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2000 DIGILAW 503 (PAT)

Jiwan Chalak v. State Of Bihar

2000-03-30

A.K.PRASAD, P.K.DEB

body2000
Judgment P.K.Deb and A.K.Prasad JJ. 1. The sole accused-appellant has been convicted under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code for committing the murder of his younger brother Julus Chalak in furtherance as the common intention with the absconding accused Suru Chalak alias Suresh Chalak. 2. The prosecution story in brief is that the accused-appellant, the deceased and the absconding accused Suru Chalak alias Suresh Chalak were own brothers. Their parents were the employees of Tisco Ltd. at Jamshedpur. Because of paralysis, the father had to take voluntary retirement and in his place, one of the brothers had been appointed in the Tisco Ltd. on compassionate ground. On mothers retirement, another brother had also been appointed on compassionate ground at Tisco Ltd. but the deceased Julus Chalak who happened to be the youngest but he remained unemployed. The parents started living with the deceased while other two brothers had also been separated in the same house during the life time of the parents. During the leaving of service by the father, he got the amount of Rs. 1,00,000/- from his employer, Le. Tisco Ltd. and the same was deposited in the Bank. After the death, out of that amount Rs. 40,000/- was spent towards funeral i.e. Sradh ceremony and Rs. 60,000/- remained in the Bank. After the death of the parents, some dispute arose regarding the amount of Rs. 60,000/- which was kept in the Bank left by the father of the parties. A Panchayati was held and therein it was decided that out of that Rs. 40,000/- should go in favour of the deceased Julus Chalak as he had not get any appointment, while the two other elder brothers, i.e. the accused appellant Jiban Chalak and the absconding accused Suru Chalak alias Suresh Chalak had been appointed in the place of their father and mother respectively on compassionate ground. The rest amount of Rs. 20,000/- was decided to be paid half and half to the accused-appellant Jiban Chalak and the absconding accused Suru alias Suresh Chalak. For the time being, the dispute was stopped but it is a case of the prosecution that afterwards the two brothers started pressing on the deceased to equally divide the whole of Rs. 60,000/- in favour of all the three brothers which the deceased Julus Chalak did not agree. For the time being, the dispute was stopped but it is a case of the prosecution that afterwards the two brothers started pressing on the deceased to equally divide the whole of Rs. 60,000/- in favour of all the three brothers which the deceased Julus Chalak did not agree. It is the allegation that on the date of occurrence, i.e. on 5.7.1987 in the noon hours, the deceased Julus Chalak came home in drunken state and went to bath room and asked for his wearing apparels from his wife-informant PW 4 Karuna Chalak. There was some delay on the part of his wife to supply dhoti to the deceased at which he started abusing. The accused-appellant and the other brother Suru alias Suresh Chalak thought that the deceased was abusing them and at this, both of them dragged out the deceased from the bath room and it was alleged that the absconding accused Suru Chalak alias Suresh Chalak had dealt with a dagger blow on the abdomen of the deceased and also rounded it. The other accused, i.e. accused-appellant Jiban Chalak came at that time, caught hold of the deceased and afterwards he had also assaulted him by means of knife. The wife of the deceased raised hulla and the neighbouring people came. Some of them took the deceased who was in the injured condition as there was profused bleeding to Tata Main Hospital, Jamshedpur. but when he was brought there, he was declared dead. On that very date in the evening hours at about 5.30 p.m., PW 4 (Karuna Chalak) lodged information with Sonari Police Station and her fardbeyan (Ext. 3) was recorded and bears her signature which has been marked as Ext. 1/8 before the trial Court. In the fardbeyan she gave the vivid description as to how the occurrence took place together with the genesis for which incident had occurred. Both the accused persons had been arrested. The dead body of Julus Chalak had been inquested and sent for post-mortem examination through chalan. Blood-stained earth was seized from the place of occurrence which was nothing but the aagan in front of the house of all the three brothers. The incriminating weapon, Le. dagger was also seized from the house of the absconding accused Suru alias Suresh Chalak. On autopsy, death was caused due to the injuries caused on the abdomen, although some other injuries were also there. The incriminating weapon, Le. dagger was also seized from the house of the absconding accused Suru alias Suresh Chalak. On autopsy, death was caused due to the injuries caused on the abdomen, although some other injuries were also there. After closure of investigation, charge-sheet was submitted under Section 302/34 of the Indian Penal Code against both the brothers, namely, Jiban Chalak and Suresh Chalak. On being committed to sessions, charge was framed under Section 302/34 of the Indian Penal Code vide order dated 16.9.1989 before the trial Court and when the charge was read over and explained to ,the accused persons, they pleaded not guilty. The defence case is of simple denial of the prosecution case and as per the trend of the cross-examination and the statement recorded under Section 313 of the Code of Criminal Procedure (the Code) it appears that defence case is of false implication. 3. For and on behalf of the prosecution, as many as eight witnesses have been examined, out of them, the star witness of the prosecution is PW 4 Karuna Chalak, who happened to be the informant and sole eye-witness to the occurrence. PW 1 Sushil Kumar Tripathi, PW 2 Prakash Sahu, PW 3 Surya Narayan and PW 5 Manohar Patel came to the place of occurrence after hearing the cries raised by PW 4 Karuna Chalak. Although they have not seen the actual assault on the person of the deceased but they have supported the case of the prosecution to the effect that the deceased Julus Chalak was lying in the aagan with profused bleeding and having injuries on his abdomen and face. PW 1 is also a witness to the inquest held by the Investigating Officer and also a witness to the seizure of the blood stained earth. PW 2 came to the place of occurrence on hearing hulla and saw the deceased in injured condition. He has not stated as to the reporting of PW 4 regarding the names of the assailants. Same is the case with PW 3 Surya Narayan and PW 5 Manohar Patel. PW 3 Surya Narayan has been declared hostile as he has not supported the prosecution case regarding reporting of the names of the assailants. PW 6 Dr. He has not stated as to the reporting of PW 4 regarding the names of the assailants. Same is the case with PW 3 Surya Narayan and PW 5 Manohar Patel. PW 3 Surya Narayan has been declared hostile as he has not supported the prosecution case regarding reporting of the names of the assailants. PW 6 Dr. D.B. Sarangi is an Associate Professor of the Tata Main Hospital, who held post-mortem over the dead body of the deceased Julus Chalak and found the following injuries on his person : "(0 Incised wound 3-1/2" x 2- 1/2 x cavity deep on the right lliae forca. The lopp of intestine coming out through the wound. The intestine was perforated. (ii) Incised wound 1/2" x 1/6" bone deep on the Chin. (iii) Abrasion 2" x 1" on right side of neck below the mandible. (iv) The abdominal cavity contained half litre of blood." According to the Doctor, the death was caused due to direct impact of injury No. (i). 4. PW 7 M.S. Khan is an Advocates Clerk and a formal witness who proved formally the first information report. PW 8 Malay Kumar Ghosh is the Inspector of Police in the Special Branch, who was posted at Sonari Police Station at the relevant time and he recorded the fardbeyan of PW 4 Karuna Chalak and also investigated the case. 5. The defence has not adduced any evidence and there is denial of the prosecution story only. 6. On scrutiny of the evidence on record, the learned Sessions Judge could find that the case could be proved beyond all reasonable doubt against the accused-appellant under Section 302/34 of the Indian Penal Code as he had committed the same in furtherance of the common intention with the other brother Suru alias Suresh Chalak who became absconder during the course of trial. 7. From the records of the sessions case it could be found that almost all the witnesses have been examined while both the accused persons were on duck but afterwards the main assailant Suresh Chalak became absconder. Very many attempts were made to apprehend him but ultimately he was declared absconder. 7. From the records of the sessions case it could be found that almost all the witnesses have been examined while both the accused persons were on duck but afterwards the main assailant Suresh Chalak became absconder. Very many attempts were made to apprehend him but ultimately he was declared absconder. It also appears that PW 4 (Karuna Chalak) was examined-in-chief and then for cross-examination, accused persons took time and as such she was released on personal bond and cost being imposed on the defence for coming on the next date for her cross-examination but on several dates, PW 4 could not appear or did not appear and ultimately warrant of arrest being issued, she was brought from Purulia in West Bengal and on the date she was produced, the accused persons were not present nor the defence counsel. The Public Prosecutor stated before the Court that the lady after the incident had to leave Jamshedpur and reside at Purulia and there is none here to support her and there is no abode where she can stay. Considering that aspect, strict order was passed by the Sessions Judge that she should be present on the next date and the defence counsel must cross-examine her on that date. But it appears that both the accused persons remained absent on that date and the defence counsel did not represent them nor he made any attempt to cross-examine the witness. Accordingly, PW 4 was discharged. 8. In this appeal, the impugned judgment has been attacked mainly on the ground that PW 4 has not been cross-examined and on her sole testimony, the conviction has been based although it appears that she made varying her statement before the trial Court and in her first statement which was recorded as fardbeyan. It has further been urged that she being a partisan witness, conviction cannot be based on her sole testimony when she had not been supported by any independent witness. It has also been urged that PW 3 to whom PW 4 had disclosed the names of the assailants had not supported the case before the trial Court and as such he has been declared hostile and in that circumstances, the only evidence remains against the accused appellant is PW 4 Karuna Chalak. 9. It has also been urged that PW 3 to whom PW 4 had disclosed the names of the assailants had not supported the case before the trial Court and as such he has been declared hostile and in that circumstances, the only evidence remains against the accused appellant is PW 4 Karuna Chalak. 9. On the other hand, the learned Public Prosecutor controverted the submissions made on behalf of the learned counsel for the appellant and supported the impugned judgment by stating that the first information report not being a substantive piece of evidence, the same cannot be taken aid of for showing discrepancy in the evidence of PW 4, the sole eye-witness to the occurrence. It has further been submitted that at the relevant time, inside the house, she was only present except the deceased and two accused persons and she was the most natural witness and as such, her witness which remained unchallenged and un-controverted had rightly been relied upon by the learned Sessions Judge. He has further referred to the evidence of PW 4, who has stated in his evidence that when he reached at the place of occurrence after hearing hulla, he found PW 4 by the side of the injured and weepingly she disclosed that her husband was assaulted by two brothers, namely. Suru Chalak alias Suresh Chalak and Jiban Chalak. So her evidence has been corroborated by the independent witness at least. 10. In the deposition of PW 4 before the trial Court, she has given a vivid description about the whole occurrence as to how it happened. She stated that it was Suresh Chalak who had given the dagger blow on the abdomen of the deceased Julus Chalak and when he fell down, he was further assaulted both by Suru Chalak alias Suresh Chalak and also by the present accused appellant Jiban Chalak by knife. 11. It has been straneously argued by the learned counsel appearing for and on behalf of the appellant that this assault by knife by the accused appellant Jiban Chalak on the person of the deceased had not been witnessed by this witness Karuna Chalak while she gave her fardbeyan just after the occurrence, on the date of occurrence before the police. It has been straneously argued by the learned counsel appearing for and on behalf of the appellant that this assault by knife by the accused appellant Jiban Chalak on the person of the deceased had not been witnessed by this witness Karuna Chalak while she gave her fardbeyan just after the occurrence, on the date of occurrence before the police. In the fardbeyan although she mentioned that this accused appellant was armed with knife but did not say specifically that he also gave blow by the knife on the person of the deceased but she stated that both the brothers had assaulted her husband to death. Such discrepancy right have been considered if the some would have been put to the mouth of PW 4 during the course of cross-examination. 12. The legal position remains that the fardbeyan or the first information report is not a substantive piece of evidence and the same can only be used for the purpose of contradiction and corroboration. But as the PW 4 has not been cross-examined at the sweet will of the defence, it cannot take advantage of such sort of discrepancy in the fardbeyan. If the fardbeyan is read as a whole which could be found that this witness PW 4 at that time also had accused both the appellant and the absconding accused that they had conjointly assaulted the deceased to death and the statement on oath before the Sessions Court by PW 4 remained unchallenged and uncontroverted and the same had been corroborated by an independent witness PW 2 Prakash Sahu and also supported and corroborated by the medical evidence. 13. It is true that, fatal blow had been attributed to the absconding accused Suru Chalak alias Suresh Chalak. but there are other injuries on the person of the deceased also and there was common intention of both the accused appellant and the absconding accused Suru alias Suresh Chalak can be found out from the way and the manner the occurrence took place. There was also an overt act on the part of the accused appellant while he took part in commission of the offence. There was also an overt act on the part of the accused appellant while he took part in commission of the offence. In that way, we do not find that there is any scope to interfere in the finding of the learned Sessions Judge to the effect that the accused appellant is also liable for committing the offence of murder with the aid of the common intention as contemplated under Section 34 of the Indian Penal Code. 14. Thus on independent scrutiny of the evidence on record, we also arrive on the same finding that both the accused-appellant and the absconding accused Suru Chalak alias Suresh Chalak were responsible for committing the offence of murder of deceased Julus Chalak. their youngest brother in furtherance of their common intention. 15. Regarding sentence, there is nothing to be interferred with as under Section 302/34 of the Indian Penal Code, life imprisonment has rightly been awarded to the accused appellant Jiban Chalak. 16. Thus this appeal fails having no force in it and the impugned judgment of conviction and sentence is hereby upheld and confirmed. 17. Before parting with the records, we must observe and direct that the learned Court below shall take all coercive steps to apprehend the other absconding accused Suru Chalak alias Suresh Chalak and to try him for the offence as allegedly committed.