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2007 DIGILAW 1502 (PAT)

Sabir Ansari v. State Of Bihar

2007-09-13

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment Chandramauli Kr.Pd. and Rekha Kumari JJ. 1. Sole appellant, being aggrieved by the judgment dated 16.7.2002 and order dated 18.7.2002 passed by the Additional Sessions Judge, Fast Track Court No. Ill, Gopalganj in Sessions Trial No. 34/188 of 2001/2002 holding him guilty u/s. 302 of the Indian Penal Code and inflicting the punishment of imprisonment for life, has preferred this appeal. 2. Prosecution story, according to the first information report given by Karmullah Ansari, the deceased himself, on 2.7.2000 at 7 P.M. at Primary Health Centre, Kateya, is that in the night between 1/2.07.2000, he was sleeping in his mango orchard, south to his village and his wife was also sleeping nearby. At about 1 Oclock in the night, his agnate appellant Sabir Ansari came armed with axe (Tangi) and assaulted him on his head, he started bleeding. On the alarm raised by his wife, P.W. 2 Rehana Khatoon, appellant fled away from the place of occurrence. Thereafter, the family members took him to the Primary Health Centre, Kateya for treatment. According to the informant, his wife as also his elder brother Salamat Mian (P.W. 1) had also seen the occurrence. The motive of the occurrence, according to the first information report, was the land dispute between them, since last six months. 3. On the basis of the aforesaid information, Kateya P.S. Case No. 83 of 2000 was registered under Ss. 324 and 307 of the Indian Penal Code. 4. According to the prosecution, after the informant was admitted to the Primary Health Centre, Kateya, the attending doctor referred him for treatment to District Hospital, Gopalganj and from there, he was referred to the hospital at Deoria. He underwent treatment at the Hospital at Deoria but the injured later on referred to a Hospital at Gorakhpur. The doctor at Gorakhpur Hospital opined that the injured will not survive and accordingly, he was brought to the village. He died in the same night on 6.7.2000. 5. After the death of the informant, Sec. 302 of the Indian Penal Code was added. Police, after usual investigation, submitted charge-sheet against the appellant and he was ultimately committed to the court of sessions to face the trial, where he was charged for committing the murder by intentionally causing the death of Karmullah Ansari, punishable u/s. 302 of the Indian Penal Code. 6. Appellant pleaded not guilty and claimed to be trial. 7. Police, after usual investigation, submitted charge-sheet against the appellant and he was ultimately committed to the court of sessions to face the trial, where he was charged for committing the murder by intentionally causing the death of Karmullah Ansari, punishable u/s. 302 of the Indian Penal Code. 6. Appellant pleaded not guilty and claimed to be trial. 7. Prosecution, in support of its case, examined altogether four witnesses, P.W. 1 Salamat Mian is the elder brother of the deceased, whereas P.W. 2 Rehana Khatoon is his wife. P.W. 3 Dr. Ashok Kumar Choudhary is the Medical Officer, who had conducted the post-mortem examination on the dead body of Karmullah Ansari, whereas P.W. 4 Dr. M.S. Siddique had examined the deceased at the first instance at Primary Health Centre at Kateya. 8. The defence of the appellant is false implication and according to him, he was so sick that he was not in a position to commit the crime. He has further pleaded false implication on the ground of pending land dispute. In support of his case, he has examined one Markandey Prasad, a Tayeed, who proved the discharge certificate granted by a doctor of Ram Manohar Lohiya Hospital, New Delhi. 9. One Jitendra Kumar Singh, a Police Constable, has been examined as court-witness, proved the Fard beyan (Ext. 3), Inquest Report (Ext. 6) and the First Information Report. 10. The Court below, on appraisal of evidence, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly, convicted and sentenced the appellant as above. 11. P.W.1 has stated in his evidence that on the alarm raised by the wife of the deceased, he went near the place of occurrence, brought the injured to Kateya Primary Health Centre, where he underwent treatment. He has further stated that in the morning, the Sub-Inspector of Police came to whom the injured gave statement. He has also stated that he was assaulted by axe by the appellant. Thereafter, the injured was referred to Gopalganj Hospital and thereafter to Deoria Hospital. According to him, the injured was treated at Deoria Hospital for two days and thereafter, he was taken to Gorakhpur Hospital, where the doctor opined that the injured will not survive. At this, the injured was taken to the village, where he died in the same night. Thereafter, the injured was referred to Gopalganj Hospital and thereafter to Deoria Hospital. According to him, the injured was treated at Deoria Hospital for two days and thereafter, he was taken to Gorakhpur Hospital, where the doctor opined that the injured will not survive. At this, the injured was taken to the village, where he died in the same night. He has also stated that there was land dispute pending between the appellant and the deceased. 12. P.W. 2 Rehana Khatoon is the wife of the deceased. She has stated in her evidence that she alongwith her husband was sleeping in the orchard. She saw the appellant coming and assaulting her husband by axe. The axe blow caused injury on the head of her husband, who became unconscious. After he raised alarm, the appellant fled away. Thereafter, her husband was taken to Kateya Primary Health Centre, where police came and recorded his statement. She has specifically stated that at the time when her husband gave statement, he was conscious. According to her, the injured was referred to Gopalganj Hospital and from there, to Deoria Hospital. He was treated at Deoria Hospital and thereafter again referred to the Hospital at Gorakhpur. The doctor at Gorakhpur advised them to take back the injured to the village. In the cross-examination, she has stated that the night was dark but reiterated that lantern was burning there. She had denied the suggestion that appellant was sick and because of previous enmity, he was implicated in the case. 13. P.W. 3 Dr. Ashok Kumar Choudhary, at the relevant time, was posted as Medical Officer at Sadar Hospital, Gopalganj, who had conducted the post-mortem examination of the dead body of the deceased Karmullah Ansari. He found one ante-mortem stitched wound longitudely from fore-head to occipital region of the head measuring about 4.1/ 2". On dissection, the doctor found blood clots on meninges and brain tissue as also fracture of both left and right parietal bones. In the opinion of the doctor, death had occurred on account of shock caused due to the head injury and the time elapsed since the death was within 24 hours. 14. P.W. 4 Dr. On dissection, the doctor found blood clots on meninges and brain tissue as also fracture of both left and right parietal bones. In the opinion of the doctor, death had occurred on account of shock caused due to the head injury and the time elapsed since the death was within 24 hours. 14. P.W. 4 Dr. M.S. Siddique, at the relevant time, was posted as Medical Officer at Primary Health Centre, Kateya and according to him, on 2.7.2000 at about 2.10 A.M., he examined Karmullah Ansari and found incised wound of the size 5" x 1/2"x bone deep on upper frontal scalp with sharp margins and bleeding. He found that the injury was caused by sharp cutting weapon such as Tangi. He referred the injured for treatment to Sadar Hospital, Gopalganj. 15. D.W. 1 Markandey Prasad is a Tayeed, who had proved the discharge certificate given Dr. A.K. Agrawal of Ram Manohar Lohiya Hospital. 16. C.W. 1 Jitendra Kumar Singh is a police constable (L.C) and proved the writing and signature of the Sub-Inspector of Police, who had recorded the Fard beyan. He has also proved the Inquest Report as also the Formal First Information Report. 17. Mr. Rajesh Kumar appears on behalf of the appellant as Amicus Curiae. State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor. 18. Mr. Kumar, draws our attention to the evidence of P.W. 2 in paragraph no. 5 of the cross-examination, where she has admitted that the occurrence had taken place in the dark night. He submits that in view of darkness, it was not possible for the witness to identify the appellant. According to him, identification of the appellant in the dark night, is doubtful and as such, appellant deserves to be given the benefit of doubt. 19. Mr. Prasad, submits that the visual capacity of a person living in the village cannot be compared with that of urban people. He points out that the people living in the village are accustomed to darkness and, therefore, can identify persons in dark night also. 20. We find substance in the submission of Mr. Prasad. True it is that the occurrence had taken place at 1 o Clock in the dark night but the assailant in the case is not a stranger. Appellant happens to be the son of the elder brother of the deceased and therefore, closely related to P.W. 2. 20. We find substance in the submission of Mr. Prasad. True it is that the occurrence had taken place at 1 o Clock in the dark night but the assailant in the case is not a stranger. Appellant happens to be the son of the elder brother of the deceased and therefore, closely related to P.W. 2. In our opinion, there shall be no difficulty in identifying a close relation in dark night. Not only this, according to the evidence of P.W. 2 Rehana Khatoon, lantern was burning. Further P.W. 2 Rahana Khatoon was sleeping near the deceased and the appellant had come near the deceased and assaulted him by axe. Therefore, P.W. 2 Rehana Khatoon had the occasion to see the appellant from a close distance. Further, we are of the opinion that the visual capacity of the villagers cannot be compared with that of the urban people, who are accustomed to the fluorescent-light. 21. Mr. Kumar, submits that according to the prosecution, the means of identification is lantern, but the same has not been exhibited. We are of the opinion that the case of the prosecution shall not fail only on the ground that the means of identification has not been proved. We find evidence of P.W. 2 Rehana Khatoon to be trustworthy and her claim of identification to be reliable and as such, non-production of the lantern shall itself not create any doubt to the case of the prosecution. 22. Mr. Kumar, submits that appellants conviction is based on the dying declaration, but the same is not fit to be treated as such. He submits that the author of the dying declaration has not been examined and further, P.W. 1 Salamat Mian, who has stated about the dying declaration, is not a witness to the First Information Report. He points out that had P.W. 1 Salamat Mian was present at the time when the Fard beyan was recorded, his name ought to have been figured as a witness to the same. 23. Mr. Prasad, however, submits that the assumption of the appellant that his conviction is based on the dying declaration, is unfounded on fact. He points out that in fact, the Court below had relied on the evidence of the eye-witness P.W. 2 Rehana Khatoon and P.W. 1 Salamat Mian and being satisfied that their evidence is trustworthy, recorded the conviction. 24. Prasad, however, submits that the assumption of the appellant that his conviction is based on the dying declaration, is unfounded on fact. He points out that in fact, the Court below had relied on the evidence of the eye-witness P.W. 2 Rehana Khatoon and P.W. 1 Salamat Mian and being satisfied that their evidence is trustworthy, recorded the conviction. 24. Having appreciated the rival submission, we find substance in the submission of Mr. Prasad. True it is that the Sub-Inspector of Police, who had recorded the Fard beyan has not been examined, but P.W. 1 Salamat Mian has clearly stated that the deceased, in his Fard beyan, had given the cause of death and had stated that it was the appellant, who assaulted him by axe. Thus, the aforesaid dying declaration lends support to the case of the prosecution. 25. Mr. Kumar, lastly submits that according to the prosecution, appellant had given single blow and as such, it cannot be said that he intended to cause death. Hence his conviction is fit to be altered u/s. 304-II of the Indian Penal Code. 26. It is well settled that the number of injuries although a relevant factor but not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is inflicted and the weapon used in causing such injury which indicate the intention of the accused. Here, the appellant had come in the dead of night armed with a deadly weapon, i.e. axe. From the post-mortem report, it is clear that he used great force in assaulting the deceased. This would be evident from the fact that both left and right parietal bones were fractured. The appellant had caused injury on a vital part of the body of the deceased, i.e. head. Taking into account the aforesaid facts, we are of the opinion that the appellant intended to cause death and hence rightly convicted and sentenced for the offence u/s. 302 of the Indian Penal Code. The view which we have taken finds support from the judgment of the Supreme Court in the case of Namdeo V/s. State of Maharashtra, 2007 3 PLJR 89 , wherein it has been held as follows: "41. Finally, we are unable to uphold the argument of the learned counsel for the appellant-accused that the case falls u/s. 304-II IPC. The view which we have taken finds support from the judgment of the Supreme Court in the case of Namdeo V/s. State of Maharashtra, 2007 3 PLJR 89 , wherein it has been held as follows: "41. Finally, we are unable to uphold the argument of the learned counsel for the appellant-accused that the case falls u/s. 304-II IPC. Considering the nature of weapon used by the accused (axe) and the vital part of the body (head) of the deceased chosen by him, it was clear that the intention of the accused was to cause death of Ninaji." 27. As regards the plea of the appellant that he was sick and not in a position to commit the offence, is not fit to be accepted. Occurrence had taken place in the night between 1 st and 2nd of July, 2000. Discharge summary shows his discharge from the Ram Manohar Lohia Hospital on 19.3.2000 and diagnosed to be suffering from right parietal inflammatory Granuloma. Appellants Counsel is not in a position to say that the said disease makes the patient immobile. Accordingly it can not be said that physical condition incapacitated him from committing the crime. 28. In the result, we do not find any merit in the appeal and it is dismissed accordingly.