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2006 DIGILAW 279 (JHR)

Awadhesh Tiwary v. State of Bihar (now Jharkhand)

2006-03-28

AMARESHWAR SAHAY

body2006
JUDGMENT : By Court.- The present appeal has been filed by the two appellants namely Awdhesh Tiwary and Basudeo Tiwary who have been convicted for the offence under section 307/34 IPC and have been sentenced to undergo R.1. for a period of seven years each and also to pay a fine of Rs.1,000/- each in default to undergo R.1. for a further period of three months each by the 2nd Additional Sessions Judge, Giridih in Session Trial No. 215 of 1990 by the impugned judgment dated 23rd January 1998. 2. Both the appellants were charged under Section 307/34 IPC for intentionally causing injuries by means of Farsa on the informant Kaushalya Devi, (P.W.4) on 28.3.1990 in furtherance of their common intention to kill her. 3. The prosecution case in short is that P.W. 4 Kaushalya Devi gave a fardbeyan on 28.3.90 at the police station alleging therein that while she was going to take bath with her sister-in-law (Gotni), Chinta Devi to "Darhi' and when they reached near the Mango tree of Rameshwar Tiwary, she saw the appellants Awdhesh Tiwary and Basudeo Tiwary standing armed with farsa in their hands and then Awdhesh Tiwary stopped her and told that he could kill her by uttering "Sali aaj tumko jaan se marker phek dete hai' and thereafter Awdhesh Tiwary assaulted her by means a farsa on her head causing cut and bleeding injuries, due to which she fell down. Thereafter both the appellants assaulted the informant indiscriminately by means of farsa causing injuries on her right shoulder, right arm, left shoulder etc. It is said that due to the said assault, the left thumb of the informant was completely chopped of. On her hullah, her brother-in-law (Bhaisur) Mahabir Tiwary and Bimla Devi arrived. It is further stated that Bimla Devi ordered the appellants Awdhesh Tiwary and Basudeo Tiwary to kill the informant upon which Awdhesh Tiwary gave farsa on the cheek of the informant causing cut injuries. By that time villagers had assembled there and on seeing them the accused persons said to have fled away from the said place. The motive behind the occurrence was said to be that seeing the informant was a widow and issue less and as such the appellants had their greedy eyes on her landed property and, therefore, they wanted to kill her. 4. The motive behind the occurrence was said to be that seeing the informant was a widow and issue less and as such the appellants had their greedy eyes on her landed property and, therefore, they wanted to kill her. 4. In order to establish the charges the prosecution examined altogether five witnesses. PW.1 Chinta Devi is the eye witness to the occurrence and she was with the informant. When both of them were going to take bath. P.W. 2 is Mahabir Tiwary who on hulla of the informant reached at the P.O. and saw the appellants assaulting the informant. P.W. 3 is the doctor Suresh Bharamachari who medically examined the informant and found the following injuries on her person. (i) Incised wound 4" x 3" bone deep over left shoulder, cutting the head of humerus (bone of upper arm). (ii) One incised wound 5" x 3" x deep to the bone cutting the left claricle scapula. (iii) Amputated left thumb with sharp margin over the root of the thumb. (iv) One incised wound 21/2 x 1/2 x scalp deep over left parietal area. (v) One incised wound 21/2 x 1/2 x muscle deep over right arm. (vi) Incised wound 5" x 3" x muscle deep over right shoulder cutting partly the clarical. (vii) One incised wound 21/2 x 21/2 x deep to the bone over left parietal scalp. (viii) One incised wound 3" x 2" x muscle deep over left maxillary area (Prominent part of cheek). 5. P.W. 5 is the Investigating Officer. 6. On behalf of the defence also two witness were examined i.e. Harendra Nath Tiwary, D.W. 1 and Devnandan Prasad, D.W. 2. 7. The learned trial court on the basis of the assault, scrutiny and consideration of the evidence adduced on behalf of the prosecution held the appellant guilty of the offence under section 304/34 IPC and sentenced them accordingly as stated in earlier paragraph. 8. Mr. Singh learned counsel appearing for the appellants, submitted that the conviction and sentence passed against the appellants by the trial court is bad in law because the prosecution has not been able to establish the charges against the appellants being all reasonable doubts. 8. Mr. Singh learned counsel appearing for the appellants, submitted that the conviction and sentence passed against the appellants by the trial court is bad in law because the prosecution has not been able to establish the charges against the appellants being all reasonable doubts. He further argued that in view of the fact that P.W.1 Chinta Devi in her evidence stated about the assault made by Awdhesh Tiwary only on Kaushalya Devi and she did not state a word against the appellant Basudeo Tiwary, therefore, in any view of the matter the appellant Basudeo Tiwary is entitle to be acquitted. 9. It appears that P.W.1 Chinta Devi the sister-in-law (Gotni) of the informant Kaushalya Devi, in her examination in chief has stated that on Wednesday at about 11 a.m., she alongwith the informant Kaushalya Devi were going to have bath in a Darhi and when they reached near the Mango tree of Rameshwer Tiwary, the accused Awdhesh Tiwary assaulted Kaushalya Devi by means of a farsa on her left Pahura, head and on both the hands due to which the left thumb of the informant was completely chopped off. She has further stated that the informant was also assaulted on her cheek and that the assault was made in order to kill the informant. This witness was cross examined by the defence at length. Learned counsel appearing for the appellants could not point out any vital contradiction in the evidence of the witness so as to make her statement unbelievable except that she made specific allegation of assault only against Awdhesh Tiwary and not against Basudeo Tiwary. 10. P.W 2 Mahabir Tiwary is the brother-in-law of the informant Kaushalya Devi and he has fully corroborated the statement of the informant by stating that the informant alongwith P.W.1 Chinta Devi, were going to have bath and when they reached near the Mango tree of Rameshwar Tiwary they saw the accused Awdhesh Tiwary and Basudeo Tiwary armed with farsa in their hands. He has further supported the fact that the informant Kaushalya Devi was assaulted by the appellants, due to which the informant sustained several injuries on her parson and her left thump was chopped off. He has further stated that even after she fell down, the appellants continued to assault her by means of farsa. He has further supported the fact that the informant Kaushalya Devi was assaulted by the appellants, due to which the informant sustained several injuries on her parson and her left thump was chopped off. He has further stated that even after she fell down, the appellants continued to assault her by means of farsa. P.W. 3 is the doctor who found 6/7 incised wound on the person of the informant and according to him injury numbers 1, 2 and 3 were grievous in nature and were dangerous to life. He further said that the injuries found on the person of the informant were caused by sharp cutting weapons may be by farsa. P.W. 4 is the informant Kaushalya Devi herself and she has fully supported her statement made in the fardbeyan. She in her examination in chief she has specifically stated that the accused persons had assaulted her in order to commit her murder. She has further sated that the appellant Basudeo Tiwary had assaulted her on her left thumb and left cheek by means of farsa. She further stated that her Bl1aisur Mahabin Tiwary (P.W. 2) had arrived at the place of occurrence. She has specifically stated that since she was widow and was issue less and therefore, the accused persons wanted to kill her in order to grab her landed property. P.W. 5 is the Investigating Officer who proved the fardbeyan (Exhibit 2). This witness has stated in his evidence he had seized blood stained farsa which was recovered from the house of Basudeo Tiwary and prepared the seizure list which was marked as Exhibit 4. He further stated that he examined the witness including the informant and then after completion of investigation submitted charge. 11. On behalf of the defence D.W.1 and D.W.2 were examined. D.W. 1 has stated in his examination in chief that the relationship between Mahabir Tiwary and Basudeo Tiwary were not cordial and further that Mahabir Tiwary used Kaushalya Devi the informant, as an instrument to institute the case against the accused persons. 12. From the scrutiny of the evidence adduced by the prosecution, I find that the occurrence took place near the Mango tree of Rameshwar Tiwary, at the time when. the informant and P.W.1 Chinta Devi were going to take bath. 12. From the scrutiny of the evidence adduced by the prosecution, I find that the occurrence took place near the Mango tree of Rameshwar Tiwary, at the time when. the informant and P.W.1 Chinta Devi were going to take bath. At that time the informant was assaulted by Awdhesh Tiwary by means of farsa on her head due to which she fell down and thereafter both the appellants indiscriminately assaulted the informant by means of farsa. Her evidence has fully been corroborated by the medical evidence, the doctor who found 6/7 incised injuries caused on the person of the informant. The fact that P.W.1 Chinta Devi did not disclose the name of second appellant Basudeo Tiwary as the assailant of the informant Kaushalya Devi does not make much difference because the injured Kaushalya Devi in specific term has stated that it was the appellant Basudeo Tiwary who assaulted by means of farsa on her left thumb and her left cheek. This statement of the informant has further been corroborated by P.W.2 Mahabir Tiwary, therefore, it is evident that the appellant Basudeo Tiwary also assaulted the informant with Farsa causing injuries. 13. On careful considering of the entire evidence on record I do not find any vital contradiction in the evidence of P.Ws. so as to make their testimony unreliable. The evidence on the record clearly established the charges under Section 307/34 IPC against the appellants and, therefore, I find that the learned trial court has rightly convicted and sentenced the appellants for the offence under section 307/34 IPC. 14. In the result the conviction and sentence passed by the trial court is hereby confirmed and this appeal is dismissed. The appellants who are on bail, their bail bonds are hereby cancelled and they are directed to surrender forthwith to serve out the sentence.