Dinesh Pandey v. State Of Bihar — 1999 DIGILAW 388 (PAT)

Judgment Nagendra Rai, J. 1. Appellant No.3 Dhrambir Pandey is the father of appellant Nos. 1 & 2 Dinesh Pandey and Puja Pandey alias Pujeshwar Pandey. They were put on trial before the 1st Additional Sessions Judge, Gaya for the offence under Section 302, IPC on the accusation of having committed murder of one Saheb Ram Pandey and two of them, namely, Dinesh Pandey and Puja Pandey have been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life and appellant No. 3 Dhrambir Pandey has been convicted under Section 302 read with Section 109, IPC and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution party is the resident of village Sultanpur within the Police Station of Makhdumpur and the appellants are the residents of village Naudiha within the Police Station of Khizersari both within the district of Gaya. Village Naudiha is east to village Sultanpur and both the villages are separated by Falgu river. 3. The prosecution narration is that on 28-7-1984 in the morning Ramchandra Pandey father of Informant Shaligram Pandey and the deceased Saheb Ram Pandey were getting the shradh of one of the family members of Baiju Sah performed at Khizersarai. The aforesaid three appellants came and objected to it on the ground that Baiju Sah was their jajman which resulted into an altercation and the accused-appellants assaulted Ram Chandra Pandey, who went to his house and narrated about the aforesaid incident to his sons and co-villagers. At about 12 noon aforesaid Ramchandra Pandey along with his two sons Saheb Ram Pandey (deceased), Shaligram Pandey (PW-6) and two co-villagers Nanhkoo Pandey (PW-7) and Ramjee Pandey (PW-8) went to the house of the appellants at village Naudiha for the purpose of settlement of the dispute. The appellants were sitting on a wooden chowki in the verandah of their house facing west of their village lane. The prosecution party enquired as to why they assaulted Ramchandra Pandey which resulted into an altercation. Thereafter, appellants Dinesh Pandey and Puja Pandey alias Pujeshwar Pandey went inside their house and they came out armed with sword & farsarespectively. Appellant Dhrambir Pandey also emerged with dagger from the house and he ordered to kill. Thereafter, Saheb Ram Pandey fled towards south in the lane and the other members of the prosecution party fled towards north. Thereafter, appellants Dinesh Pandey and Puja Pandey alias Pujeshwar Pandey went inside their house and they came out armed with sword & farsarespectively. Appellant Dhrambir Pandey also emerged with dagger from the house and he ordered to kill. Thereafter, Saheb Ram Pandey fled towards south in the lane and the other members of the prosecution party fled towards north. The appellants overtook Saheb Ram Pandey and thereafter appellants Dinesh Pandey and Puja Pandey started assaulting him with their respective weapons at short distance from their house as a result of which Saheb Ram Pandey died. The Informant and others raised hulla on which many villagers assembled there. In the meantime, all the three appellants dragged the dead body of the deceased inside their house. 4. Shaligram Pandey (PW-6) rushed to the Khizersarai Police Station along with his brother Janardan Pandey and lodged the FIR (Ext. 2) at 1.30 p.m. which was recorded by Ramchandra Chaudhary, Officer Incharge of Khizersarai Police Station (PW-9). Thereafter, he proceeded to the place of occurrence and recovered the dead body of the deceased lying in the inner verandah of the house of the appellants. He also recovered three weapons alleged to have been used in the commission of the offence from a kothla kept in the house. He held inquest over the dead body of the deceased (Ext. 3) and prepared a seizure list (Ext. 1) of the weapons recovered from the house of the appellants. He sent the dead body for post-mortem examination. He also examined the witness and after receipt of the post-mortem report submitted the charge-sheet against the applicants. 5. The Magistrate after cognizance and usual commitment ordered the appellants to be put on trial which ended in their conviction and sentence as mentioned above. 6. The defence has not come out with specific defence. It is asserted on their behalf that no occurrence as alleged by the prosecution had taken place. On the other hand, on the date of the occurrence, they were performing the shradh at Khizersarai and later on they learnt about the murder of the deceased. While they returned home, they were apprehended by the Police and falsely implicated in this case. 7. The prosecution has examined ten witnesses in support of its case. On the other hand, on the date of the occurrence, they were performing the shradh at Khizersarai and later on they learnt about the murder of the deceased. While they returned home, they were apprehended by the Police and falsely implicated in this case. 7. The prosecution has examined ten witnesses in support of its case. Out of whom PW-5 Shyam Sunder Pandey, resident of village Naudiha, PW-6 Shaligram Pandey the Informant, PW-7 Nanhku Pandey, PW-8 Ramjee Pandey are the eye-witnesses of the occurrence. PW-3 Arun Devi whose house is in front of the house of the accused-persons is the witness on the point that she saw the appellants Dinesh Pandey and Puja Pandey dragging one person in their house and appellant Dhrambir Pandey was also present there and uttering to keep the aforesaid person inside the house and file a case against him in the Police Station. PW-9 Ramchandra Chaudhary is the Investigating Officer. PW-10 is Dr. Bijay Kumar who at the relevant time was posted as Associate Professor in the Forensic Science, Magadh Medical College and held autopsy over the dead body of the deceased on 29-7-1984 at 3.30 p.m. PW-1 Saryu Parjapati is the hearsay witness and PW-2 Raghubir Rabidas has been tendered. 8. Learned Counsel for the appellants contended that in this case, the prosecution has failed to prove the manner of occurrence and in this connection he submitted that all the prosecution witnesses examined except PW-5 are of another village that is of village Sultanpur and their presence at the place of occurrence is doubtful. So far as PW-5 Shyam Sunder Pandey is concerned, it is stated that his presence at the place of occurrence is also doubtful in view of the evidence of other witnesses. He also submitted that the prosecution has failed to prove the motive and non-examination of the important witness, that is father of the Informant and of the deceased is also a serious lacuna in the prosecution case. 9. PW-10 Dr. Bijay Kumar held autopsy over the dead body of the deceased on 29-7-1984 at 3.30 p.m. and found the following injuries : (1) Incised wound over the left ankle. The whole foot was found amputated except 1/2" of the skin, from the ankle joint. (2) Incised wound 3" x 1/4" x brain deep over the right parietal region of the skull. The right parietal bone was fractured. The whole foot was found amputated except 1/2" of the skin, from the ankle joint. (2) Incised wound 3" x 1/4" x brain deep over the right parietal region of the skull. The right parietal bone was fractured. The right cerebral hemisphere of the brain was lacerated and full with blood and clots. (3) Incised wound 2" x 1/4" x brain deep over the left parietal region of the skull. The left parietal bone was fractured and the left cerebral hemisphere was lacerated and full with blood and clots. (4) Fracture of the left shaft of humerus. (5) Incised wound 3" x 1/4" skin deep over the left side of the neck. (6) Incised wound 2" x 1/2" x skin deep over the right thumb. (7) Incised wound 3" x 1/2" x skin deep over the front of the left foot. According to the opinion of the doctor, the deceased died due to shock and haemorrhage mainly due to injury Nos. 1, 2 and 3. Injury Nos. 1 to 4 were found to be grievous and rest were simple. He found that the injury No. 4 was caused by hard blunt sub-stance and rest were caused by sharp-cutting weapon, like garsa and garasa. Thus, the evidence of PW-10 is that the deceased died due to injuries caused to him. 10. The question to be determined is as to whether the accusation that the appellants caused the death of the deceased has been proved or not by the prosecution. 11. According to the prosecution version on the date of occurrence father of the Informant Ramchandra Pandey was getting the shradh performed at the house of Baiju Sah in Khizersarai. The appellants came and claimed that Baiju Sah was their jajwan and as to why Ramchandra Pandey had performed the shradh at the house of Baiju Sah and thereafter assaulted Ramchandra Pandey. Ramchandra Pandey came to his house and narrated the said fact to his family members and thereafter his sons and other co-villagers went to the house of the appellants and there the murder of the deceased is alleged to have taken place. 12. Ramchandra Pandey came to his house and narrated the said fact to his family members and thereafter his sons and other co-villagers went to the house of the appellants and there the murder of the deceased is alleged to have taken place. 12. PW-6 the Informant has stated that on the date of the occurrence when his father stated that he was assaulted at the house of Baiju Sahat Khizersarai while he was performing shradh he along with other brother, father and co-villagers went at the house of the appellants for the purpose of settlement. When they reached the house of the appellants all the appellants were sitting. Deceased Saheb Ram Pandey enquired as to why they assaulted his father Ramchandra Pandey which resulted into an altercation and thereafter all the appellants went inside the house and Dinesh Pandey armed with sword, Puja Pandey armed with farsa and Dhrambir Pandey armed with knife came out from the house. Thereafter, Dhrambir Pandey ordered to kill on which Saheb Ram Pandey fled away to some distance towards south in lane and the Informant and others fled away to some distance towards north in the lane. All the three appellants surrounded Saheb Ram Pandey and they started assaulting him with their respective weapons as a result of which he died and thereafter they dragged the dead body of Saheb Ram Pandey inside the house. He went to the Police Station and reported the matter. The Police arrived at the place of occurrence and recovered the dead body as well as weapons used in the commission of the crime from inside the house. He is the brother of the deceased and as such he is the last person to screen the real offender. Nothing has been shown on behalf of the appellants to discredit his testimony. 13. PW-7 Nankhu Pandey is the co-villager or the Informant. He has stated that on the asking of the father of Informant, he proceeded to the house of the appellants in village Naudiha. When he reached at the house of the appellants they were sitting on a chowki kept at the darwaza. Seeing them the appellant Dhrambir Pandey asked his son to assault and thereafter all the three appellants went inside the house and they came out with farsa, sword and dagger as stated above. When he reached at the house of the appellants they were sitting on a chowki kept at the darwaza. Seeing them the appellant Dhrambir Pandey asked his son to assault and thereafter all the three appellants went inside the house and they came out with farsa, sword and dagger as stated above. He and other four pesons fled away towards north and deceased Saheb Ram Pandey fled away towards south. All the three appellants surrounded Saheb Ram Pandey and thereafter appellants Puja and Dinesh started assaulting the deceased with their respective weapons as a result of which he fell down and died and thereafter they dragged the dead body inside their house. He raised kulla but no body came at the place of occurrence from the village and thereafter the Police came and recovered the dead body and the weapons used in the commission of the crime inside the house of the appellants. He is gotia of the prosecution party. He has vividly given descriptions of the manner and the place of the occurrence where the occurrence took place. His evidence has been challenged on the ground that he has stated that immediately after they reached at the house of the appellants, appellant Dhrambir Pandey became enraged and thereafter he along with other appellants went inside the house and came out with arms and two of them assaulted the deceased with their weapons whereas the Informant has stated that they went at the house or the appellants and there an altercation ensured before the actual assault. 14. Hardly, one comes across a witness whose evidence does not contain untruth, exaggeration, and embroidery. The duty of the Court is to separate the grains from the chaff. The evidence of the aforesaid witness (PW-7) is consistent with the evidence of the Informant with regard to the manner of occurrence. The slight variation as to how the occurrence originated cannot be a ground to discredit the evidence of this witness. 15. PW-8 Ramji Pandey is another co-villager of the Informant. He has also stated that he accompanied the Informant and went to the house of the appellants. The slight variation as to how the occurrence originated cannot be a ground to discredit the evidence of this witness. 15. PW-8 Ramji Pandey is another co-villager of the Informant. He has also stated that he accompanied the Informant and went to the house of the appellants. The deceased enquired from the appellants as to why they assaulted his father which resulted into an altercation on which appellant Dhrambir Pandey uttered that the prosecution party are doing highhanded acts at their house and thereafter Dinesh Pandey and Puja Pandey went inside the house and both of them came out with farsa and sword and chased them. Saheb Ram Pandey proceeded towards south and then appellant Dinesh Pandey and appellant Puja Pandey surrounded Saheb Ram Pandey and assaulted him with their respective weapons resulting into his death and thereafter Dhrambir Pandey uttered to drag the dead body inside the house and thereafter appellant Dinesh Pandey and appellant Punja Pandey dragged and kept the dead body inside their house. Nothing has been brought in the cross-examination to discredit the evidence of this witness with regard to the manner of occurrence except that he is gotia of the prosecution party and on that ground the evidence of this witness cannot be rejected as the evidence given by this witness is consistent with the evidence of other witnesses. 16. PW-5 Shyam Sunder Pandey is the co-villager of the appellants and he has stated that on the date of occurrence at 12 noon he was on the road in his village. He heard hulla coming from the house of the appellant Dinesh Pandey. When he went there he saw the appellants assaulting the deceased with their respective weapons as a result of which he fell down. He saw appellant Dinesh Pandey armed with sword, appellant Puja Pandey armed with farsa and appellant Dharambir armed with dagger. He also found that the lathi portion of the farsa was in broken condition. After assulting the deceased they dragged the dead body inside their house. Thereafter, the Police came recovered the dead body from inside the house and also seized the weapons used in the commission of the said crime which were concealed in a kothla kept in the house and prepared the seizure list. He signed as one of the witnesses on the seizure list which has been marked as Ext. 1. Thereafter, the Police came recovered the dead body from inside the house and also seized the weapons used in the commission of the said crime which were concealed in a kothla kept in the house and prepared the seizure list. He signed as one of the witnesses on the seizure list which has been marked as Ext. 1. The only suggestion given to this witness was that his nephew Dinesh had snatched a wrist watch from appellant Puja Pandey and due to intervention of the villagers the said watch was returned to appellant Puja Pandey. He has denied the aforesaid suggestion. There is nothing on the record to show any such happening had taken place. The trial Court has not relied upon the evidence of this witness on the ground that other eye-witnesses, namely, PWs-6, 7 and 8 have stated that at the time of actual assault nobody or the village had arrived. The other ground given by the trial Court is that after the occurrence he remained near the place, or occurrence till the arrival of the Police, which version is not supported by the evidence of the PW-7. According to the evidence of PWs-6, 7 and 8 after the occurrence PW-6 went to the Police Station and PWs-7 and 8 remained in a house at some distance from the place of occurrence. The occurrence had taken place suddenly. As such it was not possible for them to notice as to the presence of other persons in the gali. On that ground the presence of this witness about having seen the occurrence from the gali cannot be doubted. This witness is co-villager of the appellants and there is no reason for him to falsely implicate them. As such only on the aforesaid ground his evidence cannot be rejected especially when he was found present at the place of occurrence when the Police arrived at the place and he is witness of the seizure list. 17. PW-3 Arun Devi does not claim to have seen the entire occurrence. Her claim is that on the date of occurrence at 12 noon she was inside the house. She saw the appellants Dinesh Pandey and Puja Pandey dragging one person inside their house. The said persons had received injuries. Appellant Dinesh Pandey was armed with sword and appellant Puja Pandey was armed with farsa and that weapons were blood-stained. Her claim is that on the date of occurrence at 12 noon she was inside the house. She saw the appellants Dinesh Pandey and Puja Pandey dragging one person inside their house. The said persons had received injuries. Appellant Dinesh Pandey was armed with sword and appellant Puja Pandey was armed with farsa and that weapons were blood-stained. Appellant Dhrambir Pandey was also armed with knife. Appellant Dhrambir Pandey uttered to take the dead body inside the house and file a case against him for Rangdari. Later on she came to know that the deceased was Saheb Ram Pandey of village Sultanpur. In cross-examination, it was suggested to this witness that Uma Devi wife of appellant Dhrambir Pandey had filed a case of theft against her husband. However, no document has been produced to show any case. This witness denied that Uma Devi wife of appellant Dhrambir Pandey had filed any case against her husband for theft. No document has been filed by the accused in support of the said fact. Her house is in front of the house of the appellants. She has clearly stated that her father-in-law and husband were outside the house at that point of time. As sucn her claim of having seen the occurrence in the manner as stated by her cannot be doubted. 18. Thus, the evidence of the eye-witnesses PWs-5, 6, 7 and 8 clearly shows that when the prosecution party arrived for the settlement of the dispute with regard for the settlement of the dispute with regard to jajuanika at the house of the appellants they were present there and an altercation ensued and thereafter the occurrence took place in the manner as alleged in the earliest version given in the FIR lodged after one and half hour of the occurrence. 19. PW-9 is the Investigating Officer. The objective findings noticed by him support the ocular testimony of the witnesses. He has stated that he found blood on the walls of Mill of Horil Mahto which is south of the house of the appellants. He also found mark of dragging of the dead body in the gali. He also found blood in osra as well as the place where the dead body kept inside the house. He also found kothla inside the house from which he recovered farsa, sword and knife alleged to have been used in the commission of the offence. He also found mark of dragging of the dead body in the gali. He also found blood in osra as well as the place where the dead body kept inside the house. He also found kothla inside the house from which he recovered farsa, sword and knife alleged to have been used in the commission of the offence. 20. The evidence of the doctor as mentioned above also shows that the deceased received injuries by sharp-cutting weapon. Thus, the prosecuton version is supported by the objective finding as well as the medical evidence of the doctor. 21. The motive for the occurrence was a dispute with regard to jajvanka being performed at the house of Baiju Sah in the village Khizersarai in the morning of the date of occurrence. The father of the Informant Ramchandra Pandey was assaulted there and he was the only witness on the said point but he has not been examined and on this ground, it was contended by the defence that the prosecuton has failed to prove the motive of the occurrence. 22. If the prosecution alleges motive then it has to prove the same but failure to prove the same is not fatal. In a case based on circumstantial evidence the failure to prove the motive may be important factor which is to be taken note of. In case of direct evidence, if the evidence is accepted as reliable and clinching with regard to the manner of occurrence then failure to prove the motive will not be a ground to discard the prosecution case. 23. In this case, the Informant has stated in his evidence that soon after the occurrence his father left the village and till now he is traceless. In that view of the matter, the only witness on the point of motive has not been examined. It is not a case where the prosecution has purposely withheld the witness whose evidence was necessary to unfold the prosecution case. There is no material to show the motive or genesis leading to the occurrence. However, on that ground the consistent evidence of the eye-witnesses supported by the other materials on the record cannot be discarded. 24. It is not a case where the prosecution has purposely withheld the witness whose evidence was necessary to unfold the prosecution case. There is no material to show the motive or genesis leading to the occurrence. However, on that ground the consistent evidence of the eye-witnesses supported by the other materials on the record cannot be discarded. 24. Thus, the evidence on the record proves beyond all reasonable doubts that the deceased received injuries at the house of the appellants and appellant Dinesh Pandey and appellant Puja Pandey assaulted him with their respective weapons as a result of which he died. The evidence on the record does not show that the injury caused by each of the appellants proved fatal but the evidence of the doctor shows that because of the assault made by them the deceased died. As such they cannot be convicted under Section 302, IPC simplicter. However, as the evidence stands both of them went inside the house and came armed with weapons and then chased and assaulted the deceased and thereafter their the dead body of the deceased inside the house. As such the murder was committed by them in furtherance of their common intention and accordingly they should have been convicted under Sections 302/34, IPC instead of 302, IPC simpliciter. No prejudice has been caused to them as they were aware of the allegations and as such their conviction under Section 302, IPC is altered to Sections 302/34, IPC and the sentence awarded to them is upheld. 25. So far as appellant Dhrambir Pandey is concerned, he is father of the aforesaid appellants Dinesh Pandey and Puja Pandey. No doubt according to the allegation in the FIR appellant Dhrambir Pandey came out from the house armed with chhura and uttered to kill the prosecution party. The Informant in the Court in his evidence has stated that Dhrambir Pandey ordered to assault and thereafter all the three appellants assaulted the deceased. The allegation of assault against Dhrambir Pandey was not made by him in the earliest version (FIR) PW-7 has stated that appellant Dhrambir Pandey told his sons that the prosectuion party had raided his darwaza and thereafter assault took place and two of his sons assaulted the deceased. He did not say that appellant Dhrambir Pandey assaulted the deceased. The allegation of assault against Dhrambir Pandey was not made by him in the earliest version (FIR) PW-7 has stated that appellant Dhrambir Pandey told his sons that the prosectuion party had raided his darwaza and thereafter assault took place and two of his sons assaulted the deceased. He did not say that appellant Dhrambir Pandey assaulted the deceased. PW-8 has stated that the appellant Dhrambir Pandey stated that the prosecution party was doing high-handed acts at his darwaza and thereafter two of the appellant Dinesh Pandey and Puja Pandey went inside the house and came out with weapons and assaulted the deceased and thereafter dragged the deceased inside the house on being asked by the appellant Dhrambir Pandey to drag the deceased inside the house. PW-5 has made general statement regarding assault to the deceased at the hands of the appellants. He has not stated that Dhrambir Pandey gave on order to kill. PW-3 in his earliest statement before the Police has not uttered that Dhrambir Pandey was armed with chhura. He has been convicted under Sections 302/109, IPC on the basis of the charge of abetment. The evidence on the record, as discussed above, shows that the evidence of the witnesses are not consistent about the part played by him. The Informant says that he ordered to kill as well as he also assaulted whereas other witnesses say differently. As mentioned above according to the earliest version of PW-3 he was not armed with any weapon. Taking into consideration the discrepancy in the evidence of the eye-witnesses, I am of the view that the participation of appellant Dhrambir Pandey in the occurrence becomes doubtful. This apart only charge framed in this case against him was under Section 302, IPC. No charge under Sections 302/109, IPC regarding abetment was framed against him which has caused pre-judice to him. For the aforesaid reasons, accusation made against him has not been proved beyond reasonable doubt and accordingly, he is given benefit of doubt and he is acquitted of the charge under Sections 302/109, IPC. He being on bail is discharged from the liabilities on the bail-bonds. 26. So far as appellants Dinesh Pandey and Puja Pandey are concerned, they are directed to surrender forthwith to serve out the remaining period of senentce. 27. He being on bail is discharged from the liabilities on the bail-bonds. 26. So far as appellants Dinesh Pandey and Puja Pandey are concerned, they are directed to surrender forthwith to serve out the remaining period of senentce. 27. In the result, the appeal of appellant Dhrambir Pandey is allowed and the appeals of appellants Dinesh Pandey and Puja Pandey are dismissed. M.L.Visa, J. 28 I agree. Decided accordingly.