Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 263 (JHR)

Mahadeo Murmu v. State Of Bihar

2007-04-06

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT D.G.R. Patnaik, J 1. This appeal is directed against the judgment of conviction dated 7.10.1996 and order of sentence dated 14.10.1996 passed in Sessions Case No. 286 of 1993, whereby the learned 5th Additional Sessions Judge, Dumka has convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life. The case was registered on the basis of the fardbeyan of the informant Lakhiram Besra (PW6), father of the deceased, which was recorded on 18.4.1993 at 6.30 AM at the place of occurrence within the village Kothia. As per prosecutions case, the deceased (Pakku Besra) was married to the appellant in the year 1977 and a son was born to them who on the date of occurrence, was aged about eight years. On account of ill-treatment and frequent mental and physical torture indicted on her by her husband, she along with her minor son used to live mostly at the house of her father namely, the informant (PW6), although she used to make frequent visits to her matrimonial house at village Kothia. On 17.4.1993 she went to her matrimonial house. On the next morning at about 5.00 A.M., the informant received information from one Gulab Kisku (PW9) of village Kothia that his daughter (deceased) was done to death by her husband (appellant) with a stone. The informant immediately reached the house of the appellant where he found his daughter Pakku Besra lying dead in the house with injuries on her head, hand, chest and legs. Further case of the prosecution is that the incident came to the notice of the neighbouring resident namely Sonelal Murmu (PW7) who in the early hours of the morning at about 3.00 AM, had to accompany his wife to the nearby field, since his wife who was suffering from dysentery, had needed to ease herself. It was while returning that both of them heard cries of the deceased emanating from within the house of the appellant. They knocked at the closed door, but it was not opened. Thereafter, with the help of the village pradhan Bablu kishu (P.W.1) and other neighbouring resident namely, Sonelal Marandi and others, an axe was brought from the house of Sonelal Marandi, by which the door was broken open. They knocked at the closed door, but it was not opened. Thereafter, with the help of the village pradhan Bablu kishu (P.W.1) and other neighbouring resident namely, Sonelal Marandi and others, an axe was brought from the house of Sonelal Marandi, by which the door was broken open. On entering the house, the witnesses saw the appellant holding a heavy stone in his hand while the deceased was lying in a pool of blood on the ground. On being challenged, the appellant initially tried to resist threatening to assault and later managed to run away, but he was chased and caught by the villagers. Police arrived at the place of occurrence and recorded the fardbeyan of the informant and had also seized from the place of occurrence a heavy stone and pieces of a wooden handle of the domestic grinder, allegedly used for inflicting fatal injuries on the deceased. 2. Pleading not guilty to the charges, the appellant had claimed innocence and of his false implication in the case. 3. At the trial, as many as 13 witnesses including the informant, the doctor who had conducted the postmortem examination on the dead body of the deceased and other material witnesses were examined by the prosecution, though the investigating officer was not examined. Besides oral evidence, the prosecution had also adduced the informants fardbeyan, the formal FIR, the inquest report and the seizure list. 4. Mr. Arun Kumar, Advocate has represented the appellant and has assisted the court as Amicus Curiae, while Mrs. Chandra Prabha has represented the State. 5. Learned Counsel for the appellant has assailed the impugned judgment of conviction and sentence on the grounds inler-alia; (i) that the learned Trial Court has not appreciated the evidence available on record in proper perspective. (ii) that the Trial Court has seriously erred in accepting the testimonies of PW1, PW2, PW3, PW4, PW5, PW7 and PW8 that they were eyewitnesses to the occurrence, although even from their respective evidences and the facts and circumstances of the case, it would be apparent that none of these witnesses had seen the actual assault, nor could they have any occasion to see any assault made on the deceased. (iii) that the Trial Court has recorded its finding of guilt entirely on the basis of conjectures and surmises without giving due regard to the numerous contradictions in the evidences of the witnesses in material particulars. (iii) that the Trial Court has recorded its finding of guilt entirely on the basis of conjectures and surmises without giving due regard to the numerous contradictions in the evidences of the witnesses in material particulars. (iv) the Trial Court has erred in failing to consider that non-examination of the investigating officer has caused serious prejudice to the appellant in his defence, as because contradictions in the statements of the witnesses as compared to their statements recorded under Section 161 Cr. PC and their respective statements in course of trial, could not be elicited from the police officer and neither could the statements of the witnesses be corroborated from the testimony of the police officer. Furthermore, there is no explanation offered by the witnesses examined by the prosecution as to how and under what circumstances, did the police arrive at the place of occurrence to record the fardbeyan of the informant. (v) that the FIR on the basis of which the case was registered, is hit by Section 162 Cr. PC in view of the fact admitted by the prosecution witnesses that on receipt of information regarding the occurrence at the police station, the police arrived at the place of occurrence and, therefore, the information lodged at the police station first in point of time, should have been produced by the prosecution as the first information report. (vi) that the Trial Court has erred in failing to put the material circumstances available in the evidence to the appellant while recording his statement under Section 313 Cr. PC particularly the statement of PW1 that the appellant had made extra judicial confession in presence of the witnesses, admitting to have caused the fatal injuries to the deceased. The appellant being not offered a reasonable opportunity to explain the aforesaid circumstance, the Trial Court could not have used the said circumstance to record its finding of guilt against the appellant. 6. Learned Counsel for the State while offering support to the impugned judgment of conviction, controverts the entire grounds as advanced by the appellants and submits that the witnesses, namely, PW1, PW2, PW3, PW4, PW5, PW7 and PW8 are all independent witnesses and being co-villagers living as next door neighbours of the appellant, have deposed in clear and specific terms and have narrated the incident as seen by them. Learned Counsel adds that the evidences of these witnesses is consistent and there is no serious contradiction whatsoever in their testimonies and none of these witnesses had any motive or axe to grind against the appellant or motive for implicating him on false accusations. Learned Counsel explains further that besides the ocular evidence of the witnesses, the circumstances indicated by them leave no doubt whatsoever to draw inference that it is the appellant who had authored the fatal injuries on the deceased. 7. Out of 13 witnesses examined by the prosecution, PW13 is a formal witness produced merely to adduce documents including fardbeyan of the informant recorded by the police officer, the formal FIR and the seizure list, in evidence. The informant (PW9) has claimed Gulab Kisku, co-villager to be the person who had conveyed information regarding the murder of the deceased. This witness was tendered for his cross-examination. Likewise, PW11 Sukhlal Tudu was tendered for his cross-examination by the defence. The remaining witnesses besides PW12, the doctor who had conducted autopsy on the dead body of the deceased, are those on whose evidences the trial court had relied claiming them to be the eyewitness to the occurrence. The informant (PW6) does not fall in this category, since he being admittedly a resident of different village, was informed about the occurrence later. 8. To appreciate the grounds advanced by the learned Counsel for the appellant, the evidence of the purported eyewitness of the occurrence needs careful scrutiny. Before referring to the evidence of these witnesses certain facts which have remained undisputed by the defence may be noted. The first amongst these facts is the homicidal death of Pakku Besra who was the wife of the appellant. The inquest report (Ext.-6) prepared in the morning of 18.4.1993 at 7.00 AM indicates that the police officer who had seen the dead body of the deceased Pakku Besra, found marks of injury at several places on the dead body of the deceased. PW1 Bablu Kisku and PW7 Sonelal Murmu have affirmed that the inquest report was prepared by the police officer in their presence, whereafter the dead body was forwarded for postmortem examination to the hospital. PW12 Dr. PW1 Bablu Kisku and PW7 Sonelal Murmu have affirmed that the inquest report was prepared by the police officer in their presence, whereafter the dead body was forwarded for postmortem examination to the hospital. PW12 Dr. Paban Tiga who had conducted postmortem examination on the dead body of the deceased on 18.4.1993 at Dumka Sadar Hospital and had recorded his observations on the postmortem report, has stated that he had found following ante mortem injuries on the dead body. (1) Incised wound 2"x 1/2 x skin deep over the right parietal region of the scalp. On dissection nothing abnormal detected. (2) Diffused swelling over Rt. wrist joint with fracture of lower and of Ulna @ radius. (3) Diffused swelling over the left wrist joint with fracture of lower end of Ulnag radius. (4) Echymosis over whole of the chest. On dissection there was fracture of 6th to 9th ribs on right side and 6th to 9th on the left side. There was also laceration of pleura and both lungs found ruptured, and huge collection of blood found in the thoracic cavity. (5) On dissection, the abdomen, liver and spleen found ruptured and huge collection of blood found in the abdominal cavity. The doctor has opined that the death was due to hemorrhage and shock caused by injury Nos. 4 and 5, which was sufficient in the ordinary course of nature to cause death. He has also opined that injury No. 1 could have been caused by some sharp cutting instrument, while the rest could be caused by some hard and blunt substance. According to the doctor, time elapsed since death was within 24 hours. The above evidence confirms that the deceased Pakku Mesra had suffered unnatural death on account of certain ante mortem injuries indicted upon her. The second undisputed fact is the place of occurrence. Besides the statement of the informant and other witnesses, the same inquest report (Ext.-6) prepared by the police officer confirms that the dead body of the deceased was found inside the house of the appellant at village Kothia. The second undisputed fact is the place of occurrence. Besides the statement of the informant and other witnesses, the same inquest report (Ext.-6) prepared by the police officer confirms that the dead body of the deceased was found inside the house of the appellant at village Kothia. The seizure list (Ext.-5) prepared by the investigating officer at the place of occurrence, as testified by the witness PW1, confirms that it was by the side of the dead body within the house of the appellant that the police officer had seized a piece of blood stained stone measuring about 15" long, 11" wide and 4" thick weighing about 15 Kg besides two pieces of blood stained wooden handle of a domestic grinder, one measuring about 9" and other 13" in length. The evidence of the informant (PW6) though not direct on the point of assault by the appellant, but is relevant since it indicates that the relations between the deceased and her husband (appellant) were not altogether cordial and, therefore, the deceased used to live mostly at the house of the informant (PW6). This evidence is also relevant in the context of the fact relating to the visit of the deceased to the house of the appellant one day prior to the date of her murder. Though, PW4 in his evidence claims that to his knowledge, relation between the deceased and her husband (appellant) was good, but in the same breath, he acknowledges that the deceased used to live mostly at the house of her father. He also confirms that the deceased had come to the house of her husband prior to her murder. Apparently, the statement of this witness regarding the relation between the deceased and her husband appears to be his general impression, but it is the evidence of the father of the deceased which carries more weight, since he is the person who has intimate knowledge about the actual stale of relations between the deceased and her husband. 9. Apparently, the statement of this witness regarding the relation between the deceased and her husband appears to be his general impression, but it is the evidence of the father of the deceased which carries more weight, since he is the person who has intimate knowledge about the actual stale of relations between the deceased and her husband. 9. Referring now to the evidences of the remaining witnesses, the evidence of PW1 Bablu Kisku who is the village Pradhan, is that on the date of occurrence which was Saturday, in the early hours of the morning at about 3.00 AM while he was at his house, his co-villager Sonelal Murmu (PW7) and his wife came to him and informed that they had heard cries of the wife of the appellant from within the house of the appellant and that they asked the appellant to open the door, but he did not open the door and since he was not in proper health, he sent his sons to call the villagers so that they may intervene and pacify the quarrelling couple. Later, on arrival of the co-villagers, he also went to the house of the appellant and found that the door of the appellants house was closed and he heard cries and groans of the appellants wife and when door was not opened, an axe was brought from the house of Sonelal Marandi and the door was broken open. This witness claims that he saw the appellant hurling a big stone weighing about 15 Kg at the deceased who died on sustaining multiple injuries. He further adds that though the couple namely, appellant and the deceased was married about eight years ago, but there used to be frequent quarrels between them and due to which, the deceased used to live mostly at the house of her father, though she often used to visit the house of her husband. He further claims that the inquest report on the dead body of the deceased was prepared by the police officer in his presence and also in the presence of Sonelal Marandi, and further, that the police officer had seized a blood stained stone and two broken pieces of wooden handle of Chakki (domestic grinder) from near the dead body of the deceased. He adds that the appellant had confessed before him and in presence of other co- villagers to have assaulted and killed the deceased. In course of his cross- examination, defence has elicited some contradictions in respect of the statements deposed by him as compared to his earlier statement recorded by the investigating officer. The contradictions relate to the details of the information given to him by Sonelal Murmu (PW7) and his wife at the time when they had come to his residence and the statement of the witness that he was ill and, therefore, he had sent his sons to call the villagers for pacifying the quarrelling couple. These contradictions do not appear to be vital and apart from this, there appears no contradiction elicited from this witness. The evidence of this witness affirms that cries of the deceased was heard emanating from inside the house of the appellant and the door of the house of the appellant was broken open and besides him, several other co-villagers named by him, had entered the house of the appellant and had found that the deceased was lying on the ground in a pool of blood with marks of injuries on her body and the appellant was holding a heavy piece of stone. This witness further affirms the seizure of the blood stained stone and two pieces of blood stained wooden handle lying by the side of the dead body of the deceased. However, on careful scrutiny of the evidence of this witness, it would appear that it was dark at the time of occurrence and nothing could be visible from the outside through the closed door of the appellants house to enable the outsider to see the happenings inside. It also indicates that this witness had in fact not seen the appellant assaulting the deceased. Rather, he had seen a heavy piece of blood stained stone in the hand of the appellant while the deceased was lying on the ground in a pool of blood. The evidence of this witness nevertheless, affirms that the deceased was living in exclusive company of the appellant in the house at the time of occurrence. 10. Rather, he had seen a heavy piece of blood stained stone in the hand of the appellant while the deceased was lying on the ground in a pool of blood. The evidence of this witness nevertheless, affirms that the deceased was living in exclusive company of the appellant in the house at the time of occurrence. 10. On going through the evidence of PW7 who happens to be the cousin of the appellant, it appears that he and his wife were the persons who had heard the cries of the deceased emanating from the house of the appellant. He has explained the reason for his presence near the house of the appellant by stating that he had accompanied his wife to the nearby field, since his wife was suffering from dysentery and had wanted to ease herself. Lending support to the statement of PW1, he affirms that on hearing alarms of the deceased, he and his wife went near the house of the appellant and knocked at the closed door of the appellants house. He further affirms that he immediately informed the village Pradhan Bablu Kisku (PW1) and soon thereafter, other co-villagers had also arrived on hearing alarms. The door was broken open with an axe brought from the house of the neighbouring resident Sonelal Mesandi. He along with others entered into the house of the appellant where he found the appellant, while the wife of the appellant was lying on the ground in a pool of blood with several marks of injuries on her body. He also found a heavy piece of blood stained stone in the hands of the appellant. He adds that the villagers kept watch on the appellant confining him within the house and when the appellant attempted to flee away, he was chased and caught by the villagers. Some contradictions appear to have been elicited in the evidence of this witness in course of his cross-examination which relate to the location of the room where the dead body of the deceased was found within the house and his claim that he had seen the appellant holding a heavy piece of stone in his hand at the time when he and other witnesses had entered into the house of the appellant. Similar contradiction appears to have been elicited by the defence from other witnesses, but none of the contradictions are vital since they do not affect the broad aspects of the prosecutions case. The evidence of the remaining witnesses namely, PW3, PW4 and PW8 are almost identical to the evidence of PW1 and PW7. Each of these witnesses have affirmed the circumstances in which they had visited the house of the appellant in the early hours of the morning on the date of occurrence and the fact that the door of the appellants house was broken open and when the witnesses had entered the house, they had seen the appellant present there while the deceased was lying on the ground in a pool of blood with marks of injury at several places on her body. There is consistency in the evidences of each of these witnesses on the above facts. However, it does not appear that any of these witnesses had seen the actual assault made by the appellant on the deceased, nor could they have seen the assault since, as admitted by some of the witnesses, due to darkness, happenings within the house of the appellant could not have been seen through the closed door from outside. Nevertheless, the evidence of the witnesses does confirm certain relevant circumstance which conclusively point out towards the guilt of the appellant. These circumstances are; (a) that at the time of occurrence, the deceased was alone in the house of the appellant in his company, (b) that at the time of occurrence, the witness-particularly PW7 and his wife had heard the cries of the deceased coming out from within the house of the appellant at the time when they had chance to pass by the side of the house, (c) that the door of the appellants house had to be broken open by the witnesses, (d) that the deceased was found lying dead in a pool of blood within the appellants house and the appellant was found alone by the side of the deceased inside the house, (e) that a blood stained heavy piece of stone besides blood stained pieces of wooden handle of domestic grinder was found by the side of the dead body, 11. The circumstances under which the deceased had suffered the fatal injuries were within the exclusive knowledge of the appellant. The circumstances under which the deceased had suffered the fatal injuries were within the exclusive knowledge of the appellant. His failure to offer explanation for the injuries on the deceased leads to presumption of guilt against him. Though suggestion was put to PW7 and PW8, cousins of the appellant, that they have falsely implicated the appellant on account of some land dispute, but both these witnesses had categorically denied the suggestion claiming that they were totally separate from the appellant having their own individual establishments without any concern with the appellant. Other witnesses including the village Pradhan (PW1) being co-villager of the appellant, are independent witnesses and defence has not brought any material on record to suggest that any one of these witnesses had ill-will or spite against the appellant. A feeble attempt appears to have been made by the defence while cross-examining PW1 that the appellant was suffering from bouts of insanity, but the witness has denied this suggestion. Defence does not appear to have proceeded any further with such plea, nor has brought any such evidence either on its own or through cross- examination of any of the witnesses in support of such plea. 12. The plea as advanced by the learned Counsel for the appellant that the defence has suffered prejudice on account of non-examination of the investigating officer, does not appear to be persuasive. Excepting minor contradiction in the evidences of some of the witnesses which do not affect adversely the broad aspects of the prosecutions case, the defence does not appear to have elicited any such material from the evidences of any of the witnesses to claim that non-examination of the investigating officer has caused prejudice to the appellant. It is true that as per evidence of the witnesses, the police had arrived at the place of occurrence on the basis of some information conveyed at the police station. The investigating officer could have explained as to what was the nature of such information received at the police station and what prompted him to visit the place of occurrence and whether any information received at the police station was entered in the police station diary. The investigating officer could have explained as to what was the nature of such information received at the police station and what prompted him to visit the place of occurrence and whether any information received at the police station was entered in the police station diary. In absence of a clear explanation on this issue, it may be argued that the prosecution has suppressed information given at the police station at the earliest point of lime and, therefore, the fardbeyan of the informant (PW6) could be treated as the first information report. This argument could have sustained relevance and significance if the informant had claimed himself to be material eyewitness to the occurrence. In the instant case, as it appears, the informant has not claimed himself to be the eyewitness to the occurrence. It is on the basis of the evidence of other witnesses that the sequence of events and actual facts and circumstances relating to the occurrence have been unfolded and which in essence, constitute the prosecutions case against the appellant. Non production of the information received at the police station at the earliest point of time does not, in the facts and circumstances of the case, cause the prosecutions case to suffer. Even if, the fardbeyan of the informant is ignored, the prosecutions case against the appellant finds full support from the testimonies of the witnesses, who have stood the test of credibility and have inspired confidence. 13. The contention of the learned Counsel for the appellant that material circumstance relating to the alleged extra judicial confession of the appellant made to PW1, was not put to the appellant during his examination under Section 313 Cr. PC, appears to be misconceived. Though PW1 has claimed that the appellant had made extra judicial confession of his guilt before him, but the learned Trial Court does not appear to have considered this part of the evidence of P.W.1 for recording its finding of guilt against the appellant. The appellant has, therefore, not suffered any prejudice on account of omission of the Trial Court to put the circumstance to the appellant while examining the latter under Section 313 Cr. PC. We find that the Trial Court has discussed the evidences on record and has assigned adequate reasons for the findings of guilt arrived against the appellant. 14. For the reasons discussed above, we do not find any merit in this appeal. PC. We find that the Trial Court has discussed the evidences on record and has assigned adequate reasons for the findings of guilt arrived against the appellant. 14. For the reasons discussed above, we do not find any merit in this appeal. Accordingly, this appeal is dismissed. The judgment of conviction and sentence, as passed by the Trial Court against the appellant, is hereby confirmed.