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2007 DIGILAW 1412 (PAT)

Babulal Ram @ Babulal Chamar v. State Of Bihar

2007-08-24

SHIVA KIRTI SINGH, SYED MD.MAHFOOZ ALAM

body2007
Judgment Shiva Kirti Singh and Syed Md.Mahfooz Alam JJ. 1. There are three appellants in each of these two appeals which are directed against a common judgment and order dated 18.12.1987 passed by learned 4th Additional District and Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 1467 of 1979 whereby they have been convicted for the offence u/s. 302 read with Sec. 34 of the Indian Penal Code and awarded life imprisonment. Both the appeals have been heard together and shall be governed by this common judgment. 2. According to the Fardbeyan of P.W. 2. Dhaneshar Raw, recorded at the Mohania police station on 21/22.8.1978 at about 8.45 A.M. the prosecution case in brief is that in the previous night the informant and his son Mosafir Chamar (the deceased) and his cousin Bhukhan Ram (P.W. 4) had slept in the Khalihan which is east of Darwaja of the informant. At about 2 in the night a very light shower took place due to which his sleep was disturbed. He asked his son Mosafir who was sleeping nearby to collect small and crushed straw (Pautta). When Mosafir was still on the cot in sleeping posture the accused persons namely one Baijnath Chamar (absconder), Jokhan Chamar (absconder) who were armed with Daab and the six appellants out of whom Narsingh Ram and Babu Lal Chamar were having pistol and Bidesi Chamar was having Bhala came and surrounded them. Mosafir Chamar (deceased) was overpowered on the cot. Ram Krit Chamar got upon his legs, Hirday got on his chest, Ram Jee pressed his hands Jokhan caught the head and Baijnath cut the neck with Daab and as a result Mosafir died. The other accused Narsingh, Babulal and Bidesi kept on threatening the informant that he would also be killed and therefore the informant did not interfere. All the miscreants went away after committing murder. On hulla witnesses Ram Eqbal, Shiv etc. came running. The occurrence was also seen by brother of the informant Bhukhan Ram (P.W. 4). The reason for the occurrence as disclosed is that one Juit Chamar was accused in a murder case and was apprehended by the local police recently. The accused persons belonged to his gang. They suspected that Juit Chamar was apprehended on the information furnished by Mosafir (deceased). 3. The reason for the occurrence as disclosed is that one Juit Chamar was accused in a murder case and was apprehended by the local police recently. The accused persons belonged to his gang. They suspected that Juit Chamar was apprehended on the information furnished by Mosafir (deceased). 3. After recording the fardbeyan P.W. 7, Rajendra Kumar Singh drew up a formal F.I.R. and after recording further statement of the informant he went to the place of occurrence where he found the dead body of Mosafir Chamar. He prepared inquest report (Ext. 4) and sent the dead body for postmortem examination. He also seized blood-stained earth from near the dead body and prepared a seizure list. After recording the evidence of witnesses he went to the house of the accused persons and found them absconding. From the records at the police station he found that in a case u/s. 302 and other Sections of the I.P.C. accused Jokhan Ram, accused Baijnath Ram and accused Juit Ram were named as accused persons and shown as absconders in the charge-sheet and on 10/11 March 1978 in the night hours Mohania police had arrested Juit Ram. After completing investigation he submitted charge-sheet showing Baijnath Ram and Jokhan Ram as absconders. After cognizance the case was committed to the court of sessions. They pleaded not guilty to the charges framed against them and therefore they were put on trial and convicted by the judgment and order under appeal as noticed above. 4. The defence of the accused persons is that they have been falsely implicated on account of enmity. Two defence witnesses Shankar Dayal Lal, a compounder (D.W. 1) and Dr. Ram Pyare (D.W. 2) have been examined to support the plea of alibi raised by appellant no. 2, Narsingh Ram. 5. The prosecution in order to prove its case had examined altogether seven witnesses. P.W. 1, Dr. Shiva Kumar Mishra is the doctor who held autopsy on the dead body of deceased Mosafir Ram on 23.5.1978 at 11 A.M. He found the following antemortem injuries on his person: (i) One incised injury 2" x 1/2" into muscle deep on the medial aspect of the right shoulder. P.W. 1, Dr. Shiva Kumar Mishra is the doctor who held autopsy on the dead body of deceased Mosafir Ram on 23.5.1978 at 11 A.M. He found the following antemortem injuries on his person: (i) One incised injury 2" x 1/2" into muscle deep on the medial aspect of the right shoulder. (ii) One incised injury across the neck just above the colar bone, neck was almost severed from the trunck-only tagged with skin on the back of neck cutting all the underline structures including big vessels, wind pipe and essophagus through and through cutting the body of the sixth cervical vertebra and spinal chord. Both the injuries were found to be by heavy sharp edged cutting weapon, may be a Daab. Death was caused instantaneously due to injuries over the neck which by itself was sufficient to cause death of the victim in ordinary course of nature. Time elapsed since death till post-mortem was opined to be within 36 hours. According to doctor the body was of a well built male aged about 35 years. Nothing material has been elicited in the cross-examination of this witness. 6. P.W. 2, Dhanesar Ram is the informant who has claimed to be an eye witness of the killing of his son Mosafir Ram. He has supported the prosecution case in all material particulars and only significant statement is in paragraph-18 of his cross-examination where he has admitted that about 20/25 years earlier one Shivdeni had lodged a case against Bhukhan Ram (P.W. 4) as well as against the informant and his son Mosafir (deceased) and others. P.W. 3, Sanfulia is wife of the deceased Mosafir Chamar. She has claimed that on the fateful night she was sleeping in the Angan and she got up because of minor rain drops. At that time she heard some sound of her father-in-law Dhaneswar Ram on which she opened the door and went near her husband who was sleeping in the Khalihan at a distance of 7-8 cubits from the house on a cot and her father-in-law was also sleeping in the same Khalihan on another cot kept in the line of cot of her husband. There she saw the accused persons. She disclosed that she could identify all the accused persons along with their arms because they were known to her from before and the night was moonlit night. There she saw the accused persons. She disclosed that she could identify all the accused persons along with their arms because they were known to her from before and the night was moonlit night. In cross-examination she has fully supported the manner of occurrence alleged by the prosecution and also the motive for the occurrence. In cross-examination it was stated by her that it was a full moon night. Her attention was drawn to her earlier statement made before the police that she had earlier claimed that when she reached the place of occurrence, at that time the accused persons were running away after killing her husband. She denied to have made such statement before the Investigating Officer, P.W. 7. In paragraph-17 of his cross-examination P.W. 7 has deposed that P.W. 3, Sanfulia had stated before him that when she reached at the place of occurrence at that time the accused persons were fleeing away after committing the murder. 7. P.W. 4 Bhukhan Ram, P.W. 5 Santu Chamar and P.W. 6 Shyam Lal Ram have been declared hostile and are not of any help to the prosecution except that the undisputed part of the occurrence i.e. murder of the deceased in the fateful night, hulla being raised at about 1 in the night and presence of the informant, Dhaneshar Ram, P.W. 2 and daughter-in-law of Dhanesar Ram is admitted even by P.W. 4, Bhukhan Ram who is named as a witness in the fardbeyan with an assertion that he came on hulla. 8. P.W. 7, Rajendra Kumar Singh is the Investigating Officer as noticed earlier. His evidence is corroborated by documents exhibited in the case such as the F.I.R. (Ext, 3), Inquest report (Ext. 4) and Postmortem Report (Ext. 1). He has supported the prosecution case in respect of place of occurrence. The dead body was found by him on a cot kept in the Khalihan and the body was besmeared in pool of blood as almost the entire neck had been cut with a sharp weapon. The bedding under the dead body was also soaked in blood and even the earth under the cot was besmeared with blood. That place was only at a distance of 12 cubits from the house of the informant. He also found another cot kept in the Khalihan. He also found some lose straws as well as arranged straws near the place of occurrence. That place was only at a distance of 12 cubits from the house of the informant. He also found another cot kept in the Khalihan. He also found some lose straws as well as arranged straws near the place of occurrence. During investigation he had looked into the records of another case which supported the motive of the alleged occurrence i.e. arrest of Juit Ram in another case of murder only about two months prior to the present occurrence. 9. As notice earlier appellant Narsingh Ram has taken a plea of alibi and in support of the same D.W. 1 a compounder has stated that he has brought bed head ticket of Narsingh Ram from Ramgarh State Dispensary where he is a compounder. He had also brought out-door Register covering the period 5.12.77 to 15.7.1978. He has admitted that on the basis of bed head ticket, entries are recorded in Indoor Register. He has admitted in cross-examination that he came to be posted in the said dispensary only in 1984 and has no personal knowledge of the entry in the Out-door Register nor he had seen the preparation of bed head ticket. D.W. 2, Dr. Ram Pyare has deposed that he had examined Narsingh Ram and diagnosed him to be a case of acute appendicitis as per entry no. 2080 dated 18.05.1978 in the Outdoor Register of Ramgarh State Dispensary. No Indoor Register was produced to support the claim of the doctor that he had admitted Narsingh Ram in the Hospital on 18.5.1978 as indoor patient bearing no. 29. According to him Narsingh Ram remained in the hospital till 23.05.1978 when he was discharged with some advice. The doctor has claimed that he treated the patient on all dates and the patient was not in a position to go out side the hospital. He has proved the so called bed head ticket as Ext. B and the entry no. 2080 of Outdoor Register dated 18.05.1978 has been proved by him as Ext. A. He has admitted that there is over-writing in the serial 2080 of Out-door Register without any initial or signature of the Medical Officer. 10. On a careful perusal of the evidence of D.W. 2, the doctor it is found that his claim that the patient could not go out of hospital makes this witness totally unreliable. A. He has admitted that there is over-writing in the serial 2080 of Out-door Register without any initial or signature of the Medical Officer. 10. On a careful perusal of the evidence of D.W. 2, the doctor it is found that his claim that the patient could not go out of hospital makes this witness totally unreliable. It is not possible for any doctor of the hospital to say with guarantee that a patient who has pain in appendicitis cannnot go out of the hospital. It is not the case of the defence that there were any police guards or guards of any nature who could physically prevent the appellant from coming out of the hospital. Even the claim that Narsingh Ram was a indoor patient appears to be doubtful in absence of any Indoor Register from the concerned dispensary. Over-writing on the relevant entry 2080 in the Outdoor Register (Ext. A) creates a bona fide doubt regarding genuineness of such entry which appears to be an incorporation as last entry of 18.5.1978. The so called bed head ticket (Ext. B) is only in the nature of a prescription and not bed head ticket of indoor patient. It does not show that at what time the various medicines were administered. Such record is maintained in the bed head ticket to avoid the possibility of duplication of medicines already administered. No such columns or entries are to be found in Ext. B. This document also does not inspire confidence. The evidence of the doctor, D.W. 2 shows that he is a specialist in medicine (MD) from L.N. Mithila University. An acute case of appendicitis should have been got examined by a Surgeon at the earliest but that was never done and no other doctor particularly a Surgeon examined Narsingh Ram during his alleged hospitalisation on account of acute appendic its between 18.05.1978 and 23.05.1978. This entire plea of alibi appears to be doubtful. 11. The main defence of the appellants is that they have been implicated on account of enmity between Shiv Dani and the informants family. This entire plea of alibi appears to be doubtful. 11. The main defence of the appellants is that they have been implicated on account of enmity between Shiv Dani and the informants family. No doubt P.W. 2 has admitted that Shiv Dani had lodged a case against him and some others about 20-25 years earlier but how that led to enmity between the informant and the accused persons has not been clarified and there is no material at all to show any enmity which could have influenced the informant and his family members to implicate the accused persons in such a serious case. Only P.W. 4 a hostile witness has answered in cross-examination that Shiv Deni Chamar belongs to the party of the accused persons. Such vague claim from a hostile witness elicited in cross-examination is found totally insufficient to substantiate the claim of enmity raised by the defence. It is also improbable that any case lodged 20-25 years earlier will have a lasting effect to be the source of enmity for falsely implicating persons other than Shiv Dani who had lodged the case. Thus, it is found that the main defence of the accused appellants that they have been implicated on account of enmity does not have any substance. 12. On a careful evaluation of the evidence of the informant who happens to be father of the deceased, it is found that his deposition as an eye witness suffers from no infirmity and there is no good reason for not placing reliance on his evidence. So far as the other eye witness, P.W. 3 Sanfulia is concerned, it appears that the house where she was sleeping is only at a distance of about 12 cubits from the place of occurrence which is almost infront of Darwaja, hence her claim of hearing some sound and coming out appears to be quite natural. The defence has not challenged the claim that fateful night was a full moon night and the accused persons are well known from before to the informant as well as to P.W. 3. In such circumstances the identification of the accused appellants in course of the occurrence or soon thereafter while preparing to move away from the place of occurrence cannot be disbelieved on the ground that it was not possible for the witnesses to identify the culprits. In such circumstances the identification of the accused appellants in course of the occurrence or soon thereafter while preparing to move away from the place of occurrence cannot be disbelieved on the ground that it was not possible for the witnesses to identify the culprits. There appears some confusion on account of earlier statement of P.W. 3 made before the I.O. (P.W. 7) that when she reached at the place of occurrence at that time the accused persons were running away after committing murder. But on a close analysis of her entire evidence in court and considering natural conduct of a female relation of a deceased it appears probable that on coming out of the house she might have taken some time at the Darwaja to have a view of what was happening in the Khalihan. It is possible in such a situation that she saw the killing from the Darwaja and by that time she dared to come to the place of occurrence, that is the place where the cot of her husband was kept, the accused persons had started fleeing away. On account of natural fear in the aforesaid situation, a female may not like to rush to the place of occurrence before being sure as to who were present around and what was happening. Thus, it is found that on account of her earlier statement before the I.O. it cannot be said that before reaching the actual place of occurrence she could not have seen the assault upon her husband when from the house the place of occurrence is only at a distance of 12 cubits. 13. Thus, considering all the facts and circumstances we find that the trial court has committed no error in convicting the appellants of the charge u/s. 302 read with Sec. 34 of the Indian Penal Code. Accordingly, we up-hold the conviction and sentence awarded to the appellants. The appeal shall stand dismissed. As a result the bail bonds of the appellants shall stand cancelled. They should be taken into custody to serve out the remaining sentence in accordance with law.