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2007 DIGILAW 258 (JHR)

Badan Hansda v. State Of Bihar (Now Jharkhand)

2007-04-05

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT 1.Heard the parties. In this appeal, the appellant has challenged the judgment of his conviction dated 21.9.1995 and the corresponding order of sentence for the offences under Sections 302 and 324 of the Indian Penal Code passed by the 1st Additional Sessions Judge, Deoghar in Sessions trial No. 12 of 1995. The appellant was charged with and tried for the offences under Sections 302/324 of the Indian Penal Code on the allegation that he had committed murder of the informants minor son, Mohan Hansda and also voluntarily inflicted injury to the informants husband, Ramdhan Hansda (PW 5). 2. The appellant has denied the charges pleading not guilty and has claimed innocence and of his implication on false accusation. 3. The case of the prosecution, registered on the basis of the written report submitted by the informant, Fulmani Soran (PW 3) on 20.9.1994 is that on the same day at about 12 noon, the informants husband (PW 5) went to the house of his uncle, Lakhan Hansda within the village. A near relative of Lakhan Hansda had come from village Pichhari and was also present at the house of Lakhan Hansda. Two sons of Lakhan Hansda, namely, Badan Hansda and Babusar Hansda were also present at his house. The informant also followed her husband to the house of Lakhan Hansda where she saw Lakhan Hansda and his two sons, including present appellant and a relative of Lakhan Hansda having discussions with the informants husband. At about 3.30 p.m. all on a sudden, Badan Hansda (appellant) approached the informants husband with knife and assaulted him with the weapon inflicting injuries on his body. The victim ran away to the house followed by the informant. Thereafter the appellant, Badan Hansda caught hold of the informants son, Mohan Hansda, aged about 10 years and assaulted him with a sharp pointed iron rod in the armpit region. The boy succumbed to his injury at the spot. On the alarms of the informant, several villagers rushed there. The informant promptly took her injured husband to the Primary Health Centre at Pakur with the assistance of co-villagers. The motive behind the alleged occurrence is land dispute. 4. The case was initially registered for the offence under Sections 302, 307, 341, 324, 326 and 34 of the Indian Penal Code. The informant promptly took her injured husband to the Primary Health Centre at Pakur with the assistance of co-villagers. The motive behind the alleged occurrence is land dispute. 4. The case was initially registered for the offence under Sections 302, 307, 341, 324, 326 and 34 of the Indian Penal Code. On concluding the investigation, the Investigating Officer submitted charge-sheet for the aforesaid offences recommending trial of the present appellant. However, the charge against the appellant was not framed for the offence under Section 307 or under Section 326 of the Indian Penal Code and it was confined to the offences under Sections 302/324 of the Indian Penal Code. 5. In course of investigation, the police had visited the place of occurrence, seen the dead body of the deceased son of the informant, prepared inquest report of the dead body and forwarded the same for post-mortem examination. The blood-stained "kanthi" (pointed iron rod) was also seized by the Investigating Officer from the place of occurrence and seizure-list was prepared in presence of the witnesses. 6. As many as 10 witnesses were examined by the prosecution at the trial, including the informant (PW 3), her injured husband (PW 5), the doctor (PW 6) who conducted the post-mortem examination on the dead body of the deceased boy and had submitted post-mortem examination report (Ext. 2) and another doctor (PW 10), who had examined the injuries on PW 5 and submitted his injury report (Ext. 5). The trial Court, on considering the evidences on record, i.e. testimony of the informant and that of her husband (PW 5) and accepting them as eye-witnesses to the occurrence supported by the evidence of PWs 1 and 2 who are co-villagers of the informant and also from the evidence of doctors (PWs 6 and 10), had recorded its finding of guilt against the appellant for both the offences. 7. Sri G.C Sahu, Advocate has represented the appellant and assisted as amicus curiae while Mrs. Chandra Prabha has represented the respondent-State. 8. Assailing the impugned judgment of conviction, learned Counsel for the appellant submits that the entire finding of the learned trial Court is erroneous and is not based on the evidences of record. 7. Sri G.C Sahu, Advocate has represented the appellant and assisted as amicus curiae while Mrs. Chandra Prabha has represented the respondent-State. 8. Assailing the impugned judgment of conviction, learned Counsel for the appellant submits that the entire finding of the learned trial Court is erroneous and is not based on the evidences of record. Learned Counsel explains that the learned trial Court has seriously erred in accepting the testimony of PWs 3 and 5 though both of them are highly interested witnesses and likewise, has further erred in relying upon the testimony of PWs. 1 and 2, though neither of them has claimed to have seen the entire occurrence. 9. Learned Counsel for the State, on the other hand, while supporting the impugned judgment of conviction, has controverted the grounds advanced on behalf of the appellant. Referring to the evidence of PWs 3 and 5 learned Counsel submits that PW 5 is the injured victim himself and therefore his testimony, cannot be discarded at all while testimony of PW 3 though she happens to be; the wife of PW 5, is entirely reliable since her presence at the time and place of occurrence is natural and further, that the evidence of these two witnesses find support from the evidence of PWs 1 and 2. Learned Counsel adds that in fact the appellant ought to have been charged with and tried for the offence under Section 307 of the Indian Penal Code also since the case was instituted for the offence under Section 307 of the Indian Penal Code on the basis of the materials in the FIR and charge-sheet was submitted by the Investigating Officer recommending the trial of the appellant for the aforesaid offences. Learned Counsel ads further that the evidence of abovementioned witnesses amply prove not only the fact of the homicidal death of the deceased son of the informant, but also the injuries sustained, by PW 5 one of which was a grievous injury and also the fact that the fatal injury on the minor boy and injuries on PW 5 were inflicted by the present appellant. Learned Counsel adds further that the place of occurrence has not been disputed and the evidence of the witnesses regarding place of occurrence has been affirmed by the Investigating Officer. 10. Learned Counsel adds further that the place of occurrence has not been disputed and the evidence of the witnesses regarding place of occurrence has been affirmed by the Investigating Officer. 10. From the evidence on record, it appears that out of the 10 witnesses examined by the prosecution, PW 7 had failed to support the prosecution case and therefore he was declared hostile, while PWs 4 and 8 were tendered by the prosecution. The prosecution has relied on the testimony of the informant (PW 3) and her injured husband (PW 5) and also on the testimony of PW 1 in particular, besides the evidence of the doctors (PW 6 and PW 10). 11. From the arguments submitted on behalf of the appellant as also from the cross-examination of the witnesses, it appears that the defence has not disputed the fact of homicidal death suffered by the deceased son of the informant nor any controversy was raised on the issue relating to the injuries sustained by PW 5. On this point besides the evidence of PW 3, it is the evidence of PW 1 that he had seen the appellant piercing a pointed iron rod into the body of the minor boy and inflicting fatal injuries on the victim, resulting instantaneous death of the boy at the spot. He has also affirmed that while he was present at his house the informants husband, Ramdhan Hansda (PW 5) came running into his house with bleeding injury on his body. From the evidence of Investigating Officer (PW 9) it would appear that the Investigating Officer had found the dead body and has observed marks of injuries on the body and he had prepared the inquest report of the dead body and had forwarded dead body for post-mortem examination. The evidence of PW 6, Dr. Anand Kr. Jain affirms that he had conducted the post- mortem examination on the dead body of the deceased, Mohan Hansda aged about 10 years, at the Hospital on.21.9.1994 at about 2.50 p.m. His observation has been recorded in the postmortem report. The evidence of PW 6, Dr. Anand Kr. Jain affirms that he had conducted the post- mortem examination on the dead body of the deceased, Mohan Hansda aged about 10 years, at the Hospital on.21.9.1994 at about 2.50 p.m. His observation has been recorded in the postmortem report. He has deposed that on conducting the post- mortem examination on the dead body he had found the following ante-mortem injuries: (i) Three lacerated and penetrating wounds 1/2" x 1/4" on left side of chest; (ii) Lacerated and penetrating wound 1/2" x 1/4" x penetrating wound cavity on the right side of chest; (iii) Penetrating wound with laceration margin 1/2" x 1/4" x chest cavity of 5th rib, right of the midline. The injury Nos. 2 and 3 which were communicating into chest cavity. The doctor has opined that cause of death was due to hamerroage and shock. The time of death, as opined by the witness, was within 48 hours. The above evidence indicates that the minor son of the informant had suffered homicidal death on account of the ante-mortem injury sustained by him. As regards the place of occurrence the description given by the informant indicates that the assault on her husband was made within the courtyard of the house of the accused. Thereafter the injured ran out to the street followed by the informant and ran into the house of PW 1. The informant has also described that while she was running along with her husband she saw her son, Mohan Hansda (deceased) being assaulted by the appellant within the courtyard of her house. According to the description of the place where the assault on the minor boy was made as has been given by the Investigating Officer (PW 9), it was an open place and located at a distance of 20-25 steps south of the house of the informant. The place is the open courtyard of the house. On the east and south of this place lies backyard of the informants house. On the west of the courtyard lies the courtyard of the accused while on the north lies residential house and compound. 12. The place is the open courtyard of the house. On the east and south of this place lies backyard of the informants house. On the west of the courtyard lies the courtyard of the accused while on the north lies residential house and compound. 12. The evidence of PW 5 is affirmed by the evidence of informant (PW 3) in respect of description of the place where he was assaulted by the appellant and also finds corroborates from the statement of the informant that on being assaulted, he ran out into the street and went to the house of Shyamlal Hansda (PW 1) from where he was taken to the Primary Health Centre and later, referred to Dumka Sadar Hospital and subsequently to yet another hospital for proper medical treatment. 13. PW 1 confirms to have seen injuries on the person of PW 5 at the time when the injured came running into his house and adds that he came out from the house and saw the deceased, Mohan Hansda lying on the ground with injuries and found him dead. 14. Thus, place of occurrence has adequately been proved by the prosecution. From the prosecution case, it appears that it relates to two separate occurrences and two separate places of occurrence though in course of same transaction. First being the place where assault was made on the informants husband (PW 5) by the appellant. The evidence of PW 5 in respect of the specific identity of the appellant as the assailant finds support from the evidence of PW 3. Both the witnesses have claimed that the appellant had stabbed PW 5 with knife inflicting injuries on the back and on the chest. Both have affirmed that the injured was removed to the Primary Health Center for treatment of his injury. Both the witnesses have claimed that the appellant had stabbed PW 5 with knife inflicting injuries on the back and on the chest. Both have affirmed that the injured was removed to the Primary Health Center for treatment of his injury. The fact that PW 5 had sustained injuries on his body is also affirmed by PW 10, who is the doctor posted at Primary Health Centre and has affirmed that on 20.9.1994 at about 5 p.m. he had examined Ramdhan Hansda (PW 5) son of Mohan Hansda of village-Dubrajpur, P.S Palajori and had found following injuries on his person: (i) Stab injury 3/4" x 1/4" x 3/4" in the inter coastal space it was caused by a pointed weapon such as dagger; (ii) Stab injury 1/2" x 1/4"" x 3/4" 3 inches below the above injury caused by the same weapon; He had also found that from the injury No. 1 air bubbles were coming out during expiration on account of injury in the lung. In his opinion, injury No. 1 was grievous and was dangerous to life. Both the injuries were caused within six hours prior to examination. 15. On careful scrutiny of the evidence of both the witnesses, namely, PWs 3 and 5 there does not appear any such circumstance or inconsistency to disbelieve their testimony. PW 5 is the injured victim himself and the testimony of both these witnesses finds support from evidence of PW 1 and from the testimony of both the doctors, namely PW 6 and PW 10. The evidences both of these witnesses gives an eye-witness account of the occurrence affirming clearly that it was the present appellant, who had inflicted the grievous injuries on the person of PW 5 and the fatal injury on the deceased minor son of the informant. 16. The trial Court has discussed the evidence of each of the witnesses and has assigned its reasons for placing reliance on the testimony of PWs 3 and 5 and for recording its finding of guilt against the appellant. There does not appear any impropriety in the findings nor is there any circumstances in the findings to invite interference by this Court. We therefore do not find any merit in this appeal and accordingly, the same is dismissed. There does not appear any impropriety in the findings nor is there any circumstances in the findings to invite interference by this Court. We therefore do not find any merit in this appeal and accordingly, the same is dismissed. The impugned judgment of conviction and sentence passed by the learned Court below against the appellant for the offences under Section 302/324, IPC is hereby sustained. 17. Before concluding, we are prompted to make an observation regarding the manner in which the trial Court had proceeded to frame charge. The First Information Report on the basis of which the case was registered at the police station, did indicate prima facie the offences under Sections 302, 307 and 326 of the Indian Penal Code. One of the injuries observed by the doctor found on the person of the injured, namely, PW 5, was on the vital part of his body and was grievous in nature and in the opinion of the doctor it was dangerous to life. The Investigating Officer while submitting charge-sheet against the appellant had recommended the trial for the offence under Section 307 of the Indian Penal Code also besides the offences under Section 302, IPC. Yet, without considering the aforesaid materials on record and by recording a cryptic order, the trial Court had proceeded to frame charge against the appellant for the offences under Sections 302 and 324, IPC only without any reference to the offence under Section 307, IPC nor was any reason assigned as to why the offence under Section 307, IPC was omitted from the charge. It is apparent that the trial Court had failed to apply due diligence and judicial approach on this issue. It also appears that the learned prosecutor had also failed to render proper assistance to the trial Court in respect of framing charge against the accused. D.K. Sinha, J. 18. I agree.