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2018 DIGILAW 2648 (JHR)

Goma Besra @ Motilal Besara v. State of Jharkhand

2018-12-04

H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned judgment of conviction dated 12.03.2008 and order of sentence dated 17.3.2008, passed by the learned Sessions Judge, Giridih, in S.T. No. 334 of 2005, whereby, the appellant Goma Besra @ Mollial Besara has been found, guilty and convicted for the offences under Sections 302,201/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Sections 302/34 of the Indian Penal Code, and R.I. for five years for the offence under Sections 201/34 of the Indian Penal Code, and both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Ramdeo Mahto, the brother of the deceased Tuplal Verma, recorded on 10.7.2005, at the place of occurrence, which was a road, situated near village Bengabad, P.S. Bengabad, District Giridih, at about 8:30 a.m., wherein he has stated that on previous evening, i.e., on 9.7.2005 after 5 p.m., the accused Goma Besra came to his house and asked his brother to accompany him for eating chicken. Thereafter, his brother went on his bicycle with the accused, but he did not return back in the evening. The informant searched his brother in the night but, when he could not be found, he thought his brother must have stayed with his friends. When his brother did not return till morning, the informant along with other persons started searching his brother, when he was informed by some villagers that they had seen his brother Tuplal Verma along with Goma Besra, Somra Marandi and Chando Das. The informant further proceeded towards Kulharia village, and in the way, he found several persons assembled at a place, where he found the dead body of his brother, with bleeding injury on his head, through which the brain matter had also protruded out. He identified the dead body to be of his brother. The cycle of his brother was not there. He claimed that the aforesaid accused persons had committed the murder of his brother. He identified the dead body to be of his brother. The cycle of his brother was not there. He claimed that the aforesaid accused persons had committed the murder of his brother. On the basis of the fardbeyan of the informant, Bengabad P.S. Case No. 92 of 2005, corresponding to G.R. No. 1271 of 2005, was instituted against the three named accused persons, for the offences under Sections 302, 201/34 of the Indian Penal Code, and the investigation was taken up. After investigation, the police submitted the charge sheet against all the three accused persons. It may be stated that one of the accused Chando Das was declared juvenile and hence, his trial was separated. The other accused Somra Marandi died at the fag-end of the trial. 4. After commitment of the case to the Court of Sessions, charge was framed against the accused Goma Besra @ Motilal Besra and the co-accused Somra Marandi for the offences under Sections 364, 302, 201/34 of the Indian Penal Code, and upon the accuseds pleading not guilty and claiming to be tried, they were put to trial. In course of trial, ten witnesses were examined by the prosecution, including the I.O. and doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W. 7 Ramdeo Mahto is the informant of the case and the brother of the deceased. He has stated that occurrence had taken place about one and half years ago. At about 5:30 p.m., his brother Tuplal Verma was taken away by accused Goma Besra, on the pretext of eating chicken. Along with Goma Besra, Chando Das and Somra Marandi were also there. In the night Tuplal Verma did not return back and the informant went in search of his brother to the house of the accused Goma Besra, but both of them were not found in the house. In the morning he again went in search of his brother and near Kulharia Road he was informed by some persons that they had seen his brother along with the aforesaid three accused persons in the evening. He proceeded towards Kulharia village, and in the way he saw some persons assembled, where he also saw the dead body of his brother with the bleeding injury on his head and the brain matter was protruding out. The cycle of his brother was not there. He proceeded towards Kulharia village, and in the way he saw some persons assembled, where he also saw the dead body of his brother with the bleeding injury on his head and the brain matter was protruding out. The cycle of his brother was not there. Police arrived at the place of occurrence and recorded his fardbeyan. The police also apprehended all the three accused persons and on their pointing out, the cycle of his brother was recovered from Godwara nala, submerged in the water. He has proved his signature on the fardbeyan, which was marked as Ext. 2. He has identified the accused in the Court. In his cross-examination, however, this witness has stated that when the accused persons had taken his brother along with them, he was not in his house. He has denied the suggestion of falsely implicating the accused. 6. P.W. 1 Savitri Devi, PW 3 Sunita Devi and PW 5 Sevki Devi, are the bhabhis of the deceased. whereas PW 2 Damar Mahto and PW 4 Kunti Devi are the parents of the deceased, and all these witnesses have fully supported the fact that it was this accused who had taken away the deceased along with him on the pretext of eating chicken, and on the next day the dead body of the deceased was found with the injury on his head, PW 2 Damar Mahto the father of the deceased, PW 4 Kunti Devi the mother of the deceased and PW 5 Sevki Devi the bhabhi of the deceased, have also stated that on the basis of the confession of this accused, the cycle of the deceased was recovered from the water by the police. Though, there are some minor contradictions in the evidences of these witnesses, particularly regarding the time when deceased was said to be taken away from his house, but there is no contradiction on the point that it was this accused who had taken away the deceased with him from his house in the evening, and on the next morning, the dead body of the deceased was found and that the cycle was also recovered from the water, on the basis of the confessional statement of this accused. 7. PW 8 Noor Ansari had only seen the dead body of the deceased with injury on his head and brain matter protruding out from the injury. 7. PW 8 Noor Ansari had only seen the dead body of the deceased with injury on his head and brain matter protruding out from the injury. He was informed about the occurrence at the place of occurrence by the brother of the deceased. This witness was also a witness to the fact that the bicycle of the deceased was recovered by the police in his presence. 8. PW 10 Jetha Besra had also seen the dead body of the deceased and he has stated that the police had arrested the accused persons where the accused Goma Besra had confessed his guilt before the police. 9. PW 6 Dr. Bishwanath Das had conducted the post-mortem examination on the dead body of the deceased on 10.7.2005, and had found the following injury on the dead body :- (a) 3" x 1/2" x cranial cavity deep, posteriorly over the occipital region of skull, associated with protrusion of brain tissue through the wound. Ante-mortem in nature. Findings on dissection :- (b) Fracture of the skull bone posteriorly with laceration of brain tissue. Cranial cavity was full of blood. (c) Neck-NAD, Chest Ribs-intact. Heart-empty. Lungs, liver, spleen, kidney congested, stomach - empty, mucous membrane-NAD, urinary bladder empty. This witness has stated that the cause of death was shock due to head injury which was ante-mortem in nature, and caused by sharp cutting weapon. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext. 1. 10. PW 9 Rajendra Kumar Dubey is the I.O. of the case. This witness has stated that on 10.7.2005, he was posted as Officer-In-charge of Bengabad Police Station. There was a rumor about the finding of a dead body of a youth at Kulharia road, whereupon, he proceeded towards the place of occurrence along with the police party, where he reached at about 8:30 a.m., and he recorded the fardbeyan of Ramdeo Mahto. He has proved the fardbeyan and the endorsement on the fardbeyan, which were marked as Exts.-2/1 and 2/2 on his identification. He prepared the inquest report of the dead body, which also he has proved, and the same was marked as Ext.3. He sent the dead body for post-mortem examination. He took over the charge of investigation and recorded the statements of the witnesses. He prepared the inquest report of the dead body, which also he has proved, and the same was marked as Ext.3. He sent the dead body for post-mortem examination. He took over the charge of investigation and recorded the statements of the witnesses. He has given details of the place of occurrence, where the dead body was found, and has stated that it appeared that injury was caused by some blunt weapon. The blood found at the place of occurrence had dried up, and it was not possible to be seized. He sent one police officer for arresting the accused persons, who apprehended and brought all the accused persons. He recorded the confessional statement of the accused Goma Besra, which also he proved, and was marked as Ext.-4. He has stated that on the basis of the confessional statement of the accused, bicycle of the deceased was recovered from the water of Godwara nala at a distance of about 100 meters from the place of occurrence, and at a distance of about 200 yards the stick was also recovered on the basis of that confessional statement. He prepared the seizure list which he has proved, and the same was marked as Ext. 5. He received the post-mortem report, and upon completing the investigation, submitted the charge-sheet. He has also proved the formal FIR, which was marked as Ext.-6. In his cross-examination, he has stated that he had not taken the signature of any independent witness on the confessional statement of the accused. He has denied the suggestion of making faulty investigation. On recall, this witness has produced the bicycle of the deceased in the Court, which was marked as material Ext. 1. 11. The statement of the accused was recorded under Section 313 of the Cr PC, wherein this accused had denied the evidence against him. No evidence was adduced by the defence. On the basis of the materials brought on record, the accused appellant has been convicted and sentenced by the Trial Court below, for the offences as aforesaid. 12. 1. 11. The statement of the accused was recorded under Section 313 of the Cr PC, wherein this accused had denied the evidence against him. No evidence was adduced by the defence. On the basis of the materials brought on record, the accused appellant has been convicted and sentenced by the Trial Court below, for the offences as aforesaid. 12. Learned counsel for the appellant has submitted that the impugned judgment of conviction and the order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, there are discrepancies in the statements of the witnesses supporting the prosecution case, regarding the timings when deceased was said to be taken away from his house. It is also submitted that though from the evidence of witnesses it appears that some of them were not eye-witness of the deceased being taken away by the accused, but they have supported this fact as eye-witness, and as such, their evidences cannot be relied upon. Learned counsel submitted that according to the confessional statement of the accused, the assault was made by the stick which was also allegedly recovered by the police on the basis of confessional statement, but PW 6 Dr. Biswanath Das has stated that the injury was caused by sharp cutting weapon, which does not support the prosecution case at all. Learned counsel submitted that due to these discrepancies and contradictions, the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts, and in any event, the appellant was entitled at least to get benefits of doubt. 13. Learned counsel for the State on the other hand submitted• that the witnesses have fully supported the fact that the deceased boy was taken away from his house by this accused, on the pretext of eating chicken in the evening of 9.7.2005, and in the morning of 10.7.2005, the dead body of the deceased was found with bleeding injury on his head, and the brain matter was also protruded out. It is submitted that there is last seen evidence against this accused with the deceased, and the confessional statement of this accused had led to recovery of the bicycle from the nala submerged in the water, at a distance of about 100 meters from the place of occurrence, where the dead body of the deceased was found, and at some distance the weapon of offence, i.e., bloodstained stick was also recovered. The medical evidence on record also fully supports the prosecution case. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against the accused 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. 14. Having heard learned counsels of both the sides and upon going through the evidence on record, we find that PW 1 Savitri Devi, PW 2 Damar Mahto, PW 3 Sunita Devi, PW 4 Kunti Devi, PW 5 Sevki Devi and PW 7 Ramdeo Mahto, the informant, who are all the family members of the deceased, have specifically stated that it was the accused Goma Besra, who had taken away the deceased from the house along with him on the pretext of eating chicken. Though, there may be some discrepancies regarding the time given by these witnesses, but this is not of much importance, as there is no discrepancy on the point that it was this accused who had taken away the deceased with him from his house in the evening, and on the next morning, the dead body of the deceased was found, and that the bicycle of the deceased was also recovered from beneath the water, on the basis of the confessional statement of this accused. The evidence of PW 9 Rajednra Kumar Dubey, the I.O., shows that from the place of occurrence where he found the dead body. he sent a police officer to apprehend the accused persons, who apprehended them, and on the basis of the confessional statement of the accused Goma Besra, the bicycle of the deceased was recovered from the water in a nala at a distance of 100 meters and the weapon of offence was also recovered. he sent a police officer to apprehend the accused persons, who apprehended them, and on the basis of the confessional statement of the accused Goma Besra, the bicycle of the deceased was recovered from the water in a nala at a distance of 100 meters and the weapon of offence was also recovered. The submission of learned, counsel for the appellant that though it is alleged that the deceased was assaulted by the stick, but the injury was found to be' caused by sharp cutting weapon, by the Doctor conducting the post-mortem examination, which does not match with the prosecution case, has no legs to stand, for the reason that the injury had been found on the skull of the deceased. According to Modi's Textbook on Medical Jurisprudence and Toxicology. (24th Edition 2011. page - 528). Occasionally, the wounds produced by a blunt weapon, or by fall, when inflicted on tense structures covering the bones, such as scalp etc., may look like incised wounds. The fact remains that none of the material witnesses are the eye-witness to the occurrence of murder, and they have stated nothing about the weapon used. The I.O. PW 9 Rajednra Kumar Dubey has stated that the wound looked like to be caused by blunt weapon. All the witnesses have stated that the brain matter was' found protruded out from the injury, and this is also the finding of PW 6 Dr. Bishwanath Das, who had conducted the post-mortem examination on the dead body of the deceased. The recovery of the weapon of offence, and of the bicycle of the deceased from beneath the water of a nala on the basis of the confessional statement of this accused, is an admissible evidence under Section 27 of the Evidence Act, and it clearly establishes the culpability of the accused. The force used for the assault was such, that the brain matter had protruded out through the wound, which clearly shows that the assault was made with intention to cause the death of the deceased. The force used for the assault was such, that the brain matter had protruded out through the wound, which clearly shows that the assault was made with intention to cause the death of the deceased. In these facts and circumstances of this case, we are of the considered view, that in view of the consistent evidence against the accused that it was this accused who had taken the deceased from his house in the evening, and on the next morning the dead body of the deceased was found, and bicycle of the deceased was also recovered on the basis of the confessional statement of this accused, these circumstances point out only towards the guilt of the accused Goma Besra, and not towards any other hypothesis. We find that on the basis of the evidence on record, the prosecution has been able to bring home the charges against the accused Goma Besra 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. 15. For the foregoing reasons, we do not find any illegality in the impugned judgment of conviction dated 12.3.2008 and order of sentence dated 17.3.2008, passed by the learned Sessions Judge, Giridih, in S.T. No. 334 of 2005, convicting and sentencing the appellant Goma Besra @ Mollial Besara, for the offences under Sections 302. 201/34 of the Indian Panel Code, which we hereby, affirm. The appellant Goma Besra @ MotHal Besara is already in custody, undergoing the sentence. 16. We do not find any merit in this appeal and the same, is hereby dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this judgment. Appeal dismissed.