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2000 DIGILAW 948 (PAT)

Dubraj Mirdha v. State Of Bihar

2000-08-02

A.K.PRASAD, CHOUDHARY, S.N.MISHRA

body2000
Judgment 1. The sole appellants has been convicted under Sec. 302 of the Indian Penal Code, on the charge of committing the murder of Nandi Mirdha, his uncle, and sentenced to rigorous imprisonment for life and to pay a fine of Rs. 1,000 and, in default of payment of fine, to undergo rigorous imprisonment for three months by the impugned judgment and orders dated 14.2.1991 in ST No. 255 of 1990, passed by the then Additional Judicial Commissioner, Ranchi. 2. Briefly put, the prosecution case, as made out in the fardbeyan (Exhibit 2) of Badhana Mirdha, the brother of the deceased, recorded by the Police Officer of Nagri outpost on 3.12.1989 at 7 p.m. at village Upardaha within the Police Station Ratu, district Ranchi, is as under: The informant (PW-5) had been to Piskanagri Railway crossing to sell potato laden on a bullock cart of the master Dhaneshwar Mahto and when after selling the potato, he was returning, around 6 PM, and had moved a bit further near village Upardaha (Mahto Tola), he heard the cries of save-save, whereupon he stopped the bullock cart. At that moment, he saw the accused Dubraj Mirdha, his nephew going towards village Upardaha on a bicycle which was being driven at a great speed. The informant accosted him and enquired from him as to what had happened. The accused was nervous and he did not answer the query made by the informant and instead he sped away. Thereafter, the informant came in front of the shop of Nimchand Mahto, situated at Mahto total to found that Nandi Mirdha, the deceased brother was lying dead on the road with wounds on his person. He made enquiries from Nimchand Mahto and the people living in the neighbourhood and came to know that accused Dubraj Mirdha had done Nandi Mirdha to death and had fled towards village Upardaha. The deceased was an employee of Heavy Engineering Corporation Ltd. (HEC) and the occurrence took place while he was returning home from his duty. The motive alleged for the murder of the deceased is that there was alleged land dispute between the parties. On the basis of the Fardbeyan (Exhibit 2) the present case came to be instituted, a format First Information Report (Exhibit 3) was drawn up, Mr. The motive alleged for the murder of the deceased is that there was alleged land dispute between the parties. On the basis of the Fardbeyan (Exhibit 2) the present case came to be instituted, a format First Information Report (Exhibit 3) was drawn up, Mr. S. Kutur, the then Sub-Inspector of Police, attached to Nagri Out-post, assumed and commenced investigation held inquest over the dead-body (Exhibit 4 is the carbon copy of the inquest report), sent it for post-mortem examination and in course of investigation effected seizure of the bicycle of the deceased from the house of Ramdas Gope, a resident of village Kolambi in presence of Sanicharwa Oraon, Mukhia of the village (PW-3), and on completion of investigation charge-sheet was laid in Court by PW-6 (Jugal Kishore Gupta, against the accused/appellants. 3. The main defence is of innocence and false implication. The accused/appellant admitted in his examination recorded under Sec. 313 of the Criminal Procedure Code that he had land dispute with his uncle (Nandi Mirdha), the deceased. 4. At the trial, the prosecution examined eight witnesses in support of its case. Out of them, PW-2 (Jagat Pal Mahto) is a witness to the inquest, while PW-3 (Sanicharwa Oraon), the Mukhia is a witness on the seizure of the bicycle from the house of Ramdas Gope, situated at village Kolambi under Seizure Memo (Exhibit 5). The other PWs are: PW-1 (Prem Sagar), who claims to be the eye-witnesses to the occurrence, PW-4 (Nim Chand Mahto), who owns the shop in the vicinity of the place of occurrence, PW-5 (Bandhana Mirdha), the informant, PW-6 (Jugal Kishore Gupta), the formal Investigating Officer, who simply submitted charge-sheet in this case, PW-7 (Raghunandan Mahto), a hearsay witness, and PW-8 (Dr. Niranjan Miniz), who held autopsy on the dead-body of Nandi Mirdha. The defence on the other hand did not examine any witness. 5. On consideration of the evidence and materials on record and mainly relying on the ocular testimony of PW-1, the circumstantial evidence that the accused/appellant was seen by PWs 4 and 5, fleeing away from the scene of occurrence on the bicycle of the deceased, as well as the medical evidence, the trial Court held the accused/appellant guilty of the charge under Sec. 302 of the Indian Penal Code and convicted and sentenced him as stated above. 6. While assailing the impugned conviction and sentence, Mr. 6. While assailing the impugned conviction and sentence, Mr. Ram Kishore Prasad, learned Counsel for the appellant has urged that the evidence of the sole eye-witness, namely PW-1 (Prem Sagar) to the occurrence is not reliable; that at any rate in the facts and circumstances of the case. Sec. 302 of the Indian Penal is not attracted; that the weapon of offence is not alleged to have been recovered from the possession of the appellant and the non-examination of the Investigating Officer has caused prejudice to the defence. Mr. N.N. Mahto, learned APP appearing on behalf of the State, on the there hand, has supported the impugned conviction and sentence. 7. The fact that Nandi Mirdha, the deceased met with homicidal death is not in dispute. The medical evidence reveals beyond doubt that the deceased met with violent death. PW-8 (Dr. Niranjan Miniz) has testified to the effect that on 5.12.1989 at about 10.30 a.m. he held post-mortem examination on the dead-body of Nandi Mirdha and he found the following ante mortem wounds on his persons: Stab wound (i) 3-1/2 × 1 cm × cavity deep on the right side of the abdomen upper part 1 cm right to midline the weapon passed through the centum and perforated the small intestine at one place. (ii) 3 × 1 cm × cavity deep situated 8 cm above the umbilicus in the front of the abdomen below the proceeding injury. The weapon passed into the abdominal cavity and perforated the small intestine at one place. (iii) (sic) to his life. The weapon entered into the abdominal cavity and perforated the small intestine at one place. (iv) 3-1/2 cm 1 cm × cavity deep on left chest from upper part 8 cm left to midline the weapon passed through the 2nd intercostal space; and perforated the left lung and the heart. There was presence of blood and blood clot in the theracic and the abdominal cavity. Incised wound (1) 4 × 1/2 cm × soil tissue on the left temporary region and adjoining part of the left external ear 13 cm left to midline. The weapon cut the left lobe of the ear. There was presence of blood and blood clot in the theracic and the abdominal cavity. Incised wound (1) 4 × 1/2 cm × soil tissue on the left temporary region and adjoining part of the left external ear 13 cm left to midline. The weapon cut the left lobe of the ear. According to PW-8 the ante-mortem wound found on the person of the deceased were possible by sharp cuttingcum-pointed weapon and the death was due to shock and haemorrhage, resulting from the ante-mortem wounds, He has further opined that the time elapsed since the death was between 1836 hours of the post-mortem examination. This fits in with the prosecution case about the probable time of the occurrence. Exhibit 6 is the post-mortem report in his pen. Besides there is testimony of PWs 1, 4, 5 and 7 that there were wounds on the person of the deceased, who died instantaneously on the spot. 8. Now the crucial point which arises for consideration is whether the prosecution has been able to prove its case beyond shadow of reasonable doubt that the appellant is the assailant of the deceased. At this juncture, it may be mentioned that the appellant has admitted in his examination under Sec. 313 CrPC that due to the land disputed there is enmity between him and the decease and thus there is motive for the murder of the deceased by ths appellants. 9. PW-1 (Prem Sagar) has testified to the effect that on the fateful evening, around 7 p.m. She was in front of Ijer shop with minor children and she saw Nandi Mirdha, the deceased, coming out from the shop of Nimchand Mahto (PW-4) after purchasing bread and instantaneously the appellant dealt 3-4 Chhura blows to Nandi Mirdha on his neck/chest and both the flanks and thereafter, the appellant fled away riding on the bicycle of Nandi Mirdha (the deceased), who died on the spot after sustaining the wounds. She has named and identified the appellant as the sole assailant of the deceased. It has been elicited in her cross-examination that at the time of the occurrence she was on the road in front of her shop and when she reached the scene of occurence, she found that the deceased was lying dead. She was reiterated in her cross-examination that the appellant fled away on the bicycle of the deceased after committing his murder. She was reiterated in her cross-examination that the appellant fled away on the bicycle of the deceased after committing his murder. It has been urged by the learned Counsel for the appellant that at the time of the occurrence there was night fall and there is possibility that PW-1 might not have identified the assailant of the deceased. It is significant to note that it has come in cross-examination of PW-1 that she is the co-villager of the appellant and the deceased was on visiting terms with her. The occurrence had taken place on the road in front of her shop and at a short distance therefrom. The appellant was not unknown to her. So even in dim light she could have identified the appellant as the assailant of the deceased from a short distance. It is well-known that a villager can identify his co-villager or known person in dim light. In spite of searching cross-examination, in substance, PW-1 is consistent in her evidence that she had witnessed the actual assault on the deceased and has identified the appellant as the assailant of the deceased. There is no material on record to even remotely suggest that she was any enimity with the appellant. She is an independent witness. Her presence on the spot at the time of the occurrence cannot be doubted. No contradiction whatsoever has been taken by the defence from her in her cross-examination vis-a-vis her evidence in Court and the statement made before the police. It does not stand to reason as to why PW-1 would falsely implicate the appellant. The medical evidence, in substance, corroborates her testimony. It is well-settled that conviction can be based on the solitary testimony of an eye-witness if it is clear cogent and wholly reliable even without corroboration. PW-1 a rustic woman has given clear, cogent and reliable evidence that the accused/appellant is the sole assailant of the deceased. There is no reason to discard her testimony, which in the setting of the circumstances of the case gives ring of truth. 10. PW-1 a rustic woman has given clear, cogent and reliable evidence that the accused/appellant is the sole assailant of the deceased. There is no reason to discard her testimony, which in the setting of the circumstances of the case gives ring of truth. 10. PW-4 (Nimchand Mahto), who owns a shot adjacent to the shop of PW-1 has stated that Nandi Mirdha, the deceased had purchased a bread from his shop and the moment he started to go on his bicycle with the purchased Article he heard the cry of children MARA MARA and when he came out of the shop he saw the appellant riding away on the bicycle of the deceased. He has further stated that the shop of PW-1 is barely five steps from his own shop and when he came out, he found that the deceased was lying dead just in front of the shop of PW-1. It has come in his cross-examination that the moment he came out of the shop, he found that PW-1 was present near her shop. The testimony of PW-4 lends assurance to the evidence of PW-1 that she was present in front of the shop where the occurrence took place nearby; that the deceased had purchased bread from his shop when the assault on him took place and she had seen the accused/appellant fleeing away from the scene of occurrence on the bicycle of the deceased. PW-5 (Bandhana Mirdha), the informant has also corroborated the testimony of PW-1 that the accused/appellant had fled away from the spot on the bicycle of the deceased. The circumstantial evidence which come in the evidence of PWs 4 and 5 to a great extent corroborates the evidence of PW-1 on the participation of the appellant in the murder of the deceased. Thus, on close scrutiny of the evidence brought on record by the prosecution we are of the considered view that the accused/appellant had done the deceased to death. Thus, on close scrutiny of the evidence brought on record by the prosecution we are of the considered view that the accused/appellant had done the deceased to death. Considering the circumstance in which the crime was committed the weapon used in the assault on the deceased the number nature and status of the injuries inflicted on the deceased by the appellant coupled with the fact that the deceased died of the wounds instantaneously on the spot, we agree with the finding of the Court below that the accused/appellant committed the offence under Sec. 302 of the Indian Penal Code and has been rightly convicted and sentenced thereunder. 11. Mr. Ram Kishore Prasad has urged with vehemence that the Investigating Officer has not been examined in the case and this has caused prejudice to the appellant. The identity of the place of occurrence has not been challenged by the defence. It is not the defence version that the occurrence had taken place else where. No contradiction, as noticed above, has been taken by the defence in the cross-examination of PW-1 qua her evidence in Court and the earlier statement made before the police. Mr. Prasad has not been able to demonstrate that serious prejudice, if any, has been caused to the defence due to the non-examination of the Investigating Officer. Therefore, the above contention of Mr. Prasad is without substance. The mere fact that the weapon of offence was not recovered does not materially affect the prosecution case. It is the evidence of PWs that immediately after committing the offence the accused/appellant fled away on the bicycle of the deceased. It is not the case where the appellant was apprehended on the spot itself. So there is every possibility that while fleeing away, these person might have thrown away or concealed the weapon of offence which could not be recovered. 12. In view of the discussions made above and consideration of the evidence, facts and circumstances obtained in the case, we are of the considered view that the prosecution has been able to bring home the charge under Sec. 302 of the Indian Penal Code to the accused-appellant beyond shadow of reasonable doubt. 13. In the result this Cr. Appeal which lacks merit, is dismissed. The impugned orders of conviction and sentence, passed on the appellant by the Court below are affirmed.