Jharkhand High Court
Puria Rabidas vs State Of Bihar (Now Jharkhand) on 7 January, 2003
Equivalent citations: [2003(2)JCR351(JHR)]
Bench: Vishnudeo Narayan, Lakshman Uraon
JUDGMENT Lakshman Oraon, J.
1. Sole appellant Puria Rabidas has preferred this appeal against, the order of conviction and sentence passed by Sri Ram Vyas Ram, 4th Additional Sessions Judge, Santhal Parganas, Dumka in Sessions Case No. 292 of 1990 on 30th May, 1992 under Section 302 of the Indian Penal Code to go imprisonment for life and under Section 323, IPC to go R.I. for one year directing to run both the sentences concurrently.
2. The prosecution case as per written information Ext. 1, given by the informant PW 1 Arun Kumar Das is that the wall of his house situated at village Hathigarh had fallen down. To repair the said wall on 23.1.1990 at about 3.00 p.m.he had erected Pusta of the wall. Thereafter he had gone to village market to run his tea-stall. When he returned his home at about 8.00 p.m. then he was informed by his wife that the Pusta erected by him was cut by Puria Rabidas. When she objected, then Puria Rabidas abused her. The informant went to inquire as to why Puria Rabidas cut the Pusta of his wall, then he was also abused by the appellant. The appellant caught his collar and gave fist-blow on his neck. Informant's brother Swapan Kumar Das rushed to rescue the informant. In the meantime, Puria Rabidas brought a gupti from his house and assaulted on the head of Swapan Kumar Das to kill him. Swapan Kumar Das sustained bleeding injuries, fell down and became unconscious. Fekan Rabidas (PW 2) and Nirmal Kumar Das (PW 7), both of village Hathigarh, went there on hearing alarm and intervened in the matter. Injured Swapan Kumar Das was taken to Teen Pahar Railway Station in an unconscious condition and thereafter went to the Rajmahal PS and gave information in writing (Ext. 1).
3. The prosecution has examined altogether nine witnesses to prove the charges levelled against the sole appellant under Sections 302 and 323, IPC. PW 1 Arun Kumar Das went on alarm to the P/O. PW 6, Harani Devi, PW 7 Nirmal Kumar Das and PW 3, Rohit Kr. Das, were tendered by the prosecution. PW 4 Sheonarayan Sah is a formal witness who has proved formal FIR (Ext. 2). PW 5 Malti Devi is the wife of PW 2 Fekan Rabidas who claims to be the eyewitness of the alleged occurrence. PW 8 Abrar Ahmad Khan is the I.O. of this case, whereas PW 9 Dr. A.K. Sinha conducted the post mortem examination on the dead body of Swapan Kumar Das. The defence has not examined any witness. The case of the defence is simply denial regarding commission of the alleged offence by the sole appellant and false implication in a concocted case.
4. The learned Court below relied the evidence of PW 1 Arun Kumar Das, the informant, neighbour Fekan Rabidas (PW 2) and his wife Malti Devi (PW 5) who are the eye-witnesses of the alleged occurrence, supported by the evidence of PW 8 Abrar Ahmad Khan, I.O. and PW 9 Dr. A.K. Sinha.
5. The alleged occurrence took place on 23.1.1990 at about 8.00 p.m. at village Hathigarh, only because informant PW 1 Arun Kumar Das had constructed Pusta wall to protect his house wall which was cut by the appellant. There was altercation with the wife of Arun Kumar Das and the appellant. When Arun Kumar Das (PW 1} returned home from Dham Dhamia Hatia where he used to sell tea and betel found quarreling among the females. He was informed by his wife that Puria Rabidas abused her only because of giving Pusta of the wall. The informant went to inquire, then Puria Rabidas whose house is adjacent to the house of the informant, caught his collar and gave 4-5 fist blows on his neck. His brother Swapan Kumar Das rushed to rescue, then appellant went to his home, brought a gupti and assaulted on his back portion of head. Fekan Rabidas (PW 2), Malti Devi (PW 5), Harani Devi (PW 6), Rohit Das (PW 3), Nirmal Das (PW 7) and others saw the alleged occurrence. The injured brother Swapan Kumar Das was taken to Rajmahal Hospital who died in the next morning at about 5.00 a.m. Fekan Rabidas (PW 2) has got his house in front of the house of the informant. He and his wife PW 5 Malti Devi saw the alleged altercation and assault from their door. They have corroborated the evidence of PW 1 and have stated that the alleged occurrence took place only due to construction of Pusta of the wall erected by the informant. The appellant cut the Pusta which was objected by the informant's wife resulting altercation in between the females. When the informant returned home from Dham Dhamia market, he was informed by his wife then he went to inquire resulting altercation in between him and Puria Rabidas. Puria Rabidas caught his collar and gave fist blows. His brother Swapan Kumar Das went to intervene, but in the meantime appellant Puria Rabidas brought a gupti from his house and assaulted on the back portion of the head of Swapan Kumar Das with an intention to kill him. On being injured, Swapan Kumar Das fell down. He was taken to Rajmahal Hospital for treatment, but he died in the next morning. PW 8 Abrar Ahmad Khan, I.O. went to the hospital at 10.45 p.m. on 23.1.1990 and found the injured Swapan Kumar Das in an unconscious condition who was not in a position to give any statement. In the morning of 24.1.1990, he went to Hathigarh village and saw the residential house of the informant. The outer door was facing towards South. Just 5 yards South from the exit door of the informant, there is village clay-built road and in the East of that road in the North-East corner, appellant Puria Rabidas has got his residential house. On the West of his house, there is village path which runs from East to west and thereafter from North to South and goes upto Teen Pahar. On the North there is house of the informant and in the South at a distance of 5 yards, there is house of PW 2 Fekan Rabidas. There is 5 feet lane in between the house of the informant and the appellant. He found newly mud and soil given on the Pusta of the wall. He also found some mud and soil cut and thrown in the lane which is in between the houses of the informant and the appellant. When he was informed regarding the death of Swapan Kumar Das, then he again went to the hospital, prepared inquest report (Ext. 5) and sent it for post mortem examination. He had seen injury on the back portion of the head which seemed to have been caused by gupti blow. However, he did not find any blood stain soil fallen at the P/O where Swapan Kumar Das was assaulted with gupti. PW 9 Dr. A.K. Sinha on 24.1.1990 at 11.30 a.m. conducted the post mortem examination on the dead body of Swapan Kumar Das and found ante mortem injury 2-1/2" x 1/2" x 1" sharp cut incised wound bone deep over vertex slightly left lateral to midline and 1-1/2" x 1-1/2" cut on the left parietal bone. These injuries, as per his evidence, were caused by gupti blows. The death was due to cerebral and pulmonary oedema secondary to head injury within 48 hrs. from the time of post-mortem examination. Post mortem report in his pen & signature is Ext. 8.
6. The learned counsel for the appellant has assailed by submitting that the I.O. did not find any blood stain where Swapan Kumar Das was assaulted. It was also submitted that the P/O of the alleged occurrence has not been established. PWs 1, 2 and 5 are closely related and interested witnesses. Hence their evidence cannot be relied.
7. Learned APP while arguing the case, has submitted that the alleged occurrence took place at village Hathigarh at 8.00 p.m. night on 13.1.1990 which was corroborated by neighbouring witnesses PW 2 and his wife PW 5. These witnesses, who have got their house adjacent within five yards South from the house of the informant, saw the alleged occurrence. The alleged occurrence took place only due to cutting Pusta wall by the appellant Puria Rabidas. When informant asked as to why he did so, then the alleged occurrence took place. When appellant caught the collar of the informant and gave fist-blows on his neck, then deceased Swapan Kumar Das. who is brother of the informant and was living separately in a nearby adjacent house, rushed to rescue the informant. The appellant, who has got his house just after the lane, brought a gupti and gave gupti blow on the back portion of the head of Swapan Kumar Das causing bleeding injury. He fell down and became unconscious. He was taken to Teen Pahra Rajmahal Hospital but he died in the next morning.
8. The death of Swapan Kumar Das is not in dispute. The place of occurrence is in between the houses of the informant and the appellant and also the witnesses PW 2 and PW 5 who are nearby neighbours. The I.O. had gone to inspect the P/O in the morning of 24.1.1990 at 3.00 a.m. which was night and the alleged occurrence took place in the village lane which is public path. Non-finding of any blood does not discredit the consistent reliable and truthful evidence of PW 1, PW 2 and PW 5 that the injured Swapan Kumar Das was assaulted there. PW 1, PW 2 and PW 5 have deposed that when Swapan Kumar Das went to rescue the informant, then this appellant Puria Rabidas brought a gupti from his house which is very near from the P/O and gave gupti blow on the back portion of his head. The doctor PW 8 found ante mortem injuries two in number one over vertex slightly left lateral to midline and another cut on the left parietal bone by sharp cutting weapon. The cause of death was due to cerebral and pulmonary oedema secondary to head injury within 48 hours corroborates the time of the occurrence and the weapon used by appellant and assault on the back side of the head of Swapan Kumar Das. The genesis of the alleged occurrence is regarding the demolition of Pusta which was erected by the informant, Arun Kumar Das, to protect his wall. In this case the prosecution has not examined the wife of the informant, Arun Kumar Das who informed about the demolition of Pusta by the appellant. Although the wife of the informant has not been examined and the informant is a hearsay witness, PW 2, Kokan Rabidas, has deposed in para 3 of his cross-examination that on Tuesday at about 11 a.m. there was quarrel regarding the demolition of Pusta. At that time the informant, Arun Kumar Das, was not present there. In para 2, PW 5, Malti Devi, who is the wife of PW 2, Fekan Rabidas, has also deposed that due to erection of Pusta this appellant, Puria Rabidas, had quarrelled. PW 8, Abrar Ahmad Khan, I.O., in course of investigation found that the house of the informant and the appellant is just adjacent to each other and in between their houses there is a village path, He found new mud clay on the Pusta of the wall of the house of the informant. He also found some mud-soil removed from the Pusta and thrown in the lane. Thus, I find that the genesis of the alleged occurrence has been proved by the prosecution by the independent village witnesses, PWs 2 & 5 and the objective finding of the I.O., PW 8, at the P.O.
9. The alleged occurrence took place on 23.1.1990 at about 8 p.m. The informant when returned from Dhandhania Market, he was informed by his wife (not examined) that regarding demolition of Pusta of the wall by the appellant there was some quarrel in between her and the appellant. The informant had just gone to inquire into the matter, then the appellant abused him, caught his Collor and assaulted with fists on his neck. The brother of the informant, Swapan Kumar Das, when went to rescue then the appellant brought a gupti from his house and from the back side he assaulted with gupti on the back portion of the head of Swapan Kumar Das. He fell down and became unconscious. He was moved for treatment to Tinpahar Hospital where he died in the morning.
10. The informant in his written report, Ext. 3, has alleged that the appellant gave gupti blow on the back portion of the head of Swapan Kumar Das. He has not mentioned how many gupti assaults were made by this appellant. In course of his evidence he has deposed that the appellant assaulted with gupti only once from behind on the head of Swapan Kumar Das. The I.O. who prepared inquest-report, Ext. 5, also found a flesh cut injury which seems to have been the result of gupti assault on the back portion of the head of the deceased, Swapan Kumar Das. PW 9, Dr. Akhal Kr. Sinha, in course of post-mortem examination found two injuries on the dead body of Swapan Kumar Das. The injury No.l was 2.5" x 1/2" x 1" sharp cut incised wound bone deep over vertex slightly left lateral to midline and injury No. 2 was 1.5" x 1,5" cut on the left parietal bone. The Doctor opined that both the injuries may be caused by gupti blows. The witnesses, PWs 2 & 5, have seen the alleged assault while they were at the doors which is adjacent to the P.O. They deposed that the appellant, Puria Rabidas, gave gupti blows on the back portion of the head of Swapan Kumar Das. The informant in his written report has also not mentioned as to whether the assault was repeated by the appellant or not but the post-mortem report shows that the deceased sustained two injuries on his head. The injury No. 1 was sharp cut incised wound bone deep over vertex slightly left lateral to midline which is possible by gupti blow which is a piercing weapon. The second blow of the gupti caused injury No. 2 which is 1.5" x 1.5" cut on the left parietal bone as both edges of the weapon were sharp. As it was 8 p.m. in the month of January the witnesses, PWs 2 & 5, have claimed to have seen the alleged occurrence in the light of burning Lantern. Moreover, they are neighbours who were well acquainted with each other. Hence there was no problem of identification of the appellant due to night when the Lantern was burning but the appellant is alleged to have gone from the back side with gupti and assaulted on the back side of the head of Swapan Kumar Das. The witnesses, PWs 1, 2 and 5, are quite natural witnesses, who have deposed what they saw. PWs 2 & 5 have not deposed as to how many gupti blows were assaulted on the head of Swapan Kumar Das. They have simply said that the appellant assaulted with gupti on the back side of the head of the deceased. On the other hand, PW 1, the informant, saw only one gupti assault on the head of the deceased. He might not have seen the second assault causing injury No. 2 which is cut injury over the left parietal bone. This is possible only due to the assault by gupti which had sharp edge on both its edges. The inquest-report, Ext. 5, also shows that the I.O. found flesh cut injury on the back side of the head. He has not mentioned the number of injuries on the back side of the head. However, the Doctor found two injuries. The injury No. 1 is a sharp cut incised wound bone deep and injury No. 2 is cut on the left parietal bone. Thus, I find that the witnesses who are natural and eye-witnesses, are reliable witnesses on the point that the appellant assaulted the deceased with gupti on the back portion of his head. The informant, PW 1, saw only one assault which is quite natural. He might have not seen the second blow. PWs 2 & 5, who saw the alleged assault while standing at their doors adjacent to the P.O. lane.
11. The appellant had assaulted Swapan Kumar Das who had just gone to intervene the fist-blow given by the appellant to the informant, Arun Kumar Das, on his neck. At that time he had no intention to cause the murder of Arun Kumar Das. When Swapan Kumar Das went to intervene then all of a sudden without any premeditation the appellant brought a gupti from his house and assaulted Swapan Kumar Das with gupti from behind on the back side of his head. The informant saw only one assault given by the appellant. The other witnesses, PWs 2 & 5, who are also the eyewitnesses, have not deposed that the appellant, Puria Rabidas, had repeated the gupti blows even if I have stated that the second assault was not seen by the informant due to night and also because the appellant gave the second assault coming from behind on the back portion of the head of Swapan Kumar Das. His intention was not to cause the murder of Arun Kumar Das as there is no evidence of any enmity in between him and Swapan Kumar Das. Due to gupti assault Swapan Kumar Das died in the next morning on 24.1.1990 at Tinpahar Rajmahal Hospital.
12. In view of my above considered opinion, I am of the view that there is none else but the sole appellant responsible to cause the death of Swapan Kumar Das by giving gupti blows. The prosecution has proved the manner of the alleged assault and also the place of occurrence. The genesis of the alleged occurrence was only regarding the demolition of Pusta wall. The intention of the appellant was only to object from erecting the Pusta wall by the informant on the ground that the appellant had settled there prior to coming of the informant for settlement at that place. Thus, I find that when there is no intention to cause the murder of anyone but only due to altercation in between the informant and the appellant when Swapan Kumar Das went there to intervene then all of a sudden the appellant brought gupti from his house and gave gupti blows on his head causing injuries on the back portion of his head. I have stated above that Swapan Kumar Das died on the next date in the morning. In absence of any preplanned intention or motive the alleged occurrence of assault took place resulting the death of Swapan Kumar Das. As the assault was on the vital part of the body, i.e., on the back portion of the head, without intention to kill the deceased, the appellant is liable to be convicted under Section 304, Part II. IPC.
13. In the result this criminal appeal is dismissed with the modification of conviction and sentence from Section 302 into Section 304, Part II, IPC. As the appellant-convict is in custody since 27.1.1990, the appellant-convict is convicted and sentenced for the period of imprisonment already undergone by him and as such he is directed to be released forthwith from the custody if not wanted in any other case.
Vishnudeo Narayan, J.
I agree.