Baij Nath Kurmi Vs. State of Bihar - Court Judgment

Excerpt:
(a) indian penal code, 1860 - sections 302 and 300--murder--proof of--conviction and sentence--legality of--appellant alleged to have committed murder of deceased--on appreciation of evidence court below convicted and sentenced to life imprisonment--testimony of eye-witnesses found to be trustworthy--fir was quite descriptive--mere minor discrepancies about the time of occurrence would not discredit the prosecution case--non-examination of i.o. would cause no prejudice--no contradiction in place of occurrence--appellant knowingly given single below at the most vital part of the body, which caused death--offence under section 302, ipc proved--held, conviction and sentence passed by court below not illegal.(b) criminal trial - identification of accused--correctness of--if an accused has..... p.k. sinha, j.1. the sole appellant has been convicted under section 302 of the indian penal code ('the code', in short), sentenced to undergo imprisonment for life. the prosecution case as coming out of the fardbayan (ext.1) of one ram bilas pasi, the father of the deceased, is that in the morning of 5.5.1985 in his toddy shop the appellant baijnath kurmi along with co-accused doma kurmi and another unknown had gone to take toddy, which shop was being run by his son, sheo dayal chaudhary, and after taking toddy worth about rs. 10/- the appellant promised him to pay the amount after easing himself but he did not come back which fact was intimated by the deceased sheo dayal chaudhary to his father when he came back. on the same day at about 4 p.m. when the informant was returning with the.....

Judgment:

P.K. Sinha, J.

1. The sole appellant has been convicted under Section 302 of the Indian Penal Code ('the Code', in short), sentenced to undergo imprisonment for life. The prosecution case as coming out of the Fardbayan (Ext.1) of one Ram Bilas Pasi, the father of the deceased, is that in the morning of 5.5.1985 in his toddy shop the appellant Baijnath Kurmi along with co-accused Doma Kurmi and another unknown had gone to take toddy, which shop was being run by his son, Sheo Dayal Chaudhary, and after taking toddy worth about Rs. 10/- the appellant promised him to pay the amount after easing himself but he did not come back which fact was intimated by the deceased Sheo Dayal Chaudhary to his father when he came back. On the same day at about 4 p.m. when the informant was returning with the deceased from market along with Jag Mohan Dusadh (P.W. 1) and Ram Kewal Yadav (P.W. 3) and reached near Jhanjhariya Pokhar where temple of Durga was situated, the appellant and Doma Kurmi were seen standing at which the deceased asked for the price of toddy, payment of which was refused by the appellant. Some verbal duel appears to have taken place after which, as alleged, Doma Kurmi caught hold of the deceased and this appellant stabbed his son near the chest after which both the accused fled away. Injured was brought to Jagdishpur Hospital where he died.

2. It has come in the evidence, including that of the informant (P.W. 4) that Doma Kurmi had expired during the pendency of the case, hence this appellant alone faced the trial. In course of trial the prosecution examined six witnesses out of whom the aforesaid three and one Bharat Thakur (P.W. 2) having a haircutting saloon at the place of occurrence, had taken the witness stand as eye-witnesses of the occurrence whereas P.W. 5, Dr. Kamta Prasad Rai, is the doctor who had performed autopsy upon the dead body. P.W. 6 is Raghu Bansh Prasad Singh, Sub-Inspector of Police who ultimately had arrested the appellant under the circumstances narrated in his evidence and had submitted charge sheet. However, he had not conducted major part of the investigation which was conducted by two other police officers and the portions of the case diary written by them have been marked as Ext. 2.

3. Though this is an occurrence of the year 1985, the charges were framed on 11.7.1994 and first witness was examined on 8.3.1995 but the circumstances of delay, which may be mentioned, have been made explicit of the evidence of P.W. 6. It appear that on 11.4.1991 P.W. 6 received information that the absconding accused, the present appellant, was seen at his house on which he made an entry in Sanha diary and proceeded there and arrested him. From the evidence of this witness it appears that earlier in the record of Police he was declared dead. According to this witnesses, Dafadar and other witnesses had identified him as Baijnath Kurmi. Because of his fake-death obviously because of presenting a false death certificate, charge-sheet in the case was submitted against Doma Kurmi showing the appellant, dead. This witness also visited the Hospital and the police stations concerned but did not find that this appellant was admitted in the Hospital and he also came to know that he had changed his identity to the name of Suresh Kurmi and he had faced a criminal case in the Court of a Judicial Magistrate in that name. This witness also identified the appellant in course of his evidence and so the appellant was identified by different witnesses who have claimed to be eye-witnesses, in the Court. It has been one of the arguments of the earned Counsel for the appellant that the identity of the appellant was vague, but from the evidence of this witness and from the evidence of other witnesses. We find that the appellant was identified to be the assailant and it does not appear that in course of trial when the witnesses identified him, such identification was challenged. Therefore, we find no vagueness in the identity of this appellant.

4. Now coming to the evidence on record we find that the informant in his evidence has supported the allegations so far killing of his son is concerned. He also said that when he along with Sheo Dayal reached near Jhanjhariya Pokhar, Sheo Dayal demanded his due money from the appellant who was there and, after on a verbal duel, Doma Kurmi caught hold of him and Baijnath Kurmi, bringing a scissor from the hair-cutting saloon of P.W. 2, assaulted Sheo Dayal with that near his chest after which when the injured fell down, both the accused fled away. This witness along with others brought the injured to the Hospital where he succumbed to his injury. His statement was recorded in the Hospital itself and he has also proved the Fardbayan. P.W. 1 and 3, as already noted, were the witnesses of the occurrence as claimed in the F.I.R. itself. These two witnesses have also supported the prosecution case that on demand of money by Sheo Dayal Pasi he was assaulted with scissor by the appellant near his chest by fetching the same from hair cutting saloon. They also said that the deceased died after reaching Hospital.

5. P.W. 2 who holds a barbar's shop at the place of occurrence, has also supported that on the date of occurrence when Sheo Dayal Pasi was demanding the due amount from the appellant in presence of Doma, Baijnath took out a scissor from his saloon and stabbed the deceased in this chest on the left side while Doma had caught hold of him. The accused, thereafter, fled away while the injured fell down. The Injured was taken to Hospital where he died. The Investigating Officer, as per this witness, had taken his statement at the place of occurrence on that very day.

6. All these four witnesses have been closely cross-examined but we find that the defence has not been able to extract anything from the witnesses which could cast any doubt about their trustworthiness. However, on the basis of the evidence the earned Counsel for the appellant has raised certain points as noted below:

(i) Though in the F.I.R. the allegation was that the deceased was given a knife blow without mentioning that anything was taken out by the appellant from the hair-cutting saloon, the witnesses, including the informant, had given a go by to that and had said that after demand of money and after refusal to pay the same this appellant had rushed to the hair-cutting saloon and had taken out a scissor from there and with that he had stabbed the deceased.

(ii) The witnesses are not factually correct because the doctor witness had said that the death had occurred at 3.55 p.m. whereas the informant had claimed that the time of occurrence was 4 p.m., rather the informant in course of his evidence had said that on that day he had started for the market at 4 p.m. and as per his evidence the occurrence had taken place while he and others were returning from market. It was also pointed out that P.W. 3 had also said Para 5 that he had started for the market from his house at about 5 p.m.

(iii) Since the Police Officer who had inspected the place of occurrence and had conducted the initial investigation had not been examined, the defence was grossly prejudiced as even the place of occurrence had not been satisfactorily proved.

(iv) Earned Counsel for the appellant argued that the doctor witness had deposed on the basis of a certified copy of the post-mortem report, not from the original copy, hence his evidence can hardly help the prosecution.

(v) It was submitted that the amount a petty sum Rs. 10/- only for which it was hardly likely that the appellant would go to the extent of committing murder.

(vi) Argument also was that even if the prosecution case was held to be proved, no offence punishable under Section 302 of the Penal Code was made out as the occurrence had taken place out of a sudden provocation in which the appellant had given only one stabbing blow to the deceased and, therefore, the case would be covered under Section 304 of the Code, Part 2.

7. In so far as the first point is concerned, no doubt that in the F.I.R. the claim is that the stabbing was done with a knife but all the witnesses have supported that stabbing was done with a scissor which was taken out from the saloon of P.W. 2. In this regard the evidence of P.W. 4, the informant, may be seen. While claiming in his examination-in-chief that the appellant had brought a scissor from saloon of Bharat Thakur with which he had stabbed the deceased, he also clarified that at the time of occurrence it had appeared (to him) that the stabbing was done by a knife (chhura). In cross-examination also, in para 7, this witness admitted that in his Fardbayan he had said that his son was stabbed with a 'Chhura' but he had given that statement as it had appeared to him that the stabbing was done by a 'Chhura'. He admitted that he had not told the police that the appellant had brought a scissor from the 'Saloon' of Bharat Thakur. In this case the occurrence is said to be taken place at 4.00 p.m. In the State dispensary 'Fardbayan' was recorded at 4.45 p.m. The F.I.R. is quite descriptive but an F.I.R. cannot be supposed to give every minute detail. In so far as a scissor appearing to be a 'Chhura' is concerned, the edge portion of a 'Chhura' and of a scissor have almost similar appearance. If one is stabbed with a scissor, in the heat of moment to an emotionally charged father it might have appeared that the stabbing was done with a 'Chhura' particularly if he had missed to notice as to what weapon was taken out by the appellant from the hair-cutting saloon.

8. In view of that, and because of the reliable evidence in that regard of the eyewitnesses, we don't think that this point is such which could ensure failure of the prosecution case.

9. In so far as the timing is concerned, P.W. 3 in his examination-in-chief has said that the occurrence had taken place at about 4/5 p.m. However, he had said (paragraph 5) that he had started for the market from his house at about 5 p.m. The informant also appears to have said (para 4) that he had started for market at about 4 p.m. P.W. 1 has said that the occurrence had taken place at about 4 p.m. These all are rural and rustic witnesses. When Fardbayan was recorded at 4.45 p.m., death obviously had taken place earlier. Time of death given by the doctor is close to the time of occurrence as given in F.I.R. Moreover, a rustic witness can hardly be supposed to give out a watch-precise timing. No doubt some minor discrepancies about giving the time have occurred in their evidence, but in view of clear and cogent evidence on the point of occurrence we don't think that such minor discrepancies could effect the prosecution case.

10. Coming to another point argued by the earned Counsel for the appellant, the two police officers who had conducted investigation and had examined the witnesses, have not been examined. Obviously much delay in trial was caused because of the absconding of the appellant. In any case, non-examination of an Investigating Police Officer will not affect the prosecution case unless it is shown that prejudice on that account has been caused to the defence. From the evidence of the witnesses. We do not find that the defence in cross-examination had taken such contradictions from previous statements of the witnesses which, if corroborated by the evidence of the Investigating Police Officer, could have caused a dent in the prosecution case. 1n so far as the place of occurrence is concerned, all the witnesses are unanimous as to where it was. The place of occurrence is said to be near the Jhanjharia Pokhar where a temple of Goddess 'Durga' was also situated and the witnesses have supported that, including P.W. 2 who has claimed that he had his hair-cutting saloon adjacent to Jhanjharia Pokhar where a 'Durga' temple was also existing. Since from the evidence of witnesses the place of occurrence has been sufficiently proved, on this point non-examination of Investigating Police Officer will not effect the case of prosecution.

11. A suggestion was thrown to the informant that because of dispute relating to differences with some other persons those persons had actually killed his son at his toddy-shop, but because of groupism in the village the appellant was falsely implicated. This, however, has reminded just a suggestion without any supporting evidence, whereas, as already noted, the place of occurrence, which is not the toddy-shop, has been well proved by the evidence of the prosecution.

12. About non-production of the original post-mortem report, it will appear from the evidence of P.W. 5 that original post-mortem report was not produced before him at the time of his evidence rather one attested copy of the post-mortem report which was in the writing of someone else, was produced which was marked for identification by the Court. However, this witness has claimed that he had examined the deceased on 5.5.1985 and had found one punctured wound 1/4' diameter on the chest of left side and on dissection he found chest cavity on left side full of blood. He also found that hemorrhage was caused due to puncture of the heart. The post-mortem was done on the same day the death was caused. That evidence in the examination-in-chief has not specifically been challenged in the cross-examined, nor the doctor was suggested about his not conducting the post-mortem or not finding the injuries as told by him in the examination-in-chief. Therefore, the evidence of this witness remains intact. However, even if the evidence of P.W. 5 is not taken into account, the other evidence sufficiently show that the appellant had satabbed the deceased near the chest because of which he had died. The evidence of other witnesses on their own prove that the deceased had died because of the stabbing wound caused to him by the appellant.

13. In so far as the argument about small amount of money is concerned, murders are known to have been committed for even lesser amounts, or for a more trivial matter. This argument is hardly worth consideration.

14. About the argument that evidence on record at best proves a culpable homicide not amounting to murder is concerned, it will appear that the appellant had got agitated just because the deceased had demanded a paltry amount which was due. The evidence is clear that having seen the appellant with Doma Kurmi at the place of occurrence the deceased had gone to them for only demanding the money that was due to him which can hardly be said to be a reason which could give rise to grave or sudden provocation to the appellant so as to impel him to commit a murder. Imperiously volcanic state of mind of a person ready to erupt even at slightest pretext cannot be an excuse to invite application of exception 1 to Section 300 of the Code. In so far as giving of one blow is concerned, no doubt only one blow was given but that was given at the most vital part of the body and a person giving such a blow is likely to know that such a blow to a vital part would result in death, bringing home the offence of culpable homicide punishable under Section 302 of the Code.

15. In view of the aforesaid, we find no scope to interfere with the judgment of the learned lower Court. This appeal, therefore, is dismissed.