soon after the occurrence disclosed the name of appellant as the assailant of the deceased to his mother (PW 6) and villagers. There was no time for PW 1 to be tutored. PW 1 is the natural witness. It does not stand to reason as to why PW 1 being the son of the deceased would spare the real culprit and falsely implicate the appellant. 19. The evidence of PW 1 gives the ring of truth on the substratum of the prosecution story that appellant had caused the death of the deceased. 20. It does not stand to reason as to why PW 1 being the son of the deceased would spare the real culprit and falsely implicate the appellant. 19. The evidence of PW 1 gives the ring of truth on the substratum of the prosecution story that appellant had caused the death of the deceased. 20. PW 2, Balchand Lohara has stated that on the day of occurrence he had gone to Naditola to collect phar (plough) for sharpening from the house of Tofil Kharia, which is in front of the house of the appellant and while he was returning he witnessed the appellant assaulting the deceased with balua inside his house. The distance between P.O. Naditola and village Bantaria is about 1 km. He has further stated deceased, who was unconscious, making him a potra (bundle) and on the way he kept him near a Karanj tree and after sometime he died. He has stated in chief-examination that PW 1 was present on spot at time of occurrence. He has deposed in the cross-examination that in Naditola there are four or five houses and he sharpens their ploughs. He has reiterated in his cross-examination that PW 1 was present on the spot and had uttered that his father was being assaulted. PW 2 has stated during cross-examination that when he reached near the deceased he found him fallen on the ground. It is quite natural that while assault was going on, the deceased had fallen down on receiving some blows. There is no material on record to suggest that PW 2 has any animus with the appellant. He is cited a witness in the FIR. He is an independent witness. There is no reason to discard his testimony on the point of assault on the deceased by the appellant. 21. .PW 5, Mariyam Kharia, resident of Kringloya, has stated in her chief-examination that on the day of occurrence, around 4 p.m., she was passing through the passage in front of the house of the appellant for fetching water and at that time she saw the appellant inflicting wounds to the deceased, Karma Kharia @ Karma Bilung with balua. She has further stated that Balchand Lohara (PW 2) snatched balua from the appellant and that Pius Bilung (PW 1) was present on the spot. She has further stated that Balchand Lohara (PW 2) snatched balua from the appellant and that Pius Bilung (PW 1) was present on the spot. It is true that during cross-examination she has stated that by the time she reached the spot she found that the deceased had fallen down and his neck was bleeding and out of fear she fled. She has explained that on hulla raised by PW 1 her attention was attracted and she went to the spot and witnessed the occurrence. It has already been noticed above that a wound with blood and clots on the left ear in close proximity to the neck was found by the doctor. She was horrified to see the incident and so there was error in observation/perception regarding the seat of the wound which was bleeding. It has been urged by the appellants counsel that PW 5 is not a cited witness in the FIR and PWs 1, and 2 have not stated about her presence on the spot and it is quite probable that she did not witness the actual assault on the deceased when she states that by the time she reached the spot the deceased had fallen down with bleeding wound. PW 1 has explained in his evidence that others too had arrived on the spot later on whose name he was unable to say. PW 2 is an independent witness. At any rate, her evidence can be accepted to the extent that PWs 1 and 2 were present on the spot and the deceased was lying with bleeding injury. 22. The evidence of informant (PW 1) gets full corroboration from the testimony of PW 2, as eye-witness, on the participation of the appellant in the occurrence. The testimony of PW 5 lends assurance to the evidence of PWs 1 and 2 that they were present on the spot at the time of occurrence, when the deceased was lying wounded. Their evidence establishes beyond doubt that appellant caused the death of the deceased. 23. A criticism has been made by learned counsel for the appellant that Investigating Officer has not been examined in the case and this is an infirmity which vitiates conviction of the appellant. The evidence of PWs 1 and 2, the eye-witnesses and PW 5 is that the occurrence of assault took place in the house of the appellant. 23. A criticism has been made by learned counsel for the appellant that Investigating Officer has not been examined in the case and this is an infirmity which vitiates conviction of the appellant. The evidence of PWs 1 and 2, the eye-witnesses and PW 5 is that the occurrence of assault took place in the house of the appellant. PW 3 has stated that Police Officer had seized blood stained earth from the house of the appellant in his presence. It is not the defence version that occurrence had taken place elsewhere. The identity of the P.O. stands proved in the case. The defence has not taken any contradiction on a material point from a witness vis-a-vis the statement before the police and evidence in Court. Learned counsel for the appellant has failed to show that any prejudice has been caused to the defence by the non-examination of the Investigating Officer. Under the circumstances, I am of the view that non-examination of the Investigation Officer is not an infirmity and it does not adversely affect the prosecution case. 24. Learned counsel for the appellant has urged that procedure followed in recording the statement of the appellant under Section 313 of the Cr PC was not proper and totally irregular inasmuch as material evidence and the circumstances which were relied by the prosecution, were not put to him and in the question put to the appellant the date of occurrence has been erroneously recorded as 30.7.1984, instead of 23.7.1984 with the result that appellant was denied an opportunity to explain the material evidence and the circumstances and, therefore, he has contended that the non-compliance of Section 313, Cr PC has vitiated the trial. 25. The English version of the statement of the appellant recorded under Section 313, Cr PC is as follows : "Q. It is said that on 30.7.1984 you murdered Karma Biking at village Kringloya, P.S. Basia? A. No, Sir. Q. Would you give evidence in defence ? A. Yes, Sir. Q. Do you want to say anything more ? A. Will give in writing. In the instant case, the prosecution case mainly rests upon ocular evidence of eye-witnesses. It is not a case solely based on circumstantial evidence. No circumstance has been relied upon by the prosecution in the instant case for establishing the charge against the appellant. The eye-witnesses were cross- examined by the defence. A. Will give in writing. In the instant case, the prosecution case mainly rests upon ocular evidence of eye-witnesses. It is not a case solely based on circumstantial evidence. No circumstance has been relied upon by the prosecution in the instant case for establishing the charge against the appellant. The eye-witnesses were cross- examined by the defence. An Advocate was engaged to defend the appellant at the trial. The appellant was aware of the charge which alleged that on 23.7.1984 he had committed the murder of Karma Bilung at village Kringloya, P.S. Basia (District-Gumla). It is true that in the question put to him in examination under Section 313 of the Cr PC, the date of occurrence due to error has been recorded as 30.7.1984 instead of 23.7.1984. But the fact remains that it was explained to him that material which had come in evidence of the eyewitnesses was that he had committed murder of the deceased. There is no error about the place of occurrence or the name of the deceased in the question put to him. Therefore, in the instant case there has been sufficient compliance with the provision of Section 313 of the Cr PC. It is well settled that every error, omission or defect in complying with the Section 313 of the Cr PC does not vitiate the trial unless prejudice is shown to have been caused to the accused. Learned counsel for the appellant has failed to demonstrate that serious prejudice has been caused to the defence due to error in recording the date of occurrence in the question put to the defence in the examination under Section 313 of the Cr PC. Hence the above contention raised on behalf of appellant is not acceptable. 26 In view of the discussions made above, I find and hold that prosecution has been able to establish the charge under Section 302 of the IPC against the appellant beyond shadow of reasonable doubt. He has been rightly convicted and sentenced thereunder by the Trial Court. 27. In the result, the appeal fails as it lacks merit. Judgment and order of conviction and sentence by the Court below is affirmed. The appellant shall surrender to his bail bond in the Court below to serve out remaining part of the sentence forthwith failing which the Trial Court shall take all steps for securing his attendance.