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2002 DIGILAW 831 (JHR)

Bindeshwar Jha v. State of Bihar

2002-08-06

VIKRAMADITYA PRASAD, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.- This appeal has been directed by the appellant against the judgment and order dated 4.1.1990 passed in Sessions Trial No. 218 of 1988 by Shri S.K.P. Verma, 7th Additional District Judge, Dhanbad whereby and whereunder the appellant was found guilty for the offence punishable under Section 302 of the I.P.C. and he was convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext.-1) of P.W.1, Dulali Rajwarin, the informant, recorded on 16.9.1985 at 10.30 hours in Chaitudih Colliery Siding; Dhanbad regarding the occurrence which is said to have been taken place on that very day at 9 hours. 3. According to the prosecution case, P.W.1, the informant, was on duty from 8 hours on 16.9.1985 in Chaitudih Siding and Shiv Kumar Singh, the Attendance Clerk, the deceased of this case, was seen from going towards east from west in the said Siding and Nirmala Devi, the mother of the appellant was going towards west from east and thereafter said Shiv Kumar Singh and Nirmala Devi went together talking in the attendance room. It is alleged that after some time i.e. at about 9 A.M., the informant saw the elder son of Nirmala Devi fleeing towards west and Shiv Kumar Singh aforesaid besmeared with blood was found chasing him and in course of chase the said Shiv Kumar Singh fell down. It is also alleged that Nirmala Devi was found fleeing towards north. The prosecution case further is that the informant along with P.W.2, Sumati Nuniyani went to Shiv Kumar Singh who told them that the elder son of Nirmala Devi had fled away after assaulting him by Bhujali and thereafter said Shiv Kumar Singh became unconscious. On alarms several persons including Sitwa Devi and Majid Khan came there and Shiv Kumar Singh was brought to the Central Hospital Tilatand on dumpher but he died in the way to the hospital. 4. The appellant has pleaded not guilty to charge levelled against him and claimed himself to be innocent and to have been falsely implicated in the case. His defence in the alternative is that in exercise of the right of private defence of the person of his mother Nirmala Devi he has assaulted the deceased while he was attempting to commit rape on his mother. 5. His defence in the alternative is that in exercise of the right of private defence of the person of his mother Nirmala Devi he has assaulted the deceased while he was attempting to commit rape on his mother. 5. The prosecution has examined P.W.1, Dulali Rajwarin, the informant, P.W.2, Sumati Nuniyani, P.W.4, Dr. R. S. Prasad, who has conducted the postmortem examination on the dead body of the deceased of this case, P.W.3, Ram Nand Singh, the I.O. of this case, P.W.S, Mathura Pandey, a formal witness, P.W.6, Shambhu Prasad Singh, a witness of the inquest and P.W.7, Suresh Singh, a tender witness to substantiate the prosecution case. Exhibit 5 is a post mortem report of P.WA, Exhibit3 is the inquest report and Exhibit-4/1 is the seizure list of the articles found at the place of the occurrence and Exhibit-4 is the production list in respect thereof and Exhibit-6 series are signatures of the witnesses on the inquest report. No witness was examined on behalf of the defence. However, para-25 of the case diary which is the statement of Nirmala Devi aforesaid has been marked as Exhibit-A and Exhibit-B is the F.I.R. under Section 354 I.P.C. of Nirmala Devi regarding the occurrence of that very date lodged against Shiv Kumar Singh aforesaid. In view of the oral and documentary evidence on the record, the learned court below; disbelieving the right of private defence of the appellant, found him guilty for the offence under Section 302 I.P.C. and convicted and sentenced him as stated above. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned court below has not rightly construed the defence version of the appellant in view of the fact that there was absolutely no cause or motive for commission of the murder of the deceased by the appellant except the fact that the deceased was attempting to ravish his mother and in this view of the matter, the defence of the appellant is within the ambit of right of private defence as envisaged under Section 100 of the I.PC. It has also been submitted that P.W.4 the medical witness has deposed that in view of the nature of the injuries appearing on the person of the deceased, his death was instantaneous and as per this evidence the prosecution case of chase by the deceased outside the room while the appellant was allegedly fleeing away is palpably false and incorrect and there was no occasion for the deceased to tell PW.1 and 2 regarding the alleged fact of assault by the appellant on him and accordingly the testimony of P.W.1 and 2 has to be brushed aside in this case and the learned court below has wrongly relied upon the evidence of PW.1 and 2 in respect thereof. It has further been submitted that the name of the appellant has not been disclosed in the fardbeyan of the PW.1, the informant, rather it has been mentioned therein that the elder son of Nirmala Devi has assaulted Shiv Kumar Singh by Bhujali which was stated to her by the deceased himself and said Nirmala Devi had several sons but the appellant has not been put on test identification parade and in this view of the matter, the identification of the appellant in the dock for the first time by PW.1 and 2 is no legal evidence at all to hold that it was the appellant who had been seen running away and chased by the deceased. Further it has been contented that PW.3, the I.O. in his evidence on oath has given objective finding of the attendance room which is said to be the place of occurrence of the case but there is no reference in his evidence regarding the place where the deceased had fallen in course of chase where PW.1 and 2 were told regarding the assault on the deceased by the elder son of Nirmala Devi. It has further been contended for the appellant that the appellant was a juvenile under 16 years of age on the alleged date of occurrence as well as on the date when he was first produced before the Court and he was remanded in custody in the Remand Home, Patherdih and thereafter he was released on bail by the Sessions Judge on the ground that he was a child, but the learned Court below has wrongly assessed the age of the appellant as 29 years which is nothing but the figment of his imagination. Since the appellant was a juvenile below 16 years of age at the time of occurrence and in this view of the matter, the learned court below has no jurisdiction vested in him for his trial as per the procedure prescribed in the Cr.P.C. and the entire proceeding stands vitiated. A supplementary affidavit has also been filed by the appellant in respect thereof which is on the record. It has also been submitted that the plea of the jurisdiction on the ground of the appellant being a juvenile can be taken at any stage of the case. In support of his contention reliance has been placed upon the case of Gopinath Ghosh vs. State of West Bengal [1985 E.Cr.C 482 (SC)] and the case of Raj Singh vs. State of Haryana [2000 SCC (Criminal) 1270]. Lastly it has been contended that the learned court below has not properly weighed and considered the evidence on the record in proper perspective and has gravely erred in finding the appellant guilty and as such the judgment of the learned court below is unsustainable in the facts and circumstances of this case. 7. It has been contended by the learned A.P.P. that the appellant was seen by P.W.1 and 2 fleeing away from the attendance room followed by the deceased besmeared with blood who fell down at some distance and the deceased told them about the appellant assaulting him with Bhujali and there is objective finding of the I.O. regarding the place of the occurrence from where Chappal belonging to the appellant and one lady umbrella were seized and also a blood sustained Bhujali was recovered and seized from a place at distance of 50 yards from the place of the occurrence. It has also been submitted that there is no cogent evidence at all on the record to probabilise the defence version regarding the right of private defence of person as alleged. In view of the evidence aforesaid, the learned court below has rightly convicted the appellant. 8. It will admit of no doubt that occurrence has taken place at about 9 O'clock in the morning on 16.9.1985 in the attendance room of Chaitudih Colliery Siding in which deceased Shiv Kumar Singh has sustained injuries on his person and the deceased died of the injuries caused to him. P.WA, Dr. R.S. Prasad had conducted the post mortem examination on the dead body of the deceased and had deposed that he had found the following ante mortem injuries on the dead body of the deceased:- (i) 1" x 1/4" x cavity deep punctured wound on right shoulder blade area. Margins are sharp. One angle is sharp and other angle is roundish. Caused by one edged and pointed weapon. (ii) Lacerated wound ‘L' shaped measuring 1/4" x 1/10" x skin deep and 1/4" x 1/10" skin deep on forehead 1 1/4" above the inner end of left eye brow. Caused by hard and blunt weapon. (iii) Abrasions 1" x 1/2" over the bridge of nose and on left side of nostril 1/2" x 1/4" below right lower eye lid, 2" x 1 1/2" on back of left elbow. (iv) Bruise 1" x 1/2" placed horizontally 3/4" above the right eye brow. The medical witness has also deposed that he had found the lobe of right lung collapsed due to puncture injury and the right main branch of aorta just near the bone of bifurcation was also found to be cut. The medical witness has also deposed that death of the deceased has occurred almost instantaneous due to shock and haemorrhage resulting from the aforementioned injuries. The medical witness have also deposed that injury no. 1 aforesaid may be caused by Bhujali. The post mortem report of PW.4 is the Exhibit5 in this case. The P.W.3, the 1.0. has deposed that he had found and seized two pairs of Chappal allegedly one belonging to the deceased and the other belonging to the appellant besides one lady umbrella and blood fallen in the said room. 1 aforesaid may be caused by Bhujali. The post mortem report of PW.4 is the Exhibit5 in this case. The P.W.3, the 1.0. has deposed that he had found and seized two pairs of Chappal allegedly one belonging to the deceased and the other belonging to the appellant besides one lady umbrella and blood fallen in the said room. PW.3 has also deposed to have recovered blood sustained Bhujali at the distance of 50 yards from the said place of occurrence. It is pertinent to mention at this stage that there is no legal evidence at all on the record to connect the appellant with the other pair of Chappal allegedly belonging to him and the lady umbrella belonging to her mother, Nirmala Devi. The blood stained Bhujali was neither sent to the expert for examination nor produced before the court below in course of trial. It is relevant to mention here that according to the prosecution case, the deceased after sustaining the aforesaid injury had chased the assailant i.e. the alleged appellant from the said place of occurrence and he came out from the attendance room aforesaid and in course of chase he fell down and thereafter on arrival of PW.1 and 2 he had disclosed them that the elder son of the appellant has assaulted him by Bhujali and thereafter he became unconscious. P.W.3, the I.O. in his evidence on oath has not whispered regarding the place, where the informant had fallen in course of chase and where he had disclosed about the appellant being he is assailant to P.W.1 and 2. I once again revert to the evidence of P.W.4, the medical witness in which he has categorically and in most clear and unequivocal terms has deposed that death of the deceased was instantaneous in view of the injury no.1 aforesaid. In this view of the matter, the prosecution case regarding the chase by the deceased of the alleged assailant to some considerable distance from the P.O. room up to the open field appears to be highly improbable and it does not stand to reason and in this view of the matter, this part of the prosecution case is definitely not acceptable. Therefore, there is no occasion for the deceased at all to make a chase of the appellant after sustaining the aforesaid injury causing his instantaneous death as well as disclosing the assailant as elder son of Nirmala Devi to PW1 and 2. In this view of the matter, no reliance can be placed on the evidence of P.W1 and 2 as the ocular witnesses of the occurrence in question and as such their testimony is uncreditworthy and fit to be brushed aside. The learned court below did not meticulously consider this aspect of the matter and has wrongly believed PW.1 and 2 as competent witnesses of the occurrence to whom the deceased had told about the elder son of Nirmala Devi being the assailant. I, therefore, see substance in the arguments of the learned counsel for the appellant in respect thereof. It is equally relevant to mention here that there is evidence on the record that Nirmala Devi had several sons but the appellant has not been put on test identification parade for their identification by PW1 and 2 and in this view of the matter, the evidence of PW1 and 2 identifying the appellant as the elder son of Nirmala Devi who have fled away on being chased by the deceased in the dock for the first time, has no relevancy in the eye of law. 9. It appears from the materials on the record that right of private defence of person of Nirmala Devi was initially taken by the appellant as a cause of assault on the deceased as the deceased was attempting to ravish her, but later on in course of statement under Section 313 of the Cr.PC. this defence was left over and the appellant in answer to the question under Section 313 Cr. P. C. has stated that he saw the deceased ravishing his mother, Nirmala Devi after felling her in the attendance room and he attempted to rescue his mother and thereafter he does not know as to what happened. However, no oral evidence has been brought on the record on behalf of the appellant in this case and Nirmala Devi, mother of the appellant does not figure as a defence witness also in respect thereof. However, no oral evidence has been brought on the record on behalf of the appellant in this case and Nirmala Devi, mother of the appellant does not figure as a defence witness also in respect thereof. However, there are Exhibit-A and B on the record which prima facie show that the deceased had attempted to ravish Nirmala Devi in the attendance room immediately soon prior to the occurrence. Exhibit-A is the statement of Nirmala Devi recorded in para-25 of the case diary under Section 161 of the Cr.P.C. in respect thereof. The statement recorded under Section 161 of the Cr.P.C. however is not admissible in evidence. Ext-B is the certified copy of fardbeyan of Nirmala Devi of Katras P.S.Case No. 209 of 1985 dated 16.9.1985 in which it has been stated that she works as a Wagon Loader in Chaitudih Colliery Siding and she had gone to the deceased regarding her attendance and the deceased took her in the attendance room where the deceased had caught her hand and attempted to ravish her and in the meantime the appellant came there and assaulted the deceased by Bhujali. In view of Ext-B there is no doubt that the appellant has caused injury on the person of the deceased to save the honour of his mother while she was being attempted to be ravished by the deceased. Section 100 of the I.P.C. justifies causing death in a case of rape as a right of private defence of person but the burden of proof required to be discharged by the appellant unlike that cast on the prosecution, might be discharged by evidence satisfying the court of the probability of his version, just as in a civil action and not indeed, so as to establish the fact conclusively. In suer' a situation, the appellant has to prove that he has such grounds for supposing that violence was intended as would warrant rational man in so acting, and he must prove that the offence about to be committed could not been prevented by milder means. Ext-B of the record referred to above prima facie discharges the burden in respect thereof by the accused. It is pertinent to mention here that by assaulting the deceased in such a situation by the appellant he had not transgressed the limit prescribed under the law. Ext-B of the record referred to above prima facie discharges the burden in respect thereof by the accused. It is pertinent to mention here that by assaulting the deceased in such a situation by the appellant he had not transgressed the limit prescribed under the law. Therefore, the defence version, prima facie, appears to be probable in the facts and circumstances of this case. Viewed thus, the learned trial court has erred gravely in rejecting the right of private defence of person of the mother of the appellant. 10. In supplementary affidavit, it has been stated that the date of birth of the appellant is 11.9.70 and in support of the said averment the Admission Card of Bihar School Examination Board of the final examination of 1991 has been enclosed therewith. The date of occurrence of this case is 16.9.85 and the appellant had surrendered before the learned Judicial Magistrate on 19.9.85 and having regard to the fact that the appellant was a child, he was directed to be kept in the Remand Home and he was also released on bail in B. P. No. 115 of 1985 by the learned Sessions Judge, Dhanbad vide order dated 5.10.85 on the ground that the appellant was a child and these facts have? been averred in para-6 of the memorandum of appeal. The Children Act, 1960 was in force on the date of occurrence in question. Section 2(e) of the Children Act, 1960 (hereinafter referred to as the Act) defines child which means a boy who has attend (sic-attained?) the age of 16 years or a girl who has attend (sic-attained ?) the age of 18 years and Section 2(j) defines the delinquent child which means a child who has been found to have committed offence. Section 5 of the said Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Administrator may by notification in the official Gazette constitute for any area specified in the notification, one or more Children's Court for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent children under this Act. Section 20 of the Act provides that where a child having charged with offence appears or is produced before a Children Court, the Children's Court shall hold the enquiry in accordance with the provisions of Section 39 of the Act and may, subject to the provision of this Act, make such order in relation to the child as it deems fit. Section 39 of the Act prescribes the procedure of the enquiry by the Children's Court and Children Court shall follow the procedure prescribed for the trial in summons cases. From the provision aforesaid, it is crystal clear that a delinquent accused of an offence shall be tried by a Children's Court constituted under Section 5 of the said Act read with Section 20. Here in this case, when the appellant surrendered before the Court of learned Magistrate on 19.9.85 he was remanded to a Remand Home and not in the jail and thereafter he was enlarged on bail by the Sessions Judge on the ground that he was a child. In view of the admission card of the appellant of year 1991 and certificate of his school, there is no dispute regarding the date of birth of the appellant as 11.9.1970. It being so, the trial should have been held only as provided under Section 20 of the said Act by a Children's Court. Hemin this case, the trial was conducted following a different procedure under the Cr.P.C. leading to his conviction and as such the entire trial of the appellant stands vitiated. The learned Court below had no jurisdiction vested in him for the trial of the appellant as per the procedure prescribed in the Cr.P.C. and the entire proceeding stands vitiated and is illegal. The principle of law enunciated in the case of Raj Singh and Gopinath Ghose (supra) squarely covers the case of appellant in respect thereof. 11. We, therefore, allow this appeal and set aside the conviction and sentence imposed upon the appellant and the entire trial is hereby quashed. 12. However, we observe that 17 years have passed since the date of occurrence and as such the proceeding has now become stale in view of the fact that the appellant is now a fully grown up man aged about 32 years. 12. However, we observe that 17 years have passed since the date of occurrence and as such the proceeding has now become stale in view of the fact that the appellant is now a fully grown up man aged about 32 years. In this view of the matter, it will not serve the ends of justice that the appellant should be dealt with afresh in accordance with the provisions of the Children Act. Vikramaditya Prasad, J.-I agree.