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2000 DIGILAW 16 (PAT)

Sudama Bind And Another Etc. v. State Of Bihar

2000-01-06

R.N.PRASAD, S.N.PATHAK

body2000
Judgment 1. Both the appeals arise out of common judgment and order of conviction. They have been heard together and are being disposed of by this judgment. 2. The appellants in Cr. Appeal No. 162 of 1987 have been convicted for the offence under Sec. 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. The appellants in Cr. Appeal No. 177 of 1987 have been convicted for the offence under Sec. 302 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Appellant Bhagwan Bind of the same appeal has further been convicted for the offence under Sec. 323 of the Indian Penal Code and has been sentenced to undergo rigorousimprisonment for one year. He has also been convicted for the offence under Sec. 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for one year. All the appellants have further been convicted for the offence under Sec. 201 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. However, sentences have been ordered to run concurrently vide judgment and order dated 31-3-1987 passed by 7th Additional Sessions Judge, Munger in Sessions Trial No. 361/7 of 1985. 3. The prosecution case as has been stated in the first information report is that one Saryug Thakur gave his fardbeyan before the police on 31-7-1984 at about 2 p.m. stating therein that on 30-7-1984 at about 5 p.m. while he was in his house the accused persons, namely, Bhagwan Bind, Arjun Bind, Daso Bind and Sudama Bind came there. Bhagwan Bind fired from his country made rifle on his son, namely, Jawahar Thakur. He sustained injury and fell down on the ground. Daso Bind gave Farsa blow thereafter on his neck due to which his son died. All the accused persons tried to take away the dead body of his son on a cot. His daughter, namely, Leela Devi caught the cot on which accused Bhagwan Bind assaulted her with wooden stick. He also tried to prevent them from taking the dead body of Jawahar Thakur but accused Bhagwan Bind threatened to kill. They took away the dead body of his son. At about mid night the accused persons again came, scrapped the blood stained earth and they took it away. He also tried to prevent them from taking the dead body of Jawahar Thakur but accused Bhagwan Bind threatened to kill. They took away the dead body of his son. At about mid night the accused persons again came, scrapped the blood stained earth and they took it away. The motive of the occurrence was that last Saturday some unknown persons killed Binda Bind. The accused persons had suspicion that the deceased Jawahar Thakur had also hand in the occurrence. 4. On the aforesaid fardbeyan a formal first information report was drawn. Investigation was taken up. On completion of the investigation chargesheet was submitted, cognizance was taken and the case was committed to the Court of Sessions for trial. 5. The trial Court convicted the accused persons as stated above for the offence under Secs. 302, 323, 201 of the Indian Penal Code and 27 of the Arms Act. 6. The defence of the appellants was that no occurrence took place in the manner as alleged. They have been falsely implicated in this case and they are innocent. 7. The prosecution in support of its case examined six witnesses out of whom P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are eye-witnesses to the occurrence. P.W. 5 is a doctor who examined injury on the person of Leela Devi, P.W. 4. P.W. 6 is investigating officer. 8. The defence also examined two witnesses. D.W. 1 is Lakhan Singh and D.W. 2 is Sarju Singh. They have been examined to say that no occurrence took place in the manner as alleged. 9. It is evident from the evidence on the record that P.W. 1 is wife of the informant whose son has been killed. P.W. 2 is widow of the deceased. P.W. 3 is informant. P.W. 4 is sister of the deceased. Learned counsel for the appellants contended that there are no independent witnesses to the occurrence and as such evidence of the witnesses, who are related to the deceased should be discarded and the appellants be acquitted. In this regard it would not be out of place to mention that there is no law that evidence of the related witnesses should be thrown out outright rather it is well settled rule of law that the evidence of such witnesses should be scrutinised with care and caution. In this regard it would not be out of place to mention that there is no law that evidence of the related witnesses should be thrown out outright rather it is well settled rule of law that the evidence of such witnesses should be scrutinised with care and caution. Keeping in mind the well settled principle, we proceed to examine the evidence of the witnesses. 10. P.W. 3 is informant and is father of the deceased. He stated in his evidence that the occurrence took place at about 5 p.m. He was at the door of his house. His son Jawahar Thakur, the deceased, was in the house and was taking food. Appellants came there, Appellant, Bhagwan Bind, fired from rifle, which hit his son and he fell down. Thereafter, Das and Dasrath Bind gave Farsa blow on the neck. His son died then and there. They tried to take away the dead body on a cot but his daughter Leela Devi, P.W. 4, caught the cot on which Bhagwan Bind assaulted her with wooden stick. They took the dead body towards the river Ganga. Again the appellants came, they scrapped the blood stained earth and took it away. The witness further stated that the appellants had suspicion that the deceased had participated in the killing of Binda Bind. In the night no information was given to the police as boat was not available. In the morning he came crossing the river Ganga on a boat and gave information to the police. He showed place of occurrence to the police. The police also seized blood stained earth and brokenbangle and prepared seizure list. In cross-examination the witness, in fact, reiterated the evidence in chief. He has given detailed description of the place of occurrence. The witness also stated that villagers did not come at the place of occurrence and denied the suggestion that no occurrence took place in the manner as alleged. 11. P.W. 1 is wife of the informant. She stated in her evidence that at the relevant time of the occurrence the witnesses were present in the house. The deceased was taking food. The appellants came. The appellant, Bhagwan Bind asked the deceased to shave his beard. 11. P.W. 1 is wife of the informant. She stated in her evidence that at the relevant time of the occurrence the witnesses were present in the house. The deceased was taking food. The appellants came. The appellant, Bhagwan Bind asked the deceased to shave his beard. The deceased refused to shave as he was taking food on which appellant, Bhagwan Bind, fired at him due to which he fell down and then appellant Daso gave farsa blow on his neck. They tried to take away the dead body on a cot which was obstructed by her. The appellant, Bhagwan Bind, threatened to kill her. However, P.W. 4, Leela Devi, obstructed them on which Bhagwan Bind assaulted her. Thereafter, they took away the dead body towards the river Gang. Again in the mid night the appellants came. They scrapped the blood stained earth and took it away. The appellants had suspicion that the deceased had taken part in the killing of Binda Bind and due to the aforesaid reason the appellants have committed the occurrence. The witness was cross-examined at length but it appears that the witness stood the test of cross-examination. The witness has given a vivid picture of the place of occurrence and also stated that P.W. 4 was treated in the hospital. The witness stated that she raised hullah but no body came. The witness also stated that while the dead body was being taken away blood had fallen on the ground but due to rain the same was washed away. 12. Similar is the evidence of P.Ws. 2 and 4. They have supported the prosecution on all material points and also on the point of assault by Bhagwan Bind and Daso alias Dasrath Bind. P.W. 2 has stated about the assault on P.W. 4. P.W. 4 also stated about the firing by appellant Bhagwan Bind. They have been cross examined at length but nothing cogent could be elicited to discredit their evidence. 13. Therefore, on consideration of the evidence as discussed above, it appears that the evidence of the eye witnesses is consistent on all material points and as such the evidence of the eye-witnesses cannot be thrown out outright only on the ground that they are related to the deceased. 14. D.W. 1 has stated in his evidence that he did not see any occurrence about two years nine months ago. 14. D.W. 1 has stated in his evidence that he did not see any occurrence about two years nine months ago. Similarly, D.W. 2 has stated that two years nine months ago Jawahar Thakur was not murdered. However, they did not say that no occurrence took place on the day of the occurrence. Thus, in our view, their evidence is of no help to the defence. 15. Learned counsel for the appellants next contended that the conviction of the appellants Sudama Bind and Arjun Bind under S. 302/34 of the Indian Penal Code is bad in law as there is nothing on the record to show that there was premeeting of the mind. Moreover, no overtact has been alleged against the aforesaid appellants. It is evident from fardbeyan itself that there is no allegation of any overtact against them. There is nothing in the fardbeyan that they were armed with any weapon or they had participated in the occurrence except that they had participated in taking away the dead body. It is well settled rule of law that for the offence under S. 34 of the Indian Penal Code it is necessary that there must be pre-meeting of the mind and also that the accused had committed overtact even by uttering any word. In the case in hand in the fardbeyan nothing is against the aforesaid appellants. The witnesses during the trial did not say that they were armed with any weapon or they had committed any overt act or they uttered any word for committing such offence. The evidence of the witnesses is consistent only with regard to appellants, Bhagwan Bind, who is alleged to have fired and Daso Bind who is said to have given Farsa blow on the neck of the deceased. In fact, there is nothing on the record against the appellants, Sudama Bind and Arjun Bind that they participated in committing the murder of Jawahar. However, there is evidence on the record that they participated in taking away the dead body towards the river Ganga. In such a situation, in our view, the conviction of the appellants Sudama Bind and Arjun Bind for the offence under S. 302/34 of the Indian Penal Code cannot be sustained and as such their conviction under S. 302/34 of the Indian Penal Code is hereby set aside. In such a situation, in our view, the conviction of the appellants Sudama Bind and Arjun Bind for the offence under S. 302/34 of the Indian Penal Code cannot be sustained and as such their conviction under S. 302/34 of the Indian Penal Code is hereby set aside. However, they are guilty for the offence under S. 201 of the Indian Penal Codeand their conviction is upheld. 16. No other point was raised by the learned counsel for the appellants and as such on consideration as discussed above Cr. Appeal No. 177 of 1987 is dismissed. Cr. Appeal No. 162 of 1987 is dismissed with modification as indicated above. 17. The bail bonds of the appellants are hereby cancelled and they are directed to surrender to serve out the remaining period of sentence.Appeal partly allowed.