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2016 DIGILAW 63 (JHR)

Babulal Besra v. State of Jharkhand

2016-01-07

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This Cr. Appeal has been directed against the judgment of conviction and order sentence dated 22.02.2007 & 23.02.2007 respectively passed by the 5th Addl. Sessions Judge (F.T.C.), Dumka in connection with Sessions Case No. 150/2005, corresponding to G.R. No. 13/2005 (arising out of Kathikund P.S. Case No. 01/2005) whereby the learned Addl. Sessions Judge has held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. 2. The prosecution case in brief is that on 03.01.2005 at about 4 p.m. Kaila Besra (deceased) in course of having meal questioned the appellant about his misbehaviour committed by him against his daughter. No sooner such complaint was made by the deceased, the appellant-Babulal Besra brought a knife from his house and inflicted blow in the abdomen of Kaila Besra. The informant, who happens to be the wife of the deceased raised alarm which attracted the neighbours, who reached to the place and succeeded to apprehend Babulal Besra with the knife. The appellant is none else but the son in law of the deceased. Fard Bayan of Leelee Murmu (wife of the deceased) was recorded on 03.01.2005 at about 8 p.m. and Kathikund P.S. Case No. 01/2005, under Section 302 of the Indian Penal Code against Babulal Besra was registered. The Police after investigation submitted charge-sheet and accordingly cognizance was taken and the case was committed to the court of sessions and registered as Sessions Case No. 150/2005. Charge under Section 302 of the Indian Penal Code against appellant Babulal Besra was framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge, examined altogether 09 witnesses. Learned Addl. Sessions Judge at the conclusion of the trial, considering the evidence on record held the appellant guilty and hence this appeal. 3. The appellant has assailed the impugned judgment on the ground that the informant pretended herself to be an eye-witness but, in fact, she is not the eye-witness. According to her statement, Babulal Besra brought a knife from his house and inflicted blow in the stomach. When the appellant was trying to pull out the knife, other witnesses reached to the place and apprehended him. The evidence of informant clearly speaks about a single blow but the Doctor in the postmortem report has noticed as many as four injuries. When the appellant was trying to pull out the knife, other witnesses reached to the place and apprehended him. The evidence of informant clearly speaks about a single blow but the Doctor in the postmortem report has noticed as many as four injuries. No explanation regarding injury No. 1, 2 & 3 has been given. This goes to suggest that she was not present at the place of occurrence at the relevant point of time. 4. Learned Counsel has further pointed out that P.W. 1 and P.W. 2 are highly interested witnesses and they were having inimical term with the appellant. In para 2 P.W. 1 has admitted that prior to this incident he has lodged a case against Babulal Besra. P.W. 2 happens to be the witness in that very case which was lodged by P.W. 1. According to statement of P.W. 1 and P.W. 4 to 7, the appellant was apprehended just after the incident with the knife. He was restrained over there and the matter was informed to the police. There is delay of four hours in recording the fardbayan. According to Investigating Officer (P.W. 9) the knife was seized from possession of the appellant which could not be admitted to be correct. If the appellant was apprehended by the witnesses and he was tied with a rope over there, it is not expected that he had been holding the knife in his hand till the arrival of the police. There should have been a production list for the knife which is not available rather seizure list was prepared. Furthermore, the knife seized was neither sent for its chemical examination to F.S.L. nor it was produced before the Court during trial. In the circumstances, it could well be said that no such knife was ever recovered from possession of the appellant. There are contradictions in the statement of material witnesses which could not be relied upon and the appellant, who has already remained in custody for more than 10 years, deserves acquittal. 5. Learned A.P.P. has opposed the prayer and submitted that entire prosecution case is intact. It is evident from the evidence on record that the appellant was apprehended while he was just trying to flee away from the place of occurrence after pulling the knife from the abdomen of the deceased. He was caught red handed with the weapon of the crime. It is evident from the evidence on record that the appellant was apprehended while he was just trying to flee away from the place of occurrence after pulling the knife from the abdomen of the deceased. He was caught red handed with the weapon of the crime. The informant is an eye-witness. On 'Hallla' she raised alarm which attracted the witnesses, who reached to the place of occurrence, apprehended the accused and all of them have supported the prosecution case. It is submitted that no question on the point of number of blows inflicted has been put to any of the witness. It is the interpretation made by learned Counsel for the appellant that it is a case of single blow. 6. We have gone through the deposition of witnesses, impugned order, lower court record and the documents proved. The informant P.W. 3 has supported the prosecution case as made out in the fardbayan. She has stated that her husband Kaila Besra in course of having meal asked the appellant as to why he has misbehaved with his daughter. No sooner this question was raised, the appellant brought a knife from his house and inflicted blow in the abdomen of the deceased. She raised alarm which attracted, Ishwar Marandi, Pradhan Kamal Murmu, Lakhi Ram Besra, Hari Kishore Murmu & Mical Tudu. They reached to the place and caught hold of the appellant and restrained him till arrival of the police. This version of the informant find support from the evidence of Kamal Murmu (P.W.1), Ishwar Marandi (P.W.2), Mangal Soren (P.W. 4) Yogendra Murmu (P.W.5) Mical Tudu (P.W.6) and Hari Kishore Murmu (P.W. 7). In view of the evidence of P.W. 1 to P.W. 7, it could well be observed that it is a case in which the accused was caught red handed. The question raised regarding number of injuries and the blows inflicted are needed to be answered. We will have to visualize the scene of occurrence as explained by the witnesses mainly explained by P.W. 3. The courtyard of the house of appellant and the deceased is common. The deceased at the time of occurrence was having meal. The appellant is the son-in-law of the deceased and he had misbehaved with his wife (daughter of the deceased) and that was reported by the wife of the appellant to her parent. The courtyard of the house of appellant and the deceased is common. The deceased at the time of occurrence was having meal. The appellant is the son-in-law of the deceased and he had misbehaved with his wife (daughter of the deceased) and that was reported by the wife of the appellant to her parent. The deceased made a complaint to the appellant against the misbehaviour committed against his daughter. This caused annoyance to the appellant. He brought a knife from his house and caused injury to the deceased. The knife is a small sharp edged pointed weapon. The injury which the deceased had sustained are all on his front side of the body. It is but natural if an assailant by using a knife would cause injuries to his target both will remain face to face, close to each one. Unless the assailant moved away from the position in which he had inflicted the blow or blows, it is not possible for a person who had been watching the incident to speak about actual number of blows inflicted because that would remain beyond his vision. This appears to have happened in the case at hand and that is why the informant could not be able to explain number of injuries inflicted but she had noticed the fatal one which was inflicted in the abdomen due to which intestines were protuted. Evidence of informant could not be discarded or disbelieved in view of the fact that remaining witnesses i.e. P.W. 1, 2 and P.W. 4 to 7 have clearly stated that when they reached the place of occurrence, they had seen the appellant with a knife in his hand and he was apprehended at the spot. The deceased was having injuries on his abdomen and other parts of the body. The number of injuries sustained are clearly appearing in the inquest report (Ext. 2), therefore, the corroborative piece of evidence are so strong that the informant should not be disbelieved. Dr. Dilip Kumar Keshri (P.W. 8) has conducted the postmortem and described the injury which he had noticed on the person of the deceased. The Doctor has accepted that the injuries might have been caused by sharp cutting weapon, may be a 'Chhura'. Ram Sundar Ram (P.W.9) is the Investigating Officer and he has supported the investigation done by him. He has proved the fardbayan (Ext. The Doctor has accepted that the injuries might have been caused by sharp cutting weapon, may be a 'Chhura'. Ram Sundar Ram (P.W.9) is the Investigating Officer and he has supported the investigation done by him. He has proved the fardbayan (Ext. 3), endorsement on the fardbayan (Ext. 3/1), formal F.I.R. (Ext. 4), seizure list (Ext. 5) and Inquest Report (Ext. 6). He has described the place of occurrence in para 3 of the deposition. In a case in which accused was caught red handed, presence of eye-witness was there, the witnesses who had apprehended the accused just after the incident with the weapon used for commission of the offence had handed over the accused with the offending weapon to the police, sending or not sending the weapon for its chemical examination to the F.S.L. shall not be a fatal to the prosecution case. 7. In the circumstances and the discussions made above, we do not find any merit in this appeal and the same stands dismissed. The judgment of conviction and order of sentence dated 22.02.2007 & 23.02.2007 respectively passed by the 5th Addl. Sessions Judge (F.T.C.), Dumka in Sessions Case No. 150/2005 is hereby upheld. 8. Let a copy of judgment be communicated to the appellant in Jail for that Office shall do the needful since the appeal has been preferred by the appellant from jail.