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2018 DIGILAW 1702 (JHR)

Girja Rai v. State Of Bihar (now Jharkhand)

2018-08-02

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. Heard learned senior counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 23rd of April, 1996 (wrongly mentioned as 24th of April, 1996) and Order of sentence dated 24th of April, 1996, passed by the learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 16 of 1985 / 44 of 1994, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Jagdish Ram, the cousin of the deceased Mathura Ram, recorded on 21.9.1984 at village Gundari, Tola Manjhali Tand, P.S.-Dhanwar, District, Giridih, at the place of occurrence, wherein he has stated that the agricultural land bearing Khata No. 76, Plot No. 2729, measuring 68 decimals, situated in Manjhali Tand of Village Gundari, was in share of the informant and his cousin Mathura Ram. They had ploughed the field on the previous day, and on 21.9.1984 at about 7:30 A.M., in the morning, he and his cousin had gone to the land with plough and oxen for sowing kurthi. His son Rameshwar Ram was bringing the kurthi seeds from behind. While they reached the place of occurrence, they saw the appellant Girja Rai sitting near the field armed with sabbal. As soon as they started ploughing the land, Girja Rai objected and he started assaulting them, whereupon, the informant ran for his safety. In the meantime Upendra Rai, the son of Girja Rai also came there, armed with an iron fitted lathi, and both of them started assaulting Mathura Ram by lathi and sabbal. The informant raised the alarm, whereupon the persons from nearby fields also came there. Rameshwar Ram, the son of the informant also came and tried to prevent the accused persons from assaulting Mathura Ram, but the accused persons continued to assault Mathura Ram by sabbal and lathi. Mathura Ram fell down and Girja Rai assaulted him by sabbal on his chest. In the meantime, other persons also assembled there, whereupon the accused persons fled away. Mathura Ram fell down and Girja Rai assaulted him by sabbal on his chest. In the meantime, other persons also assembled there, whereupon the accused persons fled away. The informant has stated that he brought water by wetting a cloth and he gave some water to Mathura Ram. Mathura Ram also informed the persons, who had assembled there, that Girja Rai and Upendra Rai had assaulted him by lathi and sabbal and after sometime, he died. There were marks of assaults on the body of the deceased and a broken bamboo stick was also near the dead body. This witness has stated that the land in question, was belonging to the three brothers, one of whom was his grand-father Daso Ram. Mathura Ram was the heir of other brother Mittan Ram. The third brother was Tejo Ram, whose son Bedo had sold his share to Churo Sao and Churo Sao sold the said land to Jhari Rai, the father of Girja Rai. There was partition of land between them and after the partition of the land, he had gone to cultivate the land, when the occurrence had taken place. On the basis of the fardbeyan of the informant, Dhanwar P.S. Case No.79 of 1984, corresponding to G.R. No.1182 of 1984, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, and the investigation was taken up. After the investigation, the police submitted the charge-sheet against the appellant Girja Rai and his son Upendra Rai. 4. It may be stated that both the accused persons had faced the trial together up to the stage of recording their statements under Section 313 of the Indian Penal Code, but the impugned Judgment shows that subsequently, by order dated 20.12.1990, the accused Upendra Rai was declared juvenile and his trial was separated. As such, we shall confine ourselves with the charge and the evidence on record against the present appellant Girja Rai only. 5. After commitment of the case to the Court of Session, charge was framed against the appellant for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. 5. After commitment of the case to the Court of Session, charge was framed against the appellant for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, ten witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the witnesses examined by the prosecution, P.W.-10 Ram Chandra Pandey, is a school teacher, examined for the purpose of proving the age of the accused Upendra Rai, and as such, his evidence is irrelevant for the purpose of this appellant. 6. P.W.-8 Jagdish Ram is the informant of the case. This witness has stated that the occurrence had taken place on 21.9.1984, which was a Friday, at about 7:30 A.M. in the morning. He had gone to plough the field along with his cousin Mathura Ram in Manjhali Tanr, on the land belonging to both of them. In the said land, the accused Girja Rai had also a share of 25 decimal of land. In the year 1983, there was a partition of land and the share of all the shareholders were carved out by the help of Amin and this partition was with the consent of Girja Rai. On the date of occurrence, this witness and his cousin had gone to plough their land, when he saw the accused Girja Rai sitting there, having a sabbal by his side. The land was ploughed on the previous day also, and they were to cultivate kurthi, and his son was bringing the kurthi seeds from behind. When they started ploughing the filed, Girja Rai came there armed with sabbal and stopped them from ploughing the land and started assaulting him by sabbal, whereupon, this witness ran for his safety. After chasing, this witness to some distance, Girja Rai returned back. He saw that Upendra Rai was assaulting his cousin Mathura Ram and Girja Rai went there and assaulted him by sabbal. By that time, Mathura Ram had fallen down, due to the assaults made by Upendra Rai and Girja Rai had assaulted him by sabbal, when he had already fallen down. The lathi by which Upendra Rai was assaulting Mathura Ram was an iron fitted lathi. By that time, Mathura Ram had fallen down, due to the assaults made by Upendra Rai and Girja Rai had assaulted him by sabbal, when he had already fallen down. The lathi by which Upendra Rai was assaulting Mathura Ram was an iron fitted lathi. This witness has stated that several persons reached the place of occurrence and this witness brought water by wetting a cloth and he gave water to Mathura Ram. The persons, who had assembled there, were informed by Mathura Ram that Upendra Rai and Girja Rai had assaulted him by lathi and sabbal and after about 10 minutes, he died. He has stated that the police arrived at the place of occurrence at about 12.00 P.M., when he gave the fardbeyan to the police, which was read over to him and finding the same to be true, he had put his signature. On his identification, the fardbeyan was marked Exhibit-4 and his signature thereon was marked Exhibit-5. He has stated that the police prepared the inquest report and also seized the broken piece of lathi and one plough from the place of occurrence. He has identified the plough in the Court, which was marked material Exhibit-I and the broken piece of lathi was marked material Exhibit-II. He has identified the accused in the Court. In his cross-examination, this witness has stated that the disputed land belongs to Khata No.76, plot No.2729, having area of 10 acres. The land was recorded in the name of Tejo Ram, Mittan Ram and Daso Ram. Mittan Ram died leaving behind his wife Meghni Devi. Tejo Ram also died and his only son Bedo Ram had also died. Bedo Ram sold his share to Churo Sao and Churo Sao sold the same to Jhari Rai, the father of Girja Rai. He has stated that Daso Rai had registered the land of his share in favour of the mother of this witness and on that basis, he was claiming share in the land. He has further admitted that there was no document prepared at the time of the partition. This witness has stated that when Upendra Rai started assaulting Mathura, he was in standing position, but after being assaulted, Mathura fell down and thereafter Girja Rai assaulted him by sabbal. He could not say that how many assaults were made by sabbal and lathi. This witness has stated that when Upendra Rai started assaulting Mathura, he was in standing position, but after being assaulted, Mathura fell down and thereafter Girja Rai assaulted him by sabbal. He could not say that how many assaults were made by sabbal and lathi. He had seen about six marks of assaults on the deceased. This witness had also admitted that prior to the occurrence, Girja Rai had filed a case against Mathura Ram and after this occurrence also, Girja Rai has filed a case of looting the paddy crop against this witness and his son. He has also stated that at the time of occurrence, this witness was not armed with any weapon, rather they were having only sticks for taming the oxen. This witness has denied the suggestion of giving the false evidence. 7. P.W.-6 Rameshwar Ram is the son of the informant, and this witness has also supported the prosecution case as eyewitness to the occurrence, but he has not stated that the deceased was assaulted by the appellant Girja Rai also, rather he has stated that the accused Girja Rai was assaulting his father, and he had tried to prevent him from assaulting his father. This witness has however, stated that when his father gave water to Mathura Ram, he was saying that Girja Rai and Upendra Rai had assaulted him by sabbal and lathi, and he shall die. He has stated that the police had seized the plough and a broken lathi, and seizure list was prepared on which this witness and Sukhdeo had put their signatures. On his identification the seizure list was marked as Exhibit-2. 8. P.W.-1 Tarkeshwar Pandey and P.W.-5 Rameshwar Ram, son of Mangar Ram, had reached the place of occurrence after the deceased had fallen down after assaults. P.W.-1 Tarkeshwar Pandey has stated that at the time of occurrence, he had gone to ease himself, whereas P.W.-5 Rameshwar Ram has stated that he was going to call a Pundit, when they heard the alarm raised by the informant. They rushed there and they saw Mathura Ram in injured condition. P.W.-1 Tarakeshwar Pandey had also seen the accused persons fleeing away and had seen Girja Rai armed with sabbal. The injured Mathura Ram informed them that both the accused persons had assaulted him, and he shall die. They rushed there and they saw Mathura Ram in injured condition. P.W.-1 Tarakeshwar Pandey had also seen the accused persons fleeing away and had seen Girja Rai armed with sabbal. The injured Mathura Ram informed them that both the accused persons had assaulted him, and he shall die. P.W.-1 Tarkeshwar Pandey has also stated that there was broken lathi lying near the injured Mathura Ram. P.W.-5 Rameshwar Ram, has stated that the injured was saying that he was assaulted by sabbal and lathi. These witnesses have also identified the accused in the Court. 9. P.W.-3 Sukhdeo Pandey and P.W.-4 Sukhdeo Ram have supported the case as eyewitness to the occurrence. Both these witnesses have stated that the occurrence had taken place on 21.9.1984 at about 7.30 A.M. While they were going towards the field, they heard the alarm raised by Jagdish Ram, whereupon, they reached there and they saw Upendra Rai and Girja Rai assaulting Mathura Ram. Mathura Ram had fallen down. They have also stated that Rameshwar Ram, the son of Jagdish Ram tired to prevent them from assaulting Mathura Ram, but the accused persons continued assaulting Mathura Ram by sabbal and lathi, and thereafter, they fled away. After some time, Mathura Ram died. They have identified the accused in the Court. P.W.-3 Sukhdeo Pandey has stated that at the time of occurrence, he was going to ease himself and no one was with him. This witness has also stated that Mathura Ram had fallen down in the land of the accused Girja Rai. The place of occurrence and the land of Mathura Ram was in the same plot. P.W.-4 Sukhdeo Ram, in his cross-examination has stated that the occurrence had taken place due to land dispute between the parties. 10. P.W.-7 Sahdeo Pandey has also supported the prosecution case as eyewitness to the occurrence, making the allegation against the accused persons to have assaulted the deceased by lathi and sabbal, but he has stated that the occurrence had taken place on 19.9.1984. This witness has also stated that at the time of occurrence, he had gone to ease himself towards the field. This witness is also the witness to the inquest report of the dead body of the deceased, upon which, he had put his signature and on his identification, the inquest report was marked Exhibit-3. This witness has also stated that at the time of occurrence, he had gone to ease himself towards the field. This witness is also the witness to the inquest report of the dead body of the deceased, upon which, he had put his signature and on his identification, the inquest report was marked Exhibit-3. In his cross-examination, this witness has stated that the place of occurrence is the land, belonging to Girja Rai, who was also cultivating the land. 11. P.W.-2 is Jitendra Kumar, the Doctor, who has conducted the post-mortem examination on the dead body of the deceased on 22.9.1984 and had found the following injuries on the dead body:- I. Abrasion on the left side of the abdomen over the splenic area size 3" x 2". II. Bruises four in number on the front of chest obliquely extending from the left side of chest near nipple towards right side of chest. Upper three bruises overlapping each other differentiated by tail end and 4" to 5" in length and 1" almost width of each. One bruise of 5" x 1 " in size. All the bruises were blackish in colour. 2. On dissection:- There was ecchymosis in this corresponding area under the skin. There was further fracture of 6th and 7th ribs of both sides at the sternum end. On further dissection, there was laceration of lower lobe of both lungs and the blood was in the chest cavity. Both chambers of the heart were empty. This witness has stated that the injuries were caused by hard and blunt substance, may be sabbal and iron fitted lathi. He has also stated that the death was caused due to shock and haemorrhage, as a result of the injury No. 2, which was sufficient to cause death in ordinary course of nature. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. 12. P.W.-9 Sahai Lakara is the I.O. of the case. This witness has stated that on 21.9.1984 he was posted at Officer-Incharge at Dhanwar Police Station. At about 11.00 A.M., he got the information that someone was murdered in village Gundari, whereupon he proceeded towards the place of occurrence and he reached the village at about 11.40 A.M. and after enquiry, he reached the place of occurrence, where he saw the dead body. At about 11.00 A.M., he got the information that someone was murdered in village Gundari, whereupon he proceeded towards the place of occurrence and he reached the village at about 11.40 A.M. and after enquiry, he reached the place of occurrence, where he saw the dead body. He recorded the fardbeyan of the informant at the place of occurrence, and he has identified the fardbeyan, which was earlier marked Exhibit-4. He also recorded the restatement of the informant and the statements of other witnesses and inspected the place of occurrence, and has given the details of the place of occurrence, including the khata number, plot number and area of the land in dispute. He has also stated that the dead body of the deceased was lying in the uncultivated land of Girja Rai, in the South-Western corner, and he also saw the marks of partition of the land. The land of the informant was also nearby. He found the broken lathi near the dead body and he also found the plough at the place of occurrence. There were leg marks of several persons. He seized the plough and the broken lathi from the place of occurrence and he has identified the seizure list, which was earlier marked Exhibit-2. He has also stated that he prepared the inquest report, which he has identifid and the same was earlier marked Exhibit-3. He has also proved the plough and the broken lathi in the Court, which were earlier marked material Exhibits. He prepared the sketch map of the place of occurrence, which also, he has proved and the same was marked Exhibit-6. He sent the dead body for post-mortem examination and he arrested the accused Girja Rai on 5.10.1984. After completing the investigation, he submitted the charge-sheet. He has also proved the formal F.I.R., which was marked Exhibit-7. In his cross-examination, this witness has stated that he had asked for the document of land from the informant, but he stated that the same was submitted in the Court. He has stated that he had not seen any blood or blood stained article at the place of occurrence. He was not knowing the informant and the witnesses from before the occurrence. Some contradictions in the statements of the witnesses have been taken, but they do not relate to the assaults made upon the deceased. He has denied the suggestion of making faulty investigation. 13. He was not knowing the informant and the witnesses from before the occurrence. Some contradictions in the statements of the witnesses have been taken, but they do not relate to the assaults made upon the deceased. He has denied the suggestion of making faulty investigation. 13. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced on behalf of the defence. On the basis of the material available on record, the accused-appellant was found guilty, convicted and sentenced by the Trial Court below as aforesaid. 14. Learned senior counsel for the appellant has submitted that most of the witnesses examined in the case are chance witnesses, inasmuch as, some of them have stated that they had gone towards the field to ease themselves, and some of them had gone towards the field for the other purposes. It is submitted by learned counsel that the evidence of the chance witness is required to be seen very cautiously. In this connection, learned counsel has placed reliance upon the decision of Hon''ble Apex Court in Bahal Singh Vs. State of Haryana , (1976) AIR SC 2032. Learned counsel, further submitted that there is admitted land dispute between the parties and the allegation of assault is not fully supported by the medical evidence. In this connection, learned counsel has placed reliance upon the decision of the Hon''ble Apex Court in Awadhesh & Anr. Vs. State of Madhya Pradesh , (1988) AIR SC 1158. We find that this judgment is not at all applicable to the facts of this case, as it relates to the firearm injury. 15. Learned senior counsel also submitted that the seized weapon was not shown to the Doctor, conducting the post-mortem examination, and as such, the prosecution has not been able to bring home the charge against the appellant beyond all reasonable doubts and in this connection, learned counsel has placed reliance upon the decision of Hon''ble Apex Court in Dinesh & Anr. Vs. State of Haryana , (2002) CriLJ 2970. 16. Learned senior counsel, further submitted that there are contradictions in the evidence of the prosecution witnesses, inasmuch as, P.W.-6 Ramehwar Ram, who is son of the informant and has claimed to be the eyewitness to the occurrence, has not made any allegation of assault upon the deceased against the appellant. Vs. State of Haryana , (2002) CriLJ 2970. 16. Learned senior counsel, further submitted that there are contradictions in the evidence of the prosecution witnesses, inasmuch as, P.W.-6 Ramehwar Ram, who is son of the informant and has claimed to be the eyewitness to the occurrence, has not made any allegation of assault upon the deceased against the appellant. Learned counsel has submitted that in any view of the matter, since the assaults were made by sabbal, and there was no bleeding injury on the dead body, it cannot be said that the deceased was assaulted with the intention to cause his death, and in any view of the matter and offence shall be made out only under Section 304 Part-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Learned counsel lastly submitted that taking into consideration the land dispute between the parties, the false implication of the accused cannot be ruled out and, even though, the witnesses have supported the prosecution case, it is a fit case, in which, the appellant ought to have been given the benefits of doubt. 17. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case has been fully supported by P.W.-3 Sukhdeo Pandey, P.W.-4 Sukhdeo Ram, P.W.-7 Sahdeo Pandey and P.W.-8 Jagdish Ram, the informant, as the eyewitnesses to the occurrence and all of these witnesses have stated that the deceased was assaulted by the son of the present appellant by lathi and when he fell down, he was assaulted by sabbal by the present appellant also. These witnesses have also stated that the deceased himself informed the persons assembled there while he was alive, that these accused persons had assaulted him. P.W.-1 Tarkeshwar Pandey and P.W.-5 Rameshwar Ram had reached the place of occurrence soon after the occurrence, and they have also supported the case that the deceased had informed that he was assaulted by these accused persons. P.W.-1 Tarkeshwar Pandey and P.W.-5 Rameshwar Ram had reached the place of occurrence soon after the occurrence, and they have also supported the case that the deceased had informed that he was assaulted by these accused persons. Learned counsel also submitted that the ocular evidence of these witnesses, is fully corroborated by the medical evidence of P.W.-2 Jitendra Kumar and the post-mortem report proved by him as Exhibit-1, in which, the Doctor had found several bruises on the chest area of the deceased, and upon dissection 6th and 7th ribs of both the sides at the sternum end were found to be broken and due to laceration in both the lungs, the chest cavity was full of blood and that was the cause of death of the deceased. The Doctor has stated that the injury was sufficient in the ordinary course of nature to cause the death. Learned counsel, accordingly, submitted that there may be minor contradictions in the evidence here and there, which is only natural. It is submitted by learned counsel, that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. 18. Having heard counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the eyewitnesses namely P.W.-3 Sukhdeo Pandey, P.W.-4 Sukhdeo Ram, P.w.-7 Sahdeo Pandey and P.W.-8 Jagdish Ram, the informant. P.W.-8 Jagdish Ram has stated that there was land dispute between the parties and when he had gone to the place of occurrence, he had seen the accused with sabbal and when they started ploughing the land, the accused objected the same and, he chased the informant for some distance and by that time, the son of the present appellant had started assaulting his cousin Mathura Ram by lathi, and Girja Rai also returned back and when Mathura Ram fell down, he assaulted him by sabbal, causing injuries to him, and subsequently, the deceased died. He has also stated that the deceased had himself disclosed before the persons, who had assembled there, that he was assaulted by the accused persons by sabbal and lathi. P.W.-1 Tarkeshwar Pandey, P.W.-3 Sukhdeo Pandey, P.W.-4 Sukhdeo Ram, P.W.-5 Rameshwar Ram P.w.-7 Sahdeo Pandey have also fully supported this fact. He has also stated that the deceased had himself disclosed before the persons, who had assembled there, that he was assaulted by the accused persons by sabbal and lathi. P.W.-1 Tarkeshwar Pandey, P.W.-3 Sukhdeo Pandey, P.W.-4 Sukhdeo Ram, P.W.-5 Rameshwar Ram P.w.-7 Sahdeo Pandey have also fully supported this fact. Even P.W.-6 Rameshwar Ram, the son of the informant, has also supported this fact, though he has not stated that Girja Rai had assaulted the deceased. This only appears to be an omission on his part. Out of these witnesses, P.W.-3 Sukhdeo Pandey, P.W.-4 Sukhdeo Ram, P.w.-7 Sahdeo Pandey, are also the eyewitnesses, who had seen the accused assaulting the deceased. Though learned counsel for the appellant has submitted that the witnesses supporting the prosecution case, are only the chance witnesses, but we find from the record that the time of occurrence is about 7.30 A.M. in the morning in an agricultural field, and this the time, when the villagers go towards the filed to ease themselves, and also for other purposes. Indeed, the defence side has not been able to prove that any of them were either related to the deceased or to the informant. We also find that these witnesses have given the true picture of the occurrence, inasmuch as, P.W.-3 Sukhdeo Pandey and P.W.-7 Sahdeo Pandey have clearly stated that the occurrence had taken place on the land, which was belonging to the accused Girja Rai. We are of the considered view that the evidence of these witnesses cannot be discarded, simply on the ground that they are the chance witnesses. We find that the oral evidence of these witnesses is fully corroborated by the medical evidence of P.W.-2 Jitendra Kumar, who had found several bruises upon the chest area of the deceased. Upon dissection 6th and 7th ribs of both sides towards the end of sternum end were found fractured and this witness has also found both the lungs of the deceased were punctured, due to which, chest cavity was full of blood and the Doctor has found this injury to be the cause of death. Upon dissection 6th and 7th ribs of both sides towards the end of sternum end were found fractured and this witness has also found both the lungs of the deceased were punctured, due to which, chest cavity was full of blood and the Doctor has found this injury to be the cause of death. The nature of injury caused upon the deceased by the accused clearly shows that they were having the intention to cause the death of the deceased, and particularly the present appellant had also assaulted the deceased with the intention to cause his death, in as much as, he had assaulted the deceased by sabbal, even after the deceased had fallen down. Had there been no intention to cause the death, the deceased would not have been assaulted after he had fallen down. As such it cannot be said that offence is only made out under Section 304 Part-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 19. On the basis of material available on record, we are of the considered view that the prosecution has been able to bring home the charge against the appellant Girja Rai, beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below worth interference by this Court. 20. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 23rd of April, 1996 and Order of sentence dated 24th of April, 1996, passed by the learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 16 of 1985 / 44 of 1994, convicting and sentencing the appellant Girja Rai, for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. The appellant Girja Rai is on bail. His bail is hereby, cancelled and he is directed to surrender forthwith in the Trial Court below, for serving out the sentence. The Trial Court below is also directed to issue the process forthwith, compelling the surrender / production of the appellant Girja Rai for serving out the sentence. 21. We do not find any merit in this appeal, which is, accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.