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2009 DIGILAW 104 (JHR)

Biren Napit v. State of Bihar

2009-01-22

D.G.R.PATNAIK, R.K.MERATHIA

body2009
JUDGMENT D.G.R.PATNAIK, J. By judgement dated 20.09.1999 passed by the 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 375 of 1996 /60 of 1996, the appellant Biren Napit was convicted for the offence under Sections 302 of the Indian Penal Code and sentenced to imprisonment for life. The appellant has challenged the judgement of his conviction and sentence in this appeal. 2. Facts of the prosecution’s case on the basis of which charge was framed against the appellant as appearing from the Fardbeyan of the informant Dhaneshwari Devi (PW-10) widow of the deceased Dilip Napit, recorded by the police officer at 3 A.M. on 21.06.1996 at a Nursing Home namely “Chaudhary Nursing Home” is as follows : In the night of 21.06.1996 while the informant along with other members of her family including the deceased Dilip Napit was sleeping within the Verandah inside the courtyard of their house, the appellant, who happens to be the informant’s cousin, arrived at the place where the deceased and others were sleeping and assaulted one of the sleeping persons, namely Bindeshwar Napit, on his neck with a Basula (a sharp cutting iron chisel used for chiseling wood). In the same transaction, the appellant also assaulted another member of the family namely Purusattom Napit, with the same weapon on his neck. On hearing the cries, the informant woke up and saw the appellant attempting to assault her husband Dilip Napit. By the time she attempted to intervene, the appellant had already inflicted the Basuli Blow on the head of her husband and again another blow which caused injury on the victim’s right hand. The appellant allegedly caught hold of the informant by the tuft of her hair, assaulted her on her head and felled her on the ground. On hearing the commotion when the informant’s brother-in-law and others came running, the appellant fled away from there. 3. On concluding the investigation, the Investigating Officer submitted charge sheet recommending the appellant’s trial for the offence under Section 302 of the Indian Penal Code. The appellant was charged accordingly for the aforesaid offence. Denying the charges and pleading not guilty, the appellant had preferred to be tried. 4. Altogether 12 witnesses were examined by the prosecution at the trial. Besides the oral evidence of witnesses, the prosecution had also adduced in evidence the F.I.R., the postmortem report and the injury reports of the injured persons. Denying the charges and pleading not guilty, the appellant had preferred to be tried. 4. Altogether 12 witnesses were examined by the prosecution at the trial. Besides the oral evidence of witnesses, the prosecution had also adduced in evidence the F.I.R., the postmortem report and the injury reports of the injured persons. The appellant in his defence had also examined one witness. In his defence the appellant raised a defence that he has been implicated falsely in this case only in order to shield the actual culprits who belong to the informant’s own family. It was sought to be explained that there was an illicit relationship between Purusattom Napit and the informant Dhaneshwari Devi on account of which there was a quarrel and dispute between the members of the two families which had resulted in the injury on the deceased and the other members of the family and the appellant has been made scapegoat only on account of the previous enmity over land dispute between the members of the two families. 5. The material witness on whom the trial Court had placed reliance is PW-1 Dr. V.N.Chaudhury who had given first aid treatment to the injured persons and had issued the corresponding injury reports in respect of each of the injured. The other witnesses in this context are PW-7 Kali Pada Napit who is the brother of the deceased; PW-10 the informant; PW-11 Bindeshwar Napit who is an injured and PW-12 the Investigating Officer of this case. The evidence of the other witnesses though considered by the trial Court but they have been referred to as hearsay witnesses. After considering the evidences on record, the trial court recorded its findings of guilt against the appellant and convicted and sentenced him accordingly. 6. Shri M.S. Chhabra, learned counsel appearing for the appellant, has assailed the impugned judgement of conviction and sentence on the following grounds:- (vi) Since admittedly no blood was found on the Verandah of the informant’s house nor was any blood seized from the place by the Investigating Officer, the place of occurrence as claimed by the prosecution, has not been firmly established. (vii) That in view of the admission of the informant and the other witnesses that after partition of the family properties, there was no dispute between the family of the informant and that of the appellant, it goes to suggest that there could be no motive for the appellant to indulge in the alleged offensive acts. (viii) That in absence of seizure of any lantern, the prosecution has not explained as to the source of illumination to enable the witnesses to identify the appellant. 7. Learned counsel for the respondent State on the other hand, would submit arguments in support of the impugned judgement. Relying upon the testimony of the informant who has claimed herself to be the eye witness of the occurrence and on the testimony of PW-9 who has also claimed to have seen the occurrence on the testimony of the injured witnesses and that of the doctor (PW-1) and on the postmortem evidence, learned counsel submits that the evidences of these witnesses read together, offer unimpeachable evidence against the appellant to confirm that he is the author not only of the fatal injury caused to the deceased but also of the grievous injuries caused to the injured witnesses. Learned counsel argues further that the incident had occurred on the Verandah situated within the courtyard of the house of the informant. The house of the appellant being admittedly located adjacent to the house of the informant within the same courtyard, the appellant had easy access to the Verandah and furthermore, since the incident had occurred within the house of the informant, the presence of any outsider at the dead of night at the place and time of occurrence cannot be accepted. 8. For better appreciation of the rival arguments, a brief note of the evidences of the material witnesses needs to be made : (i) The Trial Court has not appreciated the evidences on record in proper perspective and has erred in placing reliance upon the witnesses ignoring the fact that all the witnesses, are members of the same family and are highly interested witnesses. (ii) That though admittedly the injured persons had initially gone to the police station but neither any of the injured persons nor the persons accompanying them, had reported the alleged occurrence at the police station and no explanation has been given by the prosecution for such lapse. (ii) That though admittedly the injured persons had initially gone to the police station but neither any of the injured persons nor the persons accompanying them, had reported the alleged occurrence at the police station and no explanation has been given by the prosecution for such lapse. (iii) That the Fardbeyan of the informant has been recorded after a delay of more than two hours although the police station is located at a distance of hardly 200 meters from the Nursing Home. (iv) That the learned Trial Court has failed to consider that no records of the nursing home have been produced by the prosecution to confirm that the injured persons were provided medical treatment for their injuries at the Nursing Home. (v) No reasonable explanation has been offered by the prosecution as to why instead of taking the injured persons to the State Dispensary at Katras, they were taken to a private Nursing Home. The first witness is Dr. V.N.Chaudhury (PW-1) who had deposed that on 21.06.1996 at about 3 A.M. four injured persons namely Purusattom Napit, Dilip Napit (since deceased), Bindeshwar Napit and Dhaneshwari Devi came to his nursing home for the treatment of their injuries. He examined each of the injured persons and found that the three male injured persons had sharp cut injuries on their head and neck which, in his opinion, were grievous in nature. He therefore, prepared the injury reports and referred three of them for proper treatment to the P.M.C.H., Dhanbad. He had also examined the injury of the lady Dhaneshwari Devi (PW-10) and had prepared the injury report. He has proved each of the injury reports in evidence and the same have been marked as Ext. 1 to Ext. 1/c. The injury found on the person of Purusattom Napit (PW-9) were :- (i) Sharp cut injury measuring 3”x ½ ”x ½ ” (ii) Bone of skull was exposed and was fractured. The injury No. (ii) was found to be grievous in nature. The injury found on the person of Dilip Napit (deceased) was a sharp cut injury on the occipital area measuring 4”x 1”x 2” deep. The bone of skull was exposed and was fractured. This injury was found to be grievous in nature caused by sharp substance. The injury No. (ii) was found to be grievous in nature. The injury found on the person of Dilip Napit (deceased) was a sharp cut injury on the occipital area measuring 4”x 1”x 2” deep. The bone of skull was exposed and was fractured. This injury was found to be grievous in nature caused by sharp substance. The injury found on the person of Bindeshwar Napit (PW-11) was a sharp cut injury on the left side of temporal area exposing the bond and fracture of the bone measuring 3”x ½“x ½”. This injury was also found to be grievous in nature caused by a sharp substance. The injury found on the lady Dhaneshwari Devi (PW-10) was a lacerated injury on the scalp measuring 2” x ½” and tender on the back. Both these injuries were found to be simple in nature. 9. Next is the evidence of PW-8 Dr. Binod Kumar Shyam (PW-8) who had conducted the postmortem examination on the dead body of the deceased Dilip Napit. As per his evidence, he had conducted the postmortem examination on the dead body of the deceased at 3 P.M. on 21.06.1996 and found the following ante-mortem injuries on the dead body : (i) Stitched wound 3” long with 4 stitches on the right side of head horizontally placed 1” behind the right ear. (ii) Stitched wound 1” long with two stitches ½” above and obliquely placed to injury No. 1. (iii) Stitched wound on the right ring finger between middle and proximal phalynx on the dorsum. On removal of the stitches margins of the wounds were found clean cut. On dissection and on removal of the scalp, he observed that the bone chip of the occipital bone was found driven inside the cranial cavity under injury No. 1. One margin of the bone chip was clean cut. The meninges and brain were also found cut in the wound which was full of blood and clot. He has opined that the time elapsed since death was between 6 to 12 hours and that the death was on account of the Hemorrhage and shock due to the above noted cranial cerebral injuries which was caused by heavy sharp cut weapon like a chisel. 10. He has opined that the time elapsed since death was between 6 to 12 hours and that the death was on account of the Hemorrhage and shock due to the above noted cranial cerebral injuries which was caused by heavy sharp cut weapon like a chisel. 10. Referring now to the evidence of informant (PW-10), she has deposed that on the night of 21.06.1996 she woke up on hearing alarms of her husband, brother-in-law and father-in-law and on coming out of her room she saw that the appellant, who happens to be her cousin brother, was assaulting her husband with the “Basula”. She also found that her brother-in-law Purshottam Napit and father-in-law Bindeshwar Napit were also assaulted by the appellant with the same Basula. When she tried to intervene, the appellant caught her by her hair and assaulted her also with the Basula. On their alarms, her brother-in-law Kali Pada Napit also arrived and had attempted to snatch away the Basula from the hands of the appellant but the appellant managed to flee away. She adds that on hearing their alarms, several other persons had also arrived at her house and they took all the injured persons to the Katras Police Station and from there to the Nursing Home. The police officer arrived at the Nursing Home and recorded her statement as her “Fardbeyan”. From the Nursing Home the injured persons were referred to the Dhanbad Hospital. Later, her husband died at the hospital. Learned counsel for the appellant submits that even according to this witness, she could only see the alleged assault made on her husband and is therefore not competent to say as to how the other persons had sustained injuries. Learned counsel adds that though this witness claims that her clothes as well as the cot on which the deceased was sleeping was soaked with blood, but the Investigating Officer (PW-12) does not affirm that he had either found the clothes of this witness stained with blood or that any blood stains was found on the Verandah of the informant’s house. Having carefully gone through the evidences of this witness, we do not find that the defence could elicit any such material which could be considered as a vital contradiction in the prosecution’s case. In fact her evidence supports the contents of her original Fardbeyan. Having carefully gone through the evidences of this witness, we do not find that the defence could elicit any such material which could be considered as a vital contradiction in the prosecution’s case. In fact her evidence supports the contents of her original Fardbeyan. The evidence of this witness that she too had sustained injuries at the hands of the appellant, finds corroboration from the injury report and the evidence of Dr. V.N.Chaudhury (PW-1). 11. PW-9 and PW-10 who are admittedly the brother-in-law and father-in-law respectively of the informant and are members of the informant’s family, are the injured witnesses. Both of them have stated that in the dead night of 21.06.1996 at about 1 A.M. while they were sleeping on the Verandah of their house they woke up on hearing the alarms of Dilip Napit. At that time they saw the appellant armed with the Basula and he assaulted both these witnesses with the Basula. PW9 was given repeated blows due to which he sustained injuries on his neck. They have also affirmed that the appellant had also assaulted Dilip Napit who was sleeping on the cot. Both these witnesses have further narrated as to how on their alarms, the neighbouring residents arrived and took them to the Nursing Home where they were given first aid for their injuries and were taken thereafter to the hospital have stated and also about the death of the injured Dilip Napit at the hospital. PW-9 has claimed to have seen and identified the appellant in the light of the burning lantern. In their respective cross examination both these witnesses have narrated in detail about the manner of occurrence. Their evidence in respect of the injuries sustained by them finds corroboration from the evidence of Dr. V.N.Chaudhury PW-1 and the injury report issued by him. 12. Referring to the statement of these two witnesses that they have seen and identified the appellant in the light of the burning lantern, learned counsel argues that if this was so then the prosecution ought to have produced the lantern before the Investigating Officer and in absence of the seizure of any lantern from the alleged place of occurrence, the evidence of these witnesses cannot be relied upon regarding the source of illumination at the time and place of occurrence. This argument of learned counsel cannot be accepted. The appellant is not a stranger to the witnesses. This argument of learned counsel cannot be accepted. The appellant is not a stranger to the witnesses. He is admittedly a close relation and a next door neighbour of the witnesses living within the common courtyard of both families. The witnesses being familiar with the features of the appellant, they could easily have identified the appellant in the open courtyard. Moreover, mere non-seizure of the lantern by the Investigating Officer even though the lantern was referred to by the witnesses in their respective statements made before the Investigating Officer, does not cast any serious dent in the evidence of these witnesses. 13. The evidence of PW-7 Kali Pada Napit also appears to be relevant. His evidence is that on the night of 21.06.1996 at about 1 A.M. while he was in his room, he came out on hearing alarms of his father, brother and others and saw that the appellant Biren Napit armed with a Basuli and his brothers Dilip Napit and Purusattom Napit, his father Bindeshwar Napit as well as his sister-in-law Dhaneshwari Devi were injuried. He tried to catch hold of the appellant and attempted to snatch the Basula from the appellant’s hand but the appellant by pushing away this witness, managed to flee away. He further adds that on hearing the alarms, the neighbouring residents came running and he and the informant and others told the neighbouring residents about the occurrence and the assault made by the appellant on them. With the help of the neighbouring residents, the injured persons were taken on an auto rickshaw to the police station and from there to the Chaudhary Nursing Home. After obtaining first aid at the Nursing Home, the seriously injured persons were referred to the Government Hospital. The injured Dilip Napit succumbed to his injury at the hospital. He adds that the reason for the assault was the land dispute though the landed properties were partitioned amongst the members in presence of the Panchayat. In his cross examination though this witness affirms that he had seen the appellant assaulting Dhaneshwari Devi and also that the appellant made repeated assaults on Dilip Napit (deceased), but this appears to be contrary to his earlier statement which suggests that by the time he came out of his room, the victims had already sustained injuries on their person. 14. 14. The Investigating officer, in his evidence, has explained that while he was posted at the police station, at about 1.30 A.M., the injured persons came to the police station on an auto rickshaw and on seeing their injured condition, he asked them to proceed immediately to the Chaudhary Nursing Home for medical treatment. Later, he went to the Nursing Home where he recorded the Fardbeyan of the informant Dhaneshwari Devi (PW-10) and obtained the injury reports of the injured persons from the doctor (PW-1) and on the advice of the doctor, had forwarded the seriously injured persons to the hospital for treatment. His further evidence is that the injured Dilip Napit had died at the hospital and on being informed, he went to the hospital and prepared inquest report of the dead body and forwarded the dead body for postmortem examination to the hospital. In his cross examination he has stated that the investigation of the case was entrusted to him by the officer-in-charge of the police station who had received some vague information regarding the occurrence and about the fact that the injured persons were taken to the Chaudhary Nursing Home. He has affirmed further that the Station Diary entry regarding the information so received, was recorded at the police station at about 2.30 A.M. 16. Learned counsel for the appellant argues that if the officer-in-charge had already received some information prior to the registering of the Fardbeyan of the informant, then such information should have been treated as the First Information Report and in absence thereof the fardbeyan of the informant cannot be accepted in evidence. Learned counsel argues further that if admittedly the witnesses had first visited the police station, then no explanation has been offered either by any of the witnesses as to why they did not lodge any report to the police at that time nor has the Investigating Officer offered any explanation as to why he did not record the statement of any of the witnesses at that time. Both these arguments of the learned counsel appear to be misconceived. The categorical statement of the Investigating officer is that the injured persons had come to the police station on an auto rickshaw at about 1.30 A.M. and on finding them in serious condition, he instructed them to proceed immediately to the Nursing Home for medical treatment. Both these arguments of the learned counsel appear to be misconceived. The categorical statement of the Investigating officer is that the injured persons had come to the police station on an auto rickshaw at about 1.30 A.M. and on finding them in serious condition, he instructed them to proceed immediately to the Nursing Home for medical treatment. Thereafter within two hours, the Fardbeyan of the informant was recorded at the Nursing Home. The information which the officer-in-charge of the police station is said to have received, was only a vague information without specific details, as has been explained by the Investigating Officer. On seeing the serious condition of the injured persons, the Investigating Officer had rightly felt it proper to refer them immediately to the Nursing Home instead of wasting precious time for recording the First Information Report. Under such circumstances, the immediate medical help was of greater importance and necessity then recording of the First Information Report. In the last lap of his argument, learned counsel for the appellant by referring to the judgement of the Supreme Court in the case of Masumsha Hasanasha Musalman Vs. State of Maharashtra AIR 2000 S.C. 1876 , would argue that even in the light of the evidence of the witnesses, the charge under Section 302 of the I.P.C. cannot be made out and at best, the conviction ought to have been recorded by the Trial Court for the offence under Section 304 Part II of the I.P.C. only. We are not able to be persuaded by such argument. Though the appellant in his defence has sought to adduce evidence through a witness regarding the alleged illicit relation between the informant and her brother-in-law, but has not brought any such evidence on record to suggest that such illicit relation bears any relevance in the context of the charges against him. On the other hand, the evidence of the prosecution witnesses do indicate that the relations between the information’s family and the appellant was hostile on account of the land dispute and the appellant was not happy with the partition of the landed properties and this was the possible motive for the occurrence. 17. We have carefully gone through the impugned judgement of the learned Trial Court and are satisfied that the Trial Court has appreciated the evidences in proper perspective. 17. We have carefully gone through the impugned judgement of the learned Trial Court and are satisfied that the Trial Court has appreciated the evidences in proper perspective. The fact that the appellant had visited the house of the informant at the dead hours of night armed with the weapon (Basula) and had inflicted repeated blows with the sharp cutting weapon on the injured persons, such injuries being grievous in nature and fatal in the case of the deceased Dilip Napit, amply indicates and demonstrates that the appellant had assaulted the inmates of the informant’s house after premeditation and the nature injuries inflicted on the deceased indicate that such assault was made on him not only with the knowledge that it was likely to cause the victim’s death but also with an intention to commit his murder. We, therefore, find no material to interfere with the findings of the learned Trial Court. Accordingly, this appeal is dismissed.