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2019 DIGILAW 881 (JHR)

Nimi Chamar @ Nemi Chamar v. State of Jharkhand

2019-04-15

H.C.MISHRA, SANJAY KUMAR DWIVEDI

body2019
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 and Order of sentence dated 17th August, 2010, passed by the learned Sessions Judge, Palamau at Daltonganj, in S.T. No. 111 of 2007, 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 and fine of Rs. 10,000/- for the said offence. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Chhathan Bhuiyan, the husband of the deceased Joitri Bhuin, recorded on 03.08.2006 at about 6 A.M., at the door of one Gopal Bhuiyan, situated in village Lohara P.S. Patan, District Palamau, wherein the informant has stated that the occurrence had taken place on 02.08.2006 at about 7 P.M. in the evening, when Tilwa Chamain, wife of Nimi Chamar (the appellant), came near the house of Gopal Bhuiyan and asked his wife Joitri Bhuin that they shall have to give a way of 15 ft., otherwise her family members would be killed. His wife replied that let there be a meeting with the villagers whether there is any road or not. It is alleged that in the meantime, the appellant also came there and started abusing in filthy languages and threatening to kill, if the way was not provided to them. In the meantime, Vijay Ram, the son of this appellant also came armed with garansa, and gave it to his father, asking him to kill the wife of the informant. It is alleged that Tilwa Chamain and Viajy Ram caught hold the wife of the informant and the Nimi Chamar gave repeated blows of garansa, causing bleeding injuries on her neck and head, due to which she fell down and became unconscious. Munu Bhuiyan, Bageshwar Bhuian, Bimali Devi and other villagers who were also present there, had seen the occurrence, and though the informant and those persons tried to prevent the accused persons, but they were threatened by the accused by garansa. Thereafter the accused persons fled away. Munu Bhuiyan, Bageshwar Bhuian, Bimali Devi and other villagers who were also present there, had seen the occurrence, and though the informant and those persons tried to prevent the accused persons, but they were threatened by the accused by garansa. Thereafter the accused persons fled away. The informant with the help of his family members brought his wife on a jeep to Sadar Hospital, Daltonganj, from where she was referred to Ranchi for treatment, and while being taken to Ranchi, his wife died in the way, and thereafter they returned back to Sadar Hospital, Daltonganj, where the informant left his family members and villagers and returned to his village, where he gave the fardbeyan to the police, claiming that the accused persons had assaulted his wife by garansa due to which she had died. On the basis of the fardbeyan of the informant, Patan P.S. Case No. 128 of 2006 corresponding to G.R. No. 1100 of 2006, was instituted for the offence under sections 302/34 of the Indian Penal Code, against the appellant, his wife Tilwa Chamain and his son Vijay Ram, and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 4. 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 upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the wife and son of the appellant were acquitted by the Trial Court below, whereas the appellant has been convicted and sentenced as aforesaid. 5. In course of trial, the prosecution has examined 12 witnesses, including the I.O., and the Doctor, who conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-1 Sumant Kr. Mishra, P.W.-2 Budhi Narayan Paswan, P.W.-3 Salindra Tiwary and P.W.-12 Sri Krishna Chandra Mishra, have turned hostile and have not supported the prosecution case at all. 6. P.W.-10 Chhathan Bhuiyan is the informant of the case and husband of the deceased. This witness has stated that the occurrence had taken place on 02.08.2006, at about 6 P.M. He was in his house, when Tilwa Chamain, the wife of the accused Nimi Chamar came to his house and started abusing his wife. 6. P.W.-10 Chhathan Bhuiyan is the informant of the case and husband of the deceased. This witness has stated that the occurrence had taken place on 02.08.2006, at about 6 P.M. He was in his house, when Tilwa Chamain, the wife of the accused Nimi Chamar came to his house and started abusing his wife. In the meantime, Nimi Chamar and his son Vijay Ram also came there, and Vijay Ram was having a garansa in his hand, which he gave to his father asking him to kill the wife of this witness. Thereupon Nimi Chamar made four repeated assaults on her neck, due to which she fell down being seriously injured. He has also stated that at the time of occurrence, Tilwa Chamain was holding his wife. He has stated that witnesses Sunita Devi, Etwaria Devi, Punam Devi, Binda Devi, Sitwa Bhuin, Munna Bhuian etc., had seen the occurrence, and when he tried to save his wife, the accused persons fled away. His wife was brought on a jeep to Sadar Hospital, Daltonganj, from where she was referred to Ranchi, and while she was being taken to Ranchi, she died in the way. Thereafter they returned back to Sadar Hospital, Daltonganj, and he returned to his house, leaving the dead body there, and informed the police. The police came and recorded his fardbeyan at about 6.00 A.M., in the morning, near the house of Gopal Bhuiyan at his village, and finding the same true, he put his signature on the same, and the witnesses also put their signatures on the fardbeyan, which he has indentified, and were marked as Exts. 1/1 to 1/4 respectively. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that he had informed the police in the night of the occurrence itself. He has also stated that in the morning, as he was restless, the witnesses to the fardbeyan had informed the police about the occurrence. This witness has also stated that he was in his house at the time of occurrence, and due to pain in his leg, he was lying on the inner veranda of his house. Due to pain it was difficult for him to get up and sit. He has also admitted that when he came out, his wife had fallen down in the injured condition. Due to pain it was difficult for him to get up and sit. He has also admitted that when he came out, his wife had fallen down in the injured condition. After the occurrence several persons came there, including the witnesses named by him. He has stated that upon seeing his wife in the injured condition, he himself became unconscious, and was lying unconscious for about two hours. His attention was drawn to his statement given before the police, but there is nothing of much importance, inasmuch as, there is nothing therein to show that he had not seen the accused assaulting his wife to death. This witness has denied the suggestion of giving false evidence. 7. P.W.-4 Sunita Devi, P.W.-5 Punam Devi, P.W.-6 Etwari Devi, P.W.-7 Binda Devi, the daughter-in-law of the informant, and P.W.-9 Sitwa Bhuin, the sister-in-law (gotni) of the deceased, have supported the prosecution case as the eye witnesses to the occurrence, more or less in the same manner as stated by the informant P.W.-10 Chhathan Bhuiyan, deposing about the manner of occurrence, as also about the fact that the deceased was taken to hospital, from where she was referred to Ranchi, and she died while being taken to Ranchi. P.W.-7 Binda Devi, has stated that the assaults were made by sword, though later she clarified that the assaults were made by garansa. All these witnesses have identified the accused in the Court. In their cross examinations, P.W.-4 Sunita Devi and P.W.-9 Sitwa Bhuin have stated that they had given their statements to the police at Sadar Hospital, Daltonganj, on which they had put their thumb impression. The attention of all these witnesses were also drawn towards their statements made before the police, but there is nothing of much importance, as there is nothing therein to show that they had not seen the occurrence. The attention of all these witnesses were also drawn towards their statements made before the police, but there is nothing of much importance, as there is nothing therein to show that they had not seen the occurrence. Though in her cross-examination P.W.-6 Etwari Devi has claimed to have given the statement that Nimi Chamar had made three assaults on the head of the deceased, and this fact has been denied by the I.O., P.W.-11 Madan Paswan, wherein he has stated that she had not made such statement before him, but in the interest of justice we have looked into the case-diary, and her statement before the police shows that she had given the statement as an eye witness to the occurrence, though she had not stated about the number of assaults made. P.W.-4 Sunita Devi, P.W.-5 Punam Devi, P.W.-6 Etwari Devi and P.W.-7 Binda Devi, have also stated that the occurrence had taken place due to the fact that the accused had purchased a jeep and he was demanding the way through their raiyati land, which they were not ready to give. It has come in the cross-examination of P.W.-4 Sunita Devi, that the jeep had been sold away by the accused three or four days prior to the occurrence. 8. P.W.-8 Dr. Mohan Prasad had conducted the post-mortem examination on the dead body of the deceased on 03.08.2006, and had found the following ante-mortem injuries on the dead body of the deceased:- I. Three cut injuries over scalp:- (a) Interperietal scalp 6” x 1/2” x bone deep with fracture of the underlying skull. (b) Right fronotemporal scalp 6” x 1/2” x bone deep with fracture of the underlying skull. (c) Right postorcular area 6” x 1/2” x bone deep with fracture of underlying skull. II. Inter-cranial haemorrhage and lacerated brain matter were present under each injuries. This witness has stated that the death was caused due to shock and haemorrhage caused by multiple injuries on the head by sharp heavy cutting weapon, like garansa, and the above injuries were sufficient to cause death in ordinary course of nature. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext. 2. 9. P.W-11 Madan Paswan, is the I.O. of the case, and he has stated that on 02.08.2006 he was posted as O.P. Incharge in Rajhara O.P. under Patan Police Station. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext. 2. 9. P.W-11 Madan Paswan, is the I.O. of the case, and he has stated that on 02.08.2006 he was posted as O.P. Incharge in Rajhara O.P. under Patan Police Station. At about 8.00 P.M., in the night he was informed that at village Lohara some quarrel had taken place. He sent an A.S.I. Yogesh Prasad Yadav for verification of the information, who returned back and informed that some quarrel had taken place and injured had been taken to Sadar Hospital, Daltonganj. On the next morning, the village Chowkidar Triveni Manjhi informed him that the injured had died. At about 5.00 A.M., he proceeded for the place of occurrence, where he recorded the fardbeyan of Chhathan Bhuiyan. He has proved the fardbeyan, which was marked as Ext. 3. He sent the fardbeyan to Patan Police Station for recording the FIR. He proved the formal F.I.R., which was marked as Ext. 4. He recorded the re-statement of the informant and the statements of the witnesses, and he also inspected the place of occurrence, which is on the road near the boundary wall of a high school. He found lot of blood, human hairs, one broken bangle and one blood stained saree at the place of occurrence. He seized these materials in the presence of the witnesses and prepared the seizure list, which he has proved and the same was marked as Ext. 5. He searched the accused in their house, who were absconding. Thereafter, he came to Sadar Hospital, Daltonganj, where he was informed that the inquest report of the dead body was prepared by the Police Officer of Town Police Station, and the dead body had been sent for post-mortem examination. He also received two fardbeyans and the carbon copy of the inquest report from the Town Police Station. He has identified the fardbeyan of Sitwa Bhuin, which was marked 'X' for identification, whereas the inquest report of the dead body was proved by him, which was marked as Ext. 6. He arrested the accused Nimi Chamar, and recovered a blood stained garansa with human hairs stuck to it, from his house, and prepared the seizure list, which he proved and the same was marked as Ext. 5/1. 6. He arrested the accused Nimi Chamar, and recovered a blood stained garansa with human hairs stuck to it, from his house, and prepared the seizure list, which he proved and the same was marked as Ext. 5/1. He received the post-mortem report, and after completing the investigation he submitted the charge sheet. His attention was drawn towards the statements of the hostile witnesses, which he has replied. In his cross examination he has stated that ASI Umesh Prasad Yadav had informed him after returning from the village Lohara on 02.08.2006 at about 8.30 P.M., that Nimi Chamar had assaulted Joitri Bhuin by garansa and injured her badly. He has also admitted that prior to recording the fardbeyan of the informant by him, the statements of the witnesses had been recorded by the Police Officer of Sadar Police Station, and statements of two of them were recorded as fadbeyan. He has admitted that he had not sent the blood stained garansa, or the articles seized from the place of occurrence, for any forensic examination. He has admitted that description given by him about the place of occurrence does not mention that the house of the accused was also situated nearby. Some contradictions has been taken from the statements of the witnesses, but as explained earlier, they are not of any importance. 10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced on behalf of the defence. On the basis of the materials available on record, the appellant was found guilty, convicted and sentenced by the Trial Court below, for the offence as aforesaid, whereas the other two accused facing the trial, i.e., the wife and the son of the appellant, have been acquitted by the Trial Court below. 11. 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, inasmuch as, the witnesses named in the FIR actually are not the eye witnesses to the occurrence. The witnesses examined by the prosecution are the highly interested witnesses, being the family members and close relatives of the informant, and there are several contradictions in their evidence. The witnesses examined by the prosecution are the highly interested witnesses, being the family members and close relatives of the informant, and there are several contradictions in their evidence. Learned senior counsel further submitted that from the attention of the I.O. drawn towards the statements of the hostile witnesses, it appears that the occurrence had taken place due to the fact that the appellant had purchased a jeep and he was trying to have the way for taking his jeep to his house, which was being denied, due to which there was some quarrel, in which Munna Bhuian had assaulted the wife of the appellant and thereafter the occurrence had taken place. Learned senior counsel had submitted that this would show that the occurrence had taken place due to sudden provocation given by the informant's side, and accordingly, the offence, if any, shall be made out only under Section 304 Pt. I of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. In support of his contention learned senior counsel placed reliance upon the decision of the Hon’ble Supreme Court in Keshavlal Vs. State of M.P., reported in (2002) 3 SCC 254 , wherein the fact of the case was that the deceased had been assaulted after an altercation, and the accused had picked up a knife and from the place of occurrence itself, by which the assault was made. It was held that the benefit of Exception 4 of Section 300 of the Indian Penal Code, ought to have been given to the accused. Learned senior counsel for the appellant submitted that in the present case also, it is an admitted fact that this accused had gone to the place of occurrence bare handed, and he was provided garansa by his son at the place of occurrence, and accordingly, the offence cannot be not made out under Section 302 of the Indian Penal Code. It is submitted that the appellant has remained in custody for about 13 years, and has been sufficiently punished for the offence under Section 304 Pt. I of the Indian Penal Code. It is submitted that the appellant has remained in custody for about 13 years, and has been sufficiently punished for the offence under Section 304 Pt. I of the Indian Penal Code. It is further submitted that it is absolutely doubtful that the witnesses who supported the prosecution case are the eye witnesses to the occurrence, and in support of this contention, learned senior counsel has drawn the attention of the Court towards the evidence of the informant P.W.-10 Chhathan Bhuiyan, wherein he has admitted that at the time of occurrence he was lying in the inner veranda of the house, and he came out only after his wife had fallen down, and he has also admitted that other witnesses had also come after the occurrence, and accordingly, none of the witnesses can be the eye witnesses to the occurrence. Learned senior counsel submitted that the seized materials were not sent for forensic examination. Learned senior counsel also submitted that the fardbeyan of the informant cannot be treated as FIR in the case, as admittedly, there were two fardbeyans already recorded at the Sadar Hospital, Daltonganj, prior to the fardbeyan of the informant, and the I.O., has admitted that ASI Umesh Prasad Yadav had informed him after returning from the village Lohara on 02.08.2006 at about 8.30 P.M., that Nimi Chamar had assaulted Joitri Bhuin by garansa and injured her badly. It is submitted that the prosecution has not been able to bring home the charge beyond all reasonable doubts, and the accused was entitled at least to the benefits of doubt. 12. Learned counsel appearing for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-4 Sunita Devi, P.W.-5 Punam Devi, P.W.-6 Etwari Devi, P.W.-7 Binda Devi, P.W.-9 Sitwa Bhuin and P.W.-10 Chhathan Bhuiyan, the informant of the case, who are the eye witnesses to the occurrence. Simply because they are the relatives of the deceased, their evidence cannot be discarded branding them to be highly interested eye-witnesses. They are only the natural eyewitnesses to the occurrence. All these witnesses have stated that Nimi Chamar had assaulted the deceased repeatedly by garansa on her neck and head, and their ocular evidence is fully corroborated by the medical evidence of the P.W.-8 Dr. Mohan Prasad, and the post-mortem report proved by him as Ext. 2. They are only the natural eyewitnesses to the occurrence. All these witnesses have stated that Nimi Chamar had assaulted the deceased repeatedly by garansa on her neck and head, and their ocular evidence is fully corroborated by the medical evidence of the P.W.-8 Dr. Mohan Prasad, and the post-mortem report proved by him as Ext. 2. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused appellant 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. 13. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that P.W.-4 Sunita Devi, P.W.-5 Punam Devi, P.W.-6 Etwari Devi, P.W.-7 Binda Devi, P.W.-9 Sitwa Bhuin and also the informant P.W.-10 Chhathan Bhuiyan, the husband of the deceased, have fully supported the prosecution case as eye witnesses to the occurrence. In the interest of justice, we have looked into the case-diary as well, to verify whether they had given their statements as eyewitnesses before the police, which confirms that all these witnesses had given their statements before the police as eye witnesses to the occurrence, and they had given more or less same statement which they have deposed before the Court below, with minor discrepancies, which is only natural. As such, they being the eye witnesses to the occurrence cannot be denied simply for the fact that in his cross-examination P.W.-10 Chhathan Bhuiyan has admitted that when he came out of the house he found his wife fallen down and thereafter other witnesses came there. This is also only a discrepancy in the evidence of this witness, which cannot deny the fact that he, or the other witnesses were the eye witnesses to the occurrence. We also find from the evidence on record that all of them have stated the accused Nimi Chamar had assaulted the deceased repeatedly by garansa on her head and neck. This ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Mohan Prasad, and the post-mortem report proved by him as Ext. We also find from the evidence on record that all of them have stated the accused Nimi Chamar had assaulted the deceased repeatedly by garansa on her head and neck. This ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Mohan Prasad, and the post-mortem report proved by him as Ext. 2, which show that three incised wounds were there on the head of the deceased, causing fractures on the skull, and also causing laceration in the brain matter in each of the three injuries, and the injuries were sufficient to cause death in normal course. Though learned senior counsel for the appellant has submitted that the evidence of the I.O. shows that the hostile witnesses had stated before him that Munna Bhuian had assaulted the wife of the appellant, and thereafter the occurrence had taken place, but the fact remains that all the hostile witnesses have denied to have given any such statement before the police. No independent witness was examined by the defence to prove this fact. Neither the injury on the wife of the accused has been proved by the defence, nor there is any evidence on the record to show that the occurrence had taken place due to sudden provocation, which was given by the informant's side to the accused. Even if it is accepted that the accused had purchased a jeep for which he was demanding the way from the informant's side, but the fact remained that the purchasing of jeep did not give him any right to way through the raiyati land of the informant's side, and there is nothing on the record to show that the informant's side had made any encroachment on the public road. Indeed, the cross-examination of P.W.-4 Sunita Devi, shows that the jeep had already been sold away by the accused three or four days prior to the occurrence, and this cause even did not exist on the date of occurrence. There is no legal evidence on record to support this contention of the learned senior counsel for the appellant. Rather, the evidence on record shows that the appellant had come on the place of occurrence with his son, who was armed with the garansa, which he gave to his father, instigating him to kill the deceased, which he did. There is no legal evidence on record to support this contention of the learned senior counsel for the appellant. Rather, the evidence on record shows that the appellant had come on the place of occurrence with his son, who was armed with the garansa, which he gave to his father, instigating him to kill the deceased, which he did. We find from the record that all the witnesses supporting the prosecution case are either family members or close relatives of the informant living nearby, and they are only the natural eye witnesses to the occurrence. Simply because they are relative witnesses, their evidence cannot be discarded being highly interested witnesses, particularly, in view of the fact that their ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Mohan Prasad and the post-mortem report proved as Ext. 2. The blood stained garansa, with human heirs, was recovered from the house of this accused, after his arrest. The submission of learned senior counsel that the fardbeyan of the informant cannot be treated as FIR in the case, is only fit to be rejected, in as much as, there is no effort by the prosecution to conceal the earlier fardbeyans, which were recorded by Police Officer of other police station, and no prejudice is shown to be caused to the defence thereby. There is nothing on the record to show that in the earlier recorded fardbeyans, or the information received by the I.O. in the night of 02.08.2006 from ASI Umesh Prasad Yadav, there was any other story about the occurrence, different from the present FIR. In the facts and circumstances, we are of the considered view that on the basis of the evidence on record the prosecution has been able to bring home charge against the accused appellant 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. 14. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 17th August, 2010, passed by the learned Sessions Judge, Palamau at Daltonganj, in S.T. No. 111 of 2007, convicting and sentencing the appellant Nimi Chamar @ Nemi Chamar, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant is already in custody, undergoing the sentence. 15. The appellant is already in custody, undergoing the sentence. 15. Before parting with this Judgement, we wish to record that P.W.-10 Chhathan Bhuiyan, the informant, is the victim of crime in this case, as he has lost his wife in the occurrence. We find him entitled to be 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 up the matter with the concerned District Legal Services Authority, so that P.W.-10 Chhathan Bhuiyan may be duly compensated at an early date. Let a copy of this Judgement be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 16. 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.