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2007 DIGILAW 1677 (PAT)

Abdul Khalique v. State Of Bihar

2007-10-10

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2007
Judgment Chandramauli Kr.Pd. and Rekha Kumari JJ. 1. The above Death Reference and the appeal filed by appellant Abdul Khalique arise out of the same judgment dated 21.9.2005 passed by the Additional Sessions Judge, Fast Track Court No. I, Sitamarhi in Sessions Trial No. 48 of 2003/21 of 2003 and as such both of them were heard together and would be disposed of by this judgment. The learned Additional Sessions Judge by the above judgment has convicted the appellant u/s. 302 of the Indian Penal Code for the murder of his own mother and by order dated 28.9.2005 has sentenced him to death subject to the confirmation by this Court. 2. The appellant Abdul Khalique and the informant Abdul Barik are full brothers and belong to village Budhnagra, P.S. Nanpur, District Sitamarhi. 3. The prosecution case, as disclosed by the Fardbeyan (Ext. 5) of the informant, recorded by the Officer-in-charge of Nanpur Police Station on 10.2.2002 at 17.45 hours at the Khalihan of the informant in the Budhnagra village, is that he had constructed a thatched hut at his Khalihan about one Kilometer east of his village. On 20.2.2002 at 11.45 a.m. he was at his house at Budhnagra alongwith his family members when Ram Parikshan Paswan of his village came to his house and informed that his second brother Abdul Khalique had assaulted his mother Sabra Khatoon who was in the Khalihan with spade as a result of which she was lying unconscious there and that his brother had fled towards Kharka. On hearing this, he (informant) alongwith his younger brother Abdul Munna and others immediately rushed towards the Khalihan and reaching there they found his mother under the chouki (cot) in the hut lying dead and her left jaw, chick and temple badly cut and from the wounds blood in sufficient quantity had fallen on the ground. A blood stained spade was also found by the side of the body. 4. The further case of the prosecution is that the father of the informant had died five months prior to the above occurrence and since then his brother Abdul Khalique (appellant) had been demanding partition of the landed property, which the deceased always refused and for that refusal, the appellant used to give her threat and for that reasons the occurrence took place. 5. On the basis of the above Fardbeyan, formal F.I.R. (Ext. 3) was drawn up. 5. On the basis of the above Fardbeyan, formal F.I.R. (Ext. 3) was drawn up. The police investigated the case and after completing investigation submitted charge-sheet against the appellant. 6. The appellant was charged u/s. 302 of the Indian Penal Code. He pleaded not guilty to the charge. His defence, as gathered from the suggestion given to the P.Ws. and his statement u/s. 313 Cr.P.C, is that he is innocent and has been falsely implicated by his brother on account of landed property. 7. The prosecution examined in all ten witnesses to prove the charge. Among them P.W. 1 is fir. Narendra Kumar, who had conducted the post mortem examination on the dead body of the deceased Sabra Khatoon. P.W. 2 Kailasia Devi, P.W. 4 Md. Sultan, P.W. 5 Parikshan Paswan claim to have seen the appellant fleeing from the place of occurrence. P.W. 3 Sundar Paswan is a witness who had reached after the occurrence and seen the dead body with injuries caused by spade. P.W. 9, Abdul Barik, P.W. 6 Raushan Khatoon (wife of the informant), P.W. 7 Munni Khatoon (a daughter of the deceased), P.W. 8 Jahana Khatoon (wife of Md. Munna) had reached the place of occurrence on hearing about the occurrence. P.W. 10 Lal Babu Paswan, Advocate Clerk is a formal witness and has proved formal F.I.R. (Ext. 3), inquest report (Ext. 4), Fardbeyan (Ext. 5) and seizure list (Ext. 6). 8. The appellant has not examined any witness. 9. The learned trial court after considering the evidence of the above P.Ws. and the attending circumstances convicted the appellant and sentenced him as mentioned above and submitted the proceeding of the case for confirmation of death sentence awarded to the appellant. 10. The point for determination is whether the learned lower court was justified in holding the appellant guilty and the death penalty is fit to be confirmed. 11. Shri A.K. Tripathi, Advocate was appointed Amicus Curiae by the court to defend the appellant. He submitted that there is no eye witness to the occurrence. The whole case is based on circumstances. But the circumstances are not enough to hold that it was the appellant and the appellant alone who committed the above murder. He also submitted that the I.O. of the case has not been examined and so prejudice has been caused to the appellant. 12. Mr. The whole case is based on circumstances. But the circumstances are not enough to hold that it was the appellant and the appellant alone who committed the above murder. He also submitted that the I.O. of the case has not been examined and so prejudice has been caused to the appellant. 12. Mr. Lala Kailash Bihari Prasad, learned A.P.P. submitted that though there is no eye witness to the occurrence, the appellant was seen by the witnesses who are quite independent, fleeing from the place of occurrence immediately after the occurrence and therefore, there cannot be any doubt that it was the appellant alone who was responsible for the death of the deceased. 13. In order to appreciate the above submissions of the parties, we would like to discuss the evidence adduced by the prosecution. 14. P.W. 1 the doctor has deposed that on 11.2.2002 he was posted at Sadar Hospital, Sitamarhi and on that date at 11.00 a.m. he conducted the post mortem examination on the dead body of Sabra Khatoon (deceased of this case) and found the following ante mortem injuries on her person: External Injuries: Incised wound, three in number, over left side of the face and neck below left ear with sizes (1) 3" x 1" x bone deep, (2) 4" x 4" x bone deep, (3) 5" x 2" x bone deep including left ear lobe. Two bruises over right shoulder one 7" x 1" and another 4" x 3". Internal finding: (i) On opening of skullCranium intact and brain matter pale. (ii) On opening of neckLeft side of the neck muscle and vessels were sharply cut upto bone. (iii) On opening of Thorox. Both lungs pale and intact. Heartintact and chambers empty. (iv) On opening of abdominal cavity. All abdominal viscera intact and pale. Stomach contained undigested rice. Urinary bladderempty. UterusNormal in size. According to the doctor, the death was caused due to haemorrhage and shock as a result of the above injuries which were caused by sharp cutting weapon, such as spade He has also opined that time elapsed since death was within 24 hours. 15 The evidence of the doctor, therefore, shows that the deceased had received injuries on face and neck below left ear caused by sharp cutting weapon and she died of these injuries at or about the time of the alleged occurrence. 16. 15 The evidence of the doctor, therefore, shows that the deceased had received injuries on face and neck below left ear caused by sharp cutting weapon and she died of these injuries at or about the time of the alleged occurrence. 16. The question, however, is whether the appellant caused those injuries. 17. There is no eye witness to the actual occurrence. But P.W. 5 has stated that on the alleged date at. about 11 to 12 hours he was with his wife (P.W. 2) at his door when they heard the cries of Sabra Khatoon that she was being killed. Both of them reached the house of Sabra Khatoon and saw the appellant coming out of the house and his clothes were stained with blood and he was fleeing towards north. He has further stated that he saw Sabra Khatoon lying dead inside hut and her temple had been cut and blood had fallen in the ground in large quantity and a blood stained spade was also there. His evidence then is that he raised alarm and went to Barik (informant) and informed him about the occurrence. P.W. 2 has corroborated the evidence of P.W. 5 and has stated that on hearing the cries of the deceased, she went to the place of occurrence and saw Khalique fleeing from the house and the mother of Khalique lying dead in the house. 18. P.W. 4 has stated that he was operating boring near the place of occurrence when he saw the appellant running away from the place of occurrence. He also noticed stains of blood on his vest and Lungi. He then visited the P.O. house. 19. Though the above witnesses have not seen the actual murder, their evidence goes to show that immediately after the alleged murder they saw the appellant fleeing from the place of occurrence with blood stains on his clothes and the dead body was lying there in pool of blood. Therefore, there cannot be any doubt that he was the author of the murder of the deceased. The evidence of P.W. 2 shows that her house is situated at a distance of 10 steps from the place of occurrence. Therefore, P.Ws. 2 and 5 had occasion to reach the place of occurrence immediately after the murder. Therefore, there cannot be any doubt that he was the author of the murder of the deceased. The evidence of P.W. 2 shows that her house is situated at a distance of 10 steps from the place of occurrence. Therefore, P.Ws. 2 and 5 had occasion to reach the place of occurrence immediately after the murder. The evidence of P.W. 4 shows that Boring (tube-well) where he was working was at a distance of 2 to 3 Laggas from the place of occurrence. Therefore, he had also occasion to see the appellant fleeing from the P.O. There is absolutely nothing in their cross-examination to disbelieve their testimony. P.W. 5 in his cross-examination at one place indeed has stated that he had informed his wife about the occurrence, who had reached the P.O. after him, but this is a minor discrepancy as from the evidence of P.W. 2 it appears that she had in clear words stated that she saw the appellant fleeing from the house and his mother lying dead in his house. All these three witnesses are independent witnesses as there is nothing in their evidence to show that they were either inimical to the appellant or interested in the prosecution. The evidence of P.Ws. 4 and 5 also shows that they were examined by the I.O. on the date of occurrence. Hence, there was no chance of concoction in their statement u/s. 161 Cr.P.C. There is also nothing to show that there is any contradiction in their evidence in court and their statement before the I.O. Attempt has been made from the side of the appellant to show that P.Ws. 4 and 5 did not state before the I.O. that they had seen the appellant fleeing but they have denied the suggestion and their attention has not been drawn towards their statements before the I.O. in this regard. Therefore, it cannot be said that there is any contradiction in the two versions of these P.Ws. 20. The above three witnesses are thus quite trustworthy and their evidence prove beyond doubt that it was the appellant alone who was responsible for the above injuries resulting in the death of the deceased. 21. Therefore, it cannot be said that there is any contradiction in the two versions of these P.Ws. 20. The above three witnesses are thus quite trustworthy and their evidence prove beyond doubt that it was the appellant alone who was responsible for the above injuries resulting in the death of the deceased. 21. P.W. 9, the informant has stated that on the alleged date at about 10.45 a.m., he was in his house when Parikshan Paswan (P.W. 5) came running and informed, him that his brother Abdul Khalique (appellant) had cut his mother and fled towards north. On hearing this, he alongwith family members went to his Dera at Khalihan which was about hundred yards from his house and saw his mother lying dead under the cot and there were marks of injury on her left jaw, temple and a spade was also lying there stained with blood. P.W. 6, the daughter-in-law of the deceased, P.W. 7, the daughter and P.W. 8 another daughter of the deceased have corroborated the above evidence. 22. The evidence of the above witnesses, hence, also clearly prove that the deceased was murdered and at the alleged place of occurrence. 23. The evidence of P.W. 3 also is that he was irrigating wheat crops on the alleged date at about 12 noon when he heard about the murder and went to the house of the deceased and saw the dead body and injury on her and blood had fallen on the ground. His evidence thus proves that the murder had taken place at the alleged place of occurrence. 24. The evidence of P.W. 9 also is that the appellant used to ask the deceased to partition their land but she was not ready for partition of land during her lifetime and for this the appellant had threatened her. P.Ws. 6, 7 and 8 have stated to the same effect. P.W. 6 has further stated that 2 to 3 days prior to the murder, the appellant had quarreled with the mother in this regard. P.W. 7 has also corroborated this. There is nothing in the evidence of the witnesses in this regard to disbelieve them. P.W. 9 has also stated that they had no enmity with the appellant from before. P.W. 6 has further stated that 2 to 3 days prior to the murder, the appellant had quarreled with the mother in this regard. P.W. 7 has also corroborated this. There is nothing in the evidence of the witnesses in this regard to disbelieve them. P.W. 9 has also stated that they had no enmity with the appellant from before. All these witnesses are of the family members of the family of the appellant and the informant and there is no reason as to why they would falsely implicate the appellant and would leave the real culprit. The above evidence of the witnesses also shows that there was a motive for the appellant to commit the murder. 25. In this case the I.O. has not been examined. But the non-examination of the I.O. is not fatal to the prosecution case unless prejudice thereby is caused to the accused or affect the credibility of the prosecution version. But there is nothing in the evidence on record to show that any prejudice has been caused to the appellant for the non-examination of the I.O. It has already been shown above that P.Ws. 4 and 5 were cross-examined to show that there was contradiction in their evidence in court and their statements u/s. 161 Cr.P.C. but the provision of Section 145 of the Evidence Act was not complied with. Hence non-examination of the I.O. does not cause prejudice to the appellant in this respect. The evidence of the witnesses examined also show that the occurrence had taken place at the alleged P.O. So, even in the absence of the I.O., the place of occurrence is proved. 26. Thus, considering all the facts, circumstances and evidence on record I find that the prosecution has fully proved that the appellant committed the murder of his mother (deceased) on the alleged date and the alleged place. The learned Additional Sessions Judge was, hence, quite justified in holding the appellant guilty u/s. 302 of the Indian Penal Code and convicting him thereunder. 27. As regards sentence, though the appellant has committed the murder of his mother by inflicting spade blows, it is not a rarest of rare cases. The learned Additional Sessions Judge was, hence, quite justified in holding the appellant guilty u/s. 302 of the Indian Penal Code and convicting him thereunder. 27. As regards sentence, though the appellant has committed the murder of his mother by inflicting spade blows, it is not a rarest of rare cases. In the case of Rajendra Prasad V/s. State of U.P., AIR 1979 SC 916 , the Supreme Court has held that a family feud, an altercation, a sudden passion although attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence these catena of circumstances bearing on the offender call for lesser sentence. 28. In this case also the murder was committed for landed property. There is nothing on record to show that the appellant had any criminal antecedent or he cannot be reformed and if he is not awarded death penalty, he would be a menace to the society. 29. Therefore, we are of the opinion that it is not a fit case for awarding death sentence and the learned trial court was not justified in passing this extreme sentence. The death sentence passed is thus set aside and it is directed that the appellant would undergo imprisonment for life for the offence u/s. 302 of the Indian Penal Code. 30. In the result, the death reference is rejected. The appeal is dismissed with modification in sentence as mentioned above.