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2007 DIGILAW 266 (JHR)

Belal Sheikh v. State Of Bihar (Jharkhand)

2007-04-06

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT D.G.R. Patnaik, J. 1. The appellant has challenged the judgment of conviction and sentence dated 14.2.1996 and 27.2.1996 passed by the Addl. Sessions Judge, Pakur, in Sessions Case No. 238 of 1913/47 of 1973, whereby the appellant was convicted for the offence under Sections 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case against the appellant and two Other co-accused was registered on the basis of the fard beyan of the informant Fatima Khatoon (PW4), wife of the deceased, Sheikh Abdul Bari, by the SI of Police, R.A. Singh of Pakur (M) P.S at 18 hours in the village on 29.7.1982 at the house of the informant. The fard beyan (Ext.2) of the informant (PW4) unfolds the prosecution case alleging inter alia that on 29.7.1082 at about 11 a.m. her husband was lying on the veranda of his house while her daughter (PW3) and the informant (PW4) were massaging oil on his body. At that time, the younger brother of the informants husband, namely Bilal Sheikh (appellant) along with two other persons Sahmad Skeikh and Nowa Bawa arrived there and caught hold of the husband of the informant. The appellant suddenly gave three successive blows with a chisel on the informants husband inflicting injuries on his left palm as well as on the right side of his chest. The victim succumbed to his injuries at the spot. On alarms of the informant (PW4) and her daughter (PW3), co-villagers namely Shamim Mohammad, Md. Yasin Moulvi, Abdul Majeed Sk, Sarpanch, Ajijul Haque and others arrived. The motive for assault is said to be a quarrel between the appellant and the deceased over a pond in which both of them had equal shares and the grievance of the appellant was the insistence of his brother (deceased) to sell away his share in the pond to some outsider despite resistance of the appellant. On completion of the investigation, charge sheet was submitted against the appellant alone recommending his trial for the offence of murder of the deceased while the two co-accused persons were not sent up for trial. 3. The appellant in his defence had denied the charge pleading not guilty, and claimed that he was innocent and was falsely implicated in the case. 4. 3. The appellant in his defence had denied the charge pleading not guilty, and claimed that he was innocent and was falsely implicated in the case. 4. At the trial, altogether seven witnesses were examined by the prosecution, including the informant (PW4) and her daughter (PW3) besides the doctor (PW2) who had conducted the post mortem on the dead body of the deceased. The investigating officer of the case was not examined. The fard beyan and the formal FIR besides the inquest report and seizure list were proved in evidence by the prosecution through formal witnesses namely PWs 1 and 7. 5. The trial court on considering the evidence of the witnesses placed reliance on the testimony of the informant (PW4) and her daughter (PW3) accepting them to be eye witnesses to the occurrence and finding support from the evidence of PWs 5 and 6 and that of the doctor (PW2) recorded its finding of guilt against the appellant for committing murder of the deceased. On the part of the appellant, one witness namely Abdul Jalil was examined through whom the defence had attempted to prove that the appellant at the time of the occurrence was suffering from mental dis-balance and was being treated for his mental ailment at the mental hospital. The trial court however, refused to believe the evidence adduced by the defence stating that there is no evidence on record to confirm that at the time of the occurrence the appellant was in fact suffering from mental instability. 6. M. K.K. Ojha, learned Counsel appearing on behalf of the appellant has assailed the impugned judgment and order of conviction and sentence of the appellant by the trial court on several grounds, prominent among them being (i) that the findings of the trial court are against the weight of evidence on record and has been recorded without appreciating the evidence in proper perspective. (ii) that the trial court has committed serious error by placing implicit reliance on the testimony of the informant and her daughter, both of whom being the nearest relations of the deceased are, therefore, highly interested witnesses and before placing reliance on their testimonies, the trial court ought to have considered that the prosecution has not offered any support their evidence from any independent source (iii) that the ocular testimony of the PWs 3 and 4 are inconsistent with the medical evidence relating to the injuries found by the doctor on the person of the deceased and the weapon used (iv) that the learned trial court has failed to appreciate that non examination of the investigating officer has caused serious prejudice to the defence inasmuch as, several contradictions in the evidence of the informant and her daughter as compared to their earlier statements recorded under Section 161 Cr.P.C could not be brought on record. 7. Mr. S.K. Srivastava, learned Counsel for the State supporting the judgment of conviction and sentence of the appellant, controverted the grounds advanced by the appellant. Learned Counsel submitted that the informant (PW4) and her daughter (PW3) were the only witnesses present at the time and place of the occurrence and they being members of the family of the deceased, there presence cannot be disputed. It is further submitted that both these witnesses had occasion to see the entire occurrence from the beginning and their testimonies regarding the manner of occurrence, weapon used and the injuries inflicted on the deceased find ample corroboration from the medical report. Learned Counsel adds further that a few minor contradictions in the evidence of these witnesses which do not bear any adverse effect on the broad aspects of the prosecution case cannot be highlighted for impeaching the creditworthiness of the witnesses. Learned Counsel adds further that though the evidence of PWs 5 and 6 may not be considered as eye witness account, but the same are relevant in as much as, both these witnesses have testified that on hearing alarms of the informant and her daughter, they immediately rushed to the place of the occurrence and saw the deceased lying on the veranda of his house in an injured condition, and were told about the occurrence and identity of the assailant by the wife and daughter of the deceased i.e. PWs 4 and 3. 8. 8. From the trend of cross examination of the witnesses, and also the submissions made on behalf of the appellant, it would appear that no controversy has been raised by the defence regarding the fact that the deceased suffered homicidal death on 29.7.1982 and also regarding the place of occurrence. On the above issue, besides the evidence of the informant and her daughter, there is evidence of PWs. 5 and 6, who have affirmed that that the deceased sustained serious injuries, which eventually resulted in his death. The evidence of PW 2, Dr. MMP Sinha, read with the post mortem import containing his observation made at the time of conducting the autopsy, also lends corroborative support to the testimony of the informant and her daughter. PW2 had disposed that on 30.7.1982 at about 9.30 a.m. he had conducted post mortem examination on the dead body of the deceased, namely Abdul Bari Sheik and had found the following ante-mortem injuries: (i) One wound having sharp margin in the wall between thumb and fourth finger left side ex tending to wrist joint cutting all structures including second metacarpal bone 3 1/2" x 2" x 11/2"; (ii) One wound with sharp margin in the right side chest in the eight intercostals space 4"x1"x deep up to hest cavity rupturing the right lung; (iii) One wound having sharp margin right side chest in the 10th intercostals space 11/2" x 1/2" x skin deep; He has also opined that the time elapsed since death was within 24 hours and that the injuries could have been caused by sharp cutting weapon like Hasua and injury No. (ii) was sufficient in ordinary course of nature to cause death of the deceased. In his cross examination, he has explained that injury No. (ii) might not have caused instantaneous death, and further, that the injury found on the chest did not lead to any specific opinion regarding the type of the weapon used. 9. Learned Counsel for the appellant has tried to point out that the ocular evidence is not in consonance with the medical evidence, in as much as PW 3 and 4 have examined that the deceased was assaulted with a chisel, whereas the Doctor (PW2) has opined that the injuries could be inflicted by a sharp cutting weapon like a sickle. Learned Counsel for the appellant has tried to point out that the ocular evidence is not in consonance with the medical evidence, in as much as PW 3 and 4 have examined that the deceased was assaulted with a chisel, whereas the Doctor (PW2) has opined that the injuries could be inflicted by a sharp cutting weapon like a sickle. Learned Counsel argues that there is vast difference between the shape and nature of a chisel as compared to a sickle and apparently, according to the doctors evidence, the injuries found on the dead body of the deceased could not have been caused by a chisel. 10. In her fard beyan as also in her deposition, PW4 has stated that the weapon used was a chisel. The evidence of PW3, the daughter of the informant, also confirms that the assault was made with a chisel. The evidence of both their witnesses regarding the situs of the injuries inflicted on the body of the deceased corresponds to the injuries found and observed by the doctor (PW2). It is relevant to note that while describing the injuries, the doctor (PW2) has not stated that the injuries were incised in nature. He has described the injuries as ones with sharp margins. It appears that the prosecution has not sought an opinion of the doctor as to whether the said injuries could be possible with a chisel. The defence has also carefully avoided to elicit any such opinion from the doctor. It also appears that while cross examining PWs. 3 and 4, the defence has not tried to obtain any detailed description of the alleged weapon used in commission of the murder of the deceased. The prosecution has remained satisfied by use of the term "cheni"/chisel" by these witnesses while mentioning the weapon used by the assailant. It is common knowledge that the term "cheni" (chisel) refers to a piece of iron having a sharp edge on one side and a head on the other, normally used for breaking solid rocks or concrete materials. The prosecution has remained satisfied by use of the term "cheni"/chisel" by these witnesses while mentioning the weapon used by the assailant. It is common knowledge that the term "cheni" (chisel) refers to a piece of iron having a sharp edge on one side and a head on the other, normally used for breaking solid rocks or concrete materials. As against the evidence of PWs 3 and 4 relating to the nature of the weapon used and the identity of the assailant, the evidence of PWs 5 and 6 is that on hearing alarms of the inmates of the house of the deceased, they had arrived at the house and had seen the deceased Abdul Bari Sheik lying in an injured condition on the ground while they had also seen the appellant fleeing away holding a hasua (sickle) in his hand. However, on reading the evidence of PWs 5 and 6 in their respective cross examinations, it appears from the suggestion put to them by the defence that in their respective statements before the investigating officer recorded under Section 161 Cr. P. C. they have not claimed to have seen a sickle in the hand of the appellant while fleeing away. Moreover, on a specific query regarding the difference between a chisel and a sickle, PWs 5 and 6 explain that there is hardly any difference between the two instruments. Considering the above, it may be said that both these witnesses (PWs 5 and 6) have indulged in some improvement in their statement made before the police earlier. The observation of the doctor (PW2) that the wounds were found to have sharp margins and the fact that there is no evidence to suggest that such injuries could not be caused by a chisel at all, the statement of PWs 3 and 4 regarding the weapon used for inflicting the injuries cannot be considered as evidence contradictory to the medical evidence. 11. As regards the place of occurrence, the evidence of PWs 3 and 4 finds support from the evidence of PWs 5 and 6 as also from the inquest report (Ext.4), which reads that the dead body was found within the house of the deceased with several marks of injuries. 11. As regards the place of occurrence, the evidence of PWs 3 and 4 finds support from the evidence of PWs 5 and 6 as also from the inquest report (Ext.4), which reads that the dead body was found within the house of the deceased with several marks of injuries. Blood stained clothes, besides a bloodstained sari, and a gamcha which were used as bandage around the wound on the chest, were also seized by the police officer who had prepared the inquest report and the seizure list. PWs 5 and 6 have also affirmed that immediately on hearing alarms they had reached the house of the deceased and it was within the house that they had found the deceased lying in an injured condition. The place of occurrence is thus confirmed by the above evidence of the witnesses. 12. As regards the evidence of PWs 3 and 4, the defence has wanted to discredit them as highly interested persons being the wife and daughter of the deceased. It is also argued on behalf of the appellant that the testimony of these witnesses is not corroborated from any independent witness. No doubt, both these witnesses being the nearest relations of the deceased can be termed as interested witnesses, but merely because of their being the nearest relations, their evidence cannot be disbelieved or brushed aside. Applying the rule of caution, the testimony of these witnesses needs close scrutiny in order to assess their credibility. It is not disputed that both these witnesses being the members of the own family of the deceased, their presence within the house at the time and place of the occurrence is but natural. Both these witnesses had therefore occasion to witness the occurrence. The evidence of these witnesses relating to the identity of the assailant finds corroboration from the evidence of PWs 5 and 6. Though their evidences are hearsay on the point of the occurrence, it is affirmed that they had learnt about the occurrence and the identity of the assailant from the eye-witnesses and that they had, in fact, seen the appellant fleeing away from the place of occurrence when they had arrived there immediately on hearing alarms. The evidence of PWs 3 and 4 also finds corroboration from the medical evidence appearing from the testimony of the doctor (PW2). The evidence of PWs 3 and 4 also finds corroboration from the medical evidence appearing from the testimony of the doctor (PW2). Though each of these witnesses were subjected to lengthy cross-examination, but the defence has not elicited any serious contradiction or inconsistency in their evidence, which could be considered as sufficient to breach their creditworthiness. The evidence of these witnesses inspire confidence as both of them have withstood the test of their trust-worthiness. Though no supporting evidence has been brought on record regarding the motive for the assault, but both these witnesses are consistent on their claim that the motive for assault was the grievance of the appellant over the insistence of the deceased to sell away his share in the pond belonging to both the brothers, namely the appellant and the deceased. The defence has not controverted the claim of these witnesses on the above issue by any cross-examination whatsoever. Learned Counsel for the appellant has further argued that both these PWs 3 and 4 have claimed in their respective depositions that the appellant was assisted by two more persons namely his brother in law and mother in law when the assault on the deceased was made and on the basis of such statement in the fard beyan of the informant, the case was registered against the two other co- accused persons. However, instigation revealed that there was no involvement of the said two co-accused persons whatsoever in the assault made on the deceased by the appellant and both of them were therefore not sent up for trial by the investigating officer. Learned Counsel argued that since this part of the statement of PW 3 and 4 was found to be false, the remaining part of their depositions should also be considered as suspicious. It appears from the impugned judgment of the trial court that it has considered this aspect of the argument of the defence and has also observed that the presence of the two co- accused persons at the place of occurrence was not disputed, since there was evidence collected in course of investigation that both these persons had visited the house to collect their money and neither of them had come with any oblique motive or that they had involved themselves actively with the appellant to inflict injuries on the deceased. 13. 13. Learned Counsel for the appellant has next assailed the impugned judgment of the trial court on the ground that non-examination of the investigating officer has caused serious prejudice to the defence. On reading evidence of PWs 3 and 4, it does not appear that in their respective cross examinations, the defence has elicited any such contradiction or inconsistency which could necessitate explanation from the investigating officer. The place of occurrence has been proved by evidence brought on record and likewise the factum of homicidal death of the deceased on the date of the occurrence has also been established by ample evidence. This ground of the appellant is not persuasive enough to give any benefit to the defence. 14. Learned Counsel for the appellant has next referred to the evidence of DW1 claiming that the witness has brought on record a certificate issued by the mental hospital, which confirms that the appellant was suffering from mental disbalance and was provided medical treatment for his ailment. Learned Counsel submits that the court below ought to have considered the document as an unimpeachable evidence to confirm the fact that the appellant was suffering from psychic disorder and therefore even if it is considered for the sake of argument that he is the author of the fatal injuries fond on the deceased, the appellant cannot be convicted for the act done by him in his abnormal mental condition. 15. DW1 has claimed that the appellant was suffering from mental disorder. DW1 has proved Ext. A series, which are copies of the orders recorded in the trial court record. On perusal of the documents, it appears that the appellant was produced before the court below from hospital with a certificate of the Hospital Superintendent that the examination of the appellant did not disclose any clinical feature supporting mental disorder of the appellant. The evidence thus brought on record by the DW1 does not confirm that at the time of the occurrence, the appellant was, in fact, suffering from mental disorder, nor is there any evidence brought on record by the prosecution that the alleged act was committed in a state of insanity. 16. The evidence thus brought on record by the DW1 does not confirm that at the time of the occurrence, the appellant was, in fact, suffering from mental disorder, nor is there any evidence brought on record by the prosecution that the alleged act was committed in a state of insanity. 16. We find that the trial court has considered the evidence on record and has assigned adequate reasons for placing reliance on the testimony of PWs 3 and 4 as eyewitnesses and has also assigned reasons for the finding of guilt against the appellant for the offence of murder of the deceased. For the reasons aforesaid, we do not find any merit in this appeal. Accordingly, this appeal is dismissed and the judgment and order of conviction and sentence of the appellant by the trial court in Sessions Case No. 238 of 1983/47 of 1973 is here by sustained. D.K. Sinha, J. 17. I agree.