Dismissed

Bishwanath Bankira v. State of Bihar

Jharkhand HC8 Jan 2019Cr.A(DB)/154/1996

Case brief

AI extract

What is this about?

In this criminal appeal, the Calcutta High Court dismissed Biswanath Bankira's challenge to his conviction and life sentence for murder. The bench held that the prosecution witness's testimony was trustworthy, the single assault with a kulhari was sufficient for murder, and the lack of other witnesses did not destroy the case. Bail was cancelled.

What did the court decide?

Appeal dismissed; bail bond cancelled; appellant directed to surrender to serve remaining sentence.

Bishwanath Bankira Vs State of Bihar — Murder and Culpable Homicide | Jharkhand HC (2019)

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Cr. Appeal (DB) No. 154 of 1996 (R)

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....

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Against the judgment of conviction and order of sentence dated 02.08.1996 passed by the learned Additional Session Judge, Seraikela, in Sessions Trial No. 222 of 1992. ....

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Biswanath Bankira …. ….. Appellant

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Versus

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State of Bihar …. …. Respondent

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For the Appellant : Md. Mokhtar Khan, Advocate For the State : Mr. Pankaj Kumar, A.P.P.

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Present Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Kailash Prasad Deo

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By Court:Heard, learned counsel for the appellant and learned A.P.P. for State.

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The sole appellant stands convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life, vide the impugned judgment and order of sentence dated 02.08.1996 passed by the learned Additional Session Judge, Seraikela, in Sessions Trial No. 222 of 1992.

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The F.I.R. was instituted on the basis of the fardbeyan of informant, Munni Bankira (P.W.-3) inter-alia containing the following allegation:

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That on 26^th June, 1991 at noon in Lepso Forest under Galudih mouza, P.S. Kuchai, District- West Singhbhum, informant alongwith her maternal grandmother Manjhari Kui (deceased) were plucking Biri leaves. Besides them Manjhari Samad, her mother, Topkai Samad, Santi Bankira and Sukun Samad were also plucking Biri leaves. All of a sudden accused Biswanath Bankira and co-accused Dubrai Pariya arrived there. Accused Biswanath Bankira/appellant was armed with axe and knife. Just after their arrival Biswanath Bankira assaulted on the head of Manjhari Kui with the back portion of the axe (kulhari), thereafter informant and others started fleeing away. Dubrai chased and caught her and brought to the place where her grandmother had been assaulted. She saw that her grandmother was dead. Accused Biswanath Bankira threatend that he would also murder the informant but the other accused Dubrai did not accede to that. Thereafter, accused Biswanath Bankira left the place and co-accused Dubrai Pariya dragged the informant up to some distance, fell her on the ground and committed rape and threatened her with murder. Thereafter Dubrai also left the place. Informant returned to her home and narrated the occurrence to her parents and aunt. Thereafter informant alongwith her father Tanko Bankira and uncle

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Jagmohan Bankira (P.W.-4) went to Lapso Forest to see the dead body of Manjhari Kui. They brought the dead body to Bindi Gutu in order to save it from the prey of wild animals. Her uncle Jagmohan remained there to watch the dead body and the informant alongwith her father reached the Kuchai police station where the instant F.I.R. bearing No. 22 was lodged at 15 Hours on 26.06.1991. Informant also alleged that two months prior to the occurrence son of the accused Biswanath had died due to illness and thereafter he used to say that Manjhari had killed his son.

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The matter was investigated and chargesheet was submitted under Sections 376, 302 read with section 34 of the Indian Penal Code against the present accused/appellant and other co-accused Dubrai Pariya. Dubrai Pariya became an absconder and was not sent up for trial. Thereafter cognizance was taken and the case was committed to the court of Sessions on 1^st June, 1992. Charges were framed against the sole accused and read out to him. He pleaded not guilty whereafter trial commenced.

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Prosecution examined five witnesses namely P.W.-1 Mora Hembrom, P.W.-2 Gondo Samad, P.W.-3 Munni Bankira, informant, P.W.-4 Jagmohan Bankira and P.W.-5 Dr. Satendra Kumar, the medical officer who conducted the postmortem on the deceased. Prosecution adduced certain exhibits marked for identification as 'X' with objection and exhibit 1 being the postmortem report. Upon conclusion of the evidence of the prosecution witnesses the accused was examined under Section 313 of the Cr.P.C. He denied having committed the alleged murder. No defence witness were adduced. Out of these five witnesses, P.W.-4 was tendered by the prosecution. P.W.-1 who was also adduced as a seizure list and inquest report witness turned hostile while P.W.-2 adduced the seizure list and the inquest report.

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P.W.-5 is the Medical Officer, who proved the postmortem report marked as exhibit-1. P.W.-3 who was the informant has been examined as an eye witness. Though other witnesses were named in the F.I.R. like Santi Bankira, Topkai Samad and informant's father Tanko Bankira but they were not produced despite ample opportunities and repeated warrant of arrest and information to the Deputy Commissioner and Superintendent of Police. Learned trial court, however was satisfied with the evidence of P.W.-3 and the medical witness P.W.-5 that the charges were proved beyond reasonable doubt. Accordingly, the accused/appellant herein was convicted for the charge under Section 302 of the I.P.C. and sentenced to undergo life imprisonment.

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Learned counsel for the appellant has questioned the findings recorded by the learned trial court inter alia on the following grounds: At the outset he submits that the informant was a lady who did not speak or understand Hindi language as is evident from her deposition where she was provided the assistance of an advocate knowing Ho language. However, the F.I.R. registered on her fardbeyan does not contain any certificate as to how she narrated the story in Ho language to the A.S.I. who recorded the fardbeyan. In absence thereof the veracity of the First Information Report which is the genesis of the prosecution is rendered doubtful. He further submits that though the informant in the First Information Report and also in her deposition made specific reference to other witnesses like her own mother, her father and other females of the village, who were present at the place of occurrence, but surprisingly prosecution has failed to examine any one of them. The informant has in the fardbeyan as also in her deposition stated that the place of occurrence was three kilometers away from her village and there were two villages in between with number of houses but as per her own admission she did not narrate the incidence to any other villager on her way back from the place of occurrence. She in fact in her fardbeyan asserted that she has informed her father about the incidence alongwith her mother and aunt but in her deposition she categorically stated that she had informed her aunt and not stated anything about the incidence to her father. Her aunt had thereafter informed her father about the incidence. Learned counsel for the appellant has pointed out from the statement of P.W.-3 that there was only one assault allegedly made by the appellant on the deceased but the medical officer, P.W.-5 had found six ante mortem injuries on the body of the deceased. Prosecution had completely failed to explain the other injuries on the body of the deceased, which made the whole case extremely doubtful. He further submitted that though several witnesses were stated to have been examined during investigation but nor were those witnesses adduced as witnesses during trial nor the Investigating Officer was examined in support of the prosecution. Non-examination of the Investigating Officer had rendered the entire evidence doubtful and untrustworthy. Defence was denied an opportunity to test the statements of P.W.-3, so far as the place of occurrence is concerned, the recovery of dead body from a particular place and also the manner of the crime. The prosecution witness no.1 who was adduced as an inquest witness and as a seizure list witness had turned hostile stating that he had been made to sign on a document. P.W.-2 Gondo Samad alone has been adduced to prove the seizure list and inquest report. The allegations of sexual assault on the

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informant also remained unsubstantiated in absence of the other co-accused who absconded. Therefore her version of the prosecution story would not be given sufficient credence as no other material witness of the crime came forward to depose in favour of the prosecution case. He has further pointed out to other discrepancies purportedly evident from the statement of P.W.-3. Learned counsel also submits that even assuming the version narrated by P.W.-3 the assault was made by the appellant by the blunt side of the kulhari that is not the sharp cutting edge and there was only single assault and there were no repetition of the blows. Therefore, any intent to commit murder was completely missing. The contradiction in the statement of P.W.-3 viz-a-viz on the point of single assault and the number of injuries found during postmortem examination itself has rendered the whole case doubtful. The accused/appellant herein should not have been convicted for a serious charge of murder as prosecution has completely failed to prove the allegation beyond shadow of all reasonable doubts. It is also stated that P.W.-3 at para 24 of her deposition asserted that the distance between the police station and Galudih though is not precisely known to her but it takes about 5 hours to travel the distance. However, at other place she herself says that in the evening she has taken the officer-in-charge to the place of occurrence, which was reportedly 3 kilometers from her own village. She has also stated that dead body of her grandmother was lying at the same place though in her fardbeyan she has stated that dead body was brought by her father and her uncle to Bindi Gutu forest in order to save it from the prey of wild animals. There are sufficient inconsistency in the prosecution story set up through the mouth of P.W.3 projected as an eye witness to create doubt about the entire allegations. The prosecution witness no.3 has also stated in her deposition that her father and uncle were staying separately though she was not aware as to whether there was any enmity between them. As such the findings of the learned trial court suffers from serious misappreciation of evidence which cannot be sustained in the eye of law. The impugned judgment therefore, deserves to be set aside.

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Learned A.P.P. has in course of a submission relied upon the testimony of P.W.-3 in particular and submitted that she was a natural witness to the crime being the grand daughter of the deceased who had gone alongwith her in the morning to fetch Biri leaves from the Lepso Forest at a distance of about three kilometers from their village home. The manner in which the occurrence has been seen and described by her does not leave any loopholes in the prosecution story. The entire prosecution story has been nattered in graphic detail without any

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inconsistency or discrepancy. P.W.-3 is honest to the extent that despite having been subjected to sexual assault and raped by the other co-accused Dubrai Pariya has not named him as also the author of assault on her own grandmother. She has honestly stated that though she was caught by Dubrai Pariya and the appellant wanted to kill her also but it was Dubrai Pariya the other accused who committed rape on her who did not accede to the plan to commit her murder also. She has categorically deposed that the fardbeyan was recorded by the Officer-in-Charge on being narrated to him by her in Ho language and after the recording of the fardbeyan it was read over and explained to her. She was satisfied of the contents of the fardbeyan and only thereafter recorded her thumb impression thereupon. In face of such categorical assertion by the author of the fardbeyan i.e., the informant herself in the cross-examination, the defence had no basis to allege that the fardbeyan was not certified in the manner required even though the informant did not speak or write Hindi language.

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Learned APP has submitted that there is no inconsistency so far as the assault and injury on the deceased is concerned between the statement of P.W.-3 and the medical witness. P.W.-3 has categorically stated about the single assault committed from the blunt side of the weapon kulhari on the head of the deceased by the accused/appellant and at the same time ascerted that the deceased fell down on the wood lying by the side. Out of the six injuries found by the Medical Officer during post-mortem examination, five of them being injury No. 1 and 3 to 6, all appeared to be the result of such a fall. Injury no. 2, which is a “lacerated wound on the vertex of the scalp 2” x 2” x brain deep” is the result of the single assault inflicted right on the head of the deceased by the accused with the kulhari, though from the blunt side. He further submits that there is a motive to the crime. Both the allegations made in the fardbeyan and the statement of P.W. 3 during trial, show that son of the accused had died about two months back which the accused believed it to be attributable to the grandmother of the informant as she was considered as a witch. The intent to commit murder of the deceased was premediated as would also be evident from the subsequent conduct of the accused/appellant as he wanted to kill the informant also. If the intent to kill has been adequately shown, the nature of the assault and the resultant injury caused and proved by the medical witness are sufficient in the ordinary course of nature to cause death. Therefore, the case of this accused fell within the definition of murder under Section 300 of the Indian Penal Code, specifically Clause- 3rdly . The learned trial court has taken into account the very evidence of this vital

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witness P.W. 3, who was an eye-witness to the account and whose testimony has not been shaken during cross-examination alongwith the corroborative medical evidence to hold this accused guilty of the charges under Section 302 of the I.P.C. The findings recorded do not suffer from any error in the appreciation of evidence or perversity in the eye of law which requires interference in appeal. The appeal is therefore is devoid of merit and it deserves to be dismissed.

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We have considered the submissions of the learned counsel for the parties at length and gone through the relevant materials evidence on record relied upon by them. We have also perused the impugned judgment. The case of the prosecution as built up on the basis of the First Information Report is largely dependant upon the testimony of P.W. 3 informant who claims to be an eye-witness of the crime. Prosecution had adduced five witnesses out of which P.W. 1 an inquest witness turned hostile; P.W. 2 Gondo Samad proved the seizure list and inquest report while P.W. 4 Jagmohan Bankira was tendered. For inexpleciable reasons other prosecution witnesses like the mother of the informant, the father of the informant, her uncle and other co-female villagers, who were reportedly at the place of occurrence have not been examined. In this backdrop, if the testimony of P.W. 3 stands the test of trustworthiness and credibility and her evidence stands corroborated by expert evidence, the findings recorded by the learned trial court cannot be casually shrugged aside, if the charges have been proved to the hilt and beyond shadow of all reasonable doubts. We have carefully analysed the evidence of P.W. 3 in that light. P.W. 3 was aged about 20 years at the time of occurrence and 22 years at the time she made her statement during the trial. She has graphically narrated the sequence of events leading to the crime and thereafter. She states in her examination-in-chief that it was a Wednesday at 8.00 in the morning when she along with her grandmother Manjhari Kui (deceased) went to the Lepso Forest to pluck Biri leaves. At around 12 in the noon, accused/appellant along with Dubrai Pariya came there. When her grandmother was faced with the accused in her front, he was carrying a kulhari in his hand and a knife in the other hand. Dubrai had no weapon in his hand. This accused Biswanath inflicated a blow straight on the head of her grandmother by the blunt side of the kulhari as a result of which, she fell over the woods lying there. Informant started fleeing away but fell down when she was caught by Dubrai and brought back to the place where her grandmother was lying draped in blood. At that time, this accused/appellant was also present and both of them were saying that “she would also be killed”. She

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tried to run but she was caught again by Dubrai and kept along with him. He took her and committed indecent act upon her. She came back and narrated the incidence to her aunt who narrated it and thereafter to her father and her uncle Jagmohan with whom they went to the police station, where her fardbeyan was recorded. The police personnel read over the fardbeyan to her which she found to be in order and thereafter put her thumb impression. She also stated that the accused killed her grandmother treating her to be a witch. In her crossexamination, she clarified that the accused was of her own village and known to her before. She reiterated the story set up in the fardbeyan that she had seen the accused inflicting blow by blunt back part of the kulhari on her grandmother and that he was intending to kill her also. She has explained that kulhari and tangi are two different weapons. Her village was 3 kilometers away from Lepso Forest and there were two villages in between Regadih and Pagadih where there were number of houses. She further stated that this accused and Dubrai came from the Eastern direction and her grandmother and herself came face to face with them at a distance of 20 yards but they did not suspect that they would indulge in assault upon her. She infact, told her grandmother to leave their way since they were coming from the front side. She has further described that this accused Biswanath put the knife into a bag being carried with him and took hold of the kulhari by both his hands and gave the fatal blow on the head of her grandmother. The other co-accused Dubrai was also present there but she did not attribute any assault upon him. The truthfulness of this witness is evident from the fact that the same Dubrai had immediately after the assault taken her inside the forest to a distance and committed sexual assault upon her but she did not name him as also an author of any assault upon her grandmother, who died immediately after the assault of this accused/appellant. She further narrated that this act of beating and indecent assault upon her took about one hour and thereafter she reached her home at about 2.00 P.M. She further stated that initially she narrated the incidence to her aunt and that her aunt narrated it to her father. Her statements made at paragraph 25 specifically answers the contention urged on behalf of the appellant on the issue of certification of the recording of fardbeyan. She has stated that the Officer-in-Charge recorded her fardbeyan and thereafter explained it to her in the same language and only thereafter she put her thumb impression. If the author of the fardbeyan has deposed in such fashion during trial there is no reason to seek any further corroboration of the first information story projected by her at the time of recording of the fardbeyan.

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Learned counsel for the appellant has also not been able to show that the contents of the fardbeyan were inconsistent with her deposition in any manner. The other contentions urged on behalf of the appellant to show certain minor inconsistencies in the statement of P.W. 3 relating to the presence of dead body or her taking the Officer-in-Charge to the place of occurrence to see the dead body are not of such nature which could dilute her testimony if read in entirety. We are inclined, to agree with the submission of learned APP that out of the six injuries, noticed on the decased, all ante mortem in nature, injuries specifically 3 to 6 were iii) abrasion on the right cheek 2” x 2”; iv) abrasion upon right shoulder 3” x 2”; v) abrasion upon right wrist 1½” x ½”; vi) abrasion upon left leg 2” x 1” which were likely to be caused due to the fall on the wood after the assault. Injury No. 2 is evidently the fatal injury inflicted by the blunt side of the kulhari by the accused as it is a lacerated wound on the vertex of the scalp 2” x 2” x brain deep . In the opinion of the medical expert death has been caused due to shock and haemorrahage. Injury No. 1 is a lacerated wound on the left temporal region 1” x ½” x 2” which could also be as a result of the fall on the woods. However when the eye-witnesses account has been found to be sound on the manner and nature of the assault, the presence of other injuries which could be as a result of the fall could not be taken to discredit the entire prosecution case. The intention of this accused/appellant to commit murder is substantiated with the motive attributed to him as well as his son has died two months prior to this incidence and he believed that the deceased was a lady who practiced witch craft. This accused/ appellant, infact also bore an intention to kill the informant after she was caught by Dubrai Pariya but since Dubrai Pariya did not agree to such evil intent of the appellant, she was spared her life.

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In this perspective, we do not find any reason to discard the testimony of P.W. 3 informant and an eye-witness to the occurrence only for the reason that other prosecution witnesses were not examined in their support by the prosecution.

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Considered in totality upon reappreciation of the evidence on record, we do not find any error in the findings recorded by the learned trial court to dislodge the conviction under the offence of Section 302 of the I.P.C. We therefore do not find any merit in the appeal, it is accordingly dismissed.

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The appellant, is on bail. His bail bond is hereby cancelled. The appellant is directed to surrender before the learned court below forthwith to serve out rest of the sentence as awarded by the learned trial court.

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Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated the 08^th January 2019 Pallavi/R.S.

Bishwanath Bankira v. State of Bihar

Case brief

What is this about?

What did the court decide?

Bishwanath Bankira v. State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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