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2002 DIGILAW 1134 (JHR)

Khairu Sardar v. State Of Bihar

2002-10-30

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been preferred by the sole appellant named above against the judgment dated 29.8.1992 passed in S.T. No. 131 of 1990 by Shri Tarkeshwar Prasad, 2nd Additional Sessions Judge, Jamshedpur whereby and whereunder the appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code for the commission of the murder of Ramesh Sardar said to be the husband of his sister and he was convicted and sentenced to undergo imprisonment for life. 2. The prosecution case has arisen on the basis of the FIR (Ext. 3) of PW 1 Bhagirathi Mahto recorded by Sachidanand Dev, O.C., Dumaria PS in the district of Singhbhum on 29.10.1989 at 7.00 hours regarding the occurrence which is said to have taken place on 28.10.1999 at 18.00 hours in village Kasmar Tola, Chutia Bar PS Dumaria, district Singhbhum. 3. The prosecution case, in brief, is that PW 1, the informant came to the house of his sister Gulabi Mahto with a lantern in his hand to take a cock from her on the day of the occurrence at about 6 oclock in the evening and he was sitting there and at that time he heard the alarms of quarrel and he came to the place of occurrence with lantern and when he reached near the road he saw the appellant Khairu Sardar along with his brother Pahar Sardar and he saw the appellant assaulting Ramesh Sardar, resident of village Damudih by an axe and at that time Pahar Sardar was standing there unarmed having no overt act in the occurrence. It is also alleged that the appellant was uttering in course of the commission of the occurrence that he shall be done to death as to why he has misbehaved with his (appellant) sister and as a result of the assault Ramesh Sardar fell down. It is alleged that PW 1, the Informant attempted to save Ramesh Sardar but was intimidated to be done to death by the appellant and, thereafter, the appellant along with Pahar Sardar fled away towards their house and, thereafter, PW 1 raised alarms and Ravi Mahto, Bhutesh Mahto along with several other persons of the village came to the place of occurrence and they were told about the occurrence by him. It is also alleged that there was bleeding injuries on the neck of Ramesh Sardar. It is also alleged that there was bleeding injuries on the neck of Ramesh Sardar. Thereafter, PW 7 Guna Naik, Hende Sardar, Kameshwar Sardar of village Damudih came there and they were also told about the occurrence. 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 that he has been falsely implicated in this case. 5. The prosecution has in all examined nine witnesses to substantiate the prosecution case. PW 1, Bhagirathi Mahto, the informant is the solitary eye- witness of the occurrence in question. PW 3, Gorang Mahto, PW 4, Gangadhar Mahto, PW 7, Guna Naik all resident of village Kasmar, PW 2, Pani Sardar, the widow of the deceased Ramesh Sardar, PW 5, Lal Mohan Sardar and his wife, PW 6, Sarla Sardarin all residents of village Damudih had come to the place of occurrence either on alarms of PW 1, the informant or on information and they were told about the occurrence by the informant and thus they all are heresay witnesses of the occurrence. PW 8, Dr. Ranjan Sinha has conducted the post mortem examination on the dead body of the deceased and the post mortem report per his pen is Ext. 2 in this case. PW 9, Sachidanand Dev is the IO of this case and has proved the FIR (Ext. 3), Inquest Report (Ext. 4). Ext. 1/4 and 1/3 are the signatures of PW 3 Gorang Mahto and one Lakhan Chandra Mahto respectively on the Inquest Report (Ext. 4). Ext. 1, 1/1 and 1/2 are the signatures of PW 1, the informant, PW 4 Gangadhar Mahto and one Ruby Mahto on the FIR (Ext. 3). No oral or documentary evidence has been brought on the record on behalf of the appellant. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not meticulously scrutinize, and consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not meticulously scrutinize, and consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. It has also been submitted that the solitary testimony of PW 1, Bhagirathi Mahto, the informant is replete with material inconsistencies and contradictions regarding the manner of the occurrence and the medical witness does not at all corroborate his testimony regarding the manner of assault and injuries caused on the person of the deceased as deposed by him and in this view of the matter PW 1 cannot be termed as an ocular witness of the occurrence. It has also been submitted that there was no means of identification at the place of occurrence and it was admittedly dark as deposed by PW 1, the informant who has specifically deposed in para 4 at page 3 of the his deposition that the appellant has not assaulted the deceased by axe in his presence and the learned Court below has wrongly placed reliance on the testimony of PW 1 and has, therefore, erred in coming to the finding of the guilt of the appellant. It has also been submitted that there is no evidence on the record of independent, natural and competent witness of the vicinity of the place corroborating the solitary testimony of PW 1, the informant. Lastly it has been contended that PW 1 was examined by the Court below in the absence of the appellant as a result of which the appellant was not identified by him in the Court and the prayer of the appellant to recall PW 1 was illegally rejected by the Court below causing serious prejudice to the appellant. Lastly it has been contended that no motive of the occurrence has been disclosed either in the fardbeyan or in the evidence of PW 1, the informant and the seizure list as well as the seized axe have also not been brought on the record and in view of the infirmities inherent in the prosecution case as well as appearing in the evidence of PW 1 read with the medical evidence, the impugned judgment is unsustainable. 7. 7. The learned A.P.P. has submitted that there is legal and reliable evidence on the record as per the testimony of PW 1, corroborated by the medical witness coupled with the objective finding of the IO and PW 1, the informant is the most natural, independent and competent witness of the occurrence and he has no concern, whatsoever, either with the appellant or with the deceased and furthermore PW 1 has no animus to depose falsely against the appellant and as such his testimony is worthy of credit and the learned Court below has rightly relied upon the solitary testimony of PW 1 in coming to the finding of the guilt of the appellant. 8. Before we scan the evidence on the record it is pertinent to mention at the very outset that Ramesh Sardar, the deceased of this case is a resident of Damudih. He has two wives and PW 2, Pani Sardar is one of his wives. The said Ramesh Sardar has also married with the sister of the appellant. PW 2 has deposed in para 1 of her evidence that the other wife of Ramesh Sardar used to tell him that if he will go to the house of her brother he shall be done to death by her brothers. She has also deposed that there had been a quarrel between the deceased and his other wife (the sister of the appellant) on the road. The deceased had come to the house of the appellant and he had earlier directed his son-in-law PW 5 Lal Mohan Sardar to meet him in village Kasmar in the house of the appellant and as per direction PW 5 had come in the night of the occurrence in the village Kasmar where he found Ramesh Sardar having been murdered. PW 5 is the husband of the daughter of the deceased and he is living with the deceased in his house in the village Damudih as gharjamai. In this context the averment made in the fardbeyan regarding the utterance of the appellant in course of the occurrence that Ramesh Sardar shall be done to death as he has misbehaved with his sister, is of considerable importance and equally relevant in this case for the probable reason or motive for the occurrence in question. In this context the averment made in the fardbeyan regarding the utterance of the appellant in course of the occurrence that Ramesh Sardar shall be done to death as he has misbehaved with his sister, is of considerable importance and equally relevant in this case for the probable reason or motive for the occurrence in question. Furthermore PW 1, the informant, has no connection whatsoever either with the appellant or with the deceased and, therefore, he cannot be in a position to state the reason and motive for the occurrence in question. Therefore, the non- disclosure of the motive in the occurrence in question by the informant in the FIR (Ext. 3) is not an infirmity of the prosecution case. Moreover, it is the settled principle of law that the motive pails into insignificance if the participation of the accused is established by the evidence of the eye-witness. 9. PW 8, Dr. Ranjan Sinha has deposed to have conducted the post mortem examination on the dead body of the deceased on 30.10.1989 at 3.00 p.m. and he has deposed to have found the following ante mortem injuries on the person of the deceased : (i) Transverse sharp cut wound on the fold of the neck 6" x 3" x 3". (ii) Sharp cut oblique wound on the front of the chest 3" x 2" x 2". (iii) Sharp cut injury below the left angle of mouth 1" x 1/2". (iv) Sharp cut oblique wound at the back of neck 2" x 1" x 1/2". (v) Sharp cut oblique at the left back of shoulder 2" x 1/2" x 1/2". The medical witness has further deposed that the death was due to shock and haemorrhage caused by above injuries which have been caused by sharp cut weapon like an axe and the time elapsed since death is 48 hours from the post mortem examination. PW 9, the IO has deposed that he has inspected the place of occurrence and he has found the dead body of the deceased 25 yards away from the community hall in village Kasmar and he has also found the axe in question said to be the weapon of assault from a ditch nearby of the place of occurrence and he has also seized the blood stained earth from there. He has further deposed to have prepared the inquest report (Ext. He has further deposed to have prepared the inquest report (Ext. 4) in presence of the witnesses and the description in para 5 of the inquest report regarding the existence of the injuries on the dead body of the deceased stands corroborated by the medical witness as per his post mortem report (Ext. 2). It, therefore, becomes crystal clear that Ramesh Sardar has been done to death near the community hall and his death has been caused due to injuries caused on his person by a sharp cutting weapon, i.e. an axe. 10. PW 1, is the solitary eye-witness of the occurrence in question. As per the evidence he was present in the house of his sister where he heard the alarms of the occurrence. The house of the sister of the informant is near the house of the appellant intervened by a house and there were houses of Madhu Sardar and Sujan Sardar in the close vicinity of the place of occurrence but they did not figure as the ocular witness of the occurrence in view of the fact that they were not present in the house at the time of the commission of the alleged occurrence. PW 1 has disposed that on hearing the alarms he went to the place of occurrence from the house of his sister where he had gone to take a cock and he saw quarrel going on in front of the house of the appellant on the kachcha road of the village between the appellant and the deceased and Pahar Sardar, the brother of the appellant, was also present there. He has further deposed that he wanted to intervene in the quarrel to save the deceased but he was intimidated to be done to death and he had to retreat from intervening in the occurrence. His evidence is further to the effect that the appellant assaulted Ramesh Sardar with an axe as a result of which he fell down and, thereafter, the appellant along with his brother Pahar Sardar fled away from there. However, in para 4 at page 3 of the deposition he has deposed that at the time of the occurrence it was dark and in his presence the appellant did not give blows by his axe. However, in para 4 at page 3 of the deposition he has deposed that at the time of the occurrence it was dark and in his presence the appellant did not give blows by his axe. The evidence of PW 1 referred to above is not sufficient to discredit his testimony as an eye-witness of the occurrence in view of his specific evidence that when he intended to intervene in the quarrel he was intimidated to be done to death by the appellant. Therefore, the question of identification of the appellant as a participant in the occurrence stand established as per the testimony of PW 1. He has also deposed that he remained at the place of occurrence for about five minutes and in his presence Ramesh Sardar was assaulted by the appellant. Therefore, his evidence that axe was not wielded in his presence pails into insignificance. Nothing material has been elicited in his cross-examination to discredit his testimony. PW 1 is the most competent, natural and independent witness of the occurrence and he has the occasion to witness the occurrence and furthermore there is no animus to this witness to depose falsely against the appellant so as to falsely implicate him in this case. PW 1 in his evidence on oath has not specifically stated regarding the number of blows given on the deceased by the appellant by axe. Therefore, this omission on the part of the appellant cannot be said to be an inconsistency regarding the number of the injuries found by the medical witness on the dead body of the deceased in course of post mortem examination. There is specific evidence on the record that no other person had come to the place of occurrence at the time of the commission of the occurrence except PW 1. Therefore, the evidence of any independent witness is totally ruled out in the facts and circumstances of this Case. The over insistence of witnesses having no relation with the victim often results in criminal justice going awry. When any incident happens in the close vicinity of the dwelling house, and the most natural witnesses would be the persons having their residence in such dwelling places. There is evidence on the record that PW 1 has come to the place of occurrence on alarms from the house of his sister. When any incident happens in the close vicinity of the dwelling house, and the most natural witnesses would be the persons having their residence in such dwelling places. There is evidence on the record that PW 1 has come to the place of occurrence on alarms from the house of his sister. There is also evidence on the record referred to above that the other persons who have their houses in the close vicinity of the place of occurrence were not present in their respective houses. Therefore, there is no occasion of the existence of any other ocular witness of vicinity of the place of occurrence in the facts and circumstances of this case. 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. 11. After careful and cautious scrutiny of the evidence of PW 1, I hold that he is a natural, competent and independent ocular witness of the occurrence and he has no animus to depose falsely and there is ring of truth in his evidence and his evidence is worthy of credit and I rely upon his evidence. It is, therefore, established beyond all reasonable doubts that the appellant has committed the murder of the deceased by an axe in the manner as alleged in the FIR (Ext. 3). 12. The contention of the learned counsel for the appellant that PW 1 was examined in the absence of the appellant is not tenable and is against the record. PW 1 was examined in this case on 2nd September. 1991 and on that very day PWs 2, 3 and 4 were also examined in the case by the trial Court. The order- sheet dated 2.9.1991 of the trial Court shows that the appellant was produced from custody before the Court on that day and in his presence PWs 1 to 4 were examined, cross-examined and, thereafter, discharged and Ext. 1 to 1/4 were also marked. PWs 3 and 4 in the concluding portion of the examination in chief has specifically deposed to have identified the appellant in the dock. 1 to 1/4 were also marked. PWs 3 and 4 in the concluding portion of the examination in chief has specifically deposed to have identified the appellant in the dock. Therefore, there is no question at all of the examination of PW 1, the informant, in the absence of the appellant in the Court below. Therefore, no prejudice has been caused to the appellant if his prayer for recall of PW 1 for his further cross- examination has been denied by the learned Court below. Therefore, I see no substance in the contention of the learned counsel for the appellant in respect thereof. And last but not the least, there is no inherent improbabilities or material contradictions or inconsistencies in the evidence of PW 1, the informant. The evidence referred to above of PW 1, though the solitary eye- witness of the occurrence, is reliable and there is legal evidence on the record establishing the guilt of the appellant beyond all reasonable doubts. 13. After considering all the facts, circumstances and material on the record I see no illegality in the impugned judgment requiring an interference therein. The impugned judgment of the learned Court below is hereby affirmed. 14. There is no merit in this appeal and it fails. The appeal is hereby dismissed. Lakshman Uraon, J. I agree.