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2002 DIGILAW 1133 (JHR)

Shiv Charan Singh Sardar v. State Of Bihar

2002-10-30

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been directed by the sole appellant named above against the judgment dated 10.5.1991 passed in S.T. No. 241 of 1990 by Sri Amir Das, Sessions Judge, Singhbhum, camp at Jamshedpur, whereby and whereunder the appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code and he was convicted and sentenced to undergo RI for life. 2. The prosecution case has arisen on the basis of FIR (Ext. 3) of PW 3 Surajmani Sardarin, the wife of Rasbihari Sardar, the deceased of this case, recorded by Shri J.N. Tiwari, OC Patmada PS on 11.3.1990 at 11.00 hours regarding the occurrence which is said to have taken place in village Chunidih PS Patmada district, East Singhbhum on 10.3.1990 at 22.00 hours. 3. The prosecution case, in brief, is that Rasbihari Sardar, the deceased of this case and the husband of PW 3, the informant used to work as Ghatwal in Patmada PS and he had only four daughters and no son and two of his daughters reside in their matrimonial home and his third daughter PW 1 Basumati is married with the appellant Shiv Charan Singh Sardar and the appellant was residing in the house of the deceased in village Chunidih as gharjamai with his lawfully wedded wife PW 1, Basumati. It is alleged that the deceased returned from Patmada PS to his house and he was talking with the PW 3, the informant, PW 1, Basumati and the appellant in the house at 11.00 oclock in the night and in the course of talk he asked from the appellant as to why he is sitting idle and does not work. It is allege that at this the appellant became enraged and altercation took place between them and at this he picked up an axe and assaulted the deceased by the said axe as a result of which he fell down and died instantaneously. It is also alleged that when PW 3, the informant and PW 1 Basumati attempted to save the deceased, the appellant also wielded the axe on them to assault them and they came out of the house and raised alarms and PW 2 Chunna Tanti along with others came there and they were told about the occurrence. Since it was midnight, the occurrence was not reported to the PS concerned in the night itself. Since it was midnight, the occurrence was not reported to the PS concerned in the night itself. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicate in this case and the deceased in the drunken state fell on the ground and sustained injuries which had resulted into his death. 5. The prosecution has in all examined eight witnesses to substantiate the charge levelled against the appellant. PW 3, Surajmani Sardarin is the informant of this case and the FIR recorded on her statement is Ext. 3 and she is the widow of the deceased Rasbihari Sardar. PW 1, Basumati Sardarin is the lawfully wedded wife of the appellant and the daughter of the deceased Rasbihari Sardar and PW 3 and PW 1 are the only ocular witnesses of the occurrence in question. PW 2, Chunna Tanti is the village chowkidar and PW 4, Niyoti Tanti is his wife and they claim to have come to the place of occurrence on alarms and they were told regarding the occurrence by the informant and they also claim to have seen the appellant standing near the place of occurrence with the axe in his hand, PW 5, Tarun Manjhi is a village Sarpanch and he figures as a witness on the Inquest Report and the seizure list and his signature on the inquest report (Ext. 4) is Ext. 1 PW 6, Lalit Manjhi has been tendered. PW 7, Dr. Yogendra Nath has conducted the post mortem examination on the dead body of the deceased and the post mortem report as per his pen is Ext. 2 in the case. PW 8, Jagtanand Tewari is the IO of this case and he has proved the FIR (Ext. 3), inquest report (Ext. 4) and the seizure list (Ext. 5), The said seizure list is in respect of the blood stained earth and the axe in question which has been recovered under the straw at the instance of the appellant on his arrest. 6. In view of the oral and documentary evidence on the record the learned Court below has found the appellant guilty for the offence under Section 302 of the Indian Penal Code for committing the murder of Rasbihari Sardar convicted him and sentenced him as stated above. 7. 6. In view of the oral and documentary evidence on the record the learned Court below has found the appellant guilty for the offence under Section 302 of the Indian Penal Code for committing the murder of Rasbihari Sardar convicted him and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted that the learned Court below has not properly weighed and considered the evidence meticulously in proper perspective and has erred in coming to the finding of the guilt of the appellant. It has been submitted further that the deceased was drunkard and he fell down in a drunken state which caused injuries on his head as a result of which he has died and the appellant has been falsely implicated at the instance of his wife PW 1, Basumati as she was having grudge against him for the reasons that she was being compelled to go to her matrimonial home by the appellant. It has also been submitted that both the alleged eye-witnesses, i.e., PWs 3 and 1 are highly interested and partisan witnesses being the wife and daughter of the deceased and there is contradiction and inconsistencies in their evidence and their testimony is not worthy of credit. Lastly it has been contended that the medical witness has not found any incised wound on the person of the deceased and as such the very manner of occurrence regarding the assault by axe on the deceased is doubtful in this case and the medical evidence does not corroborate the manner of the occurrence as alleged and, therefore, the impugned judgment is unsustainable. 8. The learned A.P.P. has submitted that in this case the appellant is none else but the husband of PW 1 and son-in-law of PW 3 and they are the most competent, independent and natural ocular witness of the occurrence and they were present when the occurrence had taken place and they have no animus at all to depose falsely in this case to implicate the appellant. It has also been submitted that the weapon of assault i.e., the axe was recovered under the straw by the IO at the instance of the appellant and the blood stained earth along with that axe was seized in presence of the independent witnesses and PW 5, Tarun Manjhi, the Sarpanch of the village has witnessed the seizure list and the inquest report. Therefore, in the facts and circumstances of the case PW 3 and PW 1 cannot be termed as interested and partisan witnesses in this case rather they are very truthful witnesses having no animus to depose falsely against the appellant. The learned A.P.P. has also submitted that PWs 2 and 4 when came to the place of occurrence had seen the appellant there, armed with axe and when PW 2 attempted to apprehend him he had wielded the axe with a view to assault him. Lastly it has been contended that the learned Court below has properly considered and weighed the evidence in proper perspective and has rightly come to the finding of the guilt of the appellant. 9. There is no denying the fact that the appellant was married with PW 1, Basumati, the daughter of Rasbihari Sardar who is the deceased of this case. Admittedly the appellant was residing in the house of the deceased as gharjamai. There is evidence on the record to show that there was cordial relationship between the appellant on the one hand and PW 3 and PW 1 and the deceased on the other hand for the last three years since when he was residing in the house of the deceased as gharjamai. It also appears from the evidence on the record that he used to do no work and he was idle during his living as gharjamai in the house of the deceased. 10. Before I scan the evidence of PWs 3 and 1 read with the evidence of PWs 2 and 4, it is pertinent to refer the evidence of PW 7, the medical witness. PW 7, Yogendra Nath has deposed to have conducted the post mortem examination on the dead body of the deceased on 12.3.1990 at 13.15 hours and he had found the following ante mortem injuries on the dead body of the deceased : "(i) Abrasion 2 cm. x 2-1/2 cm. left clavical. (ii) There was defused contusion of occepital scalp and left parietal scalp. There was depressed fracture of occepital bone and left parietal bone extending from main fracture to the right occepital bone. There was extradural blood clot over occepital lobe of brain with contusion of whole brain. Blood and blood clot was found cranial cavity. x 2-1/2 cm. left clavical. (ii) There was defused contusion of occepital scalp and left parietal scalp. There was depressed fracture of occepital bone and left parietal bone extending from main fracture to the right occepital bone. There was extradural blood clot over occepital lobe of brain with contusion of whole brain. Blood and blood clot was found cranial cavity. The medical witness has further deposed that the aforesaid injuries have been caused by hard and blunt substance such as blunt portion of the axe and the time elapsed since death is within 24 hours to 48 hours at the time of the post mortem examination and the injuries aforesaid were sufficient to cause the death in ordinary course of nature. The post mortem report (Ext. 2) as per his pen corroborates his testimony. In his cross- examination he has deposed that digestion of food takes 3-4 hours and some digestion takes at least one hour and he has found semi digested food in the stomach of the deceased. PW 8, Jagtanand Tewari is the IO of this case who has deposed to have inspected the place of occurrence which is adjacent west of the house of the deceased by the side of the village road where he found blood fallen there along with the dead body of the deceased and he had prepared the inquest report (Ext. 4). Column 5 of the inquest report shows the existence of injury on the head of the deceased said to have been caused by axe and there was cut injuries near the left ear of the deceased and blood was oozing from the nose and ear of the deceased and Ext. 1 is the signature of PW 5 on the inquest report. He has further deposed to have recovered the axe concealed under the straw behind the house of the deceased as per the confessional statement made by the appellant and the said blood stained earth and the axe were seized and the seizure list (Ext. 5) was prepared which bears the signature of PW 5, thereon. 11. PW 3, the informant in para 2 of the evidence has deposed that the deceased returned from Patmada PS in the evening and at the time of meal the deceased Inquired from the appellant as to why he does not work and at this there was altercation between the deceased and the appellant. 11. PW 3, the informant in para 2 of the evidence has deposed that the deceased returned from Patmada PS in the evening and at the time of meal the deceased Inquired from the appellant as to why he does not work and at this there was altercation between the deceased and the appellant. She has further deposed that the appellant took an axe and he started assaulting the deceased causing injury on his head by the said axe and the deceased fell down and died. She has further deposed that she along with her daughter PW 1 tried to save the deceased and in that course they had sustained injuries on their hand and her bangles were broken. In para 8 of her testimony she has deposed that the appellant has given two blow from the axe on the deceased. She has also deposed that at the time of the occurrence the deceased had sat for taking meal and he had hardly taken one or two morsels of meal. She has further deposed that the deceased does not take wine. Her evidence is further to the effect that she raised alarms and called the chowkidar at the place of occurrence. PW 1, Basumati Sardarin in her evidence on oath has materially corroborated the testimony of PW 3, the informant. Therefore, there is no need to discuss the evidence of PW 1 threadbare. However. PW 1 has deposed that since her marriage she has not gone to her matrimonial home in spite of the request of the appellant and for that there had been some differences between them. She has also deposed that the deceased does not take wine and it is not a fact that the deceased had died due to intoxication. She has also deposed that the IO has seen the injury on her hand as well as in the hand of her mother but their injuries were not, treated in any hospital. PW 2, the village chowkidar claims to have come to the place of occurrence and found the appellant dead at the place of occurrence and the appellant was standing there with axe in his hand. Similar is the evidence of PW 4, the wife of PW 2. PW 2, the village chowkidar claims to have come to the place of occurrence and found the appellant dead at the place of occurrence and the appellant was standing there with axe in his hand. Similar is the evidence of PW 4, the wife of PW 2. It, therefore, appears from the evidence of PW 3 read with PW 1 coupled with the evidence of PWs 2 and 4 that the appellant has assaulted the deceased with axe causing injuries on his head and clavical as a result of which the deceased had died instantaneously and PWs 2 and 4 have also seen the appellant armed with axe at the place of occurrence immediately soon after the occurrence when they reached there on alarms. PWs 2 and 4 though resident of a different village were residing at the relevant time in the close vicinity of the house of the informant and as such they have occasion to come to the place of occurrence on alarms. PW 2 has also deposed that the appellant wielded the axe at him when he attempted to apprehend him. The medical evidence referred to above corroborates the testimony of PWs 1 and 2 regarding to existence of the injuries on the person of the deceased as stated in the FIR (Ext. 3). Therefore, the evidence on the record clearly established the place of occurrence as well as the manner of the occurrence as averred in the. FIR (Ext. 3). 12. PWs 3 and 1 are the most competent and natural ocular witnesses of the occurrence as they were present in the house when the altercation took place between the deceased and the appellant and the assault on the deceased made by the appellant. Their evidence cannot be discarded simply on the ground that PWs 3 and 1 are the wife and daughter of the deceased. We have to bear in mind at the same time that the appellant is the husband of PW 1 and the son-in-law of PW 3, the informant. 13. There is no iota of evidence on the record to give an inkling of the fact that PWs 3 and 1 had any animus to depose falsely against the appellant so as to falsely implicate him in the occurrence in question and they have to axe to grind against the appellant. 13. There is no iota of evidence on the record to give an inkling of the fact that PWs 3 and 1 had any animus to depose falsely against the appellant so as to falsely implicate him in the occurrence in question and they have to axe to grind against the appellant. There is evidence on the record that there were cordial relationship between the deceased and the appellant since the appellant was living as gharjamai in the house of the deceased and no altercation had earlier taken place between them. Therefore, in the facts and circumstances of this case PWs 1 and 3 are not expected to spare the real culprit and to falsely implicate the appellant in this case. Therefore, the testimony of PWs 1 and 3 cannot be discarded simply on the ground that they are the wife and daughter respectively of the deceased. PWs 2 and 4 are equally competent and natural witnesses and they have the occasion to see the appellant armed with tangi at the place of occurrence when they had come there on alarms. PWs 2 and 4 have also no axe to grind against the appellant as well as to have any animus to depose Talsely against the appellant. PWs 2 and 4 are, though heresay witnesses of actual assault, were informed of the occurrence when they had come to the place of occurrence. Therefore, I see no reason also to discard their testimony. The existence of the semi-digested food in the stomach of the deceased as found by the medical witness as per the post mortem report has no bearing in this case regarding the time of the occurrence as well as the manner of the occurrence in view of the fact that no attempt has been taken by the appellant to bring on the record that the appellant had not taken by food stuff prior to the occurrence. There is specific evidence on the record that no other person had come to the place of occurrence on the alarms at the time of the commission of the occurrence. The presence of any independent witness is totally ruled out in the facts and circumstances of this case. There is specific evidence on the record that no other person had come to the place of occurrence on the alarms at the time of the commission of the occurrence. The presence of any independent witness is totally ruled out in the facts and circumstances of this case. The over insistence on witnesses having no relation with the victims often results in criminal justice going awry, when any incident happens in a dwelling house or in a close vicinity, the most natural witnesses would be the inmates of the house. It is, therefore, unpragmatic to ignore such natural witness and insist on outsiders who would not have seen anything. The prosecution can be expected to examine only those witnesses who had witnessed the occurrence and not those who have not seen it though the neighbourhood may be replete with other residents also. I, therefore, see the ring of truth in the evidence of PW 3 and PW 1 read with PW 2 and PW 4. Moreover a close relation of the deceased would not try to falsely implicate any innocent person, specially the son-in-law of the family in the murder of the deceased and in such a situation the mere relationship of PW 1 and PW 3 with the decease is definitely no ground to discredit and discard their testimony. Therefore, I rely on the testimony of PW 3 read with PW 1 coupled with the testimony of PWs 2 and 4 and PWs 1 and 2 can never be termed as interested and partisan witnesses in the facts and circumstances of this case. 14. The medical witness has deposed that the injuries appearing on the person of the deceased was caused by hard and blunt substance may be by the back portion of the axe. There is consistent evidence on the record that the assault on the deceased was made by the appellant by axe and no ocular witness has deposed that the assault had been made by the sharp edge of the axe. There is consistent evidence on the record that the assault on the deceased was made by the appellant by axe and no ocular witness has deposed that the assault had been made by the sharp edge of the axe. Therefore, the non-existence of any incised wound on the person of the deceased does not cast a cloud of suspicion to the very credibility of the prosecution case in respect thereof and it cannot be said that the medical evidence is at variance with the manner of the occurrence as alleged in view of the specific evidence on the record deposed by PWs 1 and 3 regarding the assault having been made on the deceased by the appellant. It appears in view of the medical evidence on the record that the injuries appearing not he dead body of the deceased have been caused by the blunt portion of the axe. Therefore, there is no infirmity in the prosecution case in respect thereof. And last but not the least, there is specific evidence of PWs 3 and 1 that the deceased is not a drunkard. Therefore, the defence version that the deceased has sustained injuries on his head as a result of fall in a drunken state leading to this death is not at all natural and probable. 15. In view of the fact, circumstances and evidence on the record I see no force and substance in the contention put forward on behalf of the appellant. It appears that there is legal and reliable evidence on the record establishing the guilt of the appellant beyond all reasonable doubts and the learned Court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant. I, therefore, see no illegality in the impugned judgment requiring an interference therein. I, therefore, affirm the impugned judgment finding the appellant guilty. 16. There is no merit in this appeal and it fails. The appeal is hereby dismissed. The bail bond of the appellant is hereby cancelled. The learned Court below is hereby directed to take all coercive steps in accordance with law to apprehend the appellant to serve out the sentence. Lakshman Uraon, J. I agree.