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2017 DIGILAW 864 (JHR)

Panchu Goswami v. State of Bihar (Now Jharkhand)

2017-05-16

H.C.MISHRA, S.N.PATHAK

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JUDGMENT : H.C. Mishra, J. As both these appeals arise out of the common Judgment, they were heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State in both the appeals. 3. The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 30th April 1992, passed by the learned 2nd Additional Sessions Judge, Dhanbad, in S.T. No.49 of 1990, whereby the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. The appellant Suresh Goswami has also been found guilty and convicted for the offence under Section 325 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302/34 of the Indian Penal Code, and the appellant Suresh Goswami has also been sentenced to R.I. for two years for the offence under Section 325 of the Indian Penal Code. 4. According to the prosecution case, the occurrence had taken place on 3.6.1989 at about 7:30 PM. The written report was submitted by the informant Mahadeo Giri, before the Officer In-charge of Govindpur Police Station stating that the wife of his nephew Lakhan Goswami and wife of his agnate Panchu Goswami were quarreling amongst themselves in filthy languages, in which he intervened and asked them not to quarrel. It is alleged that Abhimanyu Goswami, s/o Panchu Goswami threatened to assault him, if he intervened, upon which, the informant challenged him. In the meantime, his nephew Lakhan Goswami came out of his house and objected asking why he shall assault his uncle. It is alleged that thereupon Abhimanyu Goswami armed with Tangi and Suresh Goswami armed with Lathi and their father Panchu Goswami armed with Lathi came there and Abhimanyu Goswami assaulted Lakhan Goswami by tangi and Suresh Goswami and Panchu Goswami also assaulted him by lathi, causing bleeding injuries on him, due to which he fell down and became unconscious. When the informant tried to save him, Suresh Goswami assaulted him by lathi, causing fracture in his hand and he also fell down. Apindo Goswami (PW-3), Janardan Goswami (PW–5) and Kiran Bala Devi (PW-4) also came there and they also saw the occurrence. When the informant tried to save him, Suresh Goswami assaulted him by lathi, causing fracture in his hand and he also fell down. Apindo Goswami (PW-3), Janardan Goswami (PW–5) and Kiran Bala Devi (PW-4) also came there and they also saw the occurrence. It was stated that in course of occurrence, Panchu Goswami had fallen down on stones, causing injuries in his head and hand. As to the cause of occurrence, it is stated that Lakhan Goswami was constructing a new house and Panchu Goswami had dug a drain by the side of the house, due to which ladies were quarreling amongst themselves. On the basis of the written report, Govindpur P.S. Case No.123 of 1989 was instituted for the offences under Sections 323, 324, 325, 326 and 307 of the Indian Penal code and investigation was taken up. Lakhan Goswami died in course of treatment at Sadar Hospital, Dhanbad, and accordingly, Section 302 of the Indian Penal Code was also added. After investigation, the police submitted the charge-sheet in the case against the accused appellants. 5. Upon commitment of the case to the Court of Session, charge was framed against all the three accused for the offence under sections 302/34 of the Indian Penal Code and a separate charge was framed against the accused Suresh Goswami for the offence under Section 325 of the Indian Penal Code, and upon the accused persons' pleading not guilty claiming to be tried, they were put to trial. 6. In course of trial, ten witnesses were examined on behalf of the prosecution and three witnesses were examined on behalf of the defence. PW–7, Mahadeo Giri (Goswami) is the informant in the case and he has fully supported the prosecution case. He has stated that the occurrence had taken place on 3.6.1989. Wives of Lakhan Goswami and Panchu Goswami were quarreling in filthy languages, which he did not like and he asked them not to quarrel, whereupon, he was threatened by Abhimanyu. This witness challenged him, and Lakhan Goswami also intervened and it is alleged that accused Abhimanyu Goswami armed with tangi, Panchu and Suresh armed with lathi came there and Abhimanyu assaulted Lakhan by tangi causing injuries on his head, whereupon, Lakhan fell down and accused Panchu and Suresh assaulted him by lathi. This witness came to his rescue, whereupon, Suresh assaulted him by lathi causing fracture in his hand. This witness came to his rescue, whereupon, Suresh assaulted him by lathi causing fracture in his hand. Panchu had assaulted him by lathi, whereupon he also fell down. The witnesses had also seen the occurrence. While fleeing away, Panchu Goswami fell down on the stones kept there, causing injuries on his head. This witness has further stated that Lakhan Goswami was constructing his house and adjacent thereto, Panchu Goswami had dug a big drain causing threat of the house falling down, due to which, the ladies were quarreling among themselves. Both the injured were brought to the police station, where this witness gave a written report to the police, which was written by Nabo Gopal Goswami, as dictated by this witness, upon which, he put his signature. He identified the written report, which was marked as Exhibit–6. This witness has further stated that as the condition of Lakahn was precarious, he was sent to hospital and this witness was also sent to hospital later, where he was treated and the X-ray of his injury was also done. Lakhan was referred to Sadar Hospital, Dhanbad, where he was admitted and in the morning, this witness was informed that Lakhan had died in the hospital. This witness has identified the accused persons in the Court. This witness was put to extensive cross-examination by the prosecution, but except for the minor discrepancies, there is nothing of much importance in his cross-examination, so as to discredit his testimony. 7. PW–2 Kadam Devi, who is the wife of the deceased, PW–3 Apindo Goswami, who is the nephew of the informant, PW–4 Kiran Bala Devi, who is the wife of the informant and PW–5 Janardan Goswami, who is also the nephew of the informant, have fully supported the prosecution case as eye witnesses to the occurrence, giving almost the same details of the occurrence as stated by the informant in his evidence. PW–2 Kadam Devi, who is the wife of the deceased, has also stated that on being referred to Dhanbad Sadar Hospital, she along with Apindo Goswami and Ashok, brought the deceased to Sadar hospital, Dhanbad, where he was admitted in the same night at about 12:00 AM and by 3 to 4 AM in the same night, the deceased died. PW–2 Kadam Devi, who is the wife of the deceased, has also stated that on being referred to Dhanbad Sadar Hospital, she along with Apindo Goswami and Ashok, brought the deceased to Sadar hospital, Dhanbad, where he was admitted in the same night at about 12:00 AM and by 3 to 4 AM in the same night, the deceased died. This fact is also supported by PW–3 Apindo Goswami in his evidence, who has also supported the entire prosecution case as eyewitness to the occurrence. Suggestion was given to PW–3 Apindo Goswami in his cross-examination, whether he had stated before the police that when he reached the place of occurrence, he had seen the deceased already fallen down in injured condition, to which, this witness has replied in negative, and stated that when he reached the place of occurrence, he saw the deceased fallen and the accused persons were still assaulting him. There is nothing of much importance in the cross-examinations of the other aforesaid witnesses, who have otherwise fully supported the prosecution case as eyewitness to the occurrence. 8. PW–6 Dr. Bhuwaneswar Sharma had examined injuries of the deceased while he was alive, as also of the informant. He has stated that upon examination of the deceased, he found one lacerated wound 2 ½" x 1/2” x bone deep, with depressed fracture of right parietal bone. He has stated that the condition of Lakhan Goswami was not good and there were symptoms of head injury, therefore, he referred the injured to Sadar Hospital, Dhanbad. He has proved the injury report of Lakhan Goswami to be in his pen and signature, which was marked as Exhibit–5. On the same day, he had examined Mahadeo Goswami and had found the following injuries on him:- (i) Abrasion 1”x1/3”x1” on the left wrist caused by hard and blunt substance. There was discontinuation of radious bone. There was fracture of left radious. (ii) Abrasion ½”x1/3” on right side of chest caused by hard blunt substance. (iii) Abrasion 1 ½” x 1/3” on the back of chest caused by hard and blunt substance. He has also stated that he had referred Mahadeo Giri (Goswami) to X-Ray clinic of Dr. Saha of Govindpur. X-Ray plates and reports were shown to him and he has proved two X-Ray reports and they were marked as Exhibits-4 and 4/1. (iii) Abrasion 1 ½” x 1/3” on the back of chest caused by hard and blunt substance. He has also stated that he had referred Mahadeo Giri (Goswami) to X-Ray clinic of Dr. Saha of Govindpur. X-Ray plates and reports were shown to him and he has proved two X-Ray reports and they were marked as Exhibits-4 and 4/1. He has identified the injury report of Mahadeo Giri (Goswami) to be in his pen and signature and was marked as Exhibit–5/1. In his cross-examination, this witness has stated that on the same day had had also examined Panchu Giri (Goswami) and had found one lacerated wound on his skull and abrasions on back of his chest and right forearm on him also. He has identified Panchu Giri in the Court. 9. PW–9 Dr. A.S. Mandal, Radiologist, and his medical attendant PW–10 Dasrath Mandal have been examined to prove the X-Ray of the injuries of the informant Mahadeo Giri (Goswami), and they have proved this fact. 10. PW–8 Dr. D.K. Dhiraj had conducted the post-mortem examination on the dead body of Lakhan Goswami, and had found the following ante-mortem injuries:- (i) Stiched wound with ununited edges and lacerated character ½” long with two stitches on the right side of the forehead, 3 ½” above outer end of the right brow. (ii) Diffused swelling of the parietals and temporal areas and left side of maxillary and zygomatic area were seen with ecchymosis underneath. (iii) On further dissection contusion of the scalp in parietal frontal and temporal areas were seen in presence of blood clots under the scalp 1/5” to 1/4” thick in those areas. Depressed fractures of right parietal area 2”x 1&1/4” and right temporo-parietal area 1½” x1” were seen. Fracture line extended from right parietal bone posteriorilly for 4½” to right side of occipital and crossed over to opposite side to parietal bone to bifurcate one branch passing to over left temporal bone. Subdural ecchymosis was seen all over the upper surface of the cerebral cortex. He has also stated that thoraco-abdominal organs were pale, stomach contained 30 CC of blackish fluid, and the death resulted from coma due to blunt force craniocerebral injury. This witness has stated that the injuries may be caused by handle of tangi. He has also stated that these injuries were sufficient to cause death in the ordinary course of nature. He has also stated that thoraco-abdominal organs were pale, stomach contained 30 CC of blackish fluid, and the death resulted from coma due to blunt force craniocerebral injury. This witness has stated that the injuries may be caused by handle of tangi. He has also stated that these injuries were sufficient to cause death in the ordinary course of nature. This witness identified the post-mortem report to be in his pen and signature, which was marked Exhibit–7. This witness was cross examined and was again examined as Court witness in detail. 11. PW–1 Gopal Singh is the I.O. of the case. This witness has stated that on 3.6.1989, Mahadeo Goswami came to Police Station in injured condition along with Lakhan Goswami, who was also injured, and gave the written report, on the basis of which, Govindpur P.S. Case No.123 of 1989 was instituted and investigation was taken up. He has proved the endorsement on the written report to be in the writing and signature of Om Prakash Singh, Officer In-charge of the Police Station, which was marked as Exhibit–1. He has also proved the FIR prepared on the basis of the written report, which was marked as Exhibit–2. This witness has also proved the requisition of the injury reports of both the injureds, which were marked Exhibits-3 and 3/1. This witness has also stated that he went to the hospital, where he was informed that the conditions of the injurdes were not good and they had been referred to Sadar Hospital, Dhanbad. On 4.6.1989, he was informed about the death of Lakhan Goswami at Sadar Hospital, Dhanbad. This witness has also given description of the place of occurrence visited by him, and has stated that there was no material relating to the offence, which could be seized, except the blood stain, which also could not be seized. He has stated about the arrest of the accused persons and the investigations made by him and has stated that the charge-sheet was submitted through Om Prakash Singh, Officer In-charge of the Police Station. In his cross-examination he has stated that the accused Panchu Goswami had also come to the Police Station and he was also having head injury, which appeared to be simple. On the basis of the statement of Panchu Goswami, one Sanha was also recorded in the Police Station. In his cross-examination he has stated that the accused Panchu Goswami had also come to the Police Station and he was also having head injury, which appeared to be simple. On the basis of the statement of Panchu Goswami, one Sanha was also recorded in the Police Station. He has stated that he prepared the requisition for injury report of Panchu Goswami, which he proved and was marked as Exhibit–B. He has also stated in his cross-examination that he had made investigation in Govindpur P.S. Case No.268 of 89 also, which was recorded on the basis of the statement of Devki Devi, wife of Panchu, in which he had submitted the final form and he had no knowledge, whether the same was accepted by the Court or not. 12. Three witness have been examined on behalf of the defence, who are DW-1, Laxmi Narayan Goswami, maternal uncle of the appellant Suresh Goswami, DW–2 Prabhulal Pandey and DW–3 Motilal Kumbhakar, who have been examined to prove that on the date of occurrence, the accused Suresh Goswami was in the house of his maternal uncle, Laxmi Narayan Goswami in a different village. Thus, these witnesses have been examined only to prove the alibi of the accused appellant Suresh Goswami. 13. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Court below are absolutely illegal and cannot be sustained in the eyes of law, in as much as, the evidence on record are full of discrepancies. It is submitted that the prosecution case has been supported only by the interested witness and no independent witness has come forward to support the prosecution case. It has also been submitted that the occurrence had taken place in the quarrel of two ladies, and in the FIR, as also in the evidence, it has come that the informant himself had given the challenge and provocation for the occurrence. Leaned counsel submitted that there is a counter version of the case, in which, the accused Panchu Goswami was also injured. Learned counsel also submitted that the ocular evidence of the witnesses are not at all corroborated by the medical evidence, inasmuch as, no injury caused by sharp cutting weapon was found on the deceased, though there is specific allegation that he was assaulted by tangi. Learned counsel also submitted that the ocular evidence of the witnesses are not at all corroborated by the medical evidence, inasmuch as, no injury caused by sharp cutting weapon was found on the deceased, though there is specific allegation that he was assaulted by tangi. Learned counsel accordingly, submitted that it is a fit case, in which, the appellants were entitled at least to the benefits of doubt. 14. Learned counsel for the State on the other hand has opposed the prayer, submitting that the witnesses have fully supported the prosecution case and there may be only minor discrepancies in the evidence here and there, which are only normal in such cases. Learned counsel submitted that the witnesses are the natural witnesses of the occurrence, being the family members and the neighbours, who only were present at the time of occurrence. Learned counsel submitted that the witnesses have fully supported the prosecution case and the ocular evidence of the witnesses are fully corroborated by the medical evidence of PW–6 Dr. Bhuwaneshwar Sharma, who had examined the deceased while he was injured and also the informant of the case, and has proved the injury reports. The deceased was referred by this witness for his treatment to Sadar Hospital, Dhanbad, where he died. PW–8 Dr. D.K. Dhiraj had conducted the post-mortem examination of the deceased and found the injuries on him to be sufficient in normal course to cause the death of the deceased, and the injuries could be caused by the handle of tangi. As such, his evidence also corroborates the ocular evidence of the witnesses. Learned counsel accordingly, submitted that the prosecution has been able to prove all the charges against the accused persons beyond all reasonable doubts. 15. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence is fully supported by PW–7 Mahadeo Goswami, the informant of the case, who was also injured in the occurrence. PW–2 Kadam Devi, the wife of the deceased, PW–3 Apindo Goswami, the nephew of the informant, PW–4 Kiran Bala Devi, the wife of the informant and PW–5 Janardan Goswami, the nephew of the informant, have also fully supported the prosecution case as eye witnesses to the occurrence, giving almost the same details of the occurrence as stated by the informant in his evidence. The ocular evidence of these witnesses are also corroborated by the medical evidence of PW–6 Dr. Bhuwaneshwar Sharma and injury reports proved by him, as also PW-8 Dr. D.K. Dhiraj, who had conducted the post-mortem examination on the deceased, as also by the post-mortem report proved by him as Exhibit–7, who also stated that the injuries on the deceased were sufficient in ordinary course of nature to cause the death of the deceased, and the injuries could be caused by the handle of tangi. We find that such injuries could even be caused by blunt portion of tangi as also by lathi. PW–9 Dr. A.S. Mandal, Radiologist, and his medical attendant PW–10 Dasrath Mandal, have also proved the fact that X-Ray of the injuries of the informant were done. Though the appellant Panchu Goswami was also found to be injured, as proved by PW–6 Dr. Bhuwaneswar Sharma, but the fact remains that his injuries have not been concealed by the prosecution, rather they have been explained in the FIR itself, as also in the evidence of the informant PW–7 Mahadeo Giri (Goswami), who has stated that while fleeing away, Panchu Goswami had fallen down on the stones causing injuries on him. Though it is submitted by the learned counsel for the appellants that the informant himself had given the challenge to the accused persons, but the fact remains that as per the prosecution case, as also the evidence on record, the informant had only tried to pacify the quarreling ladies, and it was the accused Abhimanyu Goswami, who had given the first provocation to the prosecution side. 16. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to prove all the charges against the accused appellants beyond all reasonable doubts and the appellants have been rightly convicted and sentenced for the offences charged. 17. In view of the aforementioned discussions, we find no illegality in the impugned Judgment of conviction and Order of sentence dated 30th April 1992 passed by the learned 2nd Additional Sessions Judge, Dhanbad, in S.T. No.49 of 1990, which we, hereby, affirm. The appellants are on bail and their bail bonds are hereby, canceled. The appellants are directed to surrender in the Court below forthwith for serving out the sentences. The appellants are on bail and their bail bonds are hereby, canceled. The appellants are directed to surrender in the Court below forthwith for serving out the sentences. The Trial Court below is also directed to issue process forthwith, compelling the surrender/production of the appellants for serving out the sentence. 18. Both these appeals are accordingly, dismissed. Let the Lower Court Records be sent back forthwith along with a copy of this Judgment.