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2004 DIGILAW 1275 (PAT)

Bhuali Rai And Another v. State Of Bihar

2004-12-22

M.L.VISA, MRIDULA MISHRA

body2004
Judgment M.L.Visa, J. 1. Both these appeals arising out of the same judgment and order dated 20.1.2001 passed by XIth. Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 1544 of 1994, convicting and sentencing both the appellants to undergo RI for life u/s. 302/34 of the Indian Penal Code, have been heard together and are being disposed of by this common judgment. 2. The case of prosecution, in short, is that on 6.7.1990 at about 7. p.m. informant Binod Bhar PW 6 along with his deceased father was returning to his house from a flour mill after grinding wheat. By that time his father had already taken some toddy at the Chatti of one Gorakh Manjhi. In the way the informant met his uncle Dhrub who was returning on his bicycle and informant then put the flour on his bicycle for carrying the same to his house and thereafter, when informant and his father proceeded for some distance, they found both the appellants and Suraj Pandey were moving some distance ahead from them and when informant and his father reached near Doudpur Orchard of one Hira Giri, he saw Suraj Pandey telling something to both appellants and asked them to assault the informant and his father. Both the appellants started scuffling and they took out knives and started assaulting the father of informant. Informant raised alarm and called Suraj Pandey to help him but Suraj Pandey, in the meantime, left the place for his house and both the appellants in presence of the informant assaulted his father with knives. Seeing the critical condition of his father and also threatening by appellants that this was the result for not working for Suraj Pandey, informant ran towards his house where he told his uncle Dhrub Bhar about the occurrence and then he ran towards the police station and in the way he found that his father had died. At police station informant narrated the occurrence and FIR Ext. 3 was recorded. In the FIR informant has stated that one month prior to the occurrence, Suraj Pandey had given threatening that if they would not work for him they would face the consequences. At police station informant narrated the occurrence and FIR Ext. 3 was recorded. In the FIR informant has stated that one month prior to the occurrence, Suraj Pandey had given threatening that if they would not work for him they would face the consequences. Although FIR was recorded against both the appellants and against Suraj Pandey but after investigation Suraj Pandey was not sent up but charge-sheet against both the appellants was submitted u/s. 302/34 Indian Penal Code, 1860 , cognizance of the was taken and case was committed to the Court of session where charge u/s. 302/34 Indian Penal Code, 1860 was framed against both the appellants. After trial both the appellants were found guilty u/s. 302/34 Indian Penal Code, 1860 and were convicted and sentenced to undergo RI for life. 3. The case of appellants, as it appears from the trend of cross examination of prosecution witnesses is of complete denial of charge and their false implication. No witness on behalf of the defence was examined. 4. In order to prove its case the prosecution has examined 10 witnesses. Ram Dahin Singh PW 1, Ram Niwas Pandey PW 4, Tilak Mahto PW 5 and Ram Dahin Yadav PW 8 have said that they know nothing about the occurrence and they have been declared hostile by the prosecution. Jitendra Giri PW 10 is a formal witness who has proved Para 1 to 12 of case diary in the pen of ASI R.P. Singh Ext. 2, Para 13 to 50 in the pen of Kamla Prasad, the then Officer-in-charge, Doudpur Ext. 2/1 and from Para 51 to last para in the pen of Harendra Kumar, Officer-in-charge of Doudpur Ext. 2/2. He has also proved Fardbeyan, formal FIR and seizure list Exts. 3, 4 and 5, respectively in the pen of ASI R.P. Singh. Ram Ayodhya Singh PW 7 is a witness on inquest report and although he has proved his signature Ext. 1 on inquest report but has said that inquest report was not prepared in his presence. Dr. Binod Kumar Sinha PW 9 is a doctor who had conducted post mortem examination on the dead body of deceased, father of informant. Binod Bhar PW 6 is the informant. Vikram Giri PW 2 and Chhote Mian PW 3 are, according to the prosecution, witnesses on seizure list when police seized blood stained soil on the place of occurrence. Dr. Binod Kumar Sinha PW 9 is a doctor who had conducted post mortem examination on the dead body of deceased, father of informant. Binod Bhar PW 6 is the informant. Vikram Giri PW 2 and Chhote Mian PW 3 are, according to the prosecution, witnesses on seizure list when police seized blood stained soil on the place of occurrence. They have denied collection of blood stained soil and preparation of seizure list in their presence and they have also been declared hostile by the prosecution. 5. Dr. Binod Kumar Sinha PW 9, in his evidence, has said that on 7.7.1990 he was posted as Civil Assistant Surgeon, Sadar Hospital, Chapra and on that day he conducted the post mortem examination on the dead body of Bharat Bhar and found the following ante mortem injuries on his person:- (i) One incised wound of the size of 4" x 1/2" x muscle deep cutting all the vessels at lateral side of left neck. (ii) Two penetrating wounds 1/2" x 1/4" out of which one was cavity deep and another was muscle deep on left side of chest out of which one was near the left nipple and next was just below it. (iii) Three penetrating wounds on right side of chest out of which one was just near right nipple and remaining two just lateral and below the first one and size of all the wounds was 1/2" x 1/4" and one was cavity deep and remaining two were muscle deep. (iv) One penetrating wound on the abdomen about 2" above ambicuous towards right side of abdomen of the size of 1/2" x 1/4" with protrusion of viscera. (v) Two penetrating wounds on lateral side of lower abdomen on left side of the size of 1/2" x 1/4" x muscle deep. He has further said that on dissection he found left and right lungs both collapsed and partially filled up with dark blood with laceration of lungs tissue. According to him, death was caused due to shock and haemorrhage resulting from above mentioned injuries and Injury No. (i) was caused by sharp cutting weapon and other injuries were caused by sharp pointed weapon. He has further said that knife may or may not be a pointed weapon and all the injuries may be caused by a knife if it would have been pointed. He has further said that knife may or may not be a pointed weapon and all the injuries may be caused by a knife if it would have been pointed. He has proved his post mortem examination report, marked Ext. 2. Although in his evidence he has not stated about the time elapsed since death but then in the post mortem examination report, which is marked Ext. 2, time elapsed has been mentioned as 24 hours. This report further shows that post mortem examination was conducted on 7.7.1990 at 10.55 a.m. The defence has not challenged the time of death of deceased and time of conducting post mortem examination on the dead body of deceased. 6 Binod Bhar PW 6, the informant, is the son of deceased and he has said that he and his father were going for grinding wheat and thereafter they were returning to their house when he met his uncle Dhrub Bhar who was on a cycle and he then handed over the flour to his uncle for carrying the same to his house and he and his father proceeded further for their house and in the way he saw that both the appellants and Suraj Pandey were moving ahead and Suraj Pandey told something to appellants and both the appellants caught hold of his father and started assaulting him with knives causing injuries on his chest, abdomen, neck and his father fell down. When he went to see his father, both the appellants ran to assault him and he then fled away from there and went to police station where his statement was recorded which was read over to him and he put his LTI. About the motive he has said that his father did not work for Suraj Pandey and for this reason his father was killed. In cross examination he has said that after reaching police station, police came to the place of occurrence and he again reached the place of occurrence at 7,30. In cross examination he has further said that at the time of occurrence he raised hulla but no body came there and at that time no body was present at the place of occurrence. He has further said that when he was going to police station running he did not meet anybody in the way and before reaching the police station he had not told anybody about the occurrence. He has further said that when he was going to police station running he did not meet anybody in the way and before reaching the police station he had not told anybody about the occurrence. In para 12 of his cross examination he has said that one year prior to occurrence there was a mar-pit between his father and appellants because appellant Ramesh Singh had assaulted his father but no case was lodged for that occurrence. 7. It has been argued on behalf of the appellants that except informant there is no other witnesses on the point of occurrence and informant in para 7 and 8 of his evidence has said that his mother, brother Tota Bhar, Fufa Prabhu Bhar and his uncle Dhrub Bhar had gone to police station with him but none of them has been examined. It is true that informant has said that the aforesaid persons had gone to police station but he has clearly stated that they had gone to police station at about 9 p.m. and about Tota Bhar, Prabhu Bhar and Dhrub Bhar informant has stated that they had carried the cot on which dead body of deceased was taken to police station. Admittedly, these persons are not eye witnesses to the occurrence because it is the specific evidence of the informant that at the time of occurrence except him, no other witness was present. It has further been argued that Ram Ayodhya Singh PW 7 who is said to be eye witness to the inquest report has said that on 6.7.1990 at about 8 a.m. police had come in the market and in cross examination this witness has said that police had obtained his signature on a blank paper at Doudpur market. This witness has proved his signature Ext. 1 on inquest report and he has said that in connection with the murder of deceased Bharat Bhar police had come to market at about 8 a.m. on 6.7.1990. His statement does not appear to be true because time of occurrence of this case is 7 p.m. on 6.7.1990 and FIR was lodged on the same day at about 7.30 p.m. and in this view of the matter there was no occasion for the police to go in the market on 6.7.1990 at about 8 a.m. in connection with this case. Evidence of this witness that police had taken his signature which is marked Ext. 1, on a blank paper in the market, therefore, does not appear to be true. Moreover, he is not an eye witness to the occurrence. Learned counsel of appellants has further argued that in this case IO has not been examined and therefore, case of appellants has been prejudiced because they did not get chance to get corroboration from IO on the contradiction of informant in his evidence and his statement before IO that both the appellants caught hold of deceased and assaulted him with knives on chest, abdomen and neck. It is true that attention has been drawn in para 13 of the evidence of informant but then this attention simply refers his statement to police without making it clear that whether it is related to statement of informant given at the time of lodging FIR of his subsequent statement. If this is related to FIR then there is no such contradiction: About further statement of informant it is not the case of appellants that any further statement of informant was taken by the IO and it was reduced in writing although in para 7 of his evidence informant has said that his statement was taken by the IO at the place of occurrence and his LTI was obtained on this statement. It is true that IO in this case has not been examined but then as stated earlier, Jitendra Giri PW 10 has proved that case diary in three parts which are marked Exts. 2, 2/1 and 2/2. Defence has not pointed out any para in case diary which contains any contradictory statement of informant. Moreover, the earliest information of the occurrence was given by the informant when he went to the police station on the day of occurrence by lodging FIR Ext. 3. If. was lodged at about 7.30 p.m. for an occurrence said to have taken place at 7 p.m. meaning thereby that there was no delay in lodging the FIR which was immediately lodged after the occurrence, giving the earliest version of occurrence by informant himself. The evidence of informant is fully supported by medical evidence that deceased died of a number of injuries which may be caused by knives. The evidence of informant is fully supported by medical evidence that deceased died of a number of injuries which may be caused by knives. It is true that informant has stated that one year prior to occurrence a mar-pit had taken place between the appellants and his father but at the same time he has said that no case was lodged for that occurrence. If this is considered to be an enmity between the parties even then, it does not help the case of appellants on the accepted principle that enmity cuts both the ways. The argument on behalf of the appellants that during the investigation allegation against co-accused Suraj Pandey was not found true and he was not charge-sheeted does not help the case of appellants because there is direct allegation of informant against the appellants that they inflicted knife injuries to his deceased father which, according to the doctor PW 9 was the cause of death. Informant is a solitary witness in this case but I find no reason to disbelieve his evidence because he is an illiterate person having no time to make a plan for falsely implicating the appellants in this case and immediately after the occurrence went to the police station and lodged FIR and his evidence finds corroboration from the medical evidence. 8. In the result, both these appeals are dismissed and the judgment and order of the Court below convicting and sentencing the appellants are hereby confirmed.