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2016 DIGILAW 23 (JHR)

Basistha Kumar Sah v. State of Jharkhand

2016-01-05

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : By Court This appeal has been directed against the judgment of conviction dated 24th April, 2009 and order of sentence dated 28th April, 2009 passed by the 3rd Addl. Sessions Judge, Godda in connection with S.T.No.79 of 2004/244 of 2008, corresponding to G.R.No.20/2004 (arising out of Pathargama (Basantrai O.P.) P.S. Case No. 01/2004) whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs. 5,000/- and in default of making payment of fine amount he would further go R.I. for eight months. 2. The prosecution case as it appears from fardbayan of Soni Devi in brief is that on 08.01.2004 at about 5 p.m. the informant was feeding her daughter by sitting in the 'Varandah' of the house. In the meantime her husband Basistha Kumar Sah (appellant) reached to the place, snatched away the child from her lap and after pressing the neck threw the child on the ground, as a result, she died. The informant disclosed the incident to her parent and thereafter matter was reported to the police. The appellant after committing the offence, fled away from the place. On the basis of fardbayan of Soni Devi, Pathargama (Basantrai O.P.) P.S. Case No.01/2004 dated 09.01.2004 was registered under Section 302 of the Indian Penal Code. The police after due investigation submitted charge-sheet and accordingly cognizance against the appellant was taken. Since the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the case of the appellant was committed and registered as S.T.No.79 of 2004/244 of 2008. The charge under Section 302 of the Indian Penal Code against the appellant was framed and he was put on trial. The prosecution in order to substantiate the charge examined altogether 12 witnesses whereas the appellant in his defence had examined only one witness. Learned Addl. Sessions Judge after considering the evidence and document on record held the appellant guilty under Section 302 of the Indian Penal Code and inflicted the sentence as indicated above and hence this appeal. 3. The prosecution in order to substantiate the charge examined altogether 12 witnesses whereas the appellant in his defence had examined only one witness. Learned Addl. Sessions Judge after considering the evidence and document on record held the appellant guilty under Section 302 of the Indian Penal Code and inflicted the sentence as indicated above and hence this appeal. 3. The appellant has assailed the impugned judgment on the ground that Rukmini Devi (P.W.1) and Kayabeer Sah (P.W.3) have pretended themselves to be eye-witnesses but according to fardbayan they were not present in the house at the time of occurrence rather they had reached to the place after they were informed about the incident. These two witnesses are the parent of informant and they exaggerated their statement by saying that the deceased was taken to the Doctor where she was declared dead. Guru Dayal Sah (P.W.2) is the uncle of the informant and he has also corroborated the statement of P.W. 1 and P.W. 3. Learned Counsel has pointed out that independent witnesses namely Badri Baitha (P.W. 5), Hira Lal Sah (P.W.7) and Siyaram Mandal (P.W. 10) have not supported the prosecution case and they have turned hostile. Bhothri Yadav (P.W. 6), Pack Tantwa (P.W. 8) and Dilip Thakur (P.W. 9) have been tendered for their cross-examination. 4. It is submitted that the learned Trial Court has placed reliance on the deposition of informant (P.W. 11) but the statement of P.W. 11 is not consistent and it is not wholly reliable. The learned Addl. Sessions Judge has committed error by convicting the appellant only placing reliance on the statement of P.W. 11. It is pointed out that the informant in para 1 of her deposition has stated that the appellant had snatched away the deceased from her lap, throttled her and thrown the child on the ground. Thereafter he climbed on her belly. The Doctor did not find any fracture injury. No fracture on ribs or any injury on the belly had been detected during postmortem examination. The informant has said that she was married with the appellant in the year 2002 and she gave birth to a female child in the same year on the occasion of Diwali festival. The Doctor did not find any fracture injury. No fracture on ribs or any injury on the belly had been detected during postmortem examination. The informant has said that she was married with the appellant in the year 2002 and she gave birth to a female child in the same year on the occasion of Diwali festival. The prosecution witnesses including the informant have tried to make out a case that informant is the legally wedded wife of appellant but they have not succeeded to prove the factum of marriage, which is apparent from the statement of D.W. 1. The informant has admitted that no family member of the appellant had participated in the marriage rather marriage between the appellant and the informant was solemnized in a 'TEMPLE'. They have applied for court marriage and according to the prosecution witnesses it was given effect but as per the evidence of D.W. 1 only application for solemnization of marriage was filed. The specific plea which the appellant has taken is that he has been implicated falsely by the informant and her family members. The informant and her family members had been compelling him to marry for which he was not agree and for that he has been roped in this case with false allegation. The informant had been living in adultery and the appellant has denied the parentage of the deceased. As a matter of fact, the appellant was not at all present in the house at the relevant point of time and he is completely unaware about the cause of death of the daughter of the informant. Where the conviction has been recorded on the testimony of a solitary witness, the Court should always be cautious and must consider that the evidence of solitary witness is fully reliable. 5. Learned Counsel for the State has opposed the prayer and submitted that no reason has been assigned as to why evidence of Soni Devi should be disbelieved. Since the occurrence had taken place in the house of the informant and the appellant is none else but the husband, availability of independent witness in such circumstances is remote. The ocular evidence given by P.W. 11 find support from the statement of Dr. Pradeep Kumar Sinha (P.W. 4). Since the occurrence had taken place in the house of the informant and the appellant is none else but the husband, availability of independent witness in such circumstances is remote. The ocular evidence given by P.W. 11 find support from the statement of Dr. Pradeep Kumar Sinha (P.W. 4). At the time of postmortem examination, the Doctor had noticed abrasion three in number over right side of neck, abrasion two in number over left side of neck, bruise over lower part of left side of neck and the cause of death was due to shock and asphyxia as a result of throttling. Evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 11 is consistent and reliable. 6. We have gone through the impugned judgment, evidence of witnesses and the documents proved. No doubt entire prosecution case is hinges on the statement of solitary eye-witness P.W. 11 (informant). According to the fardbayan, she is the only eye-witness but P.W. 1 and P.W. 3 have tried to pose themselves as eyewitnesses. Let us accept the argument that P.W. 1 & P.W. 3 are not the eye-witnesses and they had not seen the actual occurrence. Even then facts remain that they are the parent of the informant and they reached to the house just after the incident and the occurrence was duly informed to them by the informant. It is settled law that the evidence of solitary witness is required to be scrutinized with great care and caution and separation of grain from chaff should always be done. We have carefully examined the statement of P.W. 1, P.W. 2 and P.W. 3. If we eliminate former part of their evidence that they had seen the occurrence, the latter part of their evidence that they had reached to the place of occurrence after the incident and knew about the occurrence from the informant, could not be discarded. Therefore, we find no reason to discard this part of the evidence of P.W. 1, P.W. 2 and P.W. 3. 7. It is vehemently argued that the appellant has been implicated falsely because parent of the informant had been compelling him to marry the informant. Learned Counsel by referring genesis of the occurrence has submitted that parentage of the deceased child was denied and question against character of informant was also raised. 7. It is vehemently argued that the appellant has been implicated falsely because parent of the informant had been compelling him to marry the informant. Learned Counsel by referring genesis of the occurrence has submitted that parentage of the deceased child was denied and question against character of informant was also raised. For the argument sake if we admit this statement, even then the appellant did not get authority to kill a child aged 15 months and that too after snatching the child from the lap of her mother. If evidence of P.W. 11 is considered to be consistent and convincing, conviction can well be recorded, therefore, we need to go through the evidence of P.W. 11 (Soni Devi). She has stated that on the date of incident while she was feeding her baby, the appellant reached to the place, snatched away the child from her lap, throttled the child and threw her on the ground. This statement of P.W. 11 find corroboration from the statement of postmortem report because the child died due to shock and asphyxia as a result of throttling and Doctor had noticed number of abrasion on the neck of the deceased. Further evidence of P.W. 11 that after throwing the child on the ground the accused-appellant climbed on her belly might be exaggeration. We have experienced that rustic villagers, whenever used to give details of occurrence explaining the overt act committed by the accused, some exaggeration appear. Even accepting that part of the evidence of P.W. 11 as exaggeration that would not demolish rest of the evidence adduced by the informant. Learned Addl. Sessions Judge, Godda has rightly placed reliance on the statement of Soni Devi (P.W. 11) and held the appellant guilty. 8. We find no merit in this appeal and the same stands dismissed.