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2009 DIGILAW 890 (JHR)

Bodo @ Bora Tudu v. State of Bihar

2009-06-26

N.N.TIWARI, PRASHANT KUMAR

body2009
By Court.-- This appeal is directed against the judgment of conviction and order of sentence dated 7.8.1999 passed by the Additional Sessions Judge, Pakur in Sessions Trial Nos. 195 of 1998/32 of 1998 whereby and whereunder the sole appellant Bodo @ Bora Tudu has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life. 2. The case of the prosecution, in short, as per the fardbeyan of Lothru Tudu is that, in the night of 13.2.1998, the informant alongwith his son Dekhin Tudu (deceased) and daughter-in-law Nilmuni Marandi were celebrating Badhna festival. His neighbour, Bodo @ Bora Tudu was also celebrating the festival. The informant's daughter-in-law had gone near the house of Bodo @ Bora Tudu and because of that his son Dekhin Tudu picked up quarrel with her. While they were quarreling, the accused Bodo @ Bora Tudu came armed with iron 'sabal' (thick iron rod with one end pointed) and gave a blow on the head of Dekhin, causing bleeding injuries on the left eye and near the left ear. The deceased did not bear the injury and fell on the ground and died. On alarm, Babulal Tudu, Mishir Tudu and Kanhai Yadav came running and witnessed the occurrence. The accused seeing the said persons fled away and hid in his house. Even before the occurrence, there was quarrel in between the deceased and accused-appellant. 3. On the basis of aforesaid fardbeyan, police instituted Pakur (M) P.S. Case No. 34 of 1998 dated 14.2.1998 under Section 302 of the Indian Penal Code and took up investigation. After completion of investigation, police submitted charge-sheet against the sole appellant Bodo @ Bora Tudu under Section 302 of the Indian Penal Code. 4. Cognizance was taken of the offence under Section 302 IPC against the appellant and the case was committed to the Court of Sessions as the offence is exclusively triable by the Court of Sessions. Charge under Section 392 IPC was framed against the sole appellant and was explained to him to which he pleaded not guilty and claimed to be tried. 5. In order to prove the said charge, the prosecution examined altogether 10 witnesses in support of its case. After closing of evidence of the prosecution the accused-appellant was examined under Section 313 of the Cr.P.C. in which his defence was of total denial. 6. 5. In order to prove the said charge, the prosecution examined altogether 10 witnesses in support of its case. After closing of evidence of the prosecution the accused-appellant was examined under Section 313 of the Cr.P.C. in which his defence was of total denial. 6. Learned Trial Court on due consideration and appraisal of evidences and material on record held the appellant guilty of the said charge and convicted and sentenced him as aforementioned. 7. While assailing the impugned judgment of learned court below, in this appeal, it has been submitted by learned counsel for the appellant that the entire case of the prosecution is based upon the evidences of P.W. 8 and P.W. 9, who are father and wife of the deceased, who are highly interested witnesses. There is no corroboration of the said evidence by any independent source. Even the witnesses who were named in the first information report did not support the prosecution case, they were declared hostile. It is not safe to convict the appellant on the uncorroborated testimonies of P.W. 8 and P.W. 9. Learned counsel for the appellant alternatively submitted that it is clear from the statement of P.W. 8 that occurrence took place in course of quarrel and the appellant had not come to the place of occurrence with, pre-conceived plan to, kill the deceased. No offence as such under Section 302 of the Indian, Penal Code is made out. This case at best attracts the ingredients of culpable homicide not amounting to murder; punishable under Section 304 Part-I of the Indian Penal Code. It has been submitted that the appellant has remained in custody for more than 11 years anti has been sufficiently punished for the said crime. 8. On the other hand, learned Additional P.P. defending the impugned judgment submitted that only because P.W. 8 and P.W. 9 are closely related to the deceased their evidence cannot be discarded. On reading the evidences of P.W. 8 and P.W. 9 it is crystal clear that they have consistently supported and proved the prosecution version that the appellant had inflicted Sabal injury on the left eye and on the left side of scalp near ear. That has been also corroborated by the medical evidence. On reading the evidences of P.W. 8 and P.W. 9 it is crystal clear that they have consistently supported and proved the prosecution version that the appellant had inflicted Sabal injury on the left eye and on the left side of scalp near ear. That has been also corroborated by the medical evidence. The physical findings of the Investigating Officer also corroborate the statement of P.W. 8 and P.W. 9 and go to prove that the appellant had intentionally caused injury on the vital part of the body of the deceased. Learned court below has rightly convicted and sentenced the appellant for committing the murder of deceased Dekhin Tudu. The impugned judgment requires no interference. 9. Having heard the submissions, we also scrutinized the facts, material and evidence on record. We find the Doctor P.W. 7 who held autopsy on the dead body of the deceased Dekhin Tudu found the following ante mortem injuries: (i) Sharp cut injury 2" x 1" brain deep on the left side of the scalp with fracture of left perital bone just above the left pinna. (ii) Sharp cut injury 2" x 1" bone deep on the left cheek just below the maxilla prominence with fracture of maxillary bone. 10. In the opinion of the Doctor, the aforesaid injuries were caused by heavy sharp cutting weapon. The cause of death of the deceased was severe cerebral shock due to injuries on skull. From the cross-examination, we find that the defence has not challenged the opinion of the Doctor regarding the cause of death. Thus, we find that the prosecution has been able to prove that the Dekhin Tudu (deceased) died due to injury sustained by him on his left scalp. 11. Now the question remains to be decided as to whether the said injuries were caused by the appellant with intention to kill the deceased. With a view to determine the aforesaid question we carefully examined the evidences of the prosecution. We find that P.W. 1 Kanhaia Yadav, P.W. 2-Chhabilal Pramanik, P.W. 3, Babulal Tudu, P.W. 4 Mishir Tudu, P.W. 6 Chhoto Marandi have not supported the case of the prosecution. They were declared hostile. P.W. 5 Saijul Haque is a witness of Inquest. He stated that in his presence the Inspector of Police had prepared the Inquest report of the dead body of Dekhin Tudu. They were declared hostile. P.W. 5 Saijul Haque is a witness of Inquest. He stated that in his presence the Inspector of Police had prepared the Inquest report of the dead body of Dekhin Tudu. He has proved signatures of witnesses on the Inquest report, Ext.-1/2 and Ext.-1/3. He, however, denied seizure of 'sabal', in presence, though, he admitted his signature on the seizure list. P.W. 8 Lothru Tudu is the informant of this case. He is the father of the deceased Dekhin Tudu. He deposed that on the date of occurrence while they were celebrating Sohrai (badhna) festival in that night, there was some quarrel between his son Dekhin Tudu and the accused Bodo @ Bora Tudu. In course of that quarrel Bodo @ Bora Tudu assaulted Dekhin Tudu (deceased) with 'sabal' and killed him. P.W. 9 Nilmuni Marandi is the wife of the deceased. She also stated that on the day of Sohrai festival, Bodo @ Bora Tudu had assaulted her husband with 'Sabal' and due to that he died. In the cross-examination of these witnesses the defence could not elicite anything to discredit their evidence. They stood to the test of cross-examination and remained consistent. There is nothing on record to show that these witnesses have any personal grudge against the appellant. The evidences of these witnesses find full support from the medical evidence of P.W. 7 and the physical findings of Investigating Officer P.W. 10 who had inspected the place of occurrence and found blood near the place of occurrence as also seized the blood stained iron sabal. 12 The submission of learned counsel for the appellant that P.W. 8 and P.W. 9 are closely related with the deceased, and their evidence is not reliable cannot be accepted. It is well settled that merely because the witnesses are closely related with the deceased, their evidence cannot be discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. In such cases, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent, credible and acceptable. If it is so then the Court can record conviction on the evidence of close relative. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. In such cases, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent, credible and acceptable. If it is so then the Court can record conviction on the evidence of close relative. In the instant case, as noticed above we find that the statements of P.W. 8 and P.W. 9 are consistent and clear and there is nothing on record to tarnish their evidence. We further find that the evidence of P.W. 8 and P.W. 9 find full support from the medical evidence and the evidence of the Investigating Officer and that the prosecution has been able to prove that the deceased Dekhin Tudu was done to death by the appellant by inflicting injuries with sabal. 13. Now the question is as to whether the appellant had assaulted the deceased with an intention to commit his murder. On appraisal of evidence of P.W. 8 we find that Bodo @ Bora Tudu and Dekhin Tudu (deceased) picked up a sudden quarrel and in course of that Bodo @ Bora Tudu had assaulted the deceased with iron sabal causing injury and resulting into the death of Dekhin. There is no evidence to prove that the accused-appellant had come to the place of occurrence with premeditation to commit murder of Dekhin Tudu. Rather we find evidence to conclude that the occurrence took place in heat of passion and in course of the sudden quarrel. We are therefore of the view that the present case attracts Exception-4 of Section 300 of the Indian Penal Code. 14. In view of the above, we do not find sufficient materials on record to support the charge under Section 302, against the appellant and hold that the appellant caused death of Dekhin Tudu (deceased) in the heat of anger, due to sudden quarrel, attracting Section 304 Part-I of the Indian Penal Code. We accordingly find the appellant guilty for committing an offence under Section 304 Part-I of the Indian Penal Code and modifying his conviction from Section 302 IPC to Section 304 Part-I of the Indian Penal Code. 15. We accordingly find the appellant guilty for committing an offence under Section 304 Part-I of the Indian Penal Code and modifying his conviction from Section 302 IPC to Section 304 Part-I of the Indian Penal Code. 15. In the result, this appeal is dismissed but with the said modification in the impugned judgment of conviction and order of sentence holding the appellant guilty under Section 304 Part-I and sentencing him to the period already undergone by him. Since, the appellant, above named, is in custody, he is directed to be set at liberty forthwith, if not wanted in any other case.