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2003 DIGILAW 125 (JHR)

Manager Karmali v. State of Bihar

2003-01-24

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J.-This appeal has been preferred by the appellant named above against the impugned judgment dated 23.12.1989 passed in S.T. No. 269 of 1989 arising out of Gola P.S. Case No. 4(1)88 corresponding to G.R. Case No. 97 of 1988 by Shri Uma Shankar, 1st Additional Sessions Judge, Hazaribagh, whereby and whereunder the appellant aforesaid was found guilty for the offence punishable 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 EI.A. (Ext. 3) of P.W. 1, Kandan Karmali, the informant lodged before the Gola P.S. on 13.1.1988 at about 8.00 hours regarding the occurrence which is said to have taken place at about 11 o'clock in the night between 12th and 13th of January, 1988 in the house of the informant in village Banda P.S. Gola, District Hazaribagh. The case was instituted on 13.1.1988 at 8.00 hours and the EI.R. was received in the court of C.J.M., Incharge, Hazaribagh on 16.1.1988. 3. The prosecution case, in brief, is that the informant who is the father-in-law of the appellant was sleeping in the house along with his family members at 11.00 o'clock in the night on 12.1.1988 and at that time the appellant along with his friend came to his house and they slept at the outer Dhaba of the house of the informant. It is alleged that, thereafter, a quarrel •ensued between the appellant and his friend aforesaid regarding payment of Rs. 750/- and the informant came there from his house and asked them not to quarrel and at this the appellant told that his friend is not refunding a sum of Rs. 750/- to him and, thereafter, a scuffle took place between the appellant and his friend and in course of scuffle the appellant picked up a pointed iron rod which was lying there and started assaulting his friend which caused injury on the head of his friend who fell down and died. It is also alleged that the appellant also intimidated the informant to be done to death and the informant with his family member fled away from his house out of fear. It is also alleged that the appellant also intimidated the informant to be done to death and the informant with his family member fled away from his house out of fear. It is further alleged that the informant came back to his house in the morning and found that there was sufficient blood fallen in his "Dhaba" and the dead body of the friend of the appellant was thrown north of his house where a large number of persons of the village had assembled. It is also alleged that the Mukhiya of the village was informed about this occurrence. Lastly it has been alleged that the appellant had been in custody earlier several times in connection with dacoity case. In course of investigation it was transpired that the name of the deceased is Chamru Ojha. 4. The appellant has pleaded not guilty to the charge levelled against him and claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case and it is the informant Kandan Karmali who has committed the murder of his friend as this appellant had gone in the company of his friend for the '''Vidai'' of his wife and the informant did not perform "Vidai" and he has falsely implicated this appellant in this got up case by committing the murder of the deceased by tangi. 5. The prosecution has in all examined eleven witnesses to substantiate the charges levelled against the appellant. P.W. 1, Kandan Karmali is the informant of this case and the father-in-law of the appellant. P.W. 2, Mangri Devi is the wife of the appellant and P.W. 4, Pyasi Devi is the wife of the informant residing in the house of the informant in the night of the occurrence and these three witnesses claimed themselves to be the ocular witnesses of the occurrence. P.Ws. 3, 5, 6, 7 and 9 are the hearsay witnesses of the occurrence and they claimed to have learnt about the occurrence from P.W. 1, the informant. The pointed iron rod has been seized by P.W. 11, the I.O. in course of investigation and seizure list (Ext. 4) was prepared and Exts. 1 and 1/1 are the signatures of the witnesses on the said seizure list. The pointed iron rod has been seized by P.W. 11, the I.O. in course of investigation and seizure list (Ext. 4) was prepared and Exts. 1 and 1/1 are the signatures of the witnesses on the said seizure list. P.W. 11 is the I.O. of this case who has prepared the inquest report regarding the dead body of the deceased in the field of Musa Quasim and Exts. 1/2 and 1/3 are the signatures of the witnesses on the said inquest report (Ext. 5). P.W. 10 is the other I.O. of this case who• has only submitted the charge-sheet in this case. The doctor conducting the postmortem examination on the dead body of the deceased has not taken oath in this case but the postmortem report (Ext. 2) has been taken into evidence under Section 294 of the Code of Criminal Procedure on the prayer in writing of the A.P.P. with consent of the appellant. P.W. 8 has been tendered in this case by the prosecution; No oral and documentary evidence has been adduced on behalf of the defence. 6. In view of the oral and documentary evidence on the record the learned court below has come to the finding of the guilt of the appellant and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the court has been swayed more by conjectures and surmises and not by the legal evidence on the record and has erred gravely in coming to the finding of the guilt of the appellant. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the court has been swayed more by conjectures and surmises and not by the legal evidence on the record and has erred gravely in coming to the finding of the guilt of the appellant. It has also been submitted that on meticulous consideration of the evidence on the record it will transpire that P.W. 2, Mangri Devi, the lawfully wedded wife of this appellant was living in the house of the informant for the last eight years with his daughter born of her against the wish of this appellant and he had come to take back his wife to his house and the informant was not at all willing to send P.W. 2, Mangri Devi with him to her matrimonial home and with a view to feed fad grudge and annoyance he has committed the murder of Chamru Ojha, the deceased of this case who has no concern whatsoever with this appellant and the informant himself has thrown the dead body of the deceased in the field near his house. It has also been submitted that the learned court below did not consider this part of the evidence which has come on the record. It has also been contended that P.W. 1, the informant, P.W. 2 as well as P.W. 4 his wife and daughter respectively are highly partisan and. interested witnesses and they have falsely implicated this appellant in this got up case and there is no evidence on the record of any independent, reliable, natural and competent witness of the vicinity of the place of occurrence to support the prosecution case and the learned court below has wrongly relied upon the evidence of P.W. 1, read with P.Ws. 2 and 4 and has erred in coming to the finding of the guilt. 8. The learned A.P.P. has submitted that P.W. 1, the informant, P.Ws. 2 and 4 are the ocular witnesses of the occurrence and nothing material has been elicited in their evidence to discard their testimony and there is no reason for P.Ws. 1, 2 and 4 to depose falsely against the appellant. 9. It will admit of no doubt that P.W. 2, Mangri Devi is a lawfully wedded. 2 and 4 are the ocular witnesses of the occurrence and nothing material has been elicited in their evidence to discard their testimony and there is no reason for P.Ws. 1, 2 and 4 to depose falsely against the appellant. 9. It will admit of no doubt that P.W. 2, Mangri Devi is a lawfully wedded. wife of the appellant and their marriage has been solemnized about ten years ago and P.W. 2 has a daughter born from the loins of the appellant and P.W. 2 is living separately from the appellant in the house of her father, the informant, for the last six years as this appellant had criminal antecedent. P.W. 11, the I.O. has deposed to have investigated the place of occurrence at 9.45 hours on 13.1.1988 and has found profuse blood fallen near the northern wall in the room on the verandah of the house of the informant and he has also found a pointed iron rod having blood stains thereon. The I.O. has further deposed to have found mark of dragging on the dead body from the said room to the place where the dead body was found and he has also found the mark of dragging and trail of blood between the room of the house of the informant and the field of Musa Quasim where the dead body was found where the inquest report (Ext. 5) was prepared. The I.O. has also deposed to have seized the blood stained pointed iron rod from the outer room of the verandah of the house of the appellant in presence of the witnesses. However, the blood stained earth and the said iron rod have not been brought on the record by the I.O. P.Ws. 3, 5, 6, 7 and 9 besides P.W. 1, the informant and his daughter (P.W. 2) and his wife (P.W. 4) in their evidence on oath has corroborated the objective finding of the I.O. regarding the copious blood found in the room on the verandah of the informant, dragging mark from there to the place where the dead body was thrown as well as the recovery of the blood stained pointed iron rod from the room on the verandah of the house of the informant. The inquest report (Ext. 5) shows the existence of bleeding injury near the right ear and behind the head of the deceased. The postmortem report (Ext. The inquest report (Ext. 5) shows the existence of bleeding injury near the right ear and behind the head of the deceased. The postmortem report (Ext. 2) shows the existence of the following ante mortem injury on the person of the deceased of this case: Lacerated wound: (i) 1/2 x 1/2 cm on the right cheek 03 cm in front of root of right ear upper part, underneath there is depressed and communicated fracture of right temporal bone measuring 3 x 2 cm with laceration of brain underneath. The bony fragments driven into Brain matter. (ii) 2 1/2 x 1 cm x scalp deep on the left frontal region of head situated antero-posteriosly, underneath there is diffuse contusion of fronto-parietal scalp and crack of left fronto-temparo and parietal bone. The fracture line extends upto lamboidal suture. There is presence of subdural blood and blood clot on both sides of Brain. Abrasion (Drag mark) : (i) 18 x 15 cm on the front part of the chest. It further appears from the postmortem report (Ext. 2) that the aforesaid lacerated wound has been caused by hard and blunt object and the death of the deceased has taken place due to the head injury and the time elapsed since death is between 12 to 24 hours. It is relevant to mention here that the postmortem report does not show that the injuries appearing on the dead body of the deceased has been caused by tangi which is a sharp cutting heavy weapon. In view of the postmortem report regarding the nature of injuries appearing on the person of the deceased, the defence version that the informant himself has committed the murder of the deceased by tangi has no leg to stand. P.Ws. 1, 2 and 4 are the most competent and natural ocular witnesses of the occurrence and their presence at the place of occurrence can never be disputed and in their evidence on oath they have categorically stated that the appellant had come to their house with his friend and they lived in the room in the outer verandah of the house of the informant and scuffle started between them on the issue of payment of Rs. 750/ - by the deceased to the appellant and in course of scuffle the appellant has committed the murder of the deceased by causing injury on his head by the pointed iron rod picking it from the said room. P.W. 1, the informant has deposed that on his query as to why he has committed the murder of the deceased, the appellant intimidated and told him that he shall also be done to death if he raises alarms. P.W. 2, Mangri Devi, the wife of the appellant has specifically deposed that the appellant assaulted the deceased by iron rod when' he refused to make payment of Rs. 750/- in the outer room on the verandah of• the house. She has also deposed that the deceased had died due to injuries sustained by him and, thereafter, the appellant dragged his body and threw it in the field near the Pipal tree. P.W. 4 has also deposed that the appellant came with the deceased at her house and has committed his murder and she has seen the commission of the murder of the deceased by the appellant. However, P.W. 1, the informant in his evidence on oath has given the details which is quite alien to the averments regarding the occurrence made in the F.I.R. (Ext. 4) but the deviation in the evidence of P.W. 1 regarding the manner of the occurrence does not at all cast a cloud of suspicion to the very spectrum of the prosecution case in material particulars. It, therefore, appears after meticulous scrutiny of the evidence on the record that it is the appellant• who has committed the murder of the deceased in the room on the verandah of the house of the informant by causing injury on the head of the deceased by pointed iron rod. 10. I see no reason to disbelieve the ocular testimony of P.Ws: 2 and 4 read with P.W. 1 regarding the commission of the murder of the deceased by the appellant. Therefore, the false implication of the accused in this case is totally ruled out in the facts and circumstances of this case. The learned court below after meticulous scrutiny of the evidence on the record has rightly come to the finding of the guilt of the appellant and I see no inherent illegality at all in the impugned judgment requiring an interference therein. 11. The learned court below after meticulous scrutiny of the evidence on the record has rightly come to the finding of the guilt of the appellant and I see no inherent illegality at all in the impugned judgment requiring an interference therein. 11. 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 appellant is directed to surrender Defore the learned court below to serve out the sentence. The learned court below is also directed to take all coercive steps to apprehend the appellant in accordance with law for serving out the sentence. Lakshman Uraon, J.-I agree.