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2017 DIGILAW 1095 (JHR)

Ram Singh Birua v. State of Jharkhand

2017-07-12

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. By Court:- Heard learned amicus curiae appointed by the Court for the appellants and learned counsel for the State. 2. This jail appeal has been filed by the appellants, being aggrieved by the Judgment of conviction dated 12.02.2003 and Order of sentence dated 17.02.2003, passed by the learned 2nd Additional Sessions Judge, Chaibasa, in Sessions Trial No. 62 of 2002, whereby both the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code and appellant No. 1 Ram Singh Birua has also been found guilty and convicted for the offence under Section 323 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo imprisonment for life and fine of Rs. 2000/- each, for the offence under Sections 302/34 of the Indian Penal Code. However, no separate sentence was passed against the appellant Ram Singh Birua for the offence under Section 323 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant, Parai Birua, the brother of the deceased, recorded on 30.10.2001 at 10.00 a.m. at Bicha Buru Tola School Sai. It is stated in the fardbeyan that on 29.10.2001 at about 07.00 p.m., in the evening, while his brother Kusnu Birua was in the house, Jadav Dom Birua came and informed him that Ram Singh Birua was calling him. Thereupon, Kusnu Birua went to the house of the accused Ram Singh Birua, which was situated by the side of the house of the informant. After some time, the informant heard the alarm, raised by his brother Kusnu Birua stating that he was being assaulted by both the accused persons, whereupon, the informant rushed to the house of Ram Singh Birua and saw that both the accused were apprehending his brother and the accused Jadav Dom Birua was assaulting his brother by fists and the accused Ram Singh Birua was assaulting his brother by Katu (a sharp cutting weapon), piercing it in the stomach of his brother, due to which the intestine of his brother protruded out of the wound. The accused persons also tried to apprehend the informant, whereupon he started fleeing away, upon which the accused Ram Singh Birua assaulted him by the same weapon causing injuries in the fingers of his left hand. The accused persons also tried to apprehend the informant, whereupon he started fleeing away, upon which the accused Ram Singh Birua assaulted him by the same weapon causing injuries in the fingers of his left hand. Thereafter, both the accused persons dragged the dead body out of the house to the open courtyard and fled away. The informant due to fear, did not go to the place of occurrence in the night and in the morning at about 07.00 a.m, he went there and found his brother dead. It is stated in the fardbeyan that the occurrence had taken place due to the land dispute between the parties. 4. On the basis of the fardbeyan given by the informant Parai Birua, Jhikpani (Hatgamharia) P.S. Case No. 47 of 2001, corresponding to G.R. No.444 of 2001, was instituted for the offence under Sections 341, 324, 302/34 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted charge sheet against both the accused persons. 5. Upon commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under Sections 302 / 34 of the Indian Penal Code, and against the accused Ram Singh Birua, also for the offence under Section 324 of the Indian Penal Code, and upon both the accused persons pleading not guilty and claiming to be tried, they were put to trial. In course of trial, six witnesses were examined on behalf of the prosecution, including the Doctor and the Investigating Officer. 6. P.W.-2 Parai Birua is the informant in the case. This witness has stated that the occurrence had taken place in the previous year in the night of Monday at about 08.00 p.m. He was in his house, when both the accused persons Jadav Dom Birua and Ram Singh Birua came and took his brother Kusnu Birua along with them. After some time, he heard the alarm raised by his brother stating that both the accused persons were assaulting him. Thereupon this witness rushed to the house of Ram Singh Birua along with the wife of the deceased, there he saw that Jadav Dom Birua was assaulting his brother by fists and slaps and Ram Singh Birua, who was armed with a basuli (also known as katu) was piercing the same in the stomach of his brother. Thereupon this witness rushed to the house of Ram Singh Birua along with the wife of the deceased, there he saw that Jadav Dom Birua was assaulting his brother by fists and slaps and Ram Singh Birua, who was armed with a basuli (also known as katu) was piercing the same in the stomach of his brother. When he tried to intervene, he was also chased by the accused persons and Ram Singh Birua assaulted him by the same weapon, causing injuries in his fingers. He has stated that due to the assault, the intestine of the deceased protruded out of the wound. He has stated that due to fear in the night he fled from the place of occurrence and in the morning he went there and saw that his brother was lying dead. The police also came and he gave the same statement before the police as deposed by him, which was read over and explained to him, upon which he put his thumb impression and the witness Samu Birua also put his signature thereon. He has identified both the accused persons in the Court and has stated that the witness Ladura has died. This witness was put to extensive cross examination by the defence, in which he has stated that the deceased was his own elder brother. The house of accused Ram Singh Birua is situated at a distance of about 150-200 yards. This witness has also stated that the accused persons are his agnates and when he reached the place of occurrence, no one had assembled there. In his cross-examination, this witness has also stated that there was no enmity between the parties from before. He has denied the suggestion to have given false evidence. 7. P.W.-4 Kamala Kui is the wife of the deceased, who has stated that her husband was murdered about one year back at about 8-9 p.m. in the night. She has stated that her husband and her brother-in-law Parai Birua were in the house when Doma Jadav Birua and Ram Singh Birua came and took her husband along with them. Thereafter, she heard the alarm raised by her husband stating that the accused persons were assaulting him. Whereupon, this witness along with her brother-in-law rushed to the house of Ram Singh Birua and saw that her husband was being assaulted by piercing basuli in his stomach, which was being taken out. Thereafter, she heard the alarm raised by her husband stating that the accused persons were assaulting him. Whereupon, this witness along with her brother-in-law rushed to the house of Ram Singh Birua and saw that her husband was being assaulted by piercing basuli in his stomach, which was being taken out. She fled away due to fear. She has also stated that both the accused persons assaulted her brotherin- law Parai Birua also, causing injuries in his fingers. In the morning, she found her husband dead at the place of occurrence. She has stated that her statement was recorded by the police, in which she has given the same statement as deposed by her in her evidence. She has also identified the accused persons in the Court. Though this witness was also put to extensive cross-examination, but there is nothing in her cross examination so as to discredit her testimony. Even her attention was not drawn towards her statement given before the police. She has denied the suggestion that her husband and brother-in-law had gone to assault the accused persons, whereupon the occurrence had taken place. 8. P.W.-1 is Yadunath Birua, who is also the brother of the deceased. This witness had not seen the occurrence, but he has stated that both the accused persons had committed the murder of the deceased. He has stated that he had not seen the occurrence himself, rather he was informed by his younger brother about the occurrence. He went to the place of occurrence along with the witness Samu Birua and found the deceased dead. He has identified the accused persons in the Court. There is nothing of much importance in his cross examination. 9. P.W.-3 is Samu Birua, who has stated that he was informed about the occurrence by Parai Birua and Yadunath Birua, that their brother was murdered. Then, he went to the Munda of the village, but the Munda did not accompany him. Thereafter he came to the place of occurrence and saw the deceased in pool of blood and no person was present there at the place of occurrence. He has stated that he asked Parai Birua and Yadunath Birua about the culprit, but they kept weeping and did not reply. There were some injuries on the fingers of Parai Birua. Thereafter he came to the place of occurrence and saw the deceased in pool of blood and no person was present there at the place of occurrence. He has stated that he asked Parai Birua and Yadunath Birua about the culprit, but they kept weeping and did not reply. There were some injuries on the fingers of Parai Birua. On the next day, the police came to the place of occurrence and recorded the fardbeyan of the informant in his presence, which was read over to the informant and finding the same to be correct the informant put his thumb impression. This witness had also put his signature in the fardbeyan as a witness, which he identified and the same was marked as Ext-1. He has also stated that the inquest report was also prepared by the police in which he and one another witness had put their signatures, and he has identified these signatures also, which were marked as Ext. 1/1 and 1/2. He has also stated that the blood stained basuli and the blood stained earth were also seized from the place of occurrence and the seizure list was prepared, in which also, he had put his signature, which he identified and the same was marked as Ext.-1/3. This witness has identified both the accused in the Court. In his cross-examination, he has stated that he has no knowledge as to what was written in the inquest report and seizure list by the police, but he has stated that the weapon of offence was seized in his presence. 10. P.W.-5 is Dr. Birendra Kumar Singh, who had examined the injuries of the informant Parai Birua on 30.10.2001 and had found simple injuries on the left hand fingers of the informant, which were abrasions, caused by hard and blunt substance. He has identified the injury report to be in his pen and signature, which was marked as Ext.-2. On the same day at 04.30 p.m. this witness had conducted the post-mortem examination on the dead body of deceased and found the following ante-mortem injuries on the dead body: - (i) Incised wound at the xiphisternum 2” x 1 1/4” x 4” deep, stomach was seen bulging out through the wound. On dissection- Head and neck- skull intact, brain - pale and intact. Thorax- lungs pale, heart - empty. On dissection- Head and neck- skull intact, brain - pale and intact. Thorax- lungs pale, heart - empty. Abdomen- incised wound on stomach 2” x 1”- stomach was full of blood. Liver- lacerated 3” x 2” Spleen &Kidney- pale Bladder- full of urine Peritoneal cavity- full of blood. This witness has stated that the weapon used was the sharp cutting weapon, may be katu, and the cause of death was shock and haemorrhage due to the above injuries, which were sufficient to cause death in ordinary course of nature. He has identified the post-mortem report to be his pen and signature, which was marked as Ext-3. 11. PW-6 is Nawal Kishore Singh, who is the Investigating Officer of this case. This witness has stated that on 30.10.2001, he got the rumor that on 29.10.2001, a murder had been committed at the Village Bicha Buru, whereupon he went to the place of occurrence and saw the dead body of the deceased Kusnu Birua. The fardbeyan of the informant Parai Birua, the brother of the deceased, was recorded by him which he has proved and the same was marked as Ext-4. He has also proved the formal F.I.R to be in the handwriting and signature of the then Officer-in-Charge, Jhikpani Police Station, and the same was marked as Ext.-5. He has stated that he had prepared the inquest report of the dead body and he has proved the same, which was marked as Ext.-6. He inspected the place of occurrence and found the blood stains in the front room of the house of the accused Ram Singh Birua and trail of blood and mark of dragging the dead body out of the house. The dead body was in the open courtyard in pool of blood. Near the dead body one blood stained katu (basuli) was also found. He seized the blood stained weapon and blood stained earth from the place of occurrence and prepared the seizure list. He has proved the seizure list, which was marked as Ext.-7. He has given details of the place of occurrence and has stated that he sent the dead body for post-mortem examination and had also received the post-mortem report. He had also sent the informant for the treatment of his injuries. This witness has stated that upon completing the investigation, he submitted the charge sheet in the Court with the approval of the senior officer. He had also sent the informant for the treatment of his injuries. This witness has stated that upon completing the investigation, he submitted the charge sheet in the Court with the approval of the senior officer. In his cross-examination by the defence, this witness has stated that he had not prepared the map of the place of the occurrence and he did not know the name of the person, who had given the information at the police station. 12. Learned amicus curiae has submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, cannot be sustained in the eyes of law, as the prosecution could not prove the charges against the appellants beyond all reasonable doubts. He has submitted that the circumstances of the case are as such, which create doubt about the veracity of the prosecution case. Learned amicus curiae has submitted that first circumstance, which creates doubt about the occurrence, is that in the F.I.R the informant has stated that only Jadav Dom Birua had called his brother, but in their evidence both the eyewitnesses, namely, Parai Birua (PW-2) and Kamla Kui (PW-4) have stated that both the accused persons had come to their house and had taken the deceased along with them, which is an improvement in the prosecution case by the interested witness. It is further submitted that the second circumstance is that even after seeing the occurrence in the night, these witnesses kept mum for the whole night and did not inform anyone, which also creates sufficient doubt upon the prosecution case whether the eyewitnesses are coming with the true facts or not. It has also submitted that the blood stained weapon and earth were not sent for the F.S.L examination and the Investigating Officer has admitted in his cross-examination that the map of the place of occurrence was prepared by him. This fact also creates doubt upon the prosecution case. Learned amicus curiae has also submitted that though in the F.I.R., the motive of the occurrence has been given to the land dispute between the parties, but the said motive has not been proved by the prosecution, which also creates doubt upon the prosecution case. This fact also creates doubt upon the prosecution case. Learned amicus curiae has also submitted that though in the F.I.R., the motive of the occurrence has been given to the land dispute between the parties, but the said motive has not been proved by the prosecution, which also creates doubt upon the prosecution case. It has further submitted that the prosecution case has been supported by only by the two eyewitnesses, who are the brother and wife of the deceased and they are highly interested witnesses and it is not safe to rely on the evidence of these two witnesses to secure the conviction of the appellants. It is lastly submitted by the learned amicus curiae that on the basis of the evidence brought on record, the appellants were entitled at least to the benefits of doubt. 13. Learned counsel appearing for the State on the other hand, has opposed the submissions made by the learned amicus curiae and submitted that the prosecution has been able to prove the charges against the accused-appellants beyond all reasonable doubts, in as much as, there are two eyewitnesses of the occurrence, one of whom, Parai Birua is also injured in this case and his presence at the place of occurrence cannot be doubted. It has been submitted by the learned counsel for the State that the occurrence had taken place in the next door house of the informant and the alarm raised by the deceased from the place of occurrence, was naturally heard by both the eyewitnesses, who are the brother and wife of the deceased, who rushed to the place of occurrence and saw the occurrence. Learned counsel has submitted that there is specific allegation against both the appellants to have assaulted the deceased and it is alleged that appellant Ram Singh Birua assaulted the deceased by a sharp cutting weapon causing injuries in his stomach due to which the intestine of the deceased protruded out of the wound. This ante-mortem injury is also proved by the medical evidence of P.W.-5 Dr. Birendra Kr. Singh, and the post-mortem report proved by him as Ext.-3. The injuries on the informant were also proved by the same witness. Learned counsel accordingly, submitted the ocular evidence of the eyewitnesses, who are the natural eyewitnesses to be present at the time of occurrence, are fully corroborated by the medical evidence of P.W.-5 Dr. Birendra Kr. Birendra Kr. Singh, and the post-mortem report proved by him as Ext.-3. The injuries on the informant were also proved by the same witness. Learned counsel accordingly, submitted the ocular evidence of the eyewitnesses, who are the natural eyewitnesses to be present at the time of occurrence, are fully corroborated by the medical evidence of P.W.-5 Dr. Birendra Kr. Singh, as also by the evidence of PW-6, the Investigating Officer, who had found the dead body at the place of occurrence in the pool of blood and the weapon of offence was also recovered from the place of occurrence. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellants by the Trial Court. 14. Having heard learned counsels for both the parties and upon going through the record, we find that PW-2 Parai Birua and PW-4 Kamla Kui, who are the brother and wife of the deceased, have fully supported the prosecution case. There may be some exaggeration in their evidence that both the accused persons came to the house, called and took the deceased along with them, in view of the statement in the F.I.R that only the accuse Jadav Dom Birua had come to call the deceased, but the fact remains that the conviction of the appellants is not for calling the deceased by them, rather it is for committing the murder of the deceased and there is specific evidence against both these appellants to have assaulted the deceased - against the appellant Jadav Dom Birua to have assaulted the deceased by fists and slaps and against the accused appellant Ram Singh Birua to have assaulted the deceased by a sharp cutting weapon in his stomach due to which the intestine of the deceased protruded out of the wound. The occurrence had taken place at dead night at about 08.00 p.m. in a village, and these witnesses are only natural witnesses to be present in the house at that time. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-5 Dr. Birendra Kr. The occurrence had taken place at dead night at about 08.00 p.m. in a village, and these witnesses are only natural witnesses to be present in the house at that time. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-5 Dr. Birendra Kr. Singh, who found the same ante-mortem injury on the deceased as stated in the evidence of both these witnesses, and he also proved the injury upon the informant, though simple in nature, for which the appellant Ram Singh Birua has been convicted for the offence under Section 323 of the Indian Penal Code. We find from the evidence on record that the Investigating Officer had also found the dead body at the place of occurrence and had seized the blood stained weapon and blood stained earth from near the dead body itself, and in that view of the matter, failure to send blood stained earth and blood stained weapon for F.S.L. examination is not at all fatal for the prosecution. We are of the considered view that the prosecution has been able to prove the charges against both the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction dated 12.02.2003 and Order of sentence dated 17.02.2003, passed by the learned 2nd Additional Sessions Judge, Chaibasa, in Sessions Trial No. 62 of 2002, which we here by, affirm. 15. The appellant Ram Singh Birua is already in custody serving out the sentence. The appellant, Jadav Birua @ Jadav Dom Birua is on bail. His bail bond is cancelled and he is directed to forthwith surrender before the Court below to serve out the sentence. We also direct the Trial Court below, to issue processes forthwith, compelling the surrender / production of the appellant Jadav Birua @ Jadav Dom Birua for serving out the sentence. 16. Before parting with the Judgment, we must record that we got very able assistance in this case from Mr. Sanjay Kumar, learned amicus curiae. We direct the Secretary, High Court Legal Services Committee to make the payment of the prescribed remuneration to the learned amicus auriae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 17. This appeal is accordingly, dismissed, being devoid of any merit. Sanjay Kumar, learned amicus curiae. We direct the Secretary, High Court Legal Services Committee to make the payment of the prescribed remuneration to the learned amicus auriae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 17. This appeal is accordingly, dismissed, being devoid of any merit. Let the Lower Court Records be forthwith sent back to the Court concerned, along with the copy of this Judgment.