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2002 DIGILAW 1221 (JHR)

Umar Ansari v. State of Bihar

2002-12-09

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, .I.-This appeal has been preferred by the sole appellant named above against the impugned judgment dated 18.8.1994 passed by Shri Shyam Kumar Mishra, Additional Judicial Commissioner, Lohardagga in S.T. No. 258 of 1987/142 of 1990 whereby and whereunder the appellant was found guilty for the offence under Section 302 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext. 2) of RW. 2, Sheikh Shekhawat Ansari, the informant recorded on 9.9.86 (Tuesday) at 8.00 hours by Shri M. Rai, O.c. Senha, RS. District, Lohardagga regarding the occurrence which is said to have taken place on 7.9.86 at 13.30 hours in the house of the appellant in village Bidhani, RS. Senha, District Lohardagga where the informant had come along with several co-villagers with the dead body of the deceased. The F.I.R. has been received in the' court of Sub-divisional Judicial Magistrate, Lohardagga on 10.9.86. 3. The prosecution case, in brief, is that Naima Khatoon, the deceased of this case and the daughter of the informant is the lawfully wedded wife of the appellant and she was residing with the appellant in her matrimonial home. It is alleged that on 7.9.89 (Sunday) at about 1.30 hours. P.W. 4, Asruddin Ansari came running to the informant and told him that the appellant had assaulted at the abdomen of Naima Khatoon by the back portion of the Tangi (axe) in presence of P.W. 3, Kamruddin and Naima Khatoon has become unconscious fallen on the ground in the courtyard of her house and on this information the informant went to the house of the appellant and found Naima Khatoon unconscious fallen on the ground. It is alleged that the informant asked the appellant to take Naima Khatoon for treatment to the hospital and at this the appellant started abusing the informant and intimidated him to flee away from there failing which he shall be done to death and he further stated that he will do with his wife whatever he likes and at this the informant came back to his house. It is also alleged that the informant came to know that Naima Khatoon aforesaid has died at 6.00 P.M. on Monday i.e. 8.9.86. It is also alleged that the informant came to know that Naima Khatoon aforesaid has died at 6.00 P.M. on Monday i.e. 8.9.86. It is also alleged that the informant along with others brought the dead body of the deceased on a cot to the P.S. from the house of the appellant. It is also alleged that the appellant always used to assault the deceased as he had intention to re-solemnize his marriage after divorcing her. 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. It has also been contended that the death of the deceased is the result of the injury caused on her abdomen due to the dashing of the head of the cattle. 5. The prosecution has in all examined eight• witness to substantiate the charge levelled against the appellant P.W. 2, Sheikh Shekhawat Ansari is the informant of this case and he was told about the alleged occurrence by his son P.W. 4, Asruddin Ansari. The signature of P.W..2 on the F.I.R. (Ext. 2) is 1/3. He has proved the F.I.R. (Ext. 2) and the seizure list (Ext. 3) regarding the seizure of the axe from the house of the appellant. P.W. 3, Kamruddin Ansari is the son-in-law of the informant and he claims himself to be the ocular witness of the occurrence. P.W. 2 also claims to be the ocular witness of the occurrence in question P.W. 1 is a hearsay witness of the occurrence but he has proved the seizure list and his signature on the seizure list besides P.W. 2 and Umar Ansari is Ext. 1, 1/1 and 1/2 respectively. P.W. 5 and P.W. 7 have turned hostile and they do not support the prosecution case. P.W. 6 is Dr. Jagdish Lal Mandai who has conducted the postmortem examination on the dead body of the deceased and the postmortem report per his pen is Ext. 4 in this case. P.W. 8, Mallu Ram is the I.O. of this case and he has proved the inquest report. (Ext. 5). 6. No oral and documentary evidence has been brought on the record on behalf of the defence. 7. 4 in this case. P.W. 8, Mallu Ram is the I.O. of this case and he has proved the inquest report. (Ext. 5). 6. No oral and documentary evidence has been brought on the record on behalf of the defence. 7. Assailing the impugned judgment as unsustainable and based on conjecture and surmises and not on legal evidence it has been submitted by the learned counsel for the appellant that the learned court below did not meticulously scrutinize the evidence on the record in proper perspective and has erred in coming to the finding of the guilt of the appellant. It has also been submitted that as per the prosecution case occurrence is said to have taken place on 7.9.86 but the F.I.R. has been lodged in this case on 9.9.86 and there is no explanation on the record in respect of the inordinate delay in lodging the case against the appellant and it shows that after pre-meditation this appellant has been roped in a false case. It has been submitted that there are inherent inconsistencies and material contradictions in the testimony of the prosecution witnesses which totally belie the prosecution case. It has also been submitted that the appellant has died due to accident as a result of the dashing of the head of the cattle on her abdomen causing the injury in question and with a view to wreck vengeance, the informant has falsely implicated the appellant in this got up case. It has also been submitted that P.W. 4 is not an eye witness of the alleged occurrence and P.W. 3 is a resident of different village and his presence at the place of occurrence as alleged is doubtful and he had no occasion at all to come to the house of the appellant and there is no iota of legal evidence at all to substantiate the fact that this appellant has assaulted on the abdomen of his lawfully wedded wife by the back portion of the tangi. Lastly it has been contended that the charge under Section 302 is not all attracted in this case in view of the fact that there was no intention on the part of the appellant to commit the murder of his lawfully wedded wife Naima Khatoon and it is a case of single blow at the spur of the moment and, therefore, the charge may fall utmost under Section 304 Part II of the Indian Penal Code. 8. It has been submitted by the learned A.P.P. that there was strained relationship between the appellant and his deceased wife prior to the occurrence and the appellant wanted to get rid of her as he was' attempting to re-solemnize his marriage with some other women and in this view of the matter he has caused the injury on the abdomen of the deceased by the back portion of the axe which resulted in her death. It has also been submitted that P.W. 3 is the ocular witness of the occurrence and he has seen the appellant assaulting the deceased on her abdomen by the back portion of the axe and P.W. 4 and P.W. 2 have seen the appellant standing by the side of the deceased when she had fallen on the ground and at that time the appellant had axe in his hand which has been recovered by the I.O. in course of investigation as per seizure list (Ext. 3). Lastly it has been contended that there is legal evidence on the record to substantiate the prosecution case and the learned court below after meticulous consideration of the evidence on the record has rightly come to the finding of the guilt of the appellant and there is no illegality in the impugned judgment. 9. There is no denying the fact that Naima Khatoon, the deceased of this case is the lawfully wedded wife of the appellant and she has two sons and a daughter born of the appellant and she was residing in her matrimonial home with the appellant leading her conjugal life. The house of the informant, i.e. the father of the deceased Naima Khatoon is at a distance of 200-300 yards from the house of the appellant intervened by a rivulet. According to the prosecution case as averred in the F.I.R. (Ext. The house of the informant, i.e. the father of the deceased Naima Khatoon is at a distance of 200-300 yards from the house of the appellant intervened by a rivulet. According to the prosecution case as averred in the F.I.R. (Ext. 2) of P.W. 2 the appellant always used to assault the deceased to get rid of her as he had intention to re-solemnize his marriage P.W. 2, in para 8 of his evidence has deposed that the appellant has committed the murder of the deceased with a view to re-solemnize his marriage. However, in para 13 of his cross examination he has deposed that he has not made any complaint in respect thereof to the Anjuman or to any competent authority. P.W. 1, the brother of the deceased has also deposed in para 4 of his evidence that the appellant always used to assault the deceased and used to tell that he will re-solemnize his marriage. However, in para 5 of his evidence he has deposed that he has made no complaint regarding the torture perpetrated on the deceased by the appellant. P.W. 4, the other brother of the deceased in para 6 of his evidence has, however, not whispered regarding the fact of torture perpetrated on the deceased by the appellant as deposed by P.Ws. 1 and 2. His evidence in para 6 of the testimony is that wheat was being dried in the courtyard of the appellant and the deceased was watching it and the ox of the appellant ate the wheat and at this the appellant had assaulted the deceased. The evidence of P.W.4 contradicts the testimony of P.Ws. 1 and 2 referred to above regarding the motive and genesis of the occurrence. Admittedly the three children are living with the appellant even after the demise of the deceased which has been admitted by P.W. 1 in para 10 though P.W. 2 in his evidence has deposed that the daughter of the deceased is living with P.W. 2, the informant. Be the case as it may, it does not establish beyond all reasonable doubts that the motive as stated in F.I.R. (Ext. 2) of P.W. 2, the informant is the cause of the assault on the abdomen of the deceased by the appellant in the manner as alleged. Be the case as it may, it does not establish beyond all reasonable doubts that the motive as stated in F.I.R. (Ext. 2) of P.W. 2, the informant is the cause of the assault on the abdomen of the deceased by the appellant in the manner as alleged. However, motive for the occurrence pales into insignificance if there is direct evidence of ocular witnesses regarding the assault on the deceased. Therefore, the non-proof of motive by legal evidence on the record in view of the existence of the ocular testimony of the witnesses cannot be a ground to disbelieve the warp and woof of the prosecution case. 10. P.W. 6 has deposed to have conducted the postmortem examination on the dead body of the deceased on 9.9.1986 at 11.00 hours and he has found the following ante mortem injury on the abdomen of the deceased : (i) one bruise dark and red colour over the lower part of her abdomen 4 1/2" x 3". The medical witness has further deposed on internal examination to have found the right ventricle of the heart filled by dark and clotted blood and the left ventricle was found empty and abdominal cavity was filled with yellowish blood. Pritonium was found congested and stomach contained yellowish fluid and large intestine had also contained yellowish fluid and there was rupture of transverse colon. The medical witness has also deposed that small intestine contains chylus (milky) fluid. The medical witness has also deposed that the aforesaid injury has been caused by hard and blunt substance may be by lathi or back portion of the axe and the time elapsed since death is within 24 hours. The postmortem report (Ext. 4) as per pen of the medical witness corroborates his objective finding. According to the prosecution case the deceased has died at about 6 o'clock in the evening on 8.9.86 and as such the time of death as deposed by the medical witness is in conformity with the prosecution case regarding the time of the death of the deceased. The inquest report (Ext. 5) also mentions therein swelling and bruise in red colour at the abdomen of the deceased. The medical witness, however, is conspicuously silent regarding the fact that the injury found by him on the abdomen of the deceased on dissection is sufficient to cause the. death in ordinary course of nature. The inquest report (Ext. 5) also mentions therein swelling and bruise in red colour at the abdomen of the deceased. The medical witness, however, is conspicuously silent regarding the fact that the injury found by him on the abdomen of the deceased on dissection is sufficient to cause the. death in ordinary course of nature. In his cross examination he has also deposed that if an animal's head strike against the abdomen, the above injury may be caused but it cannot be caused by horns of any animal. According to the prosecution case the appellant is said to have given a blow by the back portion of the axe at the abdomen of the deceased causing the said injury. At this score we have the solitary testimony of P.W. 3, Kamruddin, the son-in-law of the informant. P.W. 3, is a resident of village Tigra situated at the distance of 13 kms. from the P.O. village. He has deposed that he has come to the house of the informant on the day of the occurrence and he went to the house of the appellant and when he reached at the house of the appellant he saw the appellant assaulting his wife Naima Khatoon by the back portion of the tangi at her abdomen and Naima Khatoon fell on the ground and became unconscious. He has also deposed that immediately soon thereafter, he returned to her father-in-laws house, i.e. the house of the informant and narrated about the incident to the family members of the informant. He has also deposed that, thereafter, he again came to the house of the appellant along with his mother-in-law, Jeth as, Julekha and his brother-in-law Nasruddin where he found Naima Khatoon still unconscious. He has also deposed that a large number of persons had assembled there including P.W. 4 and P.W. 2, the informant. His evidence is further to the effect that he asked the appellant to take Naima Khatoon for treatment which was refused. P.W. 4 has deposed that at the time of the occurrence he was working in the field situate 25 or 30 yards from the house of the appellant and after hearing the alarms raised by Naima Khatoon he went to the house of the appellant where he saw Naima Khatoon fallen on the ground and the appellant standing there with tangi. He has also deposed that he ran to his father, i.e. the informant and reported about the incident to him and, thereafter, he again came back to the house of the appellant in the company of his father, the informant and made enquiry from the appellant as to why he has assaulted Naima Khatoon and at this the appellant reported that Naima Khatoon is his wife and he will do whatever he likes with his wife. P.W. 2 has also deposed that on information by P.W. 4, he had gone to the house of the appellant where he found Naima Khatoon fallen on the ground and unconscious and also saw the appellant standing there with Tangi. He has further deposed that he asked the appellant to take Naima Khatoon for treatment which was refused by him and the appellant reported that he will do with his wife whatever he likes. His evidence is further to the effect in para 4 of his testimony that Naima Khatoon after regaining consciousness told by gesture that the appellant has assaulted on her abdomen by Tangi. Similar is the evidence of P.W. 4 in para 3. P.W. 2 has also deposed that the appellant intimidated him to go away from his house failing which he shall also be assaulted and at this the informant along with others came back to his house. P.W. 2 has further deposed that he got information that Naima Khatoon had died in the evening at about 6 O'clock on 8.9.1986 and, thereafter, he along with some of the villagers came to the house of the appellant and carried the dead body of the deceased from the house of the appellant to the P.S. situate at a distance of 24 kms. where he reached in the morning and the F.I.R. was drawn and the case was instituted against the appellant P.W. 8, the I.O. has deposed to have recovered the axe from the house of the appellant and the seizure list (Ext. 3) corroborates it. There is evidence on the record that the appellant has stated before P.Ws. 1, 2 and 4 and the I.O. that he has assaulted the appellant by the back portion of the tangi. 3) corroborates it. There is evidence on the record that the appellant has stated before P.Ws. 1, 2 and 4 and the I.O. that he has assaulted the appellant by the back portion of the tangi. This extra judicial confession as stated by the aforesaid witnesses in presence of the I.O. has no legal bearing in this case and the same is inadmissible in evidence and as such no reliance can be placed on the alleged extra judicial confession as deposed by P.Ws. 1, 2 and 4. It thus appears from the evidence on the record referred to above that the appellant has given a single blow by the back portion of the Tangi on the abdomen of his lawfully wedded wife Naima Khatoon, who subsequently died as a result of the said injury. The medical evidence on the record supports the ocular testimony of P.W. 3 regarding the manner of the occurrence. The evidence of P.W. 4 seeing the appellant standing with axe in his hand at the place of occurrence where Naima Khatoon had fallen and unconscious, is a circumstance of unimpeachable character which supports the ocular testimony of P.W. 3, referred to• above. It is therefore, established by the legal evidence on the record that the appellant has given a single blow on the abdomen of the deceased as a result of which she has died on the following day without any medical treatment provided to her by the appellant. I see no reason to discredit the testimony of PW 3 read with P.Ws 2 and 4. I further find ring of truth in their evidence. 11. Now a pertinent question arises in the case as to whether conviction of the appellant under Section 302 of the Indian Penal Code is proper, legal and valid. It is a case of single blow by the appellant, the husband, by back portion of the axe on the abdomen of his lawfully wedded wife, the deceased. PW 4 has clearly stated that the wheat was being dried up in the courtyard of the appellant which was being watched by the appellant and the ox of the appellant had eaten the said wheat and at this the appellant had assaulted the deceased. There is evidence on the record that a single blow was given and there was no repetition of blows by the appellant on the person of the deceased. There is evidence on the record that a single blow was given and there was no repetition of blows by the appellant on the person of the deceased. It also appears that the appellant has assaulted the deceased at the spur of the moment finding the wheat having when eaten by the ox. It is relevant to mention here that the appellant is a cultivator and the grain is the source of his livelihood and due to the sheer negligence of the appellant he gave a blow on the deceased by the back portion of the Tangi. It, therefore, appears that there was no intention on the part of the appellant to commit the murder of deceased. Had there been such an intention there was no intervening circumstances preventing the appellant repeating the blows on the person of the deceased. It, therefore, appears that intention of the appellant was only to cause bodily injury to the deceased and not to commit her death. Therefore, the offence charged against the appellant does not fall under the ambit of Section 302 of the Indian Penal Code rather the offence under Section 304 Part II has its application to the facts of this case. I see substance in the contention of the learned counsel for the appellant in respect thereof. 12. After careful consideration of all the facts, circumstances and materials on the record it is a fit case in which the conviction of the appellant under Section 302 of the Indian Penal Code has to be altered under Section 304 Part II of the Indian Penal Code. Therefore, the conviction of the appellant under Section 302 of the Indian Penal Code is hereby altered into the conviction under Section 304 Part II of the Indian Penal Code. The appellant is hereby sentenced to the period already undergone in custody. 13. There is no merit in this appeal and it fails. The appeal is hereby dismissed with the modification aforesaid. 14. Let the appellant be set free forthwith if not wanted in any other case. Lakshman Uraon, J.-I agree.