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2003 DIGILAW 1374 (JHR)

Bago Gope v. State of Bihar (Now Jharkhand)

2003-12-11

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2003
Judgment This appeal has been preferred by the appellants, named above, against the judgment and order of conviction and sentence dated 30th June, 1997, passed by the learned 1st Additional Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 54 of 1995, whereby and whereunder, all the appellants have been convicted for the offences under Sections 320(sic-302?)/201/34 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence under Section 302/34 of the Indian Penal Code and no separate sentence has been passed for the offence under Section 201/34 of the Indian Penal Code. However, all of them have been acquitted for the charge under Section 364/34 of the Indian Penal Code. 2. The prosecution case is based on the Fard-beyan (Ext. 3) of the informant Basmati Kalundia (PW 5) recorded on 15.9.1994 at 7.00 p.m. at Village Sin Pokharia by Ramadhar Singh and First Information Report (Ext. 4) was drawn up under Section 364/34 of the Indian Penal Code. Subsequently when the dead body of Habil Kalundia, husband of the informant, was traced out, Sections 302 and 201 read with Section 34 of the Indian Penal Code were also added. 3. The informant Basmati Kalundia (PW 5) is .a hearsay witness, who has been informed by Made Kalundia (PW 1), Dasmati Kalundia (PW 2) and Pelang Kalundia (PW 4) that her husband Habit Kalundia was done to death by these appellants in the courtyard (Angan) of Dasmati Kalundia (PW 2). The informant has alleged that on 14.9.1994 at 4.00 p.m. her husband Habil Kalundia along with Rasika Sawaiya, co-villager, had gone to Sin Pokharia Station to watch Foot-ball Match. At about 6.00 p.m. both of them returned home and again at 6.30 p.m. both of them went for walk. When her husband did not return, then in the morning she went in search of her husband. In course of search she was informed by Dasmati Kalundia (PW 2) that her husband Habil Kalundia was assaulted with axe by appellants Bago Gope, Bona alias Shiv Kumar Gope, Guddu Gope, Mati Gope and Rarnai Gope at 8.00 p.m. in her courtyard. Thereafter, they carried away the injured Habil Kalundia somewhere else. In course of search she was informed by Dasmati Kalundia (PW 2) that her husband Habil Kalundia was assaulted with axe by appellants Bago Gope, Bona alias Shiv Kumar Gope, Guddu Gope, Mati Gope and Rarnai Gope at 8.00 p.m. in her courtyard. Thereafter, they carried away the injured Habil Kalundia somewhere else. At the time of he alleged assault, in the village no male nember was present and only the females, namely, Chanda Kalundia (not examined), Pelang Kalundia (PW 4) and Made Kalundia (PW 1) had seen the alleged assault on Habil Kalundia. The informant went to the courtyard of Dasmati Kalundia and saw blood stains there. The appellants had taken her husband with an intention to cause his murder and after causing murder they concealed the dead body some where else. She does not (sic) the causing the place of occurrence from where they saw the manner of the alleged assault on Habil Kalundia and taking him away by these appellants. In this case the I.O. who investigated the case and recorded the statements of the witnesses has not been examined, which has caused prejudice to these appellants and has relied upon a case, reported in 1989 P.L.J.R. 405 (Bisundeo Mishra & 6 Ors. vs. State of Bihar). In the village, there are male members also but none of the male members of the village has been examined. The doctor (PW- 8) who conducted autopsy on the dead body of the deceased Habit Kalundia, has opined that time elapsed since death was within 48 hours from the time of post-mortem examination, which corresponds to the period in between 16.9.1994 to 18.9.1994. Thus, the time of death, as per the Post Mortem Report, does not correspond to the time of the alleged occurrence, which took place on 14.9.1994 at 8.00 p.m. The inquest report also contradicts the Post Mortem Report in material particulars. The doctor did not find any sign on the dead body that it was brought out of the water of the mines. There is delay in• lodging the First Information Report, which could not be explained satisfactorily. The First Information Report was also received in court after two days i.e. on 17.9.1994. The doctor did not find any sign on the dead body that it was brought out of the water of the mines. There is delay in• lodging the First Information Report, which could not be explained satisfactorily. The First Information Report was also received in court after two days i.e. on 17.9.1994. The prosecution has not explained these delay, which gives rise to concoction and embellishment in the prosecution case for false implication of these appellants and has relied upon the cases, reported in 1972 Cr.L.J. 1296 (SC) (Thulia Kali vs. State of Tamil Nadu), 1973 Cr.L.J. 185(SC) (Apren Joseph @ Current Kunjukunju vs. State of Kerala), AIR of the alleged abduction of her husband for causing his murder. She gave her L.T.I (Ext. 2) on her Fard-beyan, which was witnessed by Durga Charan Munda, who also signed on her statement (Ext. 2/1). PW 6 Dwizendra Nath Ojha submitted chargesheet against these appellants, who is not the Investigating Officer in this case. 4. In course of trial, the prosecution examined altogether eight witnesses, out of them PW 7 Munishwar Singh is a formal witness who has proved the formal First Information Report (Ext. 4) and signature of Arun Kumar Singh, the then Officer In-charge, Chaibasa Mofassil Police Station. PW 8 Dr. S.S. Birua, has conducted the autopsy on the dead body of Habil Kalundia on 18.9.1994 at 11.45 a.m. and prepared Post Mortem Report (Ext. 5) in his pen and signature. PW 5 Basmati Kalundia is the informant and wife of the deceased, who is not the eye witness. PW 3 David Singh Kalundia is the witness in whose presence the dead body of Habil Kalundia was Drought out of the mines water and inquest report was prepared in carbon process on which he signed (Ext. 1). 5. The learned 1st Additional Sessions Judge, Chaibasa, having believed :he evidence of PWs 1, 2 and 4, who are village independent witnesses and whose evidence regarding manner of assault was corroborated by Dr. S. S. Birua, convicted all these appellants under Section 302/201/34 of the Indian Penal Code and sentenced all of them to undergo life imprisonment only for the offence under Section 302/34 of the Indian Penal Code. 6. S. S. Birua, convicted all these appellants under Section 302/201/34 of the Indian Penal Code and sentenced all of them to undergo life imprisonment only for the offence under Section 302/34 of the Indian Penal Code. 6. Assailing the judgment and order of conviction and sentence, passed )y the learned 1st Additional Sessions Judge, Chaibasa, learned counsel appearing on behalf of the appellants has argued hat there is contradiction in the statements of the interested witnesses regard 1976 SC 2423 (Ishwar. Singh VS. State of Uttar Pradesh) 1990 P.L.J.R. 378 (Ayodhya Singh & 6 Ors vs. State of Bihar). 1995(1) East Cr. Cases 293 (SC) (Radha Krishna Nair & Ors. VS. State of Kerala) and 1994 (1) East. Cr. Cases 281 (SC) (Arjun Marik & ors. VS. State of Bihar). The blood stained soil seized from the courtyard of PW 2 Dasmati Kalundia has also not been brought on record. The Village Munda, who was informed about the alleged occurrence and who has also signed on the Fard-beyan, has also not been examined by the prosecution. On these grounds, it was submitted that the appellants deserve benefit of doubt for acquittal. 7. The learned A.P.P. in course of argument has submitted that there is minor contradiction, which is quite natural, as the witnesses i.e. PWs 1, 2 and 4 are village rustic women, who have given their evidence in a natural way without any exaggeration or embellishment. The delay in lodging the First Information Report is only because in the night of 14.9.1994 the informant was waiting for return of her husband and in the morning she was informed by PWs 1, 2 and 4 that these appellants assaulted with axe to her husband Habil Kalundia in the courtyard of Dasmati Kalundia PW 2 and thereafter, they took away the injured somewhere else. Hence the Fard-beyan was recorded on 15.9.1994 at 7.00 a.m. morning and on the same day First Information Report was registered. Although it was received in the court on 17.9.1994 but there is no concoction in the First Information Report, as the informant has not alleged that she saw these appellants assaulting her husband with axe rather she has deposed that she does not know the cause as to why her husband was assaulted by these appellants and his dead body was carried out somewhere else and concealed. PW 8 Dr. PW 8 Dr. S. S.Birua, who conducted the autopsy, as opined that the time elapsed since death was within 48 hours, which means that the clinical death was within 48 hours from the date of post-mortem examination. On 14.9.1994 at 8.00 p.m. Habil Kalundia was assaulted with axe and was carried away somewhere else. When he died is not known to PWs 1, 2 and 4 rather they simply, deposed that all the appellants chased Habil Kalundia and assaulted with axe on his head and other parts, who fell down in injured condition in the courtyard of PW 2 and from there he was taken away. It means that Habil Kalundia was alive at that time and died subsequently. Hence the time elapsed since death will not help the defence to suspect the time of assault and death of Habil Kalundia. All the three witnesses i.e. PWs. 1, 2 and 4 are village rustic women, having no enmity with the appellants, whose evidence was rightly relied upon by the learned court below, who has convicted and sentenced' these appellants thereunder. 8. Admittedly the informant Basmati Kalundia (PW 5), wife of deceased Habil Kalundia, is not the eye witness regarding the manner of the alleged assault on her husband. On 14.9.1994 at 4.00 p.m. as deposed by her, her husband had gone to watch foot-ball match to Sin Pokharia Station along with Rasika Sawaiya. Rasika Sawaiya has not been examined in this case. Next morning i.e. on 15.9.1994 she went to his home, but he was also not found rather PW 1 Made Kalundia, PW 2 Dasmati Kalundia and PW 4 Pelang Kalundia informed her that her husband was assaulted by these appellants with axe, who fell down in injured condition in the courtyard of Dasmati Kalundia (PW 2). Thereafter, the appellants carried away the injured Habil Kalundia to somewhere else. As such, she simply made this statement In her Fard-beyan (Ext. 2) on which she signed. PW 1 Made Kalundia has deposed that these appellants assaulted Habil Kalundia near house. Later on the injured Habil Kalundia, which she has stated that the dead body of Habil Kalundia, was carried away by these appellants and the dead body was found thrown into the mines water. She has deposed that the house of Habil Kalundia is at a distance of 15 yards from her house. Later on the injured Habil Kalundia, which she has stated that the dead body of Habil Kalundia, was carried away by these appellants and the dead body was found thrown into the mines water. She has deposed that the house of Habil Kalundia is at a distance of 15 yards from her house. Just after the sunset, the alleged occurrence took place in front of her house in the courtyard. She was at that time in her courtyard and saw the entire occurrence. PW 2 Dasmati Kalundia has also deposed that .she along with PW 1 Made Kalundia and PW 4 Pelang Kalundia saw that Habil Kalundia was assaulted by all these appellants with axe. In her house also no male member was present at that time. Later on the dead body was recovered from a mines. The courtyard of this witness and the other witnesses are common from where they saw the alleged occurrence. Another female Chando also saw the alleged occurrence but she has not been examined by the prosecution. PW 4 Pelang Kalundia was sitting at the time of the alleged occurrence in her courtyard along with PW 2 Dasmati Kalundia and PW 1 Made Kalundia. In her house also no male member was present at that time. They saw that appellants Bago Gope, Bona Gope alias Shiv Kumar Gope, Guddu Gope, Mati Gope and Ramai Gope assaulted Habil Kalundia with axe, resulting his death. They objected the appellants but they did not listen to their requests. After causing injuries on Habil Kalundia and causing his murder, his dead body was taken away somewhere else, which was recovered after four days from the mines water of one Mannu Lal Newatia. PW 3 Davi Singh Kalundia has deposed that the dead body of Habil Kalundia was lying in the mines water of Banwari Lal Nawatia. The dead body was taken out and inquest report was prepared on which he signed (Ext. 1). He has deposed that the dead body was not so decomposed rather was swollen and it was quite identifiable. He identified the dead body when he saw the face that it was the dead body of Habil Kalundia. 9. PW 8 Dr. S. S. Birua on 18.9.1994 at 11.45 a.m. conducted the autopsy on the dead body of Habil Kalundia and found the following ante-mortem injuries on his person: (i) Rigor mortis was present. He identified the dead body when he saw the face that it was the dead body of Habil Kalundia. 9. PW 8 Dr. S. S. Birua on 18.9.1994 at 11.45 a.m. conducted the autopsy on the dead body of Habil Kalundia and found the following ante-mortem injuries on his person: (i) Rigor mortis was present. Sharp cutting wound over the throat measuring 5" x 1/2" x bone deep. (ii) Cut ends of trachea protruding' out of the cut wound. (iii) Sharp cutting wound over right side of scalp measuring 1" x 1/4" x skin deep. (iv) Sharp cutting wound over forehead measuring 2" x 1/4" x skin deep. (v) Sharp cutting wound over chin measuring 2" x 1/2" x skin deep. (vi) Sharp cutting wound over the occipital measuring 3" x 1/2" x bone deep. (vii) Penetrating wound 1/2" diameter over the right temple area and brain matters was oozing out of the wound. On dissection PW 8, the doctor, found the neck wind pipe and oesophagus cut through and through and great vessels of the neck cut off. Stomach was empty. The doctor opined that the cause of death was head injury and cut of throat by sharp cutting weapon, like axe and sharp pointed weapon, within 48 hours from the date of post-mortem examination. Ext. 5 is the Post Mortem Report. He has further opined that the rigor mortis was full set up. It starts fully set up one hour of the death and it starts developing and remained from ~8 hours to 72 hours. But it depends upon the climate. 10. The body was not found decomposed, which means that rigor mortis remain present from 48 hours to 72 hours and if 72 hours is taken into consideration, then that corresponds the time of the alleged occurrence, which took place on 14.9.1994 at 8.00 p.m. The other injuries six in number found by this witness corroborates the ocular evidence of PWs 1, 2 and 4 that these appellants assaulted Habil Kalundia with axe on his head. The 7th injury is penetrating, 1/2 inch in diameter in the temple area and the brain matters was oozing out of the wounds, which might be the result of subsequent assault with pointed weapon after removal of the body of Habil Kalundia from the courtyard of Dasmati Kalundia (PW 2). 11. The 7th injury is penetrating, 1/2 inch in diameter in the temple area and the brain matters was oozing out of the wounds, which might be the result of subsequent assault with pointed weapon after removal of the body of Habil Kalundia from the courtyard of Dasmati Kalundia (PW 2). 11. When considered the evidence of PWs 1, 2 and 4, I find that they are village rustic women, having no consequence of' any legal lacuna. At night no male member was present in their houses. Generally the male members go out for work and return home at late night. When anyone is murdered, the persons who witness the manner of the alleged occurrence also do not dare to disclose in the village or raise any hue and cry. In the present case PWs 1, 2 and 4 have deposed that no male member was present in their homes. All were sitting together and saw the alleged occurrence. Thereafter, they remained silent throughout the night and only when PW 5 Basmati Kalundia (informant) went in the morning in search of her husband, they disclosed that these appellants assaulted her husband with axe and took him somewhere else. At that time none was knowing that Habil Kalundia was done to death and hence First Information Report was registered under Section 364/34 of the Indian Penal Code but subsequently, . after four days, when the dead body was found, Section 304/34 and 201/34 of the Indian Penal Code was also added. These three female illiterate village witnesses i.e. PWs 1, 2 and 4 have no enmity with these appellants, who are co-villagers. They have also got no friendship with the family of the deceased. It was quite natural that at night they remained silent inside their homes as the male members were out and might have come late at night. The conduct of these female witnesses is quite natural, which can not be doubted that why they did not disclose the matter at night itself or raised any hue and cry or alarm in the village. There is no contradiction in their evidence, which also gets corroborated by the medical evidence of Dr. S.S.8irua (PW 8) regarding the manner of the alleged assault by axe and the injury sustained on the head of Habil Kalundia. In general, the neck is also taken to be the head in the village area. There is no contradiction in their evidence, which also gets corroborated by the medical evidence of Dr. S.S.8irua (PW 8) regarding the manner of the alleged assault by axe and the injury sustained on the head of Habil Kalundia. In general, the neck is also taken to be the head in the village area. These appellants, who are five in number, assaulted with axe on the head of Habil Kalundia and there is injury also on the neck. They have not counted as to who gave how many assault with axe and in which part of the head or neck of Habil Kalundia. This is quite natural, without any exaggeration that at the time of sunset when the three ladies i.e. PWs 1, 2 and 4 were sitting, they saw the assault and they might not have counted the blows given by each appellants and also are not specific as to who injured which portion of the body of Habil Kalundia. 12. When considered in. totality the evidence of these witnesses, I do not find any valid reason to disbelieve their evidence, which gets corroborated by the evidence of Dr. S.S.8irua (PW 8). Non-examination of the Investigating Officer has not prejudiced these appellants as the place of occurrence is the courtyard of PW 2 Dasmati Kalundia. The courtyard of all the three witnesses i.e. PW 1, 2 and, 4 are adjacent and continuous and, as such, in general speaking they have deposed that their courtyard is common. This minor contradiction does not discredit the truthfulness of the eye witnesses, who have got no enmity with these appellants. 13. In Bishundeo Mishra & 6 ors. vs. State of Bihar (supra), it has been held that In all serious offence the location of the place of occurrence is material for the purposes of knowing and understanding the evidence of the witness as to the details of the incident, which is the subject of the charge. At the trial it is the I.O. alone, who can best explain the details about the location and the map of the place of occurrence and the relevant and material places around. In that case, the non-examination of the I.O. caused prejudice to the accused and benefit of doubt was given to him. At the trial it is the I.O. alone, who can best explain the details about the location and the map of the place of occurrence and the relevant and material places around. In that case, the non-examination of the I.O. caused prejudice to the accused and benefit of doubt was given to him. However, the facts and evidence in the present case is such that all the eye witnesses, namely, PWs 1, 2 and 4 are village independent witnesses, whose courtyard is virtually common and had seen the alleged occurrence while they were in their Angan. There is no confusion about the place of occurrence as the alleged assault on Habil Kalundia by these appellants took place in front of the courtyard of PW 2 Dasmati Kalundia. The defence has not taken any contradiction in respect to the place of occurrence while cross-examining these village independent eye witnesses. In view of this fact, I find that the authority relied by the learned counsel for the appellants on this point is not helpful to the appellants. 14. Counsel for the appellants has also referred altogether six cases, as mentioned above, challenging the truthfulness of the prosecution case as after two days of the alleged occurrence the First Information Report was lodged and the prosecution has not explained the delay, which gives rise to the concoction and embellishment in the prosecution case. In the present case, the informant Basmati Kalundia (PW 5), wife of the deceased Habil Kalundia, is not the eye witness. She was informed by the village independent witnesses i.e. PWs 1, 2 and 4 that her husband was assaulted in their courtyard and in front thereof and thereafter, the appellants took him somewhere else at about 8.00 p.m. on 14.9.1994. At night the village independent witnesses did not inform anyone as no male member was present in the village it that time. It is quite natural that these females remained inside their homes during the night without informing anybody in the village. In the next morning when PW 5 Basmati Kalundia went in search of her husband, then she was told that her husband had been assaulted in the courtyard of PW 2 Dasmati Kalundia. When she came to know about the occurrence, her Fard-beyan was recorded on the next day i.e. 15.9.1994 at 7.00 p.m. at her village under Section 364/ 34 of the Indian Penal Code. When she came to know about the occurrence, her Fard-beyan was recorded on the next day i.e. 15.9.1994 at 7.00 p.m. at her village under Section 364/ 34 of the Indian Penal Code. It is quite natural that at that time she was not knowing that her husband was murdered rather she only suspected that her husband was abducted with an intention to cause his murder. The First Information Report was registered on the same day i.e. 15.9.1994 at 7.00 p.m. and it was dispatched through the special messenger to the court, which was received on 17.9.1994 in the court of learned Chief Judicial Magistrate, Chaibasa. The delay of one day has not given any suspicion regarding concoction and embellishment in the prosecution case, as the informant is not an eye witness. She has not alleged anything against these appellants rather as she was informed by Chando Kalundia (not examined), Pelang Kalundia (PW 4) and Made Kalundia (PW 1) about the alleged assault and taking away of her husband, she stated in her Fard-beyan. There is no concoction or embellishment in her Fard-beyan giving rise to any suspicion regarding institution of the case, only after one day's delay. She is a rustic village woman. Her husband was traceless and she took help of Durga Charan Munda in whose presence her Fard-beyan was recorded. In these areas generally if any occurrence takes place, the Village Munda is informed before proceeding to the Police Station. In the present case also the Village Munda was informed by the informant In the case of Apren Joseph @ Carrent Kunjukunju & ors. VS. State of Kerala (supra), it has been held by the Apex Court that "The receipt and recording of Information Report by the police is not the condition precedent to the setting in motion or the criminal investigation nor does the statute provide that such information report can only be made by an eye witness. A First Information Report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court But this information when recorded is the basis of the case set up by the informant, it is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fails. It can only be used to corroborate or contradict the informant's evidence in court But this information when recorded is the basis of the case set up by the informant, it is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fails. Undue and unreasonable delay in lodging the First Information Report, therefore, inevitably gives rise to suspicion which puts the court on guard to look for possible motive and the explanation for the delay and considers its effect on the trustworthiness or otherwise of the prosecution version. No duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the First Information Report with the police is, therefore, not necessarily, as a matter of law fatal to the prosecution. The fact, as I have narrated in the preceding paragraphs is similar with the informant Basmati Kalundia (PW 5) who is not the, eye witness. There is no embellishment in her Fard-beyan, although it was recorded on 15.9.1994 at 7.00 p.m. and received in the court on 17.9.1994, although it was dispatched on 15.9.1994 itself at night. Hence the other authorities, similar on this point, are not helpful to the appellants in the present case. The mere fact that the eye witnesses in the present case did not gather up enough courage to go to the police station to lodge the First Information or to go to the place of occurrence during the night or early in the following morning to give some aid to the deceased, who undoubtedly had no blood relation with any of the witnesses, does not show that they had not witnessed the occurrence and the whole story is imaginary and made up only for falsely implicating the accused, due to enmity. As such, I find that the authorities relied by the learned counsel for the appellants, as mentioned above, are against the appellants. The facts are squarely covered with the present case, as in the present case PWs 1, 2 and 4, village rustic female eye witnesses, are not related with the deceased. At night they did not gather courage to go anywhere else to inform the informant or the police. The facts are squarely covered with the present case, as in the present case PWs 1, 2 and 4, village rustic female eye witnesses, are not related with the deceased. At night they did not gather courage to go anywhere else to inform the informant or the police. It does not mean that the prosecution case suffers from any legal infirmity. 15. The learned 1st Additional Sessions Judge, having considered all these aspects meticulously, has convicted these appellants and sentenced them thereunder. I, therefore, do not find any legal infirmity in the appreciation and findings of the learned 1st Additional Sessions Judge, while convicting these appellants and Sentencing them under Section 302/34 of the Indian Penal Code. 13. Viewed thus, find no merit in this Criminal Appeal, which fails and is. hereby dismissed. S. J. Mukhopadhaya, J.-I agree.