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2011 DIGILAW 1113 (JHR)

Babusar Besra v. State of Jharkhand

2011-12-16

D.N.UPADHYAY

body2011
JUDGMENT D.N. Upadhyay, J.- This appeal is directed against the judgment of conviction and order of sentence dated 18.12.2002 and 19.12.2002 respectively, passed by learned 3rd Additional District and Sessions Judge, Dumka in Sessions Case Nos. 40 of 2001/78 of 2001 corresponding to Masalia Togra P.S. Case No. 66/1999 whereby the appellant has been held guilty for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced to undergo R.I. for a period of three years. 2. The prosecution case, as it appears from the Fardbayan of Rupial Kisku (P.W. 1) is that on 22.11.1999, exchange of hot words took place between the informant and the appellant Babusar Besra on the point of time consumed for construction of house of Bhim Murmu. It is alleged that Shivdhan Kisku (father of the informant) appeared at the scene of occurrence after hearing 'hulla'. When the deceased raised objection against the noise created, the appellant took out an iron rod and inflicted blow on the head of Shivdhan Kisku, who succumbed to the injuries. 3. After the case was registered, the investigation proceeded ahead and after completion of the investigation, chargesheet under Section 302 of the Indian Penal Code was submitted against the sole appellant Babusar Besra. The prosecution, in order to substantiate the charge, had examined altogether 10 (ten) witnesses and proved documents as per list of Exhibit. 4. The informant has been examined as P.W. 1. He has supported the prosecution case and deposed that on the date of incident, at about 10:00 p.m. on the occasion of 'Nawan Puja' [festival], they had consumed rice beer and enjoying festival. In that course, exchange of hot words took place between the informant and the appellant Babusar Besra. Hearing the noise, deceased Shivdhan Kisku appeared at the place and he was assaulted by the appellant by means of iron rod as a result of which, he sustained injuries on his head and fell down. The deceased was removed to Hospital but could not survive. The version of the informant found support from the evidence of Maino Kisku (P.W.2), Jogendra Kisku (P.W.3), Bibhudhan Kisku (P.W. 5). The witnesses namely Mutoi Murmu (P.W. 6), Chabi Murmu (P.W. 7), Nunjan Murmu (P.W. 8) have not supported the prosecution case and they have been declared hostile. 5. The deceased was removed to Hospital but could not survive. The version of the informant found support from the evidence of Maino Kisku (P.W.2), Jogendra Kisku (P.W.3), Bibhudhan Kisku (P.W. 5). The witnesses namely Mutoi Murmu (P.W. 6), Chabi Murmu (P.W. 7), Nunjan Murmu (P.W. 8) have not supported the prosecution case and they have been declared hostile. 5. Bhim Murmu (P.W. 4) was present alongwith the informant and the appellant at the time they were enjoying the festival. He has also supported this fact that the informant was saying that the construction of house of this witness was completed within one year but the appellant was not agree with the view, as a result exchange of hot words took place between them. Thereafter, this witness went home and after 3-4 hours, he could learn about the incident in which the deceased had sustained injuries at the• hands of the appellant. He has presented himself as hearsay witness but supported the genesis of the occurrence. 6. Raj Narayan Prasad (P.W. 9) happens to be the Investigating Officer and he has supported the investigation done by him. He has proved the FIR and other documents. It was deposed that initially the case was registered under Sections 341, 323, 307 of the Indian Penal Code but after the death of deceased, •Section 302 of the Indian Penal Code was added. 7. Dr. Sita Ram Sah (P.W. 10) had conducted' autopsy on the dead body of Shivdhan Kisku on 29.11.1999 and according to the Doctor, frontal and parietal bone of skull were found fractured. The brain and membrane were lacerated. The death caused due to shock and haemorrhage as a result of said injury and the time elapsed since death till post mortem examination 36 hours. 8. The learned counsel for the appellant has assailed the judgment on the ground that no independent witness has supported the prosecution case. The witness namely Mino Kisku (P.W. 2) is the wife of the informant whereas witnesses namely Jogendra Kisku (P.W. 3) and Sibhudhan Kisku (P.W. 5) are the brothers of the informant. They are the highly interested witnesses and the FIR did not indicate presence of P.Ws. 3 and 5 at the place and time of occurrence. Shim Murmu (P.W. 4) has not supported the occurrence of assault though according to the informant, the occurrence took place in presence of this witness. 9. They are the highly interested witnesses and the FIR did not indicate presence of P.Ws. 3 and 5 at the place and time of occurrence. Shim Murmu (P.W. 4) has not supported the occurrence of assault though according to the informant, the occurrence took place in presence of this witness. 9. There are contradictions in the statement of witnesses. The informant has disclosed in the body of Fardbayan that it was recorded on 28.11.1999 but the formal FIR indicates that information was lodged with the Police on 23.11.1999. Exhibit-2 further indicates that a written report was also lodged by the informant on 23.11.1999. There is contradiction with regard to institution of the case. 10. Learned counsel appearing for the State has supported the judgment and submitted that the case was registered on the basis of the written report lodged by the informant and the Fardbayan of Rupial Kisku was recorded in the Hospital after death of his father Shivdhan Kisku. The formal FIR is also consistent on this point that the case was registered on the basis of written report. All the witnesses have fully supported the prosecution case and the learned Sessions Judge has rightly given the benefits to the accused by holding him guilty for the offence of culpable homicide not amounting to murder. The learned Sessions Judge has also taken lenient view while inflicting sentence and, therefore, the impugned judgment is liable to be sustained. 11. From careful consideration of the materials available on record, it is not disputed that the deceased died due to the injuries caused to him on his head and it is proved by exhibiting post mortem report (Exhibit 4). The Investigating Officer (P.W. 9), in his deposition has made it clear that on 22.11.1999 the informant along with the injured had been to the Police Station and lodged a written report on the basis of which this case was .registered. Accordingly, formal FIR having signature of the then Office Incharge (Ext.-2/1) was prepared and the injured was referred to the Hospital for his treatment. In para-4, he says that after the death of Shivdhan Kisku, he received a Fardbayan and then he had filed requisition to add Section 302, which was accordingly allowed. In view of the evidence of the Investigating Officer, I do not find that there was any irregularity or contradiction with regard to registration of the case. 12. In para-4, he says that after the death of Shivdhan Kisku, he received a Fardbayan and then he had filed requisition to add Section 302, which was accordingly allowed. In view of the evidence of the Investigating Officer, I do not find that there was any irregularity or contradiction with regard to registration of the case. 12. Now coming to the evidence available on record, it reveals that the informant as well as Mino Kisku (P.W. 2) have fully supported the prosecution case. P.Ws. 3 and 5 have also proved their presence at the place of occurrence which cannot be doubted considering the fact that the date of occurrence was a village festival known as 'Nawan Puja' and the villagers were jointly enjoying the festival and consuming rice beer. No material contradiction on the point of causing assault by means of iron rod by the appellant to the deceased has come on record. The learned Sessions Judge has rightly held the appellant guilty for the offence punishable under Section 304 Part-II of the Indian Penal Code and shown lenient view while inflicting sentence. 13. In view of the discussions made above, I do not find any merit in this appeal and the same stands dismissed. The bail of the appellant stands cancelled and he is directed to surrender before the convicting Court/successor to serve out the punishment within one month from the date of this order. In case the appellant fails to surrender within the period indicated above, the Court shall proceed to forfeit the bail amount and also to take coercive steps to secure the attendance of the appellant.