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2007 DIGILAW 1519 (PAT)

Dudhesh Sharma @ Dudhesh Singh v. State Of Bihar

2007-09-17

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment Chandramauli Kr.Prasad and Rekha Kumari JJ. 1. Sole appellant; being aggrieved by the judgment and order dated 20.08.2002 and 21.08.2002 passed by the 10th Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 512 of 1997/187 of 1997 holding him guilty for offence 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 fard beyan given by P.W. 7 Ram Naresh Sharma before the Sub-Inspector of Police of Sonepur Police Station on 20.2.1997 at about 11.15 A.M. at village Babhantoli is that in the morning his wife Shanti Kumari, a Teacher in a Government Middle School was cooking, when he asked her to prepare tea. At that time he was sitting by her side and at that time, his third brother, Dudhesh Sharma the appellant herein came armed with a sickle and suddenly slit her neck by holding her hairs. Informant immediately wraped Muffler and Sawl on her neck to stop bleeding. Thereafter she was being taken for treatment to the Patna Medical College Hospital but she died in way at Kumar Ghat. According to the informant his sister-in-law and children had seen the occurrence. 3. The motive of the occurrence, according to the First Information Report is that few days prior to the incident, appellant was pressing to obtain gun licence so that he could be employed as a private Guard. Informant disclosed his helplessness, which annoyed the appellant and he suspected that his wife, the deceased is the stumbling block in the same. 4. On the basis of the aforesaid information, Sonepur P.S. case No. 46 of 1997 was registered against the appellant u/s. 302 of the Indian Penal Code. 5. Police after usual investigation submitted charge-sheet against the appellant and he was ultimately committed to the Court of Sessions to face trial, where he was charged for murder by intentionally causing the death of Shanti Kumari, punishable u/s. 302 of the Indian Penal Code. 6. Appellant pleaded not guilty and claimed to be tried. 7. Prosecution in support of its case examined altogether nine witnesses, out of whom P.W. 1 Bulli Kumari, P.W. 2 Anand Prakash, P.W. 3 Mala Kumari, P.W. 4 Ekta Kumari, P.W. 6 Nagendra Kumar Sharma @ Nagendra and P.W. 7 Ram Naresh Sharma, the informant herein claim to be the eye-witnesses to the occurrence. 7. Prosecution in support of its case examined altogether nine witnesses, out of whom P.W. 1 Bulli Kumari, P.W. 2 Anand Prakash, P.W. 3 Mala Kumari, P.W. 4 Ekta Kumari, P.W. 6 Nagendra Kumar Sharma @ Nagendra and P.W. 7 Ram Naresh Sharma, the informant herein claim to be the eye-witnesses to the occurrence. P.W. 5 Braj Kishore Sharma has been examined to corroborate the case of the prosecution; whereas P.W. 8 Ram Awagya Rai is the Investigating Officer of the case. P.W. 9 Rajesh Kumar is an Advocates Clerk and has proved the post mortem report. 8. Defence of the appellant is denial simplicitor and he has also pleaded false implication. From the trend of the cross-examination his defence further seem to be that the deceased was a lady of loose character and was done to death in the early hours of the day and although no body had seen her being murdered but in order to save the prestige of the family, the appellant has been implicated in the case. However, no defence witness has been examined. 9. P.W. 1 Bulli Kumari is the daughter of the deceased and aged about 10 years on 4.07.1998 when her evidence was re-corded. According to her, on the date of incident in the morning while her mother was preparing tea, her uncle came, held her hairs from left hand and slit her neck by sickle by the right hand. Her mother died while being taken to the Hospital. She had further, stated that at the time when the occurrence had taken place her father (P.W. 7) Ram Naresh Sharma, her sisters Mala Kumari (P.W. 3), Ekta Kumari (P.W. 4) and brother Anand Prakash (P.W. 2) were present in the house. In the cross-examination, she had stated that her grandmother was bathing in the courtyard. In the cross-examination she has asserted that copious blood had fallen near the oven, where her mother was preparing tea and assaulted by the appellant. 10. Similarly P.W. 2 Anand Prakash, who happens to be the son of the deceased, had stated that at about 8.30 A.M. on 20.02.1997 while his mother was preparing tea for his father, his uncle appellant Dudhesh Sharma came and slit her neck by sickle by right hand, holding her hairs by left hand. Her mother died at Kumar Ghat, while being taken to the Hospital. Her mother died at Kumar Ghat, while being taken to the Hospital. According to this witness, the occurrence was seen by his sisters, Mala Kumari (P.W. 3) and Bulli Kumari (P.W. 1) as also Ekta Kumari (P.W. 4) besides his father (P.W. 7). In the cross-examination he disclosed that his father had three brothers, namely, Mahesh Singh; Dudhesh Singh the appellant herein and Nagendra Singh (P.W. 6). In paragraph 20 of the cross-examination he had disclosed that while being taken to the Hospital his father asked one of the doctors at a village Bazar to treat the injured but he refused to do the same. Evidence of this witness was recorded on 4.07.1998 and he disclosed his age to be 13 years and it was so assessed by the Court. 11. P.W. 3 Mala Kumari is another daughter of the deceased, who was aged about 16 years on 20.07.1998, the date on which her evidence was recorded. According to her on the date of occurrence at about 8.30 A.M. while her mother was preparing tea, the appellant came, held her hairs from the left hand and slit her neck by the right hand. Her mother fell down, whereupon her father alongwith other persons lifted her and while on way to the Patna Medical College Hospital, she died at Kumar Ghat. Like other witnesses she had stated about the presence of all her sisters, bother and father at the time of the incident. Her mother was a Teacher in the Government School and according to her, the motive of the occurrence was that his uncle used to demand money for purchase of gun, so that he can be employed as a private Guard but her father and mother had showed their helplessness. In the cross-examination she has stated that the occurrence had taken place so suddenly that she did not get opportunity to catch hold of her uncle. In cross-examination she has asserted that she had followed her mother upto Kumar Ghat where she died and at that time her uncle Mahesh Singh, Nagendra Sharma (P.W. 6), father, grandmother and other sisters besides thousands of people were present. According to this witness, after her mother died at Kumar Ghat she was brought back to the house and she alongwith other witnesses had also returned. According to this witness, after her mother died at Kumar Ghat she was brought back to the house and she alongwith other witnesses had also returned. She has asserted that near the oven, where her mother was preparing tea copious blood was found, so also on the chair and the cot which she occupied. 12. P.W. 4 Ekta Kumari was aged about 14 years on the date of her examination on 22.07.1998 and according to her on the date of occurrence at about 8.30 A.M. while her mother was preparing tea, her uncle appellant Dudhesh Singh came and slit her neck by sickle by right hand, while holding her hairs by left hand. Sustaining the injury her mother fell down, whereupon ail of them including her father came, brought her at the Darwaja and sat her on the chair. According to her, Kumar Ghat is near her village and across the said Ghat, Patna Medical College Hospital is situated. While on way to the Patna Medical College Hospital her mother died at Kumar Ghat. This was disclosed by the persons collected there and thereafter her mother was brought back to the village. In her cross-examination she had stated that excepting the son of her eldest uncle all other family members were in the house. She had asserted that the occurrence had taken place in few seconds and they did not get time either to raise alarm or to prevent the appellant from committing the crime. She had also stated that while being taken to the Patna Medical College Hospital, attempt was made to get her treated by a private Doctor in the Bazar, but he refused to attend to her mother. 13. P.W. 5 Braj Kishore Sharma is a neighbour of the informant and according to him his house is situated 10 to 15 metres away from his house. According to him on hearing the alarm he went towards the house of the deceased and found the appellant fleeing away from there. When he went to the house, he found that the Shanti Kumari was being assisted by the family members to come to the Darwaja. She was helped to sit on a chair, at Darwaja. He also found clothes wrapped in her neck which was soaked with blood. When he went to the house, he found that the Shanti Kumari was being assisted by the family members to come to the Darwaja. She was helped to sit on a chair, at Darwaja. He also found clothes wrapped in her neck which was soaked with blood. Shanti Kumari was then laid on a cot, and was being taken to the Patna Medical College Hospital and when she reached near Kumar Ghat, it was noticed that she is already dead. Thereafter all of them returned to the village with the dead body. According to his evidence, the appellant after he had returned from Mumbai was insisting upon his brother and his wife, the informant and the deceased herein respectively, to provide fund for purchase of gun in order to obtain the job of Guard, but both of them showed their helplessness. According to this witness the appellant held his brothers wife i.e. the deceased to be primarily responsible for the same. He is also a witness to the Inquest report and has proved the same (Ext. 1). He has asserted in paragraph 9 of the cross-examination that for going to Patna from Kumar Ghat machine operated boat is available. He had further stated that across Kumar Ghat Patna Medical College Hospital is situated and its distance is about 3 Kilometre. In paragraph 12 of the cross-examination, he had asserted that while being taken to Kumar Ghat attempt was made to give her first aid but same was not possible, as the Primary Health Centre was closed. 14. P.W. 6 Nagendra Kumar Sharma, is the youngest brother of the informant and the appellant. According to him the deceased Shanti Kumari was his brothers wife who was employed as Assistant Teacher in a Government School and maintaining the house. According to him, the deceased was preparing tea and her husband was sitting by her side when all of a sudden, the appellant came, caught hold her hairs and slit her neck. At this his brother, nephew and nieces raised alarm. His brother tied Muffler around her neck and all of them took her to the Verandah of the house and she sat on a chair. Immediately thereafter, cot was brought, for taking her to the Hospital. As no Doctor was available in the village, she was taken to Kumar Ghat, but people collected there disclosed that she is dead. His brother tied Muffler around her neck and all of them took her to the Verandah of the house and she sat on a chair. Immediately thereafter, cot was brought, for taking her to the Hospital. As no Doctor was available in the village, she was taken to Kumar Ghat, but people collected there disclosed that she is dead. Thereafter he alongwith the deceased returned to the house at about 9.30 A.M. According to him, appellant all the time used to pressurise his brother and his wife to provide fund for purchase of gun but the deceased salary used to be exhausted in maintenance of the house they showed their helplessness. In paragraph 10 of the cross-examination, he has disclosed that his mother was bathing in the house. According to him the appellant had not taken any training of Security Guard. In paragraph 27 of the cross-examination he had asserted that Patna is near to his house, than that of Hazipur and better medical facilities are available at Patna. 15. P.W. 7 Ram Naresh Sharma is the husband of the deceased and the informant of the case. According to him, his wife Shanti Kumari was an Assistant Teacher in a Government Middle School and posted in the village itself. Appellant is his own brother. On the date of occurrence, at about 8.30 A.M. his wife was cooking, and he was sitting nearby when he asked her to prepare tea. At that time, his brother appellant Dudhesh Sharma suddenly came, caught her from behind and slit her neck by sickle. He wrapped Muffler and Shawl around her neck and left for the Patna Medical College Hospital for her treatment, but she died on way; at Kumar Ghat. The incident was seen by her daughters, son and brother, the witnesses herein, besides the other family members. The motive of the occurrence, according to this witness is that the appellant suspected that his wife was responsible for not purchasing the gun, which he wanted to procure so as to get employed as Private Guard at Mumbai. According to him, his statement was recorded by the Sub-Inspector of Police. He has proved his fardbeyan. Similar to other witnesses, this witness has also stated that at the time of occurrence, her mother was bathing. According to him, his statement was recorded by the Sub-Inspector of Police. He has proved his fardbeyan. Similar to other witnesses, this witness has also stated that at the time of occurrence, her mother was bathing. According to him, he could not make any attempt to prevent the appellant from committing the crime, as the occurrence had taken place suddenly. In the cross-examination he had further stated that in between his house and Kumar Ghat, Sabalpur Bazar is situated where he made attempt to get his wife treated but the doctors showed their inability, because of excessive bleeding. He had asserted that boat takes about forty minutes to reach Patna Medical College Hospital from Kumar Ghat. He had denied the suggestion that while his wife had gone to attend the call of nature, she was killed by unknown persons and in order to save the prestige, appellant was falsely implicated. 16. P.W. 8 Ram Awagya Rai, at the relevant time was posted as the Officer-In-Charge of the Sonepur Police Station and according to him, on 20.2.1997 in the morning he got information that a person has been killed at Sabalpur Babhantoli. He entered the said information in the station Diary and proceeded to the village. There he recorded the statement of the informant. According to this witness, during the course of investigation he recorded the statements of the witnesses, prepared the Inquest report, and drew the formal First Information Report. He had also proved those documents. According to this witness, during the course of investigation, he found blood near the place of occurrence and also recovered blood-stained sickle. However, in the cross-examination he has admitted that those articles were not sent for chemical examination. 17. The Court below, on appraisal of evidence came to the conclusion that the prosecution had proved its case beyond all reasonable doubt and accordingly convicted and sentenced the appellant as above. 18. Mr. Anant Kumar Bhaskar, appears on behalf of the appellant, whereas the State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor. 19. Mr. Bhaskar, submits that P.W. 1 Bulli Kumari, P.W. 2 Anand Prakash, P.W. 3 Mala Kumari and P.W. 4 Ekta Kumari, who are the daughters and son of the deceased were of tender age and possibility of they being tutored cannot be ruled out. Lala Kailash Bihari Prasad, Additional Public Prosecutor. 19. Mr. Bhaskar, submits that P.W. 1 Bulli Kumari, P.W. 2 Anand Prakash, P.W. 3 Mala Kumari and P.W. 4 Ekta Kumari, who are the daughters and son of the deceased were of tender age and possibility of they being tutored cannot be ruled out. He submits that P.W. 1 Bulli Kumari, P.W. 2 Anand Prakash, P.W. 3 Mala Kumari and P.W. 4 Ekta Kumari were aged about 9 years, 12 years, 15 years and 13 years respectively at the time of incident and hence not mature enough to narrate the crime. In that view of the matter, according to Mr. Bhaskar, it shall be unsafe to sustain the conviction of the appellant on the testimony of these children. 20. Mr. Prasad, however, contends that the witnesses have attained the age of discretion and they have seen their mother being killed in their presence and, as such, their evidence is not fit to be rejected only on the ground that they happen to be the children. 21. Having, appreciated the rival submission, we do not find any substance in the submission of Mr. Bhaskar. True it is that witnesses aforesaid are child witnesses but their evidence is not fit to be discarded only on the ground of their age. They are natural witnesses and all of them are of understandable age. They have consistently stated the manner in which the occurrence had taken place. There is nothing in their cross-examination to show that they have been tutored and, as such, we are not inclined to reject the evidence of the aforesaid witnesses only on the ground that they happen to be child witnesses. 22. Mr. Bhaskar, submits that most competent and neutral persons to depose the truthfulness or otherwise of the prosecution case was the mother of the informant as also the appellant but the prosecution has deliberately withheld her evidence to conceal the real truth. We do not find any substance in this submission of Mr. Bhaskar. There is consistent evidence on record that she, although present at the house at the time of incident but was bathing. In that view of the matter, she must not had seen the incident and, as such, failure on part of the prosecution to examine her in no way creates any doubt to the case of the prosecution. 23. Mr. There is consistent evidence on record that she, although present at the house at the time of incident but was bathing. In that view of the matter, she must not had seen the incident and, as such, failure on part of the prosecution to examine her in no way creates any doubt to the case of the prosecution. 23. Mr. Bhaskar, submits that according to the prosecution witnesses, a large number of persons had assembled at the place of occurrence, but excepting the family members, no other witness has been examined. This according to Mr. Bhaskar creates doubt to the case of the prosecution and the appellant, therefore, deserves to be given the benefit thereof. 24. We do not find any substance in this submission of the learned Counsel. The occurrence had taken place inside the house and not in a public view and, as such, the villagers must not have seen the incident. Not only this the witnesses are not only related to the informant but the appellant also. In fact P.W. 6 Nagendra Kumar Sharma happens to be the brother both of the informant and the appellant. As the occurrence had taken place inside the house, the family members are natural witnesses to the occurrence. Non-examination of the witnesses collected after the occurrence, in our opinion, in no way affects the credibility of the case of the prosecution. To put the record straight P.W. 5 Braj Kishore Sharma is a neighbour and had been examined to corroborate the case of the prosecution. 25. Mr. Bhaskar, submits that according to the prosecution the motive of the alleged occurrence is helplessness of the informant and his wife to purchase the gun. Said motive, according to the learned Counsel was not sufficient enough to compel the appellant to murder his own sister-in-law. We do not find any substance in this submission of the learned Counsel. What is lodged in the heart of the assailant is known to him and neither the Court nor the witnesses have any means to know the same. There is consistent evidence on record that appellant wanted to purchase gun so that he can be employed as a Private Security Guard but thought that the deceased was creating hindrance in that. This motive according to the prosecution, promoted him to cause the ghastly murder. All the witnesses have consistently stated so. There is consistent evidence on record that appellant wanted to purchase gun so that he can be employed as a Private Security Guard but thought that the deceased was creating hindrance in that. This motive according to the prosecution, promoted him to cause the ghastly murder. All the witnesses have consistently stated so. Hence we are not inclined to reject the case of the prosecution on the ground that the motive was not sufficient enough to cause the crime. 26. Mr. Bhaskar, emphasises that the natural conduct of the informant and the family members would have been to rush the injured to the nearest Hospital at Sonepur to save her life, instead they made attempt to take her to a distant place for treatment i.e. Patna Medical College Hospital. This conduct, according to him is unnatural making the prosecution story unworthy of reliance. We do not find any substance in this submission of the learned Counsel. There is evidence on record that Kumar Ghat, from where the deceased was intended to be brought to Patna Medical College Hospital takes only 40 minutes to reach there. Sonepur may be near to the village, where the occurrence had taken place but nearness itself shall not mean that one can reach there quickly. It depends upon the mode of transport. The seriousness of the injury and nearness of the Patna Medical College Hospital and availability of better facility there, the informant and the family members attempted to take the deceased to the Patna Medical College Hospital. This is the most natural conduct of the family members. 27. Mr. Bhaskar, submits that the doctor, who had conducted the post mortem examination has not been examined and as such, same can not be looked into to know the cause of death. Hence the appellant cannot be convicted for offence u/s. 302 of the Indian Penal Code. This is the most natural conduct of the family members. 27. Mr. Bhaskar, submits that the doctor, who had conducted the post mortem examination has not been examined and as such, same can not be looked into to know the cause of death. Hence the appellant cannot be convicted for offence u/s. 302 of the Indian Penal Code. In support of the submission, he has placed reliance on a judgment of the learned Single Judge of this Court in the case of Hridayanand Yadav V/s. State of Bihar, 2000 1 PLJR 387 and our attention has been drawn to the following passage from paragraph 6 of the judgment, same reads as follows:- "If doctor was not available even after efforts, reasons for his non-avail-ability should have been stated and any other doctor of Arrah Sadar Hospital familiar with the writing of the doctor who examined the injured should have been examined so that he could have also given his expert opinion on the injury report by that way Court could have come to the conclusion that whether oral evidence of the witnesses are corroborative with the injuries recorded by the doctor, which has not done in this case. Even if injuries report is said to be proved but the nature of injury and cause of the same could not be ascertained." 28. P.W. 9 Rajesh Kumar is an Advocates Clerk and he had identified the writing and signature of the doctor who had conducted the post mortem examination and has proved the same (Ext. 5). In the post mortem report the doctor had found one incised wound of size 5" x 1" x 3" deep cutting the skin, soft tissue vessels and muscles present over right lateral aspect of middle portion of the neck. He had also found one abrasion 2"x 1/4" present over left palm. According to the post mortem report the aforesaid injury was caused by sharp cutting weapon and the deceased died of shock and haemorrhage on account of the aforesaid injuries which were sufficient to cause death in ordinary course of nature. 29. We do not find any substance in the submission of Mr. Bhaskar and the decision relied on is clearly distinguishable. P.W. 9 Rajesh Kumar had proved the post mortem report and same has been admitted in evidence without any objection. 29. We do not find any substance in the submission of Mr. Bhaskar and the decision relied on is clearly distinguishable. P.W. 9 Rajesh Kumar had proved the post mortem report and same has been admitted in evidence without any objection. It would have been better to examine a doctor posted at the same place where the post mortem examination was conducted but we are of the opinion that mere non-examination of the doctor who had conducted the post mortem examination or for that matter any other doctor shall not render the post mortem report inadmissible, in the face of the evidence of P.W. 9 who had proved the same. 30. Mr. Bhaskar, submits that the deceased was killed somewhere else and the appellant has been falsely implicated to save the prestige of the family. Although such a suggestion was given to the informant P.W. 7 but he had denied the same. Not only this, the Investigating Officer of the case had found blood, near the oven, where the occurrence had taken place. We fail to understand, how making the appellant accused, the prestige of the family members would be saved. Accordingly, this submission has no legs to stand and the same is accordingly, rejected. 31. Mr. Bhaskar, lastly submits that in the absence of any provocation immediately prior to the incident, there was no occasion for the appellant to commit the crime and it seems that he had committed the crime in state of unsoundness. According to him, the manner in which the crime has been committed clearly shows that he was not in a sound mental condition and, as such, his trial as also conviction and sentence are vitiated. According to him, the manner in which the crime has been committed clearly shows that he was not in a sound mental condition and, as such, his trial as also conviction and sentence are vitiated. Reliance has been placed on a decision of the learned Single Judge of this Court in the case of Ram Swarup Thakur V/s. State of Bihar, 2000 1 PLJR 905 and our attention has been drawn to the following passage from paragraph 16 of the judgment, which reads as follows:- "The Supreme Court further held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. This principle of law applied to the facts of the present case. The appellant has been able to rebut the presumption. The prosecution has not discharged the onus by placing sufficient evidence to enable the Court to give a finding that the appellant was sane at the time of committing crime. The principle laid down by the Supreme Court in Dahyabhai case (supra) answers the contention of Mr. Lala Kailash Behari Prasad, learned Counsel appearing for the State that the appellant has not been able to prove that he was insane and to bring on record the evidence which should have been conclusive to show that he was insane." 32. We do not find any substance in the submission of the learned Counsel and the decision relied on, in no way supports the case of the appellant. Appellant had nowhere pleaded that at the time the crime was committed he was not in a sound mental condition. Had the appellant pleaded so, one would had expected the prosecution to place sufficient evidence to give finding that the appellant was sane, at the time of committing the crime. In the absence thereof, it was not expected from the prosecution to bring on record any such evidence. Had the appellant pleaded so, one would had expected the prosecution to place sufficient evidence to give finding that the appellant was sane, at the time of committing the crime. In the absence thereof, it was not expected from the prosecution to bring on record any such evidence. In the case of Ram Swarup Thakur (supra) relied on by the learned Counsel for the appellant, the accused therein had committed murder of his own son and there was material on record to show that he was not in sound mental condition and in that background the Court held that the prosecution did not discharge its onus to prove that the accused was sane at the time of committing the crime. 33. All the submissions made on behalf of the appellant having no substance, the appeal is devoid of any merit and the same is dismissed accordingly.