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2001 DIGILAW 984 (PAT)

Sattan Dusadh v. State Of Bihar

2001-10-17

B.N.P.SINGH, D.P.S.CHOUDHARY

body2001
Judgment B.N.P.Singh, J. 1. Deceased Chandrama Sah, who was working in a Sugar factory in Haryana, had come to his village merely 4-5 days, preceding the day of the incident. It is alleged that in the intervening nights of 20/21st January, 1993, while Kishori Devi (PW 1), was in her house along with her husband, daughter and son, who were sleeping on a cot, appellant Sattan Dusadh sneaked in her thatched hut and pulled the quilt with which she had covered her person. It was alleged that Hira Lohar, the other appellant, also gained access to the thatched hut arid both of them dragged her husband to the nearby place where on exhortion made by Hira Lohar, Sattan Dusadh took recourse of firing causing pellet injuries to her husband when he dropped to the ground. Though she made entreaties to spare her husband but that fell on deaf ear of the appellants and shortly after her husband was shot dead, the appellants escaped, pursuant to which some persons came to her house to whom she narrated the incident. As her husband was in critical condition, while he was being carried to Hathua hospital, succumbed to the injuries and with these narrations, statement of Kishori Devi was recorded at 11.15 a.m. on 21.1.1993 by Shri J.N.Singh, Sub-Inspector of Police at Hathua Hospital. 2. After Police was set in motion, investigation commenced and during investigation, in course of collection of evidence, the Police Officer visited place of occurrence, prepared inquest report over the dead body of Chandrama Sah, seized blood stained soil from the place of occurrence, sent the dead body to mortuary for post mortem examination and on receipt of post-mortem report and conclusion of investigation, laid charge-sheet before the Court and the appellants on committal to the Court of Session, were put on trial. Charges were framed against both the appellants under Section 302/34 of the Indian Penal Code. Appellant Sattan Dusadh stood charged under Section 27 of the Arms Act also. 3. Defence of the appellants had been of innocence and they ascribed false implication at the instance of one Birendra Kumar Singh, Mukhiya, who was inimical to Kashi Sharma, Sarpanch, who was closely related to appellant Hira Lohar. Appellant Sattan Dusadh stood charged under Section 27 of the Arms Act also. 3. Defence of the appellants had been of innocence and they ascribed false implication at the instance of one Birendra Kumar Singh, Mukhiya, who was inimical to Kashi Sharma, Sarpanch, who was closely related to appellant Hira Lohar. In the eventual trial, the prosecution examined altogether nine witnesses and those examined by the prosecution include wife and daughter of the deceased, some of those who flocked to the place of occurrence shortly after the incident, the doctor, who held autopsy over the dead body of the deceased, some formal witnesses and also the Police Officer who carried out investigation of the incident. The defence too examined three witnesses ostensibly to counter the allegations attributed to the appellants and the trial Court on meticulous appreciation of the evidences on record, while negativing contentions raised at Bar on behalf of the appellants, rendered verdict of guilt finding the appellants guilty under Section 302/34, IPC and sentenced them to suffer rigorous imprisonment for life. Appellant Sattan Dusadh also suffered conviction under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for five years with a direction that both the sentences shall run concurrently. 4. Now adverting to the evidences placed on the record, we find Kishori Devi (PW 1), who happens to be the person who set the Police in motion, reiterating her early version which she rendered before the Police about both the appellants having sneaked in her thatched hut pursuant to which on exhortions made by Hira Lohar, Sattan Dusadh took recourse to firing causing pellet injury below the abdomen of her husband when he dropped to the ground with profuse bleeding from the wounds. The witness claimed to have identified the appellants in the light of the lantern that was burning inside the hut and as for the mode of assault, the narrations rendered by the witness would suggest in most uncertain terms that Sattan Dusadh fired short from a very close range. However, this witness attributed no animosity with the appellants. Almost with sustained consistencies, narrations were made by Santosh Kumari (PW 2) also, about both the appellants having trespassed into the house when on exhortion made by Hira Lohar, Sattan Dusadh fired shots causing pellet injury to her father. However, this witness attributed no animosity with the appellants. Almost with sustained consistencies, narrations were made by Santosh Kumari (PW 2) also, about both the appellants having trespassed into the house when on exhortion made by Hira Lohar, Sattan Dusadh fired shots causing pellet injury to her father. Though it was a dark night, but she claimed to have identified the appellants in the light of the lamp that was burning inside the house. Though some suggestions about animosity with Hira Lohar were given to this witness but she stoutly refuted about any animosity persisting with the appellants. The other witness. who expressed familiarity with the incident was Banka Sah (PW 3), who happens to be father of the deceased. While Banka Sah was at the cattle shed in the night of the incident, he heard sound of firearm, on which he rushed to the thatched hut where his son was residing and the witness claimed to have identified the appellants in the flash light of the torch who were making good their escape towards north direction where the cattle shed situates. The father too stated to have noticed his son rolling in pains with bleeding injuries in the testicle. Complicity of the appellants was disclosed to him by his daughter-in-law. Though all attempt were made to save the life of the deceased, the witness would state that while being taken to Hathua Hospital, the deceased succumbed to the injuries and the doctor who attended him at the Hathua Hospital, declared him dead. As for genesis of the incident, the witness would state that hardly 4-5 days preceding the incident, Sattan Dusadh had insisted Chandrama Sah for some money for purchase of wine and, as the deceased had not obliged him, Sattan Dusadh in retaliation had taken life of his son. 5. Other set of the witnesses, who did no claim to be ocular witness to the incident, were Birendra Kumar Singh (PW 4), Ramaji Sah (PW 5). Mangal Manjhi (PW 6) and Gorakh Ram (PW 7). Birendra Kumar Singh (PW 4) and Ramaji Sah (PW 5) were the witnesses to the inquest report prepared by the Police Officer in respect of the dead body of the deceased. Ramaji Sah also claimed to have carried the deceased Chandrama Sah to Hathua Hospital. Mangal Manjhi (PW 6) and Gorakh Ram (PW 7). Birendra Kumar Singh (PW 4) and Ramaji Sah (PW 5) were the witnesses to the inquest report prepared by the Police Officer in respect of the dead body of the deceased. Ramaji Sah also claimed to have carried the deceased Chandrama Sah to Hathua Hospital. Mangal Manjhi (PW 6) and Gorakh Ram (PW 7) were the witnesses to the seizure of blood stained soil from the place of occurrence. 6. Dr. Alok Kumar Suman (PW 8) stated to have carried out autopsy over the dead body of the deceased noticed on his person P shaped lacerated wound with inverted margin with charring in right inguinal region extending to right grain. On dissection of abdominal cavity was found full of blood and blood clot. Small gut was perforated at several places and five pellets were recovered from abdominal cavity. In the estimation of the doctor, death was due to shock and haemorrhage having arisen out of the injuries caused by fire-arm. Injuries in the estimation of the doctor, were sufficient in ordinary course of nature to cause death of the deceased. The doctor in most uncertain terms stated to have noticed pellet injuries on the right side of the testicles. 7. Jai Narain Singh (PW 9) who carried out investigation of the incident, stated to have recorded fardbeyan of Kishori Devi, wife of the deceased, pursuant to which investigation was taken up by him. The Police Officer stated to have visited place of occurrence where he noticed the dead body of Chandrama Sah with injuries in the testicles. He stated to have prepared inquest report over the dead body in presence of the witnesses and sent it to mortuary for post-mortem examination. The place of occurrence, the witness would state, was a thatched house of the deceased which was divided in two parts comprising of southern part and northern part and in the southern part, the deceased along with his wife had slept on a cot while in the north to it, the I.O. noticed wooden cot on which the kids of the deceased were stated to be sleeping in the night of the incident. The Police Officer noticed copious blood scattered at the place of occurrence and blood stained earth was seized by him in presence of two witnesses who were signatories to the seizure memo. The Police Officer noticed copious blood scattered at the place of occurrence and blood stained earth was seized by him in presence of two witnesses who were signatories to the seizure memo. The I.O. stated to have noticed a glass lamp in the thatched hut in the light of which appellants were suggested to have been identified by the wife of the deceased and also Santosh Kumari (PW 2). 8. The defence too, as has been stated, examined three witnesses and they include Harish Chandra Sharma (PW 1) who brought some documents on record, prominent among which was one informatory petition filed by appellant Hira Sah apprehending his false implication in future. The other witness examined on behalf of the appellant was Kashinath Sharma (DW 2) who was incharge of the office of Sarpanch of Ekdanga Panchayat in absence of regular Sarpanch, who was then residing in Gujrat. The witness would state that the appellants were falsely roped in the case due to political rivalry with Birendra Kumar Singh, Mukhiya. Apart from this, narrations made by the witness would suggest that wife of the deceased was a lady of easy virtue who was being visited by some undesirable elements in absence of her husband who was working in Haryana. The witness would further state that some undesirable element, knowing little that the husband had come to the house, visited the thatched hut of the deceased in the night of the incident and pulled the quilt to get Kishori Devi awakened, when finding the deceased there in the night, they shot him dead. Almost in similar terms, narrations were made by Om Prakash Manjhi (DW 3) about some undesirable elements frequently visiting the house of the wife of the deceased. This is all the evidence that has been adduced on behalf of the State and also the appellants. 9. At the very outset, it is mentioned that since no one appeared on behalf of the appellants to make submissions. Mr. Lala Kailash Bihari Prasad, learned Advocate, was appointed to appear in this case to assist the Court as amicus curiae. He will be paid his fee by the Legal Services Committee of the Patna High Court. 10. Findings recorded by the trial Court were sought to be assailed by the learned counsel for the appellants and manifold submissions were canvassed at Bar to counter the allegations attributed to them. He will be paid his fee by the Legal Services Committee of the Patna High Court. 10. Findings recorded by the trial Court were sought to be assailed by the learned counsel for the appellants and manifold submissions were canvassed at Bar to counter the allegations attributed to them. Learned counsel for the appellants would raise strong objection to non-recital of presence of lamp in the earliest version of the prosecution and it is sought to be urged that presence of burning lamp in the house was sought to be introduced at trial with an object to facilitate identification of the appellants by the wife and daughter of the deceased and in quick succession arguments were sought to be canvassed at Bar that since this piece of evidence was vital, which was conspicuously wanting in the earliest version of the prosecution, identification of the appellants in the dark night was quite remote and the prosecution case has to be discarded on this score alone. The next limb of argument canvassed at Bar on behalf of the appellants was that though a number of persons were shown to have flocked to the place of occurrence shortly after the incident, none of them were examined at trial and in that backdrop serious legal infirmity has crept in the prosecution version. Learned counsel would urge that only family members of the deceased and also those who were interested in the affairs of the prosecution, were examined by the State, entirely to the exclusion of the independent witnesses and the credibility of the prosecution has become suspect on this count also. Yet it is urged that had the appellants been clothed with the intention of executing killing of the deceased, there did not appear to be good reason to drag him to the other part of the Pallani. Yet it is urged that had the appellants been clothed with the intention of executing killing of the deceased, there did not appear to be good reason to drag him to the other part of the Pallani. Non- examination of Arbind Kumar, son of the deceased, who was suggested to be the eye witness of the incident was also taken to be a ground to disbelieve the credibility of the prosecution case and the last argument canvassed at Bar on behalf of the appellants was that in the backdrop of the animosity persisting between the parties for which there has been some evidence, false implication of Hira Lobar could not be possibly ruled out and it is urged that even assuming prosecution version to be true on face value about Hira Lohar accompanying Sattan Dusadh, the other appellant, since no overtact had been attributed to him, he was not even vicariously liable for the act committed by the Sattan Dusadh. Learned counsel for the State would counter the arguments made on behalf of the appellants and it is urged that the statement rendered by wife and daughter of the deceased were most coherent which deserve all credence and that apart, testimonies of these two witnesses find ample corroboration from the positive findings recorded by the doctor and also the Police Officer who found copious blood at the place of occurrence. 11. The prosecution has tell a tale. The evidence of the wife and daughter of the deceased was most coherent and almost with sustained consistency in similar terms as that of early version, narration of incident were made by them at trial about Sattan Dusadh having taken recourse to firing causing pellet injuries on her husband on ex-hortion made by other appellant. Narration made by two ocular witnesses would also receive corroboration from the positive findings recorded by the doctor who noticed lacerated injuries in the testicle region of the deceased which in the estimation of the doctor, were caused by fire arm injuries and were sufficient in ordinary course of nature to cause death. As has been the evidence of the wife of the deceased, Sattan Dusadh shot at her husband from very close range and the finding recorded by the doctor did not counter such allegation attributed to the appellants. As has been the evidence of the wife of the deceased, Sattan Dusadh shot at her husband from very close range and the finding recorded by the doctor did not counter such allegation attributed to the appellants. As has been the evidence of the Police Officer, he noticed copious blood scattered at the place of occurrence which was seized by him. 12. It was also sought to be urged on behalf of the appellants that evidences placed on the record would unerringly suggest that since Kishori Devi was working as a labourer under Binod Kumar Singh, Mukhiya and evidences to suggest that Birendra Kumar Singh had a dialogue with the wife of the deceased, before the Police was set in motion, in that backdrop it is urged that false implication of the appellants could not be ruled out, as Birendra Kumar Singh was on inimical terms with Kashi Nath Sharma, the cousin of the other appellant, Hira Lohar. Stress was laid also on the testimony of the defence witnesses, but that appeared to be meritless for the simple reason that none of the defence witnesses appeared to have been examined by the Police during investigation and their credibility on that score is diminished to larger extent. Though some of the defence witnesses were narrating before the Court about wife of the deceased being a lady of easy virtue, admittedly there was no evidence as none of them claimed to have noticed any stranger visiting house of the lady and defence assertion about some undesirable element, visiting house of Kishori Devi in the night of the incident and finding her husband available in the house, he might have shot him dead, was extremely imaginative, for which there was no good evidence. Yet, we have noticed that there are some distressing features of the prosecution case which cannot remain unnoticed. Though in her early version, Kishori Devi narrated before the Police that both the appellants dragged her husband to a nearby place from the cot, pursuant to which he was shot dead by Sattan Dusadh, but none of the witnesses, who were examined at trial had been stating in similar terms, as it was Sattan Dusadh alone who was stated to have dragged the deceased from the cot to a near by place. In the same fashion, we notice that Santosh Kumari (PW 2) was narrating before the Court about she having noticed empty shells of cartridges at the place of occurrence which she made over to the I.O. True it is that no such assertions were made by the I.O. about seizure of empty shells of cartridges allegedly having been handed over to him by Santosh Kumari, but some variations in the testimony of the witnesses, who come from lower strata of the society is not unusual and some discount has to be given while appreciating their evidences. Since evidence of the witnesses on material particulars of the case were in tune with the early version of the prosecution such variations have to be ignored. Though Banka Sah (PW 3). who happens to be father of the deceased, stated to have noticed in the flash light of the torch, the appellants making good their escape, while he was coming from the cattle shed, evidence of this witness has to be nored for the simple reason that no such narrations were ever made by him before the Police and it is not unlikely that in anxiety to promote the cause of his daughter-in-law, this witness might have made some embellishments to his previous version which he rendered before the Police. The occurrence took place in the midnight of 20th January, 1993 and wife of deceased rendered her fardbeyan at Hathua Hospital at 11.15 a.m. on the following day. The Police Station lies at a distance of 25 kms. from the place of occurrence and, hence we find that prosecution was launched with all promptitude and there was no belated action on part of the wife of deceased. 13. Though where direct evidences were available, motive was of little significance, as it is a matter of only academic interest. Yet, we find in the evidence of the father of the deceased, that preceding 4-5 days of the incident, Hira Lohar had been insisting on deceased to make payment of money for purchase of wine but as the deceased had not obliged him, Sattan Dusadh liquidated him. Yet, we find in the evidence of the father of the deceased, that preceding 4-5 days of the incident, Hira Lohar had been insisting on deceased to make payment of money for purchase of wine but as the deceased had not obliged him, Sattan Dusadh liquidated him. Though much stress was laid by the learned counsel for the appellants about alleged suspected complicity of Hira Lohar and as has been urged that since no overtact has been attributed to him, he was not even vicariously liable for the act committed by Sattan Dusadh, yet we find this argument to be meritless for the reason that as Sattan Dusadh was suggested to have executed killing of the deceased on exhortion made by him, he too was vicariously liable with the aid of Section 34, IPC. 14. Having given our anxious and deepest consideration to the evidences placed on record, we find and hold Sattan Dusadh guilty under Section 302/34, IPC and confirm the sentence imposed on him by the trial Court. The findings recorded by the trial Court against Hira Lohar, the other appellant, is also upheld. There being no merit, the appeal is dismissed. The bail bonds of appellant Hira Lohar are cancelled and he is directed to surrender forthwith to serve out the sentence. Trial Court is also directed to take all coercive steps to take him into custody. D.P.S.Choudhary, J. 15 I agree.