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2005 DIGILAW 212 (PAT)

Bharat Kamkar v. State Of Bihar

2005-02-25

M.L.VISA, MRIDULA MISHRA

body2005
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 27.7.2001 passed by Sessions Judge, Buxar in Sessions Trial No. 924 of 1992 convicting and sentencing the appellants to undergo imprisonment for life u/s. 302 of Indian Penal Code (in short " Indian Penal Code, 1860 ") and to undergo rigorous imprisonment for five years each u/s. 201 of Indian Penal Code, 1860 . Both the sentences have been ordered to run concurrently. 2. Case of prosecution, in-short, is that on 4.7.1991 at about 8 a.m., Ram Bachan Rai, husband of informant Sushila Devi (PW 3), after leaving his buffalo in badhar (open space) for grazing, was returning to his house when ten to twelve persons came running from the southern side of village out of them four to five were armed with rifles and guns. On seeing them, husband of informant ran towards his house. In the meantime, appellant Najibullah Mian carrying arm came and asked for catching hold of husband of informant. In the meantime, the persons who were coming running from southern side of village reached the house of informant and caught hold of husband of informant at the darwaza of house and took him away towards southern side assaulting him. Among those persons, informant identified appellants Bharat Kamkar, Najibullah Mian, Telhu @ Janardan Kumar, Ramavatar Ram, Deepa Chamar and Ram Dayal Dusadh and Baleshwar Ram (both since dead). Other four to five persons, carrying rifles and guns, could not be identified by informant. The appellants and their companions took the husband of informant at a place half a kilometre south-east of village and assaulted him with lathi, kicks and fists resulting in his death. Thereafter, they burnt the dead body of husband of informant by bringing dung cakes and setting fire. Thereafter, all the appellants and their companions raising slogans, that whoever would challenge them he would be finished, went towards south. The fardbeyan of informant was recorded on the same day at about 1 p.m. at her residence by Sub-Inspector Raj Bansh Singh (PW 5), the then Officer-in-charge of Rajpur Police Station. Thereafter, all the appellants and their companions raising slogans, that whoever would challenge them he would be finished, went towards south. The fardbeyan of informant was recorded on the same day at about 1 p.m. at her residence by Sub-Inspector Raj Bansh Singh (PW 5), the then Officer-in-charge of Rajpur Police Station. About the motive of occurrence, the informant in her fardbeyan stated that one day before the day immediately proceeding to the date of occurrence, her son Babloo @ Jitendra Rai had slapped the son of Ram Dayal Dusadh in an altercation and Ram Dayal Dusadh had given threatening that he would take revenge but informant, taking it a minor incident, did not pay much attention to it. On the basis of fardbeyan of informant, First Information Report under Secs. 364, 302, 201 of Indian Penal Code, 1860 and sec. 27 of Arms Act was drawn against the appellants and five unknown persons, and after investigation, police submitted charge-sheet against the appellants and Ram Dayal Dusadh (since dead) and one Saudagar Chamar showing him absconder and Baleshwar Ram showing him dead. Cognizance of the offence was taken and case was committed to the Court of Session where charges under Secs. 302 and 201 of Indian Penal Code, 1860 were framed against the appellants and Ram Dayal Dusadh. Since, appellants denied charges framed against them, they were put on trial. During the pendency of trial, Ram Dayal Dusadh died. After trial, all the five appellants were held guilty under Secs. 302 and 201 of Indian Penal Code, 1860 and were convicted and sentenced, as indicated above. 3. The case of appellants is complete denial of charges against them. From the trend of cross-examination of prosecution witnesses, their case of that some unknown culprits abducted and committed the murder of husband of informant but they have been falsely implicated in this case owing to earlier grudge and animosity because earlier Ram Dayal Dusadh (since dead) had filed a criminal case against the deceased and his son Babloo and two nephews of deceased for an occurrence of rape taken place on 1.7.1991 as well as of assault which took place subsequently. 4. Altogether five witnesses have been examined on behalf of prosecution. Sushila Devi (PW 3) is the informant. 4. Altogether five witnesses have been examined on behalf of prosecution. Sushila Devi (PW 3) is the informant. Poonam Devi (PW 1) and Neelam (PW 2) are nieces of deceased and are eye- witnesses on the point of forcibly taking away the deceased by the appellants and their companions from this house Ambika Prasad Mandal (PW 4) is the doctor who had held autopsy on the dead body of deceased husband of informant. Raj Bansh Singh (PW 5) is the Investigating Officer of this case, 5. Ambika Prasad Mandal (PW 4), in his evidence, has said that on 5.7.1991, he was posted at Sub-divisional Hospital, Buxar and on that day, he held post mortem examination on the dead body of Ram Bachan Rai identified by Constable No. 784 Madan Mohan Prasad and Chowkidar and found as follows : (1) Vertebral column from fourth thoracic to base of sectrum brought in a bag with a bottle from which kerosene oil smell was coming out. (2) Burnt piece of heart and lever. (3) Muscles of vertebral column completely burnt. (4) Pelvic without muscles partially burnt. He has further said that burnt bone was of a male and age of deceased could not be determined. About the cause of death, he has said that from the available burnt portion, the cause of death could not be ascertained and similar was the position with regard to time elapsed since death. He has proved post mortem examination report which bears his signature of and the signature Dr. Shyam Sunder Singh which has also been proved by him. This post mortem examination report of marked Exhibit-2. In cross-examination, he has said that from the portion of piece of sectrum, he came to the finding that bones were of male. He has denied the suggestion of defence that it is mere his guess work and he cannot say with certainty that it was body of male. 6 Sushila Devi (PW 3), informant is wife of deceased. In cross-examination, he has said that from the portion of piece of sectrum, he came to the finding that bones were of male. He has denied the suggestion of defence that it is mere his guess work and he cannot say with certainty that it was body of male. 6 Sushila Devi (PW 3), informant is wife of deceased. In her evidence, she has said that on the day of occurrence at about 8-8.15 a.m., her husband had gone for grazing his buffalo when she heard hulla and when she came out, she saw ten to twelve persons coming from west south direction and from northern direction, appellant Najibullah came and at that time, her husband was coming from eastern side and when her husband crossed the nala arid proceeded further, he was caught by those persons who took him towards south and she also followed her husband and the miscreants, after taking her husband to some distance, brought dung cakes and pouring kerosene oil on it set fire and burnt her husband alive in that fire. She has said that among the miscreants, she identified all the five appellants, Ram Dayal and Baleshwar (both since dead) and Saudagar and appellant Najibullah was carrying a rifle. About the motive, she has said that some altercation had taken place between children on account of a buffalo and the appellants had given him threatening. She has said that there is a nala towards northern side of darwaza of her house situate at distance of ten lathis and one lathi measures about ten to twelve cubits. In para 7 of her cross-examination, she has said that she did not go to the place of occurrence where her husband was burnt but she remained at some distance and everything was visible from the place where she was standing. In para 10 of her cross-examination, she has said that at the time of occurrence only girls were there in her house and her son Babloo and nephew Dharmendra were not present in the house at the time of occurrence and about ten to twelve days after the occurrence, she met them. Finally, she went towards road and the place where her husband was burn is situated about ten to twelve lathis from the place of road where she was standing and her daughters were with her and no body from village came there. Finally, she went towards road and the place where her husband was burn is situated about ten to twelve lathis from the place of road where she was standing and her daughters were with her and no body from village came there. She has further said that she used to come to badhar and again used to go on road and she continued this till 12 to 1 oclock in the day. She has further said that after occurrence, she never went to the place where her husband was burnt. She has proved her signature (Exhibit-1) on the fardbeyan which was recorded by police at her house. In para 15 of her evidence, she has said that when her husband was surrounded by appellants and their companions, he fell down and, thereafter, appellants and their companions took away her husband after catching hold of his hands and legs and dragging him and at that time, her husband was alive and appellants and their companions took her husband across the nala. She has denied the suggestion of defence that the dead body which is claimed to be of her deceased husband was not the dead body of her husband (in deposition, the name of deceased husband of informant in this suggestion is written as Raghupati in place of Ram Bachan). She has also denied the suggestion of defence that on the night itself, some other persons had taken away her husband and had committed his murder and appellants have been falsely implicated in this case. 7. Poonam Devi (PW 1) has said that at the time of occurrence, she, her elder sister and her aunt Sushila Devi (PW 3) were in house when she heard hulla and when she came out from the house, she found that hulla was being raised that whoever will strike, he would be finished and she found that a number of persons were chasing her uncle Ram Bachan Rai and some of the persons who were chasing him were armed with weapons and out of those persons, she identified appellants Bharat Kumar, Telhu Kamkar, Ramavatar Ram, Deepa Ram and Ram Dayal Prasad (since dead) with Baleshwar Ram (since dead) and Saudagar Ram. In the meantime, appellant Najibullah Mian came from western sides and, thereafter, all the appellants and their companions started assaulting and abusing the deceased and took him assaulting towards southern side and after bringing dung cakes from village burnt him alive. About the motive of occurrence, she has said that two to three days prior to day of occurrence Babloo, the son of deceased had some altercation with Ram Dayal Dusadh who had given him threatening. The learned counsel appearing on behalf of the appellants has drawn our attention towards para 4 of evidence of this witness where she has said that she is the daughter of deceased and Babloo is her own brother. It is true that in para 4 of her evidence, she claims herself to be daughter of deceased whereas in para 1 of her evidence, she has said that informant, who is admittedly wife of deceased, is her aunt. I further find that in para 6, she has described the deceased as her uncle and has said that name of her father was Munna Rai and she used to call deceased as uncle. She has further said that she calls her own other as mother and aunt as aunt. The learned counsel of appellants has further argued that this witness has said that at the time of occurrence, her mother and her sister were in the house but her mother has not been examined. In the charge-sheet, this witness has been shown as daughter of deceased Ram Bachan Rai. It appearance that in para 4 of her evidence, this witness has said that she is Poonam, daughter of deceased, Sushila Devi, informant (PW 3), in para 16 of her evidence, said that Neelam and Poonam are daughters of Munna Rai. This evidence, coupled with the evidence of this witness Poonam Devi that the name of her father was Munna Rai (who is dead now), leaves no room for any doubt that she is niece of deceased and because she has been shown as daughter of deceased in the charge-sheet, perhaps, therefore she has said that Poonam, shown as daughter or deceased is no body else but she herself. I, therefore, find that entire evidence of this witness only on this score cannot be doubted. I, therefore, find that entire evidence of this witness only on this score cannot be doubted. The learned counsel appearing on behalf of the appellants has submitted that this witness, in para 9 of her evidence, has admitted that she did not go to the place where deceased was burnt in fire and she has further said that the place where the deceased was burnt in fire is situate about six to seven kilometres south from her house. It is true that this witness has stated the aforesaid distance but at the same time, it is also true that she has admitted that she does not understand the meaning of kilometre. Neelam (PW 2), supporting the case of prosecution, has said that on the day of occurrence, she was in her house when she found some persons chasing her deceased uncle and among the persons who were chasing her uncle, she identified appellants, Deepa Chamar, Bharat Kamkar, Telhu @ Janardan Kamkar and Ramavatar Ram along with Baleshwar Chamar, Ram Dayal Dusadh and Saudagar, Chamar. She has said that they were armed with weapons and they assaulted her uncle with lathi, danda and, thereafter, took him towards south of village and, by bringing dung cakes, burnt him alive. About the motive of occurrence, she has said that an altercation had taken place between Babloo and Ram Dayal Dusadh. In her evidence, she has no named appellant Najibullah Mian. She has said that Poonam (PW 1) is her own sister and at the time of occurrence, in her house besides her mother, aunt and Poonam, no body was there. 8. Raj Bansh Singh (PW 5) has said that on 4.7.1991, he was posted as Officer-in-charge of Rajpur Police Station and on that day, he had recorded the fardbeyan (Exhibit-3) and on the basis of fardbeyan, a format First Information Report (Exhibit-4) was drawn. He has further said that he took up investigation of the case, recorded the further statement of informant and visited the place of occurrence which is situate towards north of the house of informant. He has further said that he took up investigation of the case, recorded the further statement of informant and visited the place of occurrence which is situate towards north of the house of informant. He has further said that from this place of occurrence, he went to a distance of about half a kilometre towards south where deceased was said to be burnt and he found some portion of burnt body and he prepared an inquest report (Exhibit-5) and prepared a challan and sent the body for post mortem examination through a challan (Exhibit-6). In para 3 of his evidence, he has said that he found the ashes of burnt dung cakes and a bottle with the smell of kerosene oil and in his inquest report, he has mentioned the description of these articles. 9. The case of appellants is that they have been falsely implicated in this case because informant and her family members were having animosity against them on account of the fact that earlier Ram Dayal Dusadh had filed a criminal case against the deceased, his son Babloo and his two nephews for an occurrence of rape. The defence has brought on record the certified copy of charge-sheet of Rajpur Police Station Case No. 60 of 1991 (Exhibit-B). This charge-sheet shows that co-accused Ram Dayal Dusadh (since dead) was the informant of the case and deceased, son of deceased, Dharmendra and Bijendra, both sons of Munna Rai who is dever of informant, as admitted by her in para 16 of her evidence, were accused and charge-sheet against them under Secs. 376, 511, 342, 323/34 of Indian Penal Code, 1860 was submitted for committing rape on the daughter of Ram Dayal Dusadh on 1.7.1991. The Court below has discussed this document in details in para 13 of its judgment and has rightly observed that the defenc deliberately omitted to get the First Information Report of this case marked as exhibit although the First Information report was filed along with charge-sheet because the perusal of First Information Report shows that on 9.7.1991. Ram Dayal Dusadh filed a complaint petition before the learned Additional Chief Judicial Magistrate, Buxar which was forwarded u/s. 156(3) of Criminal Procedure Code to police for registering a case and on the basis of this, Rajpur Police Station Case No. 60 of 1991 was registered. Ram Dayal Dusadh filed a complaint petition before the learned Additional Chief Judicial Magistrate, Buxar which was forwarded u/s. 156(3) of Criminal Procedure Code to police for registering a case and on the basis of this, Rajpur Police Station Case No. 60 of 1991 was registered. Another charge-sheet (Exhibit-B/1) is charge-sheet of Rajpur Police Station Case No. 15 of 1993 in which Hridyanand Rai was informant and it was submitted against nephews of deceased under Sections 364, 302 and 201 of Indian Penal Code, 1860 when dead body of Lalmuni Rai was found on 5.2.1993. The Court below has rightly observed that this document cannot be allowed to be used for showing animosity with deceased from before the alleged occurrence because this case appears to have been lodged after the death of deceased. The learned counsel appearing on behalf of appellants has submitted that the informant, in her fard-e-beyan, has given the motive of occurrence as a minor altercation between her son and sons of Ram Dayal Dusadh two days prior to occurrence which does not appear convincing to come to the conclusion that for such type of petty matter, appellants would go to the extent of committing such type of heinous offence, as alleged by prosecution. As stated earlier, the defence itself has brought on record the charge-sheet of a case (Exhibit-B) filed by co-accused Ram Dayal Dusadh against deceased, his son and nephews for allegation of rape on his daughter on 1.7.1991 and the present occurrence had taken place on 4.7.1991. We fully agree with the Court below that this document brought on record by defence itself shows that appellants has strong motive for committing the alleged offence. 10. Learned counsel appearing on behalf of the appellants has further argued that the informant, in her evidence, has said that at the time of occurrence, she did not go to the place of occurrence and watched the occurrence from some distance and she has further stated that at the time of occurrence, she used to try to go to the place of occurrence but used to return on seeing the appellants and she continued this process till about 12 Oclock 1 p.m. According to him, this conduct of informant is quite unnatural and such statement of informant does not inspire confidence. Admittedly, informant is a woman and we find nothing unusual in such conduct of informant who was alone at the time of occurrence because as per her own evidence, no body came to her help. Learned counsel of appellants has further argued that Poonam Devi (PW 1) cannot be said to be an eye-witness to the occurrence because she has said that when she came out of her house on hearing hulla, she found that appellants were raising hulla that whoever would challenge them would be finished and according to informant, such type of slogan was raised by appellants when they had already burnt the deceased in fire. It is true that this witness has said that when she came out from her house, appellants were raising this type of hulla but then we do not find that this is such a major contradiction in the evidence of Poonam Devi to disbelieve her especially . considering the fact that she was examined as a witness on 28.3.2000 giving evidence of an occurrence which had taken place oh 4.7.1991 meaning thereby about nine years ago. 11. The further argument of defence is that the prosecution has not been able to establish that the burnt pieces of dead body found in this case were of deceased husband of informant. We find that in this case, there is evidence of informant, PWs 1 and 2 who had seen the appellants taking away the deceased from a place near his house to the place where they burnt him alive in fire. Their evidence is supported by the evidence of PW 5, Investigating Officer of this case who immediately, after the occurrence on the same day at about 1.15 p.m., visited the place of occurrence and found the burnt pieces of a dead body and prepared the seizure list in which he has mentioned that he also found a white coloured bottle with the smell of kerosene oil from the place from where pieces of burnt body were recovered and prepared the inquest report (Exhibit-5). This evidence fully corroborates the evidence of informant, PWs 1 and 2. 12. This evidence fully corroborates the evidence of informant, PWs 1 and 2. 12. Learned counsel of appellants has also argued, that the informant, in her evidence, has stated that at the time of occurrence, his son Babloo was not present in the house but was at some place and she has further stated that ten to twelve days after the occurrence, she met her son Babloo and her nephew Dharmendra. According to him, such type of evidence casts a serious doubt about the informant of her speaking the truth and she cannot be said to be trustworthy. It is the own case of appellants that Babloo and Dharmendra alongwith the deceased and Bijendra were involved in the occurrence of committing rape on the daughter of co-accused Ram Dayal Dusadh and if under these circumstances, they were not present in village and informant met them ten to twelve days after the occurrence of the case, we do not find any thing unusual in it. Besides this, only by this statement, the entire evidence of informant, PWs 1 and 2 on the point of occurrence cannot be brushed aside. 13. Considering the entire evidence on record, we find that prosecution has been able to prove its case beyond all reasonable doubts and appellants have been rightly held guilty and convicted and sentenced by the Court below. The order of Court below of conviction and sentence of the appellants, in our opinion, does not require any interference. 14. In the result, this appeal is dismissed and the judgment and order of Court below convicting and sentencing the appellants is hereby confirmed.