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2000 DIGILAW 10 (JHR)

Safauddin Momin v. State of Bihar

2000-11-23

A.K.PRASAD, S.N.MISHRA

body2000
Judgment : By Court.-This appeal at the behest of the appellants (Safauddin Momin and Mehiruddin alias Bhotua Momin) is directed against the judgment and order dated 18.1.1996 in S.T. No. 333 of 1 D92 passed by Shri A.P. Ram, the then Addl. Sessions Judge at Seraikella, whereby they have been convicted under sections 302/34 of the Indian Penal Code, on the charge of committing the murder of Lakhi Kant Singh Munda, in furtherance of their common intention and they have been sentenced to undergo imprisonment for life. It may be mentioned that co-accused (Kamaluddin Momin) who was being tried along with the convicts/appellants, absconded in the midst of the trial and his case was separated. 2. Briefly put, the prosecution case, is as under : On 26.12.1991, Arjun Singh Munda and his brother (Lakhi Kant Singh Munda), the deceased, had been to Tiruldih Hat, which is at a distance of about 2 Kms. from their village home Chourah (Munda tola), within Ichagarh Police Station to sell tomatoes and milk. After selling milk and tomatoes, they were returning together from Tiruldih Bazar and near Kudha village they separated for a while and Lakhi Kant Singh Munda moved ahead, followed by his brother Arjun Singh Munda (P.W. 4). When Lakhi Kant Singh Munda came in front of the tea shop, which was situate in the outer court-yard of Ibrahim Momin of village Chourah, the appellants, who were sitting in the tea shop, came out and overpowered Lakhi Kant Singh Munda, and they inflicted several knife blows to him on the vital parts of the body, while co-accused (Kamaluddin Momin), their associate fired on his chest, with the result that Lakhi Kant Singh Munda dropped dead on the spot. The informant (Arjun Singh Munda/ P.W. 4) seeing the incident ran to his tola in the village Chourah itself and narrated the incident to his kith and kin and the villagers, who visited the scene of occurrence and found the dead body of Lakhi Kant Singh Munda, lying in pool of blood. The informant got the information sent to Tiruldih police-out- post, whereupon the police officer namely, Anil Tigga, the then Assistant Sub-Inspector of Police attached to Tiruldih Police Outpost, visited the home of the informant and recorded his fard-beyan (exhibit 4) on 26.12.1991 at about 1.30 PM. The informant got the information sent to Tiruldih police-out- post, whereupon the police officer namely, Anil Tigga, the then Assistant Sub-Inspector of Police attached to Tiruldih Police Outpost, visited the home of the informant and recorded his fard-beyan (exhibit 4) on 26.12.1991 at about 1.30 PM. The motive for the murder of the deceased, as alleged, is that he used to live with Mahavir Gope, whose house had been set ablaze and the deceased had helped in extinguishing the fire and had deposed for Mahavir Gope in the arson case. On the basis of the fard-beyan (exhibit 4) Anil Tigga, the police officer assumed and commenced investigation of the case, sent the fard-beyan to Incharge Police Station, on the basis of which the present case came to be instituted, the formal first informant report (exhibit 3) was drawn up, the Investigating Officer visited and inspected the spot, held inquest over the dead body, sent it for the post-mortem examination and, ultimately, on completion of investigation charge-sheet was laid in court against the accused persons. The case was, ultimately, committed to the court of Sessions by order dated 14.9.1992, passed by Shri J.G. Singh, the then Sub-divisional Judicial Magistrate, Seraikella. 3. The main defence is of innocence and complete denial of the involvement of the appellants in the murder of the deceased and of false implication. At the trial, the prosecution examined seven witnesses in support of its case, out of which P.W 1 (Prender Singh Munda), is the hear-say witness, P.W. 3 (Banshidhar Singh Munda) is a witness to the inquest, P.W. 5 (Dinbandhu Singh Munda) is a tendered witness, and P.W .7 (Chandraket Narain Singh), a court constable, is a formal witness, who has proved the formal first information report (exhibit 3), the fard-beyan (exhibit 4) and the inquest report (exhibit 5). The other P.Ws. are: PW. 2 (Hartal Singh Munda ), a cousin of the deceased, who claimed himself to be an eye-witness to the alleged assault on the deceased, P.W 4 (Arjun Singh Munda), the informant, as well as an eye-witness to the occurrence, and P.W 6 (Dr. Tulsi Mahto) who held autopsy on the dead body of Lakhi Kant Singh Munda. The defence, on the oher hand, laid no evidence. 4. Tulsi Mahto) who held autopsy on the dead body of Lakhi Kant Singh Munda. The defence, on the oher hand, laid no evidence. 4. The trial court did not believe the evidence of P.W. 2 that he was, in fact, an eye-witness to the occurrence mainly for the reason that he was not cited in the fard-beyan, nor the informant (P.W. 4) whispered in his evidence about his presence and their company or gone to the spot at the time of occurrence, and discarded his occular testimony. The trial court, on consideration of other evidence, and mainly relying on the solitary ocular testimony of P.W. 4 as well as the medical evidence and the fact that the fard-beyan had been recorded within an hour of the occurrence, in which the appellants were named with overt-acts, held the appellants guilty of the charge under sections 302/34 of the IPC and convicted and sentenced them in the manner, as stated above. 5. While assailing the impugned judgment and conviction Mr. G.C. Sahu, learned counsel for the appellants, mainly urged that P.W. 4 (Arjun Singh Munda) is an interested witness and is related to the deceased. There is every possibility that he might not have witnessed the actual assault on the deceased; that his evidence is in-consistent with the medical evidence, inasmuch as no fire arm injury was found on the left chest of the deceased, although the doctor has found such wounds on the face and around the neck and in his cross-examination P.W. 4 has spoken that the appellants had inflicted only two knife wounds to the deceased, while the doctor had found as many as six incised wounds, caused by sharp cutting/ pointed weapons, on the person of the deceased and, in the alternative he urged that the appellants at best may be convicted for the offence under sections 326/34 of the IPC. Mr. N.N. Mahto, learned APP appearing on behalf of the respondent/State, on the other hand, has supported the impugned judgment. 6. Now the point that falls for consideration is : whether the appellants are liable for the offences under sections 324/34 of the IPC. 7. The identity of the place of occurrence has not been challenged before us. It is not defence version that the occurrence had taken place else where. The fact that the deceased met with homicidal death is not in controversy. 7. The identity of the place of occurrence has not been challenged before us. It is not defence version that the occurrence had taken place else where. The fact that the deceased met with homicidal death is not in controversy. At this juncture, it would be appropriate to advert to the gist of the medical evidence. P.W. 6 (Dr. Tulsi Mahto) has testified to the effect that on 28.12.1991 at 10 AM he performed the post-mortem examination on the dead body of Lakhi Kant Singh Munda and he found the following antemortem wounds on the person of the deceased : A. Fire arm wound with entrance through right side of anterior portion of nose having passed through left side of the nose avulsing the tip of the nose and cartilaginous portion of the nasal septum with area of fouling over the whole face and the neck more so over the right side over an area of 25 cm x 28 cm. B. Incised wounds: (i) 3 cm x 2 cm. x 3.8 cm. over the left anterior axillary fold in the 2nd inter-costal space 7 cm. above the nipple cutting the cartilaginous portion of the rib completely and under-lying lung. (ii) 3 cm. x 1/2 cm. x 3.5 cm. overlying the left scapula in the 7th inter-costal space cutting the angle of scapula partially and had pierced the 9th inter-costal space puncturing the left lung. (iii) 5 cm. x 1-1/2 cm. skin deep over the inner portion of medical border of left scapula. (iv) 2.5 cm., x 1/4 cm. x skin deep over the posterior aspect of middle of left arm. (v) 3.5 cm x 2 cm. x 8 cm., over the right chest front 5 cm. medial to middle over-lying the 4th and 5th ribs. (vi) 3 cm x 1 cm. x 7 cm. overlying the right 6th inter-costal space penetrating the right lobe of liver. C. Internally: There was left sided haemothorax with cutting of the left upper lobe of lung through incised wound No. (i). Blood and blood clots measuring 1/2 litre. There was right sided haemothorax with blood and blood clots and with penetration of right dome of diaphragm and liver and the lung. Blood and blood clots one litre. Rest of the organs were normal but pale. There was contusion and fracture of nasal septum close to its union with cartilaginous portion. Blood and blood clots measuring 1/2 litre. There was right sided haemothorax with blood and blood clots and with penetration of right dome of diaphragm and liver and the lung. Blood and blood clots one litre. Rest of the organs were normal but pale. There was contusion and fracture of nasal septum close to its union with cartilaginous portion. Stomach contains undigested food materials in pasty form 300 grms with normal mucosa. The urinary bladder was empty. According to the doctor (P.W. 6), all the incised wounds were caused by sharp cutting-cum-pointed weapon. Tatooing and blackening, i.e. fouling over the face and nose were caused by fire-arm. The doctor has further opined that the death was due to haemorrhage and shock, as a result of above noted injuries within 72 hours plus minus 24 hours from the time of postmortem examination. The evidence of the doctor establishes beyond doubt that the deceased had died of fire-arm and incised wounds. The medical evidence also fits in with the prosecution case about the probable time of the occurrence. 8. The crucial point which now arises for consideration is : whether the appellants were instrumental in the murder of the deceased. It is true that P.W. 4 is closely related to the deceased. It is well settled that the evidence of a witness is not to be discarded simply on the ground of relationship; rather it has to be scrutinised with care and caution. No doubt, P.W. 4 is the solitary eye-witness to the occurrence. Conviction can be based on the solitary occular testimony, if it is found to be wholly reliable, even without corroboration and where it is neither wholly reliable nor wholly un-reliable, the court would require independent corroboration to his testimony in material particulars before recording conviction. Bearing this cardinal principles in mind, one may now proceed to scrutinise and evaluate the evidence of P.W. 4 on the involvement/ participation of the appellants in the occurrence, culminating in the death of the deceased. 9. Bearing this cardinal principles in mind, one may now proceed to scrutinise and evaluate the evidence of P.W. 4 on the involvement/ participation of the appellants in the occurrence, culminating in the death of the deceased. 9. P.W. 4 (Arjun Singh Munda) has testified to the effect in his chief-examination that on the fateful day, Lakhi Singh Munda, his brother, had been to Tiruldih Hat to sell tomatoes and after some time, he too went to Tiruldih Hat to sell milk and at about noon, they were returning home together from the market and on the way at village Kudha, Lakhi Kant Singh Munda moved a bit ahead of him and when this witness reached near the house of Ibrahim Momin in his village Ghorah, the appellants and co-accused Kamaluddin, who were sitting in the teastall, in front of the house of Ibrahim Momin, emerged out and both the appellants caught hold of Lakhi Kant Singh Munda and dealt knife blows to him, whereafter co- accused Kamaluddin inflicted pistol shot wound to the deceased, who, ultimately, died on the spot. He has further stated that the house of Mahavir Gope had been set on fire, for which there was a police case, in which Lakhi Kant Singh Munda (the deceased) had deposed against the accused and this was the motive for his murder by the appellants and his associate. He has further deposed that he went to his village soon after the occurrence and narrated the incident to Rajiv Machua, Chotu Gope, Raghu Das and others, whereafter the police came and recorded his fard-beyan at his home. It has come in his evidence that the distance between his village and Tiruldih Hat is 2 miles approximately. It has been elicited in his cross-examination that he had his brother returned from Tiruldih Hat upto Kudah village on a bicycle and near Kudah village he met Amin Mahto, with whom he was engaged in a talk and his deceased brother had proceeded ahead, and that he witnessed the assault on the deceased from a distance of about 300. It has further come in his cross-examination that he had seen the appellant Mehiruddin alias Bhotua Momin dealing a knife blow in the right chest of the deceased, while appellant Safauddin Momin raised his hand and dealt a knife blow to the deceased from the back side. It has further come in his cross-examination that he had seen the appellant Mehiruddin alias Bhotua Momin dealing a knife blow in the right chest of the deceased, while appellant Safauddin Momin raised his hand and dealt a knife blow to the deceased from the back side. He has further stated that co-accused (Kamaluddin) had fired a pistol shot, which hit the left chest of the deceased. It has not been specifically taken in the cross-examination that this witness had witnessed only two knife blows being dealt on the deceased. But the fact remains that inspite of searching cross-examination he is consistent in his deposition that both the appellants had dealt knife blows to the deceased on the vital parts of the body. It has been noticed above that the doctor had found as many as six incised wounds one above the left nipple, i.e. the chest, the other wound had penetrated the left lung, there was incised wound on the right chest, there was incised wound on the inner portion of the medial border of the left scapula and the other incised wound had penetrated the right lobe of the liver. The medical evidence corroborates the testimony of P.W. 4, that severe wounds by knife were caused to the deceased. The number of the incised wounds and the placements leave no room for doubt that there was more than one assailant who had inflicted incised wounds on the vital parts of the body. A criticism has been made by the learned counsel for the appellants that the doctor has admitted that he did not find any fire-arm wound on the left chest of the deceased. The medical evidence reveals that the fire-arm wounds covered the face and were around the neck. The neck is quite close to the chest. When one happens to witness such a murderous assault on his kith and kin and that too from some distance he may get perplexed, he may be stunned, he may be dumbfounded, his power of observation and retention may get impaired. So one may not be able to observe as to where a pistol shot had, in fact, hit the victim. The fact remains that the fire arm wound was found by the doctor on the deceased. So one may not be able to observe as to where a pistol shot had, in fact, hit the victim. The fact remains that the fire arm wound was found by the doctor on the deceased. The difference regarding the seat of the fire arm injury, in the circumstances of the case, would not render the evidence of P.W. 4 to be un-worthy of credence or that it is in-consistent with the medical evidence. It is quite natural that when P.W. 4 witnessed the murderous attack on the deceased, he in panic and in fear ran home through another lane to see that he may not fall a victim in the hands of the assailants. The evidence of P.W. 4 clearly establishes that the appellants took active part in the murderous assault made on the deceased. In the facts and circumstances of the case, it is manifest that the attack was made on the deceased by the appellants in furtherance of common intention. P.W. 4 is the elder brother of the deceased. It does not stand to reason as to why the close relative of the deceased would spare the real culprit(s) and falsely implicate the appellants. The incident had taken place in broad day light by the road side on market day. There may be some minor contradictions over the trivial matters or the details of the incident which do not affect the testimony of P.W. 4 so far as the substratum of the prosecution story is concerned. The fard-beyan which was recorded within an hour of the occurrence, in material particulars, corroborates the testimony of P.W. 4. A criticism has been made that one could not have witnessed the occurrence from a distance of 300. It is suffice to say that a village man gives an estimate of the distance and it is not expected that he would give the exact measurement of the distance from where he witnessed the occurrence. There is no reason to disbeieve the testimony of P. W. 4, who is a natural witness on the active involvement/participation of the appellants in the murder of the deceased. On close scrutiny of his evidence, we are of the considered view that it gives the ring of truth. That apart P.W. 1 (Prender Singh Munda) has stated that P.W. 4 had immediately disclosed the names of the appellants, as the assailants of the deceased. 10. Mr. On close scrutiny of his evidence, we are of the considered view that it gives the ring of truth. That apart P.W. 1 (Prender Singh Munda) has stated that P.W. 4 had immediately disclosed the names of the appellants, as the assailants of the deceased. 10. Mr. Sahu has contended that the Investigating Officer has not been examined in the case and this materially affects the prosecution case. But he has been unable to demonstrate that any contradiction of material point has been taken by the defence from P.W. 4 during cross-examination vis-a-vis the evidence in court and the statement before the police, which has caused serious prejudice to the defence. Hence, the non-examination of the Investigating Officer, in the facts and circumstances of the case, is not fatal to the prosecution case. Mr. Sahu in the alternative, urged that there was no common intention of the appellants to commit the murder of the deceased; rather it can be said that they wanted to cause grievous hurt. The appellants and their associates were in the tea shop, where they were waiting for the victim; the appellants overpowered and inflicted several grievous wounds by knife, a deadly weapon, on vital parts to the victim and their associate completed the operation by inflicting fire-arm wounds to the deceased from a close range who collapsed on the spot, the manner in which the occurrence took place and the facts and circumstances clearly suggest that the appellants shared the common intention to cause the death of the deceased. Hence, the contention of Mr. Sahu that the intention of the appellants was only to cause grievous hurt to the deceased does not appeal to the reason and cannot be accepted. 11. Before parting with the matter, we may point out that the decisions reported in AIR 1998 SC 3243 (Baduddin Vs. State of Uttar Pradesh) and 1994 (1) Eastern India Cr. Cases 516 (Sabitri Devi and anr. VS. State of Bihar), cited by Mr. Sahu in support of his contention(s), do not apply in the facts and circumstances of the case. 12. In view of the discussions made above, we are of the considered view that the appellants have been rightly convicted and sentenced by the trial court under sections 302/34 of the Indian Penal Code. 13. In the result, this appeal lacks merit and is dismissed. 12. In view of the discussions made above, we are of the considered view that the appellants have been rightly convicted and sentenced by the trial court under sections 302/34 of the Indian Penal Code. 13. In the result, this appeal lacks merit and is dismissed. The conviction of the appellants under sections 302/34 of the Indian Penal Code and sentence of life imprisonment passed on them by the trial court are hereby affirmed.