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2009 DIGILAW 1548 (JHR)

Balak Ram Bedia v. State of Jharkhand

2009-12-07

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT Prashant Kumar, J. This appeal is directed against the judgment of conviction and order of sentence dated 26.8.2002 passed by Additional Judicial Commissioner, FTC, Ranchi in S.T. Case No. 554 of 1998 whereby and whereunder the appellant has been convicted under Sections 302 and 427• of the IPC and sentenced to undergo imprisonment for life for the offence under Section 302 of the IPC and further sentenced to undergo R.1. for one year for the offence under Section 427 of the IPC. 2. The case of prosecution in brief as per the fardbeyan of Sohan Bediya (P.W. 2) is that on 16.4.1998 at about 6.30 a.m. while Pusan Devi (deceased) was coming to her house through a village road (pagdandi), Balak Ram Bediya (appellant) assaulted her with a Basulee (a hammer like instrument used by mason for cutting brick) on the temporal region of deceased. It is further stated that informant alongwith Bansi Bediya, Malu Bediya, Bhalu Bediya, Ashok Bediya and Soh Bediya raised alarm and they snatche Basulee from the hand of appellant and tried to apprehend him but he fled away. It is further alleged that thereafter appellant took out a tangi from his house and cut the doors of the house of informant. It is further stated that during that period, other villagers also arrived and they snatched tangi from the possession of the appellant arm also caught hold of him and tied him with a rope. It is stated that by that time Pusan Devi deceased) died. 3. On the basis, of the aforesaid fardbeyan Angarha P.S. Case No. 15 of 1998 dated 16.4.1993 under Sections 302 and 427 of the IPC instituted and police took up investigation. It then appears that after completing the investigation police submitted charge-sheet against the appellant under Sections 302 and 427 of the IPC. Learned CJM took cognizance of the offence and thereafter committed the case to the court of sessions as the offence under Section 302 of the IPC is exclusively triable by a court of sessions. 4. After the commitment, charges were framed against the appellant under Sections 302 and 427 of the IPC and explained to him to which he pleaded not guilty and claimed to be tried. Thereafter prosecution had examined altogether 15 witnesses in support of its case. 4. After the commitment, charges were framed against the appellant under Sections 302 and 427 of the IPC and explained to him to which he pleaded not guilty and claimed to be tried. Thereafter prosecution had examined altogether 15 witnesses in support of its case. After the close of the case of prosecution, appellant was examined under Section 313 of the Cr.P.C. in which his defence is of total denial. It appears that the learned court below after considering the evidences available on record convicted and sentenced the appellant as aforesaid, against that the present appeal has been filed. 5. While assailing the impugned judgment, learned counsel for the appellant submitted that all the witnesses who are claiming themselves to be the eye witnesses of the occurrence are related with the deceased as such they are highly interested in the case of prosecution. Therefore it is not safe to convict the appellant on their testimony. It is further submitted that there is contradiction in the statement of witnesses with regard to the manner of occurrence. It is then submitted that I.O. who has been examined as P.W. 14 has not been produced for cross-examination, therefore, his evidence has been expunged. Thus, due to non-examination of I.O. the defence has been highly prejudiced which is fatal for the case of prosecution. 6. On the other hand, learned Additional P.P; submits that the appellant is the nephew of deceased, therefore the witnesses who are also Gotiyas of deceased are related with the appellant and they have no personal grudge to falsely implicate the appellant. Hence it cannot be said that they falsely implicated the appellant because they• are relative of deceased. So far non-examination of I.O. is concerned, it is submitted that though the I.O. has been produced in this cast but he has not been cross-examined. However, later on an application filed for recalling him which was allowed but on recall the I.O. did not turn up, hence his evidence has been expunged. It is submitted that even due to the non-examination of I.O. no prejudice has been caused to the appellant because the place of occurrence has not been disputed nor any contradiction elicited from the evidence of witnesses of fact, which required to be proved by the I.O. Hence, non-examination of I.O. is not fatal for the case of prosecution. It is submitted that even due to the non-examination of I.O. no prejudice has been caused to the appellant because the place of occurrence has not been disputed nor any contradiction elicited from the evidence of witnesses of fact, which required to be proved by the I.O. Hence, non-examination of I.O. is not fatal for the case of prosecution. It is further submitted that there is absolutely no contradiction in the evidence of prosecution witnesses with regard to the place of occurrence and manner of occurrence. It is submitted that the evidence of eye witnesses find full support from the medical evidence. Accordingly, it is submitted that there is no illegality and/or irregularities in the impugned judgment which require any interference by this Court. 7. Having heard the submission, I have gone through the record of the case. As noticed above, in the instant case prosecution had examined altogether 15 witnesses. P.W. 1 Lakhi Ram Bediya is a witness of inquest and seizure list. P.W. 2 Sohan Bedia is the informant and one of the eye witness of occurrence. P.W. 3 Balu Bedia had reached at the place of occurrence on hearing hulla and had snatched Basulee from the possession of appellant. P.W. 5 Banshi Bedia is the nephew of the deceased and an eye witness of the occurrence. P.W. 6 Rantrlu Bedia is the son of deceased who is a hearsay witness. P.W. 7 Ashok Bedia is an eye witness of the occurrence. P.W. 11 Rajesh Bedia is the grandson of deceased. He is also an eye witness of the occurrence. P.W. 12 Jainath Bedia and P.W. 13 Madras Bedia are' co-villagers who came after hearing hulla and they are hearsay on the point of occurrence. P.W. 14 Sri Niwas is the Investigating Officer. However it appears from the order dated 16.8.2002 of sessions trial that h is evidence has been expunged by the court below because he has not been produced on recall for cross-examination. P.W. 15 is the doctor who held autopsy on the dead body of deceased (Pusan Devi). The prosecution had also brought on record Ext.-1 Series-Signature of witnesses on inquest report, seizure list and fardbeyan, Ext.-2 is the Post Mortem Report. 8. P.W. 15 Dr. P.W. 15 is the doctor who held autopsy on the dead body of deceased (Pusan Devi). The prosecution had also brought on record Ext.-1 Series-Signature of witnesses on inquest report, seizure list and fardbeyan, Ext.-2 is the Post Mortem Report. 8. P.W. 15 Dr. Ajeet Kumar Choudhary has deposed that on 16.4.1998 he held autopsy on the dead body of Pusan Devi at Ranchi Medical College Hospital ana found following ante mortem injuries:- 1. Abrasion 2 x 1 cm on left scapular region. 2. Lacerated wound (i) 1 x 1/2 cm x bone deep on the front of the noise of left side with fracture of underlying nasal bones. (ii) 2 x 2 cm x soft tissue over left chick in front of the left ear. (iii) 1 x 1/2 cm x soft tissue on left lower lip with fracture of left side of mandible bone. On internal examination he found contusion of left tissue on left chick and left fronts temporal parietal scalp. He further found fracture of left front parietal bones. There is contusion of brain and presence of subdural blood and blood clots over left hemisphere of brain. According to the doctor, the injuries caused by hard and blunt substance and the death is also due to the said injury. He has' proved the post mortem report. During the cross-examination his finding has not been challenged by the defence. Thus, I find that in the instant case, the prosecution has been able to prove that the deceased died due to the injuries sustained by her. 9. Now, I am proceeding to consider whether the prosecution has been able to prove that the said injuries were caused by the present appellant? To prove the charges of the appellant the prosecution heavily relied upon the evidence of P.Ws. 2, 3, 5, 7 and 11. P.W. 2 Sohan Bedia is the informant of this case. He stated that at the time of occurrence, he was present in front of the house of Banshi Bedia (P.W. 5) and saw that while the deceased (Pusan Devi) was going to her house, appellant assaulted her with a Basulee and given 2 to 3 blows. He further deposed that he alongwith deceased and Banshi Bedia raised hulla whereupon Ashok Bedia, Malu Bedia came and they snatched Basulee from the hand of the appellant. He further deposed that he alongwith deceased and Banshi Bedia raised hulla whereupon Ashok Bedia, Malu Bedia came and they snatched Basulee from the hand of the appellant. He further deposed that then appellant went to his house and took out a tangi and had broken the roof of the house of Pusan Devi and had also cut the door of his house. P.W. 5 Banshi Bedia, P.W. 7 Ashok. Bedia and P.W. 11 Rajesh Bedia had given the same ocular version regarding the occurrence as stated by P.W. 2. P.W. 3 Balu Bedia had stated that he came to the place of occurrence after hearirig hulla and saw that Balak Ram Bedia was holding a Basulee in his hand and Pusan Devi was sitting on the ground in injured condition. He further states that he alongwith Sohan Bedia, Malu Bedia, Bhalu Bedia, Ashok Bedia snatched Basulee from the hand of Balak Ram Bedia (appellant). This witness had also stated that thereafter 1he appellant took out a tangi from his house and cut the door of P.W. 1. However, the said tangi was snatched from his possession by the villagers and thereafter he has been apprehended and tied with a rope. 10. From the perusal of evidence of P.Ws. 2, 3, 5, 7 and 11, I find that the defence had cross-examined them at length but they remained consistent with regard to the place of occurrence and manner of occurrence. The defence had not elicited anything from these witnesses on which their testimony can be brushed aside. 11. The contention of learned counsel for the appellant that the aforesaid witnesses of facts are related with the deceased and therefore their evidence cannot become the basis for convicting the appellant have no leg to stand. It is worth to mention that the deceased is the aunt of appellant Balak Ram Bedia. It further appears that the deceased is the maternal aunt of P.W. 2. It further appears that P.W. 5 is also one of the nephew of deceased. P.W. 7is the nephew of informant. P.W. 11 is the grandson of deceased. Thus, it appears that all the P.Ws. are related to the deceased as well as with the appellant. The appellant had brought nothing on record to show that P.Ws. 2, 3, 5 and 7 have any reason to falsely implicate the appellant. P.W. 7is the nephew of informant. P.W. 11 is the grandson of deceased. Thus, it appears that all the P.Ws. are related to the deceased as well as with the appellant. The appellant had brought nothing on record to show that P.Ws. 2, 3, 5 and 7 have any reason to falsely implicate the appellant. Under the said circumstance, their evidence cannot be discarded only on the ground that they are related with the deceased. Therefore, the aforesaid submissions by the learned counsel for the appellant have no leg to stand. 12. P.W. 4 Malu Bedia, P.W. 8 Shibu Bedia, P.W. 9 Bhodra Bedia, P.W. 10 Sukhlal Bedia have been tendered for cross-examination. 13. So far non-examination of the I.O. is concerned, from the perusal of record, I find that the defence had not challenged the place of occurrence. The defence had also not elicited anything from the evidence of aforesaid witnesses of facts for proving contradiction in their evidence with that of their previous statement made before the police. Under the said circumstance, due to non-examination of I.O., no prejudice has been caused to the appellant. It is well settled that if due to the non-examination of I.O., no prejudice has been caused to the accused appellant then in that case, non-examination of I.O. has no consequences on the fate of prosecution case. 14. In view of the statement of P.Ws. 2. 3, 5, 7 and 11 that the appellant had inflicted injury to the deceased by a Basulee and as the doctor also found three lacerated wound on the deceased as indicated above, caused by hard and blunt substance, in my view, the learned court below rightly concluded that the appellant had committed the murder of deceased Pusan Devi. Under the said circumstance, I find no reason to interfere with the impugned judgment of conviction and order of sentence. 15. In the result, I find no merit in this appeal, same is accordingly, dismissed.