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2018 DIGILAW 1879 (JHR)

Kistu Besra v. State of Jharkhand

2018-08-16

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned senior counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 19th January, 2007 and Order of sentence dated 24th January, 2007, passed by the learned 2nd Additional Sessions Judge, Pakur, in S.C. No. 171 of 2006, 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 R.I. for life, with fine of Rs.5000/-, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Dhena Kuri Hansda, the wife of the deceased Nazir Soren, recorded on 12.06.2006 at about 6:30 A.M. in the morning, at the place of occurrence, situated near the house of Longra Besra, in village Jamkanali, P.S. Amrapara, District Pakur, wherein she has stated that in the previous night at about 8:00 P.M., her niece Chhita Soren came running to her house and informed her that accused Kistu Besra was assaulting her husband by iron rod near the house of Longra Besra. The informant rushed to the place and when she reached near the house of Longra Besra, she found her husband Nazir Soren fallen unconscious on the village road, with the bleeding injuries on his head. Several persons had assembled there and she was informed that the accused Kistu Besra was quarrelling with his wife in which her husband Nazir Soren intervened, asking him as to why they were quarrelling amongst themselves, whereupon Kistu Besra had repeatedly assaulted her husband by an iron rod with the intention to cause his death, due to which her husband had fallen down being injured, and the accused had fled away. She sent her son to call a doctor, but no doctor came there. At about 12:00 A.M., in the night, her husband died at the spot. She has stated that several persons had seen the occurrence. On the basis of the fardbeyan of the informant, Amrapara P.S. Case No. 36 of 2006 corresponding to G.R. No. 346 of 2006, was instituted for the offence under Section 302 of the India Penal Code, against the sole accused, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case. 4. On the basis of the fardbeyan of the informant, Amrapara P.S. Case No. 36 of 2006 corresponding to G.R. No. 346 of 2006, was instituted for the offence under Section 302 of the India Penal Code, against the sole accused, and investigation was taken up. After investigation, the police submitted the charge-sheet in this case. 4. After commitment of the case to the Court of Session, charge was framed against the accused Kistu Besra for the offence under Section 302 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, eleven witnesses have been 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. 5. P.W.-9 Dhena Kuri Hansda is the informant in the case and the wife of the deceased Nazir Soren. She has stated that the occurrence had taken place on a Sunday, about five months ago at about 8:00 P.M. in the night. She was in her house when she heard the noise raised by Jisu and while she was wondering as to why he was making the noise, Chhita came there and informed that her husband was being assaulted. She went towards the house of Longra and saw her husband fallen down with bleeding injuries on his head. She was informed by Chhita that her husband was assaulted by Kistu, as Kistu was quarrelling with his wife, in which her husband had intervened, due to which Kistu had assaulted her husband. Her husband died at the spot. In the next morning, the police arrived and she gave her fardbeyan, upon which she put her thumb impression. She has identified the accused in the Court. In her cross-examination, this witness has stated that Jisu had not entered her house, rather, he was outside the house and Chhita had come to her house. When she reached the place of occurrence, lot of persons had assembled there. She had admitted that the accused is an old person. She has stated that she had not gone to the Police Station. She had no quarrel with the accused. She has also stated in her cross-examination that Chhita had become mentally ill and she was still mentally ill. She has denied the suggestion that her husband had died at a different village. She has stated that she had not gone to the Police Station. She had no quarrel with the accused. She has also stated in her cross-examination that Chhita had become mentally ill and she was still mentally ill. She has denied the suggestion that her husband had died at a different village. She has also denied the suggestion of giving false evidence and of falsely implicating the accused. 6. P.W.-1 is Chhita Soren, who is the niece of the deceased. This witness has also stated that the occurrence had taken place about five months ago, after it had become dark in the evening. She was returning back after making some purchase and she saw that Kistu and his wife were quarrelling. Her uncle Nazir Soren tried to intervene, whereupon Kistu assaulted her uncle thrice by sabbal on his head, due to which the deceased fell down unconscious. She went and informed the wife of the deceased, whereupon the wife of the deceased and other persons also came there. Her uncle was still unconscious and he subsequently died at the spot. She has also identified the accused in the Court. In her cross-examination, she has stated that when she was returning back after making the purchase, it had already become dark and there was no electricity in her village. She has stated that at the time of occurrence, she stopped and saw the occurrence for some time and then she went to house. Her uncle was young. She has also admitted that her uncle was fined for cattle theft. She has stated that she had not given any information to the Pradhan of the village, rather, she had only informed her aunt about the occurrence. She has also stated that her statement was not recorded by the police, but to the Court’s question, she has clarified that her statement, as it is recorded in the Court, was not recorded by the police. She has also stated that at the time of occurrence, there was no one else except the accused, his uncle and this witness. She had no knowledge as to why the accused was quarrelling with his wife. She has also denied the suggestion of giving false evidence. 7. P.W.-2 Jisu Soren has also supported the case as an eye witness to the occurrence. She had no knowledge as to why the accused was quarrelling with his wife. She has also denied the suggestion of giving false evidence. 7. P.W.-2 Jisu Soren has also supported the case as an eye witness to the occurrence. This witness has stated that the occurrence took place about five months ago on a Sunday at about 8:00 P.M. He was returning from village Jamogoria, and when he reached near the place of occurrence, he saw that Nazir had fallen down and Kistu Besra was assaulting him by sabbal. He tried to prevent Kistu Besra from assaulting, but he was also threatened. Nazir had sustained bleeding injuries on his head. After sometime, Nazir died. He had no knowledge as to why Kistu had assaulted the deceased. He has also stated that at the time of occurrence, he raised the alarm upon which several persons assembled there. This witness has also identified the accused in the Court. He has stated in his cross-examination that at the time of occurrence, he was returning after purchasing rice from village Jomogoria, as rice was not available in the shop of his village. He has also stated that he is not related to the deceased Nazir Soren. There are five houses between the house of the deceased and his house. He has also stated that the deceased was a young man, whereas the accused is an old person. He had raised the alarm, whereupon several persons had assembled there. He had not gone to the Police Station, rather the family members of the deceased had informed the police. He has also denied the suggestion of giving false evidence. 8. P.W.-3 Manjhi Tudu has also supported the case stating that upon the alarm raised by Jisu, he reached the place of occurrence and saw that Nazir had fallen down and he was having bleeding injuries. He has stated that Kistu had assaulted Nazir by Subbal and after some time Nazir died. He has also stated that there was a quarrel between Kistu and his wife in which Nazir had intervened due to which he was assaulted. This witness has also identified the accused in the Court. In his cross-examination, this witness has clearly stated that when he reached the place of occurrence, Jisu was present there, but Kistu had fled away. He has also stated that there was a quarrel between Kistu and his wife in which Nazir had intervened due to which he was assaulted. This witness has also identified the accused in the Court. In his cross-examination, this witness has clearly stated that when he reached the place of occurrence, Jisu was present there, but Kistu had fled away. Thus, it is apparent that this witness is not the eye witness to the occurrence, rather he had reached the place of occurrence soon after the occurrence, and was informed about the occurrence. In his cross-examination, he has also stated that he remained at the place of occurrence for the whole night and in the morning the police had arrived. This witness has also stated that his son was also assaulted by the accused earlier, and he has denied the suggestion of giving false evidence due to the previous enmity. 9. P.W.-4 Master Soren has also supported the case as an eye witness to the occurrence, stating that he had seen the accused assaulting his uncle Nazir Soren by an iron sabbal, due to which Nazir Soren fell down. He has stated that two assaults were made by sabbal due to which the deceased had sustained bleeding injuries and thereafter the accused fled away. He is also a witness to the inquest report and he has proved his signature on the inquest report, which was marked Ext.1. In his cross-examination, this witness has however, admitted that when he reached the place of occurrence, he had seen his uncle unconscious and the accused was not there. As such, it is doubtful whether this witness is an eyewitness to the occurrence, but the fact remains that he had seen the deceased at the place of occurrence, as he is a witness to the inquest report. He has stated that he had gone to the Police Station. 10. P.W.-5 Nazir Hansda, P.W.-6 Hussain Tudu, P.W.-7 Gopin Tudu and P.W.-8 Kauleshwar Soren, are the hearsay witnesses, who had reached the place of occurrence soon after the occurrence, upon the alarm raised by P.W.-2 Jisu Soren, and had seen the deceased in the injured condition. All these witnesses have stated that they were informed by Jisu, that Kistu had assaulted the deceased by sabbal. After sometime, the deceased died. All these witnesses have stated that they were informed by Jisu, that Kistu had assaulted the deceased by sabbal. After sometime, the deceased died. P.W.-5 Nazir Hansda is also a witness to the inquest report on which he has proved his signature, which was marked Ext.1/1, and P.W.-6 Hussain Tudu and P.W.-7 Gopin Tudu are also the witnesses to the seizure list for seizure of blood stained soil from the place of occurrence, and they have proved their signatures on the seizure list, which were marked Ext.2 and 2/1 respectively. 11. P.W.-10 is Dr. Bindu Bhushan Prasad, who had conducted the post-mortem examination on the dead body of the deceased on 12.06.2006, and had found the following injuries on the dead body:- Ante-mortem Injury :- (i) Lacerated injury 3” x 1” x bone deep on the left side of the skull with fracture of left parietal bone. (ii) Lacerated injury 2” x 1” x bone deep on the back of the left pinna. These injuries were sufficient to cause death in ordinary course. On opening the Skull :- Huge hematoma was found in the sub cutaneous tissues with fracture of left parietal bone. Brain tissue and its membrane was lacerated with blood. On Opening the Chest:- Lungs tissues were pale. All the four chambers of heart were empty. On Opening the abdomen:- Stomach contained turbid liquid material. Small and large intestine contained gas and fecal material. Liver, spleen, both kidney were pale and bladder was empty. This witness has stated that the cause of death was due to severe hemorrhagic and neurogenic shock following injury over scalp by hard and blunt substance. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.3. 12. P.W.-11 is Kumar Sarju Anand, who is the I.O. of the case. This witness has stated that on 12.06.2006 he was posted as Officer-Incharge of Amrapara Police Station. At about 05:00 A.M. in the morning, he got the rumor that someone was murdered at village Jamkanali. He made the sanha entry about the information and proceeded towards the place of occurrence, where he reached at about 06:30 A.M. He recorded the fardbeyan of Dhena Kuri Hansda, the wife of the deceased, and he has proved the fardbeyan which was marked Ext.4. He has also proved the formal F.I.R., which was marked Ext.5. He made the sanha entry about the information and proceeded towards the place of occurrence, where he reached at about 06:30 A.M. He recorded the fardbeyan of Dhena Kuri Hansda, the wife of the deceased, and he has proved the fardbeyan which was marked Ext.4. He has also proved the formal F.I.R., which was marked Ext.5. He has stated that he took over the charge of investigation, and he prepared the inquest-report of the dead body of the deceased, which also he has proved and the same was marked Ext.6. He sent the dead body for post-mortem examination. He inspected the place of occurrence, and he has given the details thereof, which is a village road near the house of Kistu Besra and just East to the house of Longra Besra. He has stated that the house of Kistu Besra was at a distance of about 2 meters and the house of informant was at a distance of about 30 yards, from the place of occurrence. He found lot of blood at the place of occurrence and he had seized the blood stained soil and had prepared the seizure-list, which he also proved and the same was marked Ext.7. He recorded the statements of the witnesses. The Superintendent of Police also arrived there and supervised the case. This witness has stated that this accused had criminal antecedents and he was an accused for the offence under Section 302 of the Indian Penal Code. He received the post-mortem report and he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not sent the blood stained soil for forensic examination. His attention was also drawn towards the statement of the some witnesses, which he has replied, but they are not of much importance, as they do not relate either to the assault made by the accused or to the information given to the hearsay witnesses by Jisu Soren (P.W.-2). He has stated that he had recorded the distance between the house of Kistu Besra and the informant from the place of occurrence, only on estimation. 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, the accused had denied the evidence against him. No evidence was adduced by the defence. 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, the accused had denied the evidence against him. No evidence was adduced by the defence. On the basis of the materials on record, the accused has been convicted and sentenced by the Trial Court below as aforesaid. 14. Learned senior counsel for the appellant 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, in as much as, the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts. It is submitted that though it is stated in the F.I.R., that the assault was made upon the deceased by an iron rod, but the witnesses have stated that the assault was made by sabbal. Learned senior counsel also submitted that P.W.-3 Manjhi Tudu and P.W.-4 Master Soren had tried to become the eye-witnesses to the occurrence, but from their cross-examinations it would appear that they were not the eye-witness to the occurrence, as both of them admitted that when they reached the place of occurrence, the accused had already fled away. Learned senior counsel submitted that even P.W.-1 Chhita Soren and P.W.-2 Jisu Soren are only the chance witnesses and their evidences are not reliable. It is also pointed out by learned senior counsel that P.W.-9 Dhena Kuri Hansda, the informant, has admitted in her cross-examination that Chhita Soren had become mentally ill and she continued to be like that, and on this score also, her (P.W.-1's) evidence is not reliable. It is also pointed out that P.W.-9 Dhena Kuri Hansda has stated for the first time in her evidence that she first heard the noise raised by Jisu Soren, which fact is not stated in her F.I.R., and as such her evidence is also not reliable. Learned senior counsel lastly submitted that in any event, as the occurrence had taken place on a sudden provocation, the offence shall not come under Section 302 of the Indian Penal Code, rather the offence, if any, shall be made out only under Section 304 Part II of the Indian Penal Code, and the appellant has sufficiently been punished for the said offence. 15. 15. Learned counsel for the State, on the other hand, has opposed the prayer, and has submitted that case is fully supported by P.W.-1 Chhita Soren and P.W.-2 Jisu Soren as the eye-witnesses to the occurrence and it is Chhita Soren who had informed the informant about the occurrence at her house, whereupon, the informant had come and had seen her husband unconscious at the place of occurrence, who subsequently died. P.W.-2 Jisu Soren has also supported the case as eye-witness to the occurrence and has stated that he raised the alarm, whereupon, several persons assembled there. The evidences of the hearsay witnesses, P.W.-5 Nazir Hansda, P.W.-6 Hussain Tudu, P.W.-7 Gopin Tudu and P.W.-8 Kaileshwar Soren, support this fact and they have stated that upon the alarm raised by Jisu Soren, they reached the place of occurrence and saw the deceased fallen unconscious and they were informed about the occurrence by Jisu Soren. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-10 is Dr. Bindu Bhushan Prasad, and the post-mortem report proved by him as Ext.-3, which clearly show that there were two lacerated wounds on the head, causing fracture of the parietal bone, and injury in the brain, which were sufficient to cause death in ordinary course of nature, and as such the prosecution has been able to bring home the charge under Section 302 of the Indian Penal Code, against the accused beyond all reasonable doubts. It is submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 16. Having heard learned counsels for both the sides and upon going through the record, we find that though P.W.-9 Dhena Kuri Hansda has stated in her evidence that she first heard the noise raised by Jisu Soren which fact is not stated in her F.I.R., but the fact remains that the I.O. has clearly stated that the distance between the place of occurrence and the house of the informant is only about 30 yards, and as such, her evidence that she first heard the noise raised by Jisu Soren cannot be disbelieved, and it appears to be only natural. She has clearly stated that thereafter Chhita Soren came to her house and informed her about the occurrence. She has clearly stated that thereafter Chhita Soren came to her house and informed her about the occurrence. The fact that Jisu Soren had raised the alarm, is also stated by P.W.-2 Jisu Soren himself, and his evidence also finds support from the evidences of the hearsay witnesses P.W.-3 Manjhi Tudu, P.W.-5 Nazir Hansda, P.W.-6 Hussain Tudu, P.W.-7 Gopin Tudu and P.W.-8 Kauleshwar Soren, who had reached the place of occurrence soon after the occurrence, upon the alarm raised by Jisu Soren, had seen the deceased in the injured condition. Except P.W.-3 Manjhi Tudu, the other hearsay witnesses have stated they were informed by Jisu that the deceased was assaulted by the accused Kistu Besra by sabbal. P.W.-1 Chhita Soren and P.W.-2 Jisu Soren, who are the eye-witnesses to the occurrence, cannot be termed as chance witnesses, merely for the fact that they have stated that at the time of occurrence, they were returning after making purchases, as both of them are the resident of the same place, having their abode nearby the place of occurrence. P.W.-1 Chhita Soren is the niece of the deceased. The house of P.W.-2 Jisu Soren is also situated nearby, as this witness has stated that there are only five houses between his house and the house of the deceased. Even otherwise, their evidences are quite trustworthy, as they are fully corroborated by the other witnesses. The evidence of P.W.-1 Chhita Soren also cannot be discarded for the reason that her aunt P.W.-9 Dhena Kuri Hansda, has admitted in her cross-examination that she had become mentally ill and she continued to be like that. The evidence of P.W.-1 Chhita Soren clearly shows that she has deposed in the Court in quite coherent manner and even the Court had not found anything unnatural in her behaviour, otherwise, that must have been pointed out by the Trial Judge. Even the defence did not point out anything unnatural in her, during her examination in the Court below. 17. We further find that the ocular evidence of these witnesses and of the hearsay witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Bindu Bhusan Prasad and the post-mortem report proved by him as Ext.3. The injuries found on the dead body of the deceased were on the vital part of the body, i.e., head. 17. We further find that the ocular evidence of these witnesses and of the hearsay witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Bindu Bhusan Prasad and the post-mortem report proved by him as Ext.3. The injuries found on the dead body of the deceased were on the vital part of the body, i.e., head. There were two injuries on the head which shows that there was repetition of blow upon the deceased and the impact of assault was such that it had resulted in the fracture of left parietal bone and brain tissues and its membrane was lacerated with blood, and there was huge haematoma in the sub cutaneous tissues. The injuries caused by the assaults were sufficient in the ordinary course of nature to cause the death of the deceased. The submission of learned counsel that in the FIR it is stated that that the assault was made upon the deceased by an iron rod, but the witnesses have stated that the assault was made by sabbal, shall not make any difference, as an iron sabbal is also like an iron rod, only with the difference that it is has a sharp or a pointed edge in one end. Taking into consideration these injuries on the head of the deceased and also the fact that there was repetition of blow on the head of the deceased, we find that the appellant had assaulted the deceased with intention to cause his death and the offence shall come clearly under Section 302 of the Indian Penal Code, and not under Section 304 Part II of the Indian Penal Code. 18. The submission of learned counsel that the occurrence had taken place due to the sudden provocation, also cannot be entertained, in as much as, there was no provocation from the side of the deceased, rather he had only intervened in the quarrel between the accused and his wife and had tried to pacify them. We are of the considered view that on the basis of the evidence brought on record, prosecution has been able to bring home the charge against the accused for the offence under Section 302 of the Indian Penal Code, 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 any interference by this Court. 19. 19. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 19th January, 2007 and Order of sentence dated 24th January, 2007, passed by the learned 2nd Additional Sessions Judge, Pakur, in S.C. No. 171 of 2006, convicting and sentencing the appellant Kistu Besra for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. The appellant Kistu Besra is already in custody undergoing the sentence. 20. Before parting with this Judgment, we wish to record that P.W.-9 Dhena Kuri Hansda, is the victim of the crime, being the wife of the deceased, who has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned DLSA, so that adequate compensation is paid to this victim at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 21. We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. Appeal dismissed.