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2008 DIGILAW 164 (PAT)

Rasho Sharma v. State Of Bihar

2008-01-24

SHAILESH KUMAR SINHA, SHIVA KIRTI SINGH

body2008
Judgment SHIVA KIRTI SINGH and SHAILESH KUMAR SINHA JJ. 1. This appeal arises out of judgment and order dated 16.01.2003 passed by Additional District & Sessions Judge II, Katihar in Sessions Trial No. 325 of 2002/ 120 of 1997 arising out of Dandkhora P.S.Case No. 58/96, whereby the sole appellant has been convicted for the offence under section 302 read with sec. 34 of the I.P.C. and awarded life imprisonment. 2. The prosecution case is based upon Fardbeyan of P.W.8, Bishwanath Mandal, husband of the deceased Babita Kumari (Devi) recorded on 09.10.1996 at 8.30 AM at the place of occurrence. In substance, it is to the effect that the informant used to visit the house of Chander Sharma, father of the deceased and he developed love affair with his daughter, Babita Kumari and inspite of opposition from her family members and relations he married her about six months earlier in the village temple and also formalized the marriage through Court. Due to such love marriage Chander Sharma and his two brother-in-laws namely, Rasho Sharma, the appellant and Basho Sharma used to come to his house and threatened his wife Babita Devi. They had told the informant that they would not allow the girl to remain with him. On the previous night at about 8 the informant and his wife slept on a cot in the Varandah after having their meal. At about 11 in the night, the informant heard some sound of his wife and on getting up he saw two persons standing by the side of the cot near his wife, who had already cut her neck. Out of them he identified Rasho Sharma, the appellant, but could not identify the other. He raised hue and cry and woke up his brother and other villagers, but the miscreants taking advantage of darkness managed to flee away. He alleged that he had seen a dagger in the hand of the appellant and crime had been committed by Rasho Sharma and his companion in conspiracy with Chander Sharma. He claimed that on seeing the other person he could identify him also. 3. After recording the Fardbeyan (Ext.2), P.W.9 Sub Inspector of Police, Pramod Kumar Jha, who was also the Officer-in-Charge of Dandkhora P.S. at the relevant time, took up investigation. He prepared Inquest Report. (Ext. J) and sent, the dead body for post mortem examination. He claimed that on seeing the other person he could identify him also. 3. After recording the Fardbeyan (Ext.2), P.W.9 Sub Inspector of Police, Pramod Kumar Jha, who was also the Officer-in-Charge of Dandkhora P.S. at the relevant time, took up investigation. He prepared Inquest Report. (Ext. J) and sent, the dead body for post mortem examination. He has proved the formal F.I.R. also as Exhibit-4. He inspected the place of occurrence, recorded the statement of witnesses and submitted charge sheet against the appellant only. After cognizance the case was commit Led to the Court of Sessions. The appellant pleaded not guilty to the charges and hence he was put on trial. Thereafter, he has been convicted and sentenced by the judgment and order under appeal. 4. From the trend of cross-examination and submissions, it appears that the defence of the accused is of false implication and it has been suggested that the deceased was done to death by the members of the prosecution at some other place on account of lust for dowry and the present case was instituted on wholly false allegations. On behalf of the defence Rewati Devi, mother of the deceased, has been examined as D.W.I. She has simply stated that she has filed a complaint case in Court. She is Barhai by caste and her daughter was married to a person of Khangar caste, which is considered to be lower. The marriage was against her wish and due to love affair. No document has been exhibited on behalf of the defence. Even the complaint petition or the number of that case has not been brought on record. 5. The prosecution, in order to prove its case, has examined altogether ten witnesses. P.W.1 Kamaldeo Mandal, P.W.2 Chetnarayan Singh, P.W.5 Tirath Mandal and P.W.6 Pradeep Kumar Mandal are co-villagers of the informant, who have claimed to have heard hulla in the night of the occurrence and they saw the dead body on the cot in the Varandah and they learnt from the informant about the occurrence including the name of the appellant as one of the assailant. P.W.3, Chander Sharma and P.W.6, Pradeep Kumar Mandal have been simply tendered for cross examination. P.W.4, Bhola Mandal is elder brother of the informant and P.W.7, Sheela @ Leela Devi is wife of P.W.4. P.W.8, Vishwanath Mandal is the informant. P.W.9, S.I. Pramod Kumar Jha is the Investigating Officer. P.W.3, Chander Sharma and P.W.6, Pradeep Kumar Mandal have been simply tendered for cross examination. P.W.4, Bhola Mandal is elder brother of the informant and P.W.7, Sheela @ Leela Devi is wife of P.W.4. P.W.8, Vishwanath Mandal is the informant. P.W.9, S.I. Pramod Kumar Jha is the Investigating Officer. P.W.10, Dr. S.M.Thakur is a formal witness who has identified the handwriting and signature of Dr. J.Prasad, who had conducted the Post Mortem Examination. He has proved the post mortem examination report as Ext. 5 and has deposed that Dr. J.Prasad had gone to some foreign country and was not available. 6. P.W.8, the informant has fully supported the allegations leveled by him in his Fardbeyan. In Court also he has claimed to identify the appellant. The suggestion given by the defence that the deceased had been murdered somewhere else and there was no blood on the bed-sheet, pillow and bedding have been denied by the informant. It is surprising that no questions were put to the informant regarding inadequacy of light or lack of any means of identification nor any material was put to him to show that he had any special animosity with the appellant so as to name him for such a serious offence. On going through the evidence of the informant, we find him truthful and reliable. 7. The brother of the informant, P.W.4 and the wife of P.W.4 Sheela Devi (P.W.7) have supported the case of prosecution. P.W.4 was sleeping at a reasonably close distance on another part of Varandah and he has also claimed that he identified the appellant while he was fleeing away. He has identified the appellant in Court also. P.W.7 has also claimed that on hearing the nulla of the informant, she came out of the house and identified the appellant as one of the two persons who were fleeing away. It has come in the evidence of witnesses that the informant and his brother share the same house. There is no good reason to disbelieve the evidence of P.Ws.4 & 7 regarding their claim of identifying the appellant at the time when the miscreants were fleeing away on hue and cry raised by the informant. 8. It has come in the evidence of witnesses that the informant and his brother share the same house. There is no good reason to disbelieve the evidence of P.Ws.4 & 7 regarding their claim of identifying the appellant at the time when the miscreants were fleeing away on hue and cry raised by the informant. 8. So far as the defence case is concerned, no doubt the I.O. has not noticed blood on the bedding and pillow nor has seized those items, but he had noticed sufficient quantity of blood under the cot. That claim of I.O. has not been challenged. It has come in the evidence that the cot on which the deceased was found dead was woven with strings. Since the base of the cot was not wooden but was of strings, the blood had all the opportunity to collect in the bedding and drip down. Dripping of blood after passing through the bedding or the bed-sheet indicates that good amount of bleeding had taken place when the deceased was lying on the cot at the place where the cot was found. This renders the defence case that the deceased was killed at some other place without any merit. It is further noticeable that the defence has cross examined the witnesses in respect of filing of complaint case by mother of the deceased, but no details of such complaint case have been brought on record either through the mouth of D.W.1 or by gotting the complaint petition exhibited. It has also not been disclosed as to what happened to the complaint case. Be as it may, we find no good reason to indulge in guess and surmises that the defence version may also be probable when absolutely no material for that purpose has been brought on record by the defence. The findings in the post mortem report (Ext.5) also supports the prosecution case and explains as to why the deceased could not oiler any resistance or could not raise any hue and cry before her death. The single blow on the neck was extremely severe as appears from its dimension i.e. 7" X 2" X 3" on the right side and front of upper part of neck injuring the underlying muscles, major blood vessels and trachea. 9. In view of aforesaid discussions, we find no merit in the appeal. The single blow on the neck was extremely severe as appears from its dimension i.e. 7" X 2" X 3" on the right side and front of upper part of neck injuring the underlying muscles, major blood vessels and trachea. 9. In view of aforesaid discussions, we find no merit in the appeal. The conviction and sentence awarded to the appellant is, hereby, confirmed. The appeal is accordingly dismissed.