Patna High Court
Dharmendra Kumar vs The State Of Bihar on 24 August, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.766 of 2005
(Against the judgment of conviction and order of
sentence dated 3.08.2005 passed by Sri Arup
Kumar Singh, learned Additional Sessions
Judge, F.T.C.II, Nawada in Sessions Trial
No.137/2003/452/2003)
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Dharmendra Kumar, son of Kali Charan Sah, resident of village-Bahadurpur, P.S.-
Rajauli, District-Nawada.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae
For the Respondent/s : Mr. Ashwani Kumar Sinha, Add.P.P.
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
And
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 24-08-2012
This appeal has been preferred against the judgment
of conviction and order of sentence dated 3.08.2005 passed by the
learned Additional Sessions Judge, F.T.C.II, Nawada in Sessions
Trial No.137/2003/452/2003 by which the sole appellant has been
convicted and sentenced to undergo rigorous imprisonment for life
under Section 302 of the Indian Penal Code.
2. The prosecution case, in brief, is that the informant
Meena Devi (P.W.8) had come to her father's house in the
Chhathiyari of the baby of her younger sister on 7.06.2002. On
Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 2
8.06.2002at about 10.00 A.M., Satish Kumar, aged about three and half years, the younger son of the informant was playing with her younger brother Dharmendra Kumar (appellant). She was cooking. In the meantime, Seema Kumari, her younger daughter ran to her and told that the appellant assaulted Babua (Satish Kumar) with Chhura. She rushed to the down stairs and saw Dharmendra Kumar running away and found pool of blood on the stairs and her son was lying there having injuries and his intestine have come out from his stomach. Her son succumbed to the injuries on the spot. On raising alarm, the co-villagers rushed there and saw the occurrence, but the appellant succeeded to escape. The fardbeyan (Ext.4) of Meena Devi (informant) was recorded by the S.I. Md. Sibli (P.W.10) on 8.06.2002 at 1.00 P.M. On the basis of the fardbeyan, Rajauli P.S. Case No.66 of 2002 was instituted against the sole appellant for the offence punishable under Section 302 of the I.P.C. After investigation, charge-sheet was submitted. Cognizance was taken. The case was committed to the court of sessions. The charge was framed against the appellant to which he denied and claimed to be tried. Thereafter, trial proceeded. After the trial, the appellant has been found guilty and has been convicted and sentenced, as aforesaid.
3. It is submitted on behalf of the appellant that no independent witness has supported the prosecution case. All the Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 3 witnesses are interested and there is no motive for the occurrence.
4. Learned counsel for the State has submitted that the informant is the sister of the appellant. The occurrence had taken place in the house of the appellant. The inmates of the house are the natural witnesses. The ocular evidence of the witnesses stands corroborated by the medical evidence. The appellant has caused the death of an innocent child aged about 3 and half years and the learned trial court taking a lenient view has sentenced the appellant to undergo rigorous imprisonment for life under Section 302 of the I.P.C. No interference is required by this Court.
5. This Court is required to reappraise the prosecution evidence and to consider as to whether the prosecution has been able to substantiate its charge against the appellant beyond shadow of all reasonable doubts.
6. The prosecution has examined the following witnesses to substantiate its charge : P.W.1 Birendra Lal Sah, P.W.2 Muneshwari Devi, P.W.3 Kalicharan Sao, P.W.4 Baleshwar Sah, P.W.5 Ganesh Sao, P.W.6 Seema Kumari, P.W.7 Dr. Suniti Kumar, P.W.8 Meena Devi, P.W.9 Srikant Singh Neelam and P.W.10 Md. Shivli.
7. P.W.1 is the father of the deceased. He is a hearsay witness and has stated that Ganeshi Sah (P.W.5) and Devi Lal (not Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 4 examined) came to him and told that Dharmendra Kumar (appellant) after assaulting his son Satish Kumar aged about 3 years with Chhura had fled away. After getting this information, he went to his Sasural and found his son lying dead having injuries in his stomach. He has further stated that on 13.06.2000 the Chhura used in assaulting his son was found on the roof of the house which was handed over to the police officer. The seizure list was prepared which bears his signature and the signature of witness. The signatures have been marked as Exts.1 and 1/1. In his cross-examination, he has stated that his son (deceased) had no dispute with the appellant. He had not seen the occurrence.
8. P.W.2 is the mother of the appellant. She has stated that at the time of the occurrence, she was at her Naihar. She came to know that Santosh (deceased) was killed. She does not know as to who had killed him. She has been declared hostile.
9. P.W.3 is the father of the appellant. He has stated that his elder daughter Meena Devi (P.W.8) had come to his house on the occasion of Chhathiyari. The deceased Santosh Kumar, the son of Meena Devi had also come there. He saw him dead. He does not know as to how he died. He has been declared hostile by the prosecution. In his cross-examination, he has admitted that his statement was recorded by the Judicial Magistrate under Section 164 Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 5 of the Cr.P.C. His signature has been marked as Ext.2.
10. P.W.4 is a formal witness. He has identified his signature on the inquest report which bears the signature of himself and witnesses, which have been marked as Exts. 1/2 and 1/3.
11. P.W.5 is also a formal witness. He has admitted his signature on the inquest report.
12. P.W.6 Seema Kumari aged about 9 years is the sister of the deceased. Prior to her deposition, the learned trial court has found that she is able to understand and is able to answer. She has stated that she had come to her Nanihal Bahadurpur with her mother, sister and younger brother on the occasion of Chhathihari of the baby of her Mausi. The occurrence has taken place on 8.06.2002 at about 10.00 A.M. She was taking her brother (deceased) to ease. In the meantime, her younger Mama Dharmendra Kumar (appellant) assaulted him with Chhura in his stomach. Her brother succumbed to the injuries. She ran to her mother and informed her. Dharmendra Kumar after assaulting with Chhura fled away. She has identified the appellant. In her cross-examination, she has stated that the appellant had no quarrel with him, deceased or with her. On the roof of the house of the appellant, she and others were playing. Her mother was cooking. She has been cross-examined at length, but the defence has failed to demolish her evidence.
Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 6
13. P.W.7 while posted at Sadar Hospital, Nawada as Civil Assistant Surgeon held the post-mortem examination on the dead body of deceased Satish Kumar aged about 3 and half years on 8.06.2002 and found rigor mortis was present all over the body. There was no sign of decomposition. The following ante-mortem injuries were found over the dead body :
(i) Incised wound over mid abdomen above umbilicus of size- 1 ½" x ½" x cavity deep found coming out through it with incised of gut at one side.
(ii) Incised wound over right side abdomen above iliac crest of size ¾" x ½" x cavity deep.
(iii) Incised wound over back of abdomen right side two inch from mid line of size ½" x ½" x cavity deep.
On dissection- abdominal cavity was found full of blood, all viscera found intact and pale. Heart found empty. Bladder was found empty. Time elapsed since death was within 6 to 12 hours.
The cause of death was haemorrhage and shock.
Nature of weapon used was sharp cutting and piercing may be Chhura.
The post-mortem examination has been marked as Ext.2.
Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 7 He has also been cross-examined at length, but the prosecution has not been able to demolish his evidence.
14. P.W.8 is the informant and the mother of the deceased. She has stated that she had come to her Naihar Bahadurpur on the occasion of Chhati of the son of her sister with her two daughters and a son Santosh Kumar aged about 3 and half years. Her younger daughter Seema Kumari was going with Satish Kumar to ease him on the down stairs. In the meantime, her younger brother (the appellant) assaulted Santosh Kumar (deceased) with Chhura. Intestine of the deceased came out from his stomach and he died there. On the alarm of her daughter, she went there and saw that her younger brother (appellant) armed with knife was absconding. She made her statement before the police officer of Rajauli Police station. After recording her statement, it was read over and she put her signature (Ext.1/4). Her husband (P.W.1) and Baleshwar Sah (P.W.4) witnessed the fardbeyan. Their signatures are Exts.1/5 and 1/6. In her cross-examination, she has stated that Dharmendra Kumar (appellant) did not assault Seema Kumari (P.W.6). There was no bloodstained on her frock. The blood was found on the stairs. She has been cross- examined at length, but the prosecution has not been able to demolish her evidence. The evidence of this witness is quite natural and convincing.
Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 8
15. P.W.9 is also a formal witness, who has identified the statement of Muneshwari Devi and Kali Charan Sao (P.W.2 and P.W.3) under Section 164 Cr.P.C. which has been marked as Exts. 3 and 3/1.
16. P.W.10 is the Investigating Officer. He has stated that on 8.06.2002, he got information by rumour that a child has been killed by his Mama with Chhura. Sanha No.248 dated 8.06.2002 was instituted and with the police personnel, he went to the village Bahadurpur. At the house of Kalicharan (P.W.3), the father of the informant (P.W.8) recorded the fardbeyan of Meena Devi which was witnessed by Birendra Lal Sah and Baleshwar Ram (P.W.1 and P.W.4). The fardbeyan has been marked as Ext.4. The place of occurrence which is the lowest floor of the stairs in the courtyard of the house. He prepared the inquest report in presence of the witnesses in carbon process, which has been marked as Ext.5. The dead body was sent to the Hospital for post-mortem. After taking the statement of the witnesses and after obtaining the post-mortem report, he submitted the charge-sheet. He has also stated that a Chhura was seized and the seizure list was prepared (Ext.6). He has stated that he had taken the statement of Muneshwari Devi (P.W.2) who is stated that her grand daughter Seema Kumari (P.W.6) had stated that Dharmendra Kumar has assaulted the child (deceased) with Chhura Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 9 and she rushed to the place of occurrence and saw her son Dharmendra Kumar fleeing away and saw that the child died. He has further stated that Kalicharan (P.W.3) stated before him that while Seema Kumari was taking Santosh to ease, his younger son (appellant) assaulted the deceased Santosh Kumar with Chhura causing his instantaneous death. In his cross-examination, he has stated that on the place of occurrence, blood has been washed. There was light sign of blood. He did not send the Chhura for forensic examination. Meena Devi has stated before him that he saw the appellant fleeing away. She did not state that she saw the appellant taking Chhura.
17. D.W.1 Vasudeo Pandey and D.W.2 Aitwary Choudhary have been examined on behalf of defence.
18. D.W.1 has stated that Santodh Kumar died after falling from the roof of the house. Appellant was not present at his house. He has not assaulted Santosh Kumar. In his cross-examination, he has stated that the police had not taken his statement during investigation.
19. D.W.2 has stated that Santosh Kumar was playing with two-three children on the roof and he fell down from the roof and rod entered into his abdomen causing his death. It is not a fact that the appellant assaulted him with Chhura. Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 10 It appears that the evidence of D.W.1 and D.W.2 is not convincing and their evidence is not fit to be relied upon.
20. After hearing the learned counsel for both the parties and on perusal of the record, it appears that the informant, appellant, deceased and the material witnesses are the close relatives. The occurrence has taken place in the house of the appellant where the informant had come with her children on account of Chhati of the son of the sister of the appellant. As such, it is not expected that outsider will see the occurrence. The informant and other material witnesses are interested witnesses, but on this ground alone, their evidence cannot be discarded. It is settled principle of law that the evidence of interested witnesses is to be examined carefully and cautiously. The evidence of P.W.6 and P.W.8 are quite natural and their evidence stands corroborated by the medical evidence of the doctor (P.W.7). Although P.W.2 and P.W.3, the parents of the appellant have supported the prosecution case before the I.O. and also at the time of making statement under Section 164 Cr.P.C., but in the examination in the court as P.W.Nos.2 and 3 they have evaded from their earlier statement which is also not unnatural as the appellant is their son and naturally they would not see that the appellant should be convicted. The I.O. has also found some sign of blood on the stairs which was washed and has also found that the dead body was at the Patna High Court CR. APP (DB) No.766 of 2005 dt.24-08-2012 11 stairs of the house of the appellant. The prosecution has neither made any motive for the occurrence and as such, the prosecution is not required to prove motive for the occurrence. The learned trial court has rightly found the accused/appellant as the assailant of the deceased after careful consideration of the evidence on behalf of both the parties.
21. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment and order passed by the learned trial court.
22. In the result, this appeal is dismissed.
23. Let a copy of the first page and the last page of the judgment be given to Mr. Arun Kumar Tripathi, learned Amicus Curiae so that he may be able to get the prescribed fee from the Patna High Court Legal Service Committee.
(Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated the 24th of August, 2012 A.F.R./V.K.Pandey