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2000 DIGILAW 662 (PAT)

Clement Barla v. State Of Bihar

2000-05-02

NARAYAN ROY, S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by Sri N. Lakra, Additional Sessions Judge, Simdega, in Sessions Trial No. 129 of 1989. The appellant was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo RI for life. 2. The prosecution case, as revealed by the statements of the informant recorded in the FIR itself, was to the effect that on 21.8.1987, the informant heard the cry "bachao-bachao" of his brother, Santosh Barla (since dead), emanating from the direction of the house of Manual Barla at 8 p.m. Thereafter, he rushed to the house of Manual Barla, where he found that the accused was assaulting his brother (since dead) with tangi and his brother was lying on the ground. The informants father, Joseph Barla, also came to the place of occurrence on hearing the alarm of the deceased. Sighting the informant, Clement Barla, the accused fled away. The victim died after some time of assault and this occurrence was seen by several persons, who come to the PO on hearing the alarm. The cause of the occurrence, as given in the First Information Report, was the land dispute between the accused and the informant. On the basis of the aforesaid statement of the informant, a formal FIR was drawn up and thereafter, the investigation followed and on submission of the charge-sheet, the accused-appellant faced trial and was convicted and sentenced as stated above. 3. The accused-appellant denied the charge and alleged false implication. 4. The prosecution examined, in all, seven witnesses to prove its case and brought on record, the formal First Information Report (Ext. 1), Inquest Report (Ext. 2), Seizure-list (Ext. 3), and production-cum-Seizure-list (Ext. 4), as also the Post-Mortem report (Ext. 5), to prove its case. 5. PW 1, Albindas Barla, was declared hostile because he failed to support the prosecution case. His attention was drawn towards his purported statements made before the police which he denied to have made. PW 2 was a formal witness, who had proved FIR which is Ext. 1. PW 3 is Silbanus Barla, the informant himself. He is an eye-witness, who had come to the place of occurrence on hearing the alarm of Santosh Barla, the deceased. PW 2 was a formal witness, who had proved FIR which is Ext. 1. PW 3 is Silbanus Barla, the informant himself. He is an eye-witness, who had come to the place of occurrence on hearing the alarm of Santosh Barla, the deceased. When he went to the PO, he saw that Santosh Barla was being assaulted by the accused-appellant, Clement Barla, with tangi. He saw the appellant assaulting the deceased with tangi, but, since he was empty-handed, he did not protest. Subsequently, his father also came to the PO. Thereafter, accused fled away with tangi. On the next morning, chaukidar was intimated and the informant along with the chaukidar went to the police station where he gave his statement which was the basis of the First Information Report. In cross-examination, several questions were put to this witness but his evidence so far as the alleged occurrence is concerned, remained unshaken and undemolished. It was submitted by the counsel for the appellant that in paragraph 8 of his evidence, this witness has stated that on hearing the cry of the deceased, he came to the PO and saw the appellant assaulting his brother with tangi, but in cross-examination, this witness has stated that when he came to the place of occurrence, he saw the deceased lying on the ground and, therefore, his evidence to the effect that he had seen the occurrence is not reliable. He, however, made further statement that he had seen the deceased being assaulting with tangi. So, it is apparent that he had seen the occurrence. In chief, he had stated that when he went to the place of occurrence, he saw that his brother was lying on the ground and the accused-appellant was assaulting the deceased with tangi. Therefore, his statement in the cross-examination, that his brother was lying on the ground is insignificant. PW 4 is Joseph Barla, who is also an eye-witness. He went to the PO. On hearing alarm, he rushed to the place of occurrence along with Silbanus Barla (PW 3), Marita Barla (PW 5) and others. He found that in the courtyard of Manual Barla, Santosh Barla, the deceased, was assaulted by accused-appellant, Clement Barla, with tangi. When this witness had gone to the police station to inform about the occurrence. On hearing alarm, he rushed to the place of occurrence along with Silbanus Barla (PW 3), Marita Barla (PW 5) and others. He found that in the courtyard of Manual Barla, Santosh Barla, the deceased, was assaulted by accused-appellant, Clement Barla, with tangi. When this witness had gone to the police station to inform about the occurrence. The police came to the place of occurrence and found the dead body, and prepared inquest-report, seizure-list relating to blood-stained earth and tangi in presence of this witness and this witness put his LTI on them. This witness was also subjected to cross-examination, where he admitted that he did not see the accused assaulting the deceased with his own eyes. However, his testimony that he saw the accused with tangi, and the deceased lying dead remained undemolished. PW 5 is Marita Barla, the wife of the deceased. This witness also went to the place of occurrence along with others when she heard the cry of his husband, as "bachao-bachao". She had also seen the accused assaulting her husband with tangi. In chief, she had said that the accused had assaulted her husband in front of his house. However, this witness also in cross-examination admitted that when she went to the place of occurrence, the accused had fled away. In any case, however, she saw the dead body of her husband in the courtyard of the appellant. PW 6 was the Investigating Officer of the case, who visited the place of occurrence. He found that the dead body was lying flat on the ground. He seized the dead body and tangi and prepared inquest-report and seizure-list upon which the witnesses put their LTI. His evidence was criticised on the ground that he did not enquire as to how and why the deceased went to the house of the accused. In this connection, it was not incumbent upon the IO to explain as to how the deceased went to the house of the accused-appellant. In his statement, under Section 313 of the Code of Criminal Procedure, the appellant failed to give any explanation as to the presence of the deceased in his angan. No suggestion was also given to the PWs, as to how he went to the house of the accused. In his statement, under Section 313 of the Code of Criminal Procedure, the appellant failed to give any explanation as to the presence of the deceased in his angan. No suggestion was also given to the PWs, as to how he went to the house of the accused. So, whatever may be the reason, it was for the accused to explain under what circumstances the dead body was found in his angan. PW 7 was the Doctor, who held autopsy on the dead body of the deceased and found three ante-mortem injuries caused by sharp-cutting weapon and death occurred due to shock, haemorrhage and concussion of brain, on account of the above injuries. 6. It was submitted by the appellants lawyer that the IO was required to give explanation for not sending the bloodstained tangi to the Forensic Science Laboratory, but here there was no necessity to send the tangi to Forensic Science Laboratory, insofar as it was not a firearm for which it could be ascertained that the instrument was used for killing the deceased. Moreover, the IO prepared the production-cum-seizure-list of the tangi with which the deceased was assaulted by the accused-appellant and the production-cum-seizure-list of the tangi was on the record of the case. The tangi was produced before the IO by the appellant himself. The reference to Manual Barla in the First Information Report has been explained by PW 3 in his cross-examination at para 5 where he said that Manual and Clement are brothers and their houses are side by side. 7. In the result, this appeal is dismissed and the order of conviction and sentence is affirmed.