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2006 DIGILAW 431 (JHR)

Bhadra Purty v. State of Bihar (now Jharkhand)

2006-04-21

D.P.SINGH

body2006
JUDGMENT : D.P. Singh, J.-The sole appellant Bhadro Purty stands convicted under Section 304 Part-I of the Indian Penal Code , and sentenced to serve rigorous imprisonment for seven years by the 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 256/109 of 1995-1998. 2. The briefs facts leading to his conviction are that in the afternoon of 27th March, 1995, a nine months' baby belonging to the informant Chunnu Ram Besra and his wife Khurdi were sleeping inside the Angan of their house situated at Village-Swargachhera, Police Station-Potka. It is further stated that Khurdi has just entered in the room to bring her meals when the appellant came inside the Angan and gave a blow on the head of the baby with stone. Thereafter Khurdi raised alarms, on which several members assembled and chased the appellant who was caught at some distance. Immediately, the appellant disclosed his name to the neighbours and he was dragged back to the house of the informant. 3. While Chunnu Ram Besra returning from Village-Bango to his house at 5.00 P.M. he found the baby dead. He was informed about the incident by his wife and neibhours. 4. The police reached at the place of occurrence in the night of same day and recorded the statement of the informant arrested the appellant and brought him to police station. The police investigated the case and finally submitted charge-sheet against the appellant under Section 302 of the Indian Penal Code. The case was committed to the Court of Sessions for Trial and the appellant was charged under Section 302 of the Indian Penal Code. The appellant claims to be innocent. After recording evidence in the trial, the learned lower court found him guilty for the offence causing death of the baby under Section 304 Part-I of the Indian Penal Code and sentenced him to serve rigorous imprisonment for seven years. The appellant has already remained in custody throughout the trial and he was admitted to provisional bail by this Court on 24.10.2000. 5. The present appeal has been preferred on the grounds that the learned lower court has not considered the evidence properly. It is also assert9d that there was no motive to commit the offence and no one has seen the appellant assaulting the baby even by the wife of the informant. 6. 5. The present appeal has been preferred on the grounds that the learned lower court has not considered the evidence properly. It is also assert9d that there was no motive to commit the offence and no one has seen the appellant assaulting the baby even by the wife of the informant. 6. According to the learned counsel for the appellant that in absence of any eye-witness and corroborative evidence, the appellant was entitled to be acquitted. It is further contended that the injuries found on the dead body did not tally with the ocular evidence. It is also asserted that the weapon of assault has not been brought before the Court and in absence of any motive to commit the offence, the conviction should be set aside. Lastly in is asserted that the death of the child was caused due to asphyxia and not by injuries found on her body. 7. The learned A.P.P. appearing for the State opposed the contention on the grounds that the death of the child has been proved by several witnesses and for committing the offence of murder motive is not an essential ingredient. 8. The learned counsel for the appellant stressed before this Court that in absence of any motive or apparent reason to cause death of a child, the prosecution case fails. It is also submitted that the witnesses coming just after the occurrence could not be relied upon because they have stated what Khurdi Devi narrated to them. In this context, learned counsel for the appellant drew my attention towards the statement of P.W. 4 Khurdi and P.W. 5 Chunnu Ram Besra, the informant. According to the learned counsel for the appellant, P.W. 4 has asserted that a mad gave stone blow on the head of the baby. She was cross-examined on this point, as to whether the appellant was actually mad or not. P.W. 5 is a hearsay witness of the occurrence. He has admitted frankly that he has not seen the appellant assaulting the baby. According to the learned counsel, these aspects have not been considered by the learned lower court. It is further suggested that the appellant may be insane at that time. However, this point neither been raised before the trial court nor in the statement of the appellant under Section 313 of the Code of Criminal Procedure. According to the learned counsel, these aspects have not been considered by the learned lower court. It is further suggested that the appellant may be insane at that time. However, this point neither been raised before the trial court nor in the statement of the appellant under Section 313 of the Code of Criminal Procedure. Therefore, this aspect does not deserve any importance at this stage. 9. According to the learned counsel for the appellant that the other witnesses i.e. P.W. 1 Vishwanath Hansda, P.W. 2 Ramai Hansda and P.W. 3 Surjay Hansda are hearsay witnesses because they came on alarms raised by Khurdi (P.W. 4) and found the baby lying dead. I have carefully gone through the evidences of P.W. 1. According to him, he reached the Angan of the informant and found the baby lying unconscious and thereafter they chased the appellant and caught hold of him. Similarly P.W. 2 found, reaching in the Angan of the informant on alarms raised, the baby lying in an injured condition. He also supports the prosecution story of chasing the appellant and bringing him back to the house. They are witnesses on the fardbeyan of the informant. They all have identified the appellant in the Court as the assailant. P.W 6 Dr. Y. Nath, has performed the autopsy on the dead body of the baby. He found abrasions on the face of the baby and frontoperito temporal scalp and right perital scalp causing contusion of the whole brain. According to him, all these injuries were caused by hard and blunt substance vide Ext. 2. P.W 7, Polet Hansda and P.W 8 Kanhai Tudu are hearsay witnesses of the occurrence. P.W. 9 is the Investigating Officer of this case. 10. On consideration of all the evidences discussed above, I find that the prosecution has been able to prove the charges levelled against the appellant that he assaulted the deceased (baby) with stone on her head without any instigation or apparent reason. The finding of the learned trial court as such is perfectly right and correct. It is further apparent that the appellant was the sole assailant and he was caught hold by the villagers just after the occurrence and there is nothing on record to suggest that he may be implicated falsely in this case. 11. The finding of the learned trial court as such is perfectly right and correct. It is further apparent that the appellant was the sole assailant and he was caught hold by the villagers just after the occurrence and there is nothing on record to suggest that he may be implicated falsely in this case. 11. Having regards to the above mentioned facts and circumstances, I find that the present appeal has no merit. Accordingly, the judgment of conviction passed by the learned lower court is affirmed. 12. At this stage, the learned counsel for the appellant submits that the appellant has already remained in custody from 27.3.1995 to 24.10.2000 i.e. five years and seven months, whereas he has been sentenced to serve rigorous imprisonment for seven years. Therefore, the sentence may be modified to the period already under gone by the appellant. 13. In the present fact, where there is no apparent reason for committing the offence and the appellant having remained in custody for more than five and half years against the sentence of seven years. Therefore, I am of the opinion that the ends of justice may be served adequately if the sentence is reduced to the period already undergone by him. Accordingly, this appeal is dismissed with modification in sentence. The appellant is also discharged from the liability of his bail bonds.