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2015 DIGILAW 228 (JHR)

Gabrail Samad v. State of Jharkhand

2015-02-11

R.R.PRASAD, RAVI NATH VERMA

body2015
JUDGMENT By Court: This appeal is directed against the judgment of conviction and order of sentence dated 25th September, 2004, passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 17 of 2002, whereby and whereunder the trial Court having found the appellants Gabrail Samad and Susain Samad guilty for committing murder of Baudha Beck and also for making an attempt on the life of the informant Niroj Beck, convicted them for the offence punishable under Sections 302 and 307 of the Indian Penal Code and sentenced them to undergo R.I for life for the offence under Section 302 of the Indian Penal Code. However, no separate sentence was inflicted for the offence under Section 307 of the Indian Penal Code. 2. The case of the prosecution is that on 04/10/2001 at about 05.30 P.M while the informant (PW6) was there in his house, he saw his father Baudha Beck (the deceased) coming towards home. Suddenly, appellant no. 1 Gabrail Samad came there and assaulted on the neck of his father with 'Baluwa' as a result of which his father fell down. Immediately on seeing this, he went there and asked the appellant Gabrail as to why he has assaulted his father. Upon it, appellant no. 2 Susain Samad caught hold of him and Gabrail Samad started assaulting him as a result of which he received injuries over his head and below the right shoulder. Thereafter, in order to save himself, he ran away. At the same time, accused persons exhorted each other to kill him. Subsequently, PW8 the Officer-in-Charge of Bansjore O.P, on getting an information that one person has been killed and the dead body is lying over the road, reached there alongwith the Chaukidars and recorded the fardbeyan (Ext.2) of Niroj Beck the informant (PW6) at about 08.00 P.M, wherein the informant stated about the occurrence as has been stated above. He also stated that the accused persons had committed such offence as there was land dispute in between them. Upon it, a formal FIR (Ext.3) was drawn. 3. The Investigating Officer (PW8) took up the investigation, during which he held inquest on the dead body and prepared a inquest report (Ext5). The Investigating Officer also did notice the injuries on the person of the informant (PW6). He sent a requisition for his treatment. The informant (PW6) was examined by Dr. 3. The Investigating Officer (PW8) took up the investigation, during which he held inquest on the dead body and prepared a inquest report (Ext5). The Investigating Officer also did notice the injuries on the person of the informant (PW6). He sent a requisition for his treatment. The informant (PW6) was examined by Dr. Patrick Tete (PW3), who, upon examining him, did find the following injuries on his person: (1) Incised wound on forehead 3” x 1/2” x skin deep. (2) Incised wound 1 1/4” x 1/4” skin deep. (3) Incised wound on right shoulder 3” x 1/2” skin deep. (4) Tenderness in right palm. He issued injury report (Ext.1) with an opinion that injury nos. 1 to 3 have been caused by sharp edged weapon such as 'Baluwa'. Injury no. 4 has been caused by hard blunt weapon such as 'Lathi'. At the same time, the Investigating Officer, after holding inquest on the dead body, sent the dead body for its autopsy, which was done by Dr. Suhash Tetarbe (PW9), who, on holding autopsy, did find the following injuries on the persons of the deceased: External Injuries (I) A cut wound measuring 4” x 1” x bone deep, extending from left pinna towards occipital, brain tissues were found cut and vertebrae C 2 4 were found fractured. Internal Injuries (1) Brain matter was cut by sharp weapon. (2) Fracture of Vertebra C 2, 3 & 4. (3) Heart was found pale and empty and other viscera was also found pale and empty. (4) Vessels at the site of injuries were found cut and large vessels were collapsed. The Doctor (PW9) issued a Post Mortem report (Ext.8) with an opinion that the death was caused due to shock and hemorrhage on account of cardio respiratory failure due to above injuries. 4. After the investigation was over, charge sheet was submitted against these two appellants as well as Nuas Samad, upon which cognizance of the offence was taken against them and the case was committed to the Court of Sessions where these two appellants and Nuas Samad, were put on trial. 4. After the investigation was over, charge sheet was submitted against these two appellants as well as Nuas Samad, upon which cognizance of the offence was taken against them and the case was committed to the Court of Sessions where these two appellants and Nuas Samad, were put on trial. In course of trial, the prosecution examined as many as 9 witnesses, of them PW1 Anand Singh, PW2 Gandhi Devi and PW6 the informant Niroj Beck are the eyewitnesses, who more or less have testified that while the deceased was returning home by road, Gabrail Samad came there and gave 'Baluwa' blow over his neck. PWs4, 5 and 7 are the hearsay witnesses. 5. After closure of the prosecution case, incriminating circumstances appearing against the accused were put to them under Section 313 Cr. P.C, which they denied. Thereupon, the Court having found the testimonies of the eyewitnesses to be trustworthy getting corroboration from the medical evidence, passed the order of conviction and sentence against these two appellants, whereas the other accused Nuas Samad was acquitted as the prosecution failed to prove charge against him. 6. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred. 7. Mr. Anup Kumar, learned counsel appearing for the appellants submits that the prosecution has completely failed to prove the case beyond all reasonable doubts as the Investigating Officer never collected earth smeared with blood to establish that the occurrence had taken place at the place where the prosecution claimed to have occurred. Further, it was submitted that the weapon used, is said to have been recovered at the instance of the appellant Gabrail Samad, but that weapon had never been sent before the Forensic Science Laboratory to match with the blood of the deceased and that weapon had also not been produced before the Court. Neither sketch map was prepared nor incriminating evidence appearing against the appellants was put to the accused under Section 313 Cr.P.C. and, thereby, the appellants were denied opportunity to explain over the incriminating circumstances appearing against them and, hence, the case of the defence has greatly been prejudiced. In support of his submissions, learned counsel has referred to a decision of the Hon'ble Supreme Court, rendered in a case of “Man Singh versus State of Utter Pradesh [(2011) 15 SCC 216]”. In support of his submissions, learned counsel has referred to a decision of the Hon'ble Supreme Court, rendered in a case of “Man Singh versus State of Utter Pradesh [(2011) 15 SCC 216]”. Thus, it was submitted that the prosecution can certainly be said to have failed to prove the charges beyond all reasonable doubts. 8. Further submission which was advanced on behalf of the appellants was that the occurrence had taken place during altercation, which is evident from the evidence of PWs1 & 6 and if that is so the case never falls within the purview of Section 300 IPC, rather it falls within one of the exceptions of Section 300 and, thereby, the appellants cannot be said to have committed offence punishable under Section 302 of the Indian Penal Code. Learned counsel, in support of it, has referred to a decision of the Hon'ble Supreme Court, rendered in a case of “Buddhu Singh & Others versus State of Bihar (now Jharkhand) [ (2011) 14 SCC 471 ]”. Lastly, it was submitted that the prosecution initially though has come with the case that on account of the land dispute the accused persons committed offence, but the prosecution has failed to establish that there was any land dispute in between the parties and hence in absence of any motive the case of the prosecution that the appellants killed the deceased cannot be accepted. 9. As against this, learned counsel appearing for the State submits that the appellants' conviction has been secured on the basis of the testimonies of 3 eyewitnesses PWs1, 2 and the informant PW6. They have categorically testified that while the deceased was coming home by road, Gabrail Samad came there by holding 'Baluwa' and assaulted over the neck of the deceased causing injury resulting into his death but the defence failed to elicit anything to discredit the testimonies of those witnesses and, thereby, even if the Investigating Officer failed to collect earth smeared with blood from the place of occurrence and to prepare a sketch map and also failed to produce the weapon before the Court, it will not affect the case of the prosecution adversely. Further, it was submitted that it is not that the incriminating evidence appearing against the appellants has not been put under Section 313 Cr.P.C., rather the incriminating evidence against the appellants, which was there that they assaulted the deceased with 'Baluwa' have been put to the accused under Section 313 Cr.P.C. and, thereby, it can not be said that statutory provision as contained in Section 313 Cr.P.C was not complied with. He would further submit that so far motive is concerned, it in a case of direct evidence, needs not to be established. Thus, it was submitted that the trial Court has rightly convicted the appellants for committing murder of the deceased and for making attempt on the life of the informant and hence, impugned judgment never warrants to be interfered with by this Court. 10. In the context of the submissions advanced on behalf of the parties, one needs to scrutinize the evidence appearing in the case. It be stated that the informant PW6 has testified that while he was sitting in front of his house, he saw appellant no. 1 Gabrail Samad assaulting his father with 'Baluwa'. On seeing it, when he went there to ask him as to why he has been assaulting his father, he was caught hold by appellant no. 2 Susain Samad and then Gabrail Samad assaulted him on his head and below the right shoulder, which injuries have been found by the Doctor (PW3) who examined him just after occurrence. Thus, his presence at the place of occurrence cannot be doubted. Moreover, the testimony of this witness gets corroboration from the testimonies of other eyewitness PW2, who has also testified that it was Gabrail Samad, who assaulted the deceased with 'Baluwa' and, therafter, the appellant no. 2 Susain Samad came over there, who caught hold of the informant PW6 and then Gabrail Samad also assaulted the informant. Similar is the testimony of PW1 another eyewitness, who has stated that it was Gabrail Samad who had assaulted the deceased with 'Baluwa' and he was the person who had assaulted the informant. 11. The testimonies of the eyewitnesses get corroboration from the evidence of the Doctor PW9, who did find the cut injury bone deep from left pinna to occipital region and at the same time, he also found vertebrae cut. That injury, according to the Doctor, has been caused by sharp cutting weapon. 11. The testimonies of the eyewitnesses get corroboration from the evidence of the Doctor PW9, who did find the cut injury bone deep from left pinna to occipital region and at the same time, he also found vertebrae cut. That injury, according to the Doctor, has been caused by sharp cutting weapon. Thus, from the evidence adduced on behalf of the prosecution, it is established beyond all reasonable doubts that it was appellant Gabrail Samad, who committed murder of the deceased. At the same time, it is also established that it was Gabrail Samad who inflicted injuries upon the informant PW6. At the same time it gets established from the evidence of the eyewitnesses that the appellant Susain Samad had not played any role in commission of murder of the deceased. Further, he has not been alleged to have caused injuries to the informant PW6. 12. Coming to the submission advanced on behalf of the defence that the earth smeared with blood had never been collected by the Investigating Officer from the place of occurrence nor the weapon recovered was sent for FSL for its testing as to whether the blood which was there on the weapon does match with the blood of the deceased nor sketch map of the place of occurrence was prepared, but in view of the fact that the testimonies of the eyewitnesses being trustworthy getting corroboration from the medical evidence, all these lacunas which were highlighted on behalf of the defence hardly do have any adverse effect over the case of the prosecution. 13. Further, in the context of the submissions made on behalf of the defence that all the incriminating materials appearing against the appellants, have not been put and, thereby, the accused persons have been denied opportunity to explain those circumstances, it be stated that on perusal of the statement made by the accused under Section 313 Cr.P.C, we do find that the material evidence that the accused persons assaulted the deceased with 'Baluwa' had been put in and, thereby, it cannot be said that the statutory provision as contained under Section 313 Cr.P.C has not been complied with. 14. Coming to the other submission relating to the offence under Section 302 IPC being not attracted, we are not inclined to accept the said submission advanced on behalf of the defence. According to the learned counsel appearing for the appellants, appellant no. 14. Coming to the other submission relating to the offence under Section 302 IPC being not attracted, we are not inclined to accept the said submission advanced on behalf of the defence. According to the learned counsel appearing for the appellants, appellant no. 1 Gabrail Samad is said to have assaulted the deceased during course of altercation, which would appear from the evidence of PWs 1 & 6. It be stated that nothing is there in the evidence of PW6 to suggest that before the appellant Gabrail Samad assaulted the deceased, any altercation had taken place. However, PW1 speaks about the altercation being taken place in between the deceased and another accused and not with the appellants and, therefore, it never happens to be a case that during altercation the appellant Gabrail Samad assaulted the deceased causing injury resulting into his death. By referring to the testimony of PW6 it was also submitted that on being provoked the appellant Gabrail Samad seems to have assaulted the deceased as according to the evidence of PW6, the deceased had passed some comments upon a girl, who is said to be the sister of the appellants, but it never happens to be the case of the prosecution that the comments if any had been passed by the deceased just before the appellant was assaulted. This fact neither appears from the evidence of any witness not it has surfaced even in the cross-examination of the witnesses and, thereby, the case as has been made out on behalf of the appellants that the appellants had assaulted on being provoked cannot be accepted. 15. Further, submission, which has been advanced on behalf of the defence is that since only one blow had been given upon the neck of the deceased, the appellants cannot be said to have had any intention to commit murder and, thereby, according to the learned counsel appearing for the appellants, offence is not made out under Section 302 IPC. It is true that only one blow seems to have been given by the appellant Gabrail Samad but that blow, according to PW6 and other witnesses was given while the deceased was returning home and it, according to Doctor PW9, was sufficient to cause death. It is true that only one blow seems to have been given by the appellant Gabrail Samad but that blow, according to PW6 and other witnesses was given while the deceased was returning home and it, according to Doctor PW9, was sufficient to cause death. Thus, circumstances appearing in the case rather go to establish that the 'Baluwa' blow was given with intention to commit murder of the deceased , Gabrail Samad came with 'Baluwa' and assaulted him on the neck, which was proved to be fatal, it can never said that he had had no intension to commit murder of the deceased. 16. Thus, we do find that the trial Court is absolutely justified in recording order of conviction and sentence against the appellant no. 1 Gabrail Samad, so far it relates to the offence under Section 302 of the Indian Penal Code, is concerned. So far as appellant no. 2 Susain Samad is concerned, he has not even been alleged to have committed any overt act in commission of the murder of the deceased, rather one of the witnesses PW2 has stated that this appellant Susain Samad reached at the place of occurrence only after Gabrail Samad had assaulted the deceased with 'Baluwa' and, thereby, question of sharing common intention does not arise and, thereby, the trial court has committed illegality in recording order of conviction and sentence against appellant no. 2 Susain Samad for the offence under Section 302 IPC. Accordingly, the judgment of conviction and order of sentence recorded against appellant no. 2 Susain Samad for the offence under Section 302 IPC, is hereby set aside and he is acquitted of the charges under Section 302 IPC. 17. So far conviction recorded under Section 307 IPC is concerned, both the appellants seem to have wrongly convicted under the said offence. Appellant no. 2 Susain Samad has never been alleged to have caused any injury to PW6. Appellant no. 1 Gabrail Samad though have caused four injuries to PW6, but all those injuries were found to be simple in nature and, thereby, instead of convicting appellant no. 1 Gabrail Samad for the offence under Section 307 IPC, he is convicted for the offence under Section 324 IPC. 18. So far appellant no. 2 Susain Samad is concerned, he is also acquitted of the charges under Section 307 IPC. 19. In the result, this appeal is partly allowed. 1 Gabrail Samad for the offence under Section 307 IPC, he is convicted for the offence under Section 324 IPC. 18. So far appellant no. 2 Susain Samad is concerned, he is also acquitted of the charges under Section 307 IPC. 19. In the result, this appeal is partly allowed. Appellant no. 2 Susain Samad, who is on bail, is discharged from the liabilities of his bail bond. Appeal partly allowed.