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2006 DIGILAW 741 (JHR)

Susen Dutta v. State of Bihar

2006-06-22

AMARESHWAR SAHAY, R.K.MERATHIA

body2006
JUDGMENT Amareshwar Sahay, J.-All the appellants were charged for the offence under Sections 148, 302/149 IPC. By the impugned judgment dated 2.8.2000, passed by the 2nd Additional Sessions Judge, Seraikelain Sessions Trial No. 321/1988, all the appellants were convicted for the aforesaid charges and they were sentenced to undergo life imprisonment for the offence under Section 302/149 I PC and to undergo R.I. for a further period of three years for the offence under Section 148 IPC. However, both the sentences were ordered to run concurrently. 2. Against the said judgment of the trial court, the present appeal has been preferred by the appellants challenging their conviction and sentence. 3. In short the prosecution case is that one Dharmu Kaibarto (PW-6) lodged first information report on 27.1.1998 alleging therein that on that date at about 7 a.m. when he and his brother Mahabir Kaibarto (the deceased) were going on by cycle to Seraikela Court and when Mahabir, who was a little ahead of him, reached in front of the house of Susen Dutta (Appellant No. 1), all the appellants namely, Susen Dutta holding Bhujali, Khorod Dutta (Appellant No. 2) holding pistol, Nibaran Dutta (Appellant No.3), Niranjan Dutta (Appellant No.4), Bisheshwar Dutta (Appellant No.5), Arjun Dutta (Appellant No.6) and their servant Panchu (Appellant No.7) holding swords in their hands surrounded Mahabir Kaibarto. Susen Dutta assaulted Mahabir Kaibarto on his head by means of a Bhujali due to which Mahabir fell down on the ground. After Mahabir fell down, other accused persons started assaulting Mahabir by means of swords due to which he died at the spot in front of the house of appellant no. 1. The accused persons also tried to chase and assault the informant Dharmu Kaibarto but he could manage to escape. On hulla raised by him, villagers arrived at the place of occurrence. The informant was going to the Court to attend a case on the said date. 4. In order to establish the charges altogether 14 witnesses were examined on behalf of the prosecution. The Investigating Officer was not examined by the prosecution nor any defence witness was examined on behalf of the defence. 5. From the evidence it appears that P.W.2 Doresh Kaibarto, PW-6 Dharmu Kaibarto (informant) and PW-7 Nirodha Kaibarto are the eye-witnesses to the occurrence. PW-2 arid PW-6 are the brothers of the deceased Mahabir Kaibartc whereas PW-7 is the sister of the deceased. 5. From the evidence it appears that P.W.2 Doresh Kaibarto, PW-6 Dharmu Kaibarto (informant) and PW-7 Nirodha Kaibarto are the eye-witnesses to the occurrence. PW-2 arid PW-6 are the brothers of the deceased Mahabir Kaibartc whereas PW-7 is the sister of the deceased. 6. The autopsy of the dead body was conducted by PW-1 Dr. D.P. Choudhary, who found the following injuries on the person of the deceased: (i) Lacerated injury at upper half of the scalp and only skin is intact in the left side and all the banes of scalp were cut. (ii) Piercing injury right side of the back 3" lateral to the midline x 1/2 x 1/4" 1/2". (iii) Lacerated injury an the right palm 2" x 1/4" X 1/2" also. abrasian an right palm. (iv) Lacerated injury an left little finger and index finger 1/2" x 1/4". According to the Doctor the weapons used for commission of the offence were sharp and heavy such as, Bhujali and Ta/war and the death was caused due to head injury causing laceration of brain. 7. PW-2 Doresh Kaibarta, the brother of the informant as well as of the deceased is an eye-witness to the occurrence. He has stated that an 27.1.1998 at about 7 a.m. he was going to Seraikela alangwith his brother Mahabir Kaibarto and Dharmu Kaibarto and when he reached in front of the house of Susen Dutta at that time Susen Dutta (Appellant No.. 1) assaulted Mahabir by means of Bhujali an his head. As a result of which Mahabir fell dawn an the ground and, thereafter, Arjun Dutta, Niranjan Dutta, Khirod Dutta, Nibaran Dutta, Bisheshwar Dutta and Chamu Modi started assaulting Mahabir by means of sword, till he was dead. Khirod Dutta (Appellant No. 2) who. was armed with pistol chased Dharmu Kaibarta (the informant) but he fled away. Thereafter, Dharmu Kaibarto went to the police station and informed the police. He has stated about the reason behind the occurrence that Bibhisan Dutta, the brother of the appellant Susen Dutta, was earlier murdered and the accused persons suspected that the informant party had their hands in the murder of Bibhisan Dutta and, therefore, in order to take revenge they committed the offence. He further stated in his evidence that when Mahabir was being assaulted, alarm was raised, an which a large number of people collected there. 8. He further stated in his evidence that when Mahabir was being assaulted, alarm was raised, an which a large number of people collected there. 8. PW-6 Dharmu Kaibarto, i.e. the informant has stated in his evidence that on the date of occurrence in the morning he was going to Seraikela alongwith his brother Mahabir (deceased) and Doresh (PW-2) for giving evidence and Mahabir was ahead of them. When Mahabir reached near the house of Susen Dutta (appellant no. 1), he was surrounded by the appellants Susen Dutta, Khirod Dutta, Nibaran Dutta, Niranjan Dutta, Bisheshwar Dutta, Arjun Dutta and the servant of Arjun Dutta namely, Panchu and Chamo and, thereafter, Susen assaulted Mahabir by means of knife and Khirod, who was armed with pistol and the rest of the accused persons were armed with sword, assaulted the deceased, who died at the spot and, thereafter, they fled away. 9. PW-7 Nirodha Kaibarto, who is also an eye-witness to the occurrence, has stated in her evidence that in the morning she was going to shop when he noticed that Arjun, Susen, Bisheshwar, Khirod, Niranjan, Nibaran, Panchu and Chanu were assaulting her brother Mahabir, who died there. 10. PW-3 Dulal Chandra Manjhi has stated that on 27.1.1988 a blood stained Bhujali was recovered from the house of Susen Dutta (Appellant No.1) and a recovery memo was prepared on which he and one Sapan Kumar Dutta put their signatures. 11. Mr. Sahani, learned counsel appearing for the appellants submitted that since the Investigating Officer was not examined on behalf of the prosecution and, therefore, the defence was greatly prejudiced. He further submitted that only the interested witnesses, who were close relatives of the deceased, were examined by the prosecution and none of the neighbours or persons residing nearby area were examined by the prosecution. Therefore, on the basis of the evidence of the jnterested witnesses the conviction and sentence passed by the trial court against the appellants should not be sustained. 12. The argument of the learned counsel for the appellants cannot be accepted because he has failed to point out as to how the defence was prejudiced due to non-examination of the Investigating Officer. No vital contradiction in the evidence of the PWs has been pointed out so as to make the statements of the eye-witnesses to be unreliable. 12. The argument of the learned counsel for the appellants cannot be accepted because he has failed to point out as to how the defence was prejudiced due to non-examination of the Investigating Officer. No vital contradiction in the evidence of the PWs has been pointed out so as to make the statements of the eye-witnesses to be unreliable. Only because PWs-2, 6 and 7 are close relatives of the deceased and on that ground only their evidence cannot be rejected more so when they were eye-witnesses to the occurrence and their statements are fully trustworthy. 13. From the evidence of the aforesaid eye-witnesses, i.e. PWs-2, 6 and 7, discussed above, coupled with the evidence of PW-3 establishing the recovery of the blood stained Bhujali from the house of appellant no. 1 Susen Dutta and the evidence of the Doctor, who found the injuries, noticed above, on the person of the deceased, we find that the learned trial court rightly held the appellant guilty for the charges under Sections 148, 302/149 IPC. 14. Accordingly, the conviction and sentence passed by the trial court against all the appellants are hereby affirmed and this appeal is dismissed. The appellant Nos. 2 to 8 are on bail and, as such, their bail bonds are hereby cancelled and they are directed to be committed to the prison to serve out the sentences. R.K. Merathia, J.-I agree.