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2009 DIGILAW 214 (JHR)

Uttam Ghoshal v. State of Bihar

2009-02-10

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT This appeal has been preferred against the judgment of conviction and order of sentence passed by Sri Raj Narayan Prasad Singh, 1st Additional Sessions Judge, Dhanbad in Sessions Trial No. 421 of 1996 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution case, in short, was that the informant Santosh Kumar Pandey alongwith his brother Vyas Pandey was going towards Mal Godam Station Road, met with the accused Uttam Ghoshal near the kirana_store of one_Nunu. Uttam Ghoshal. demanded Rs.7000/- said to be due from Vyas Pandey. Vyas Pandey assured to repay the amount after arranging the amount. Hearing the same the accused-appellant Uttam Ghoshal abused Vyas Pandey and took out dagger from his pocket and inflicted 4-5 blows repeatedly around the chest. Vyas Pandey fell down. He was immediately removed to Chaudhary Nursing Home where he died. In Chaudhary Nursing Home the said statement was given before the Police by Santosh Kumar Pandey. His fardbeyan was recorded by the S.I. of Police, Katras on 6.4.1996 at 12:15 hours. The occurrence said to have taken place on the same day at about 11 :00 hours. 3. The Police registered the case under Sections 302/34 of the Indian Penal Code against the appellant-Uttam Ghoshal and two unknown accused persons allegedly accompanied the appellant. On completion of investigation the Police submitted charge sheet under Section 302 I.P.C. only against the appellant. Cognizance of the said offence was taken and the case was committed to sessions. The appellant pleaded not guilty and claimed to be tried. In his examination under Section 313 of the Cr.P.C. he denied the entire allegation and claimed that he was falsely implicated by the informant Santosh Kumar Pandey. 4. The prosecution examined altogether nine witnesses, Learned trial court on completion of the trial relied on the oral testimony of P.W. 7 and P.W. 8 as well as the medical evidence of P.W. 4 and convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo life imprisonment. 5. In this appeal the judgment of the trial court has been assailed mainly on the ground that there was no material on record to show pre-meditation and previous intention of the appellant to kill Vyas Pandey. 5. In this appeal the judgment of the trial court has been assailed mainly on the ground that there was no material on record to show pre-meditation and previous intention of the appellant to kill Vyas Pandey. The occurrence took place in the fit of anger and at the spur of moment and as such the case at best falls within Section 304(2) of the I.P.C. and the conviction of the appellant under Section 302 of the I.P.C. is erroneous and unsustainable in law. Learned counsel for the appellant referred to and relied upon the decision of the Kerala High Court passed in the case of Ramachandran Vs. State of Kerala (reporited in 2000 CRLJ 973 KER). 6. Learned A.P.P. strongly opposed the contentions of the appellant and submitted that the instant case is a full proof case of conviction under Section 302 of the I.P.C. in view of the clear and unimpeachable evidences i.e. the oral testimony of the informant, corroboration by P.W. 8 and the evidence of Dr. Dheeraj, who had held post mortem of the dead body and found ante-mortem injury. 7. He further submitted that there was no sudden fight or provocation. Rather the appellant had abused and given repeated dagger blows on the vital part of the body of the deceased without any provocation. The case is not of a sudden quarrel or the commission of offence in a heat of passion. The circumstances appearing on record go to show that the occurrence was pre-meditated and planned. The appellant was already armed with dagger. This is a clear case of offence under Section 300 of the I.P.C: and the facts and circumstances of the case do not attract Section 304(2) of the I.P.C. Learned trial court has thoroughly discussed the evidences and has given sound reasons for convicting the appellant under Section 302 of the I.P.C. 8. We have heard learned counsel for the parties and ourselves meticulously appraised the evidence on record. The prosecution examined as many as nine witnesses to prove the charges against the appellant. Some documents were also proved and exhibited. In this case the informant Santosh Kumar Pandey P W. 7 claims to be with Vyas Pandey witnessing the whole incident, P.W. 8 Jawahar Chauhan is another eyewitness. 9. The prosecution examined as many as nine witnesses to prove the charges against the appellant. Some documents were also proved and exhibited. In this case the informant Santosh Kumar Pandey P W. 7 claims to be with Vyas Pandey witnessing the whole incident, P.W. 8 Jawahar Chauhan is another eyewitness. 9. On close scrutiny we find that P.W. 2 is hearsay witness; P.W. 3 and 5 have been declared hostile; P.W. 6 is a tendered witness; P.W. 7 and PW. 8 who have witnessed the incident and P.W. 9 the Investigating Officer are the important witnesses and their oral testimony read with the evidence of P.W. 4 the doctor fully support the prosecution case. 10. P.W. 7 in his deposition has made consistent account of the incident and stated that when he alongwith the deceased Vyas Pandey reached near the Railway Mal Godam, close to Nunu Store, they met with Uttam Ghoshal-the appellant-who happened to be the friend of Vyas Pandey. The appellant demanded the alleged past dues of Rs.7000/-. When Vyas Pandey assured him to repay the amount after making necessary arrangement, the accused-appellant abusing Vyas Pandey took out dagger from the right pocket of pant and inflicted dagger blow repeatedly, Vyas Pandey fell down on the ground. He supported his version that the appellant had inflicted four dagger blows repeatedly causing severe injuries, as a result of which Vyas Pandey fell down. He was taken to hospital where he succumbed to his injuries, This witness also identified the appellant in the dock. 11. P.W. 8-Jawahar Chauhan who was also present at the time of occurrence corroborated the oral testimony of P.W. 7. He stated that on his way to Katras Bazar when he reached near Mal Godam he saw that there was some altercation between the deceased-Vyas Pandey and the appellant. The appellant took out a dagger from his pocket and gave repeated blows on the person of the deceased-Vyas Pandey. He had given repeated dagger blows on his abdominal area and had run away. Vyas Pandey, thereafter, fell down on the ground and was in a pool of blood. He was taken to Chaudhary Nursing Home, where he expired. He has also identified the accused-appellant in the dock. From his evidence and also from other evidences there is nothing on record to disbelieve his testimony. He seems to be an independent witness without any bias and prejudice. He was taken to Chaudhary Nursing Home, where he expired. He has also identified the accused-appellant in the dock. From his evidence and also from other evidences there is nothing on record to disbelieve his testimony. He seems to be an independent witness without any bias and prejudice. 12. The Investigating Officer-P.W.9 has also corroborated the prosecution version and has confirmed that in course of investigation he had found all the supporting materials. He stated that while he was on patrolling duty he heard about the incident and rushed to the place of occurrence. There he came to know that the injured was taken to Chaudhary Nursing Home. He went to the Nursing Home and found the injured Vyas Pandey dead. He prepared a challan of the dead body (Exhibit-4) and recorded the fardbeyan of Santosh Kumar Pandey (Exhibit-5), He also recorded the statement of other witnesses and sent the dead body to Dhanbad for post-mortem. He visited the piece of occurrence, which was in front of a shop named Nunu Stores. He saw the bloodstains at the place of occurrence and thereafter carried out raid and nabbed the accused and arrested him in the premises of Dhanbad Raiiway Station. After investigation he found sufficient material against the appellant and submitted chargesheet He claimed to have seen the dead body of Vyas Pandey in Chaudhary Nursing Home with severe injuries on his chest and both sides of ribs caused by sharp cutting weapon and the intestine bulging out towards left side. He has also identified the appellant in the dock. 13. The Doctor-P.W. 4, who had conducted the autopsy, found the following injuries on the person of the deceased:- Stab Wound:- i) Wedge shaped 1" x 1/5" x cavity deep placed just below xiphisternum. ii) Wedge shape 11/2 x %" x cavity deep over lower part of the left iliac fossa from which 18" long portion of the small intestine with mesentry was protruding out. The intestine showed punctured at one point 1/5" long x 1/ 10" x cavity deep. iii) 1" x 1,4" cavity deep placed 2" outer to the left nipple. iv) 2" x 1" x skin deep and 1" below lower end of the right shoulder blade. The intestine showed punctured at one point 1/5" long x 1/ 10" x cavity deep. iii) 1" x 1,4" cavity deep placed 2" outer to the left nipple. iv) 2" x 1" x skin deep and 1" below lower end of the right shoulder blade. The track was traced under the skin to an exit wound %" x 14" in the right anterior axillary line on the 8th rib level 2 W' away and W' at lower level and thus making this wound a perforating one. 14. On dissection of the injury in the left chest flank he found the injury penetrating into the lower lobe of the left lung 1 W', after cutting through a portion of the left 5th rib under it. Fluid blood approximately 200 c.c. was found inside the left chest cavity. Stab below xiphisternum entered into the liver underneath for 2" depth. Fluid blood and clots were found inside the abdominal cavity approximately 200 c.c. The visera in general were pale, 80th sides of the heart and the urinary bladder were partially full. The stomach contained light brown watery fluid approximately 100 c.c. mixed with some 10 c.c. partly digested food etc. 15. In his opinion the death resulted due to shock and asphyxia caused by the stab injuries of homicidal nature. According to him the injuries were possible by knife. In his cross-examination he has clearly stated that the injuries were caused by sharp cut weapon and there was no lacerated injury. 16. Learned Trial Court has discussed the said evidences in detail and considered every possible aspects and has rejected the defence plea of false implication. He has also taken note of the contradiction found in the prosecution evidence, but •has found them insignificant. In view of the positive and cogent evidence of killing the deceased brutally by giving repeated dagger blows in the broad day light, he has observsd that such minor discrepancies in the evidences are not unnatural when the witnesses narrate the story of the occurrence according to their perception and conception. 17. From the over all assessment of the evidences, materials on record we do not find any point of disagreement or infirmity in the findings and conclusion of the learned trial court. 17. From the over all assessment of the evidences, materials on record we do not find any point of disagreement or infirmity in the findings and conclusion of the learned trial court. We are of the clear view that the deceased was murdered intentionally and the case squarely comes within the mischief of Section 300 of the I.P.C. The decision of the Kerala High Court in the case of Ramachandran (supra) was rendered on the different facts, situation and the same has no application to the facts of this case. 18. We find no merit in this appeal and uphold the impugned judgment/order of learned court below. 19. This appeal is, accordingly, dismissed.