Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 634 (PAT)

Manik Chand Chaudhary v. State Of Bihar

2000-04-26

M.L.VISA, R.N.PRASAD

body2000
Judgment R.N.Prasad, J. 1. The appellants have preferred this appeal against the judgment and order dated 18.9.1987 passed by 9th Addl. Sessions Judge, Patna in Sessions Trial No. 233 of 1986 whereby the appellants have been convicted for the offence under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Appellant, Deopujan Chaudhary has further been convicted for the offence under Section 323 of the Indian Penal Code but no separate sentence has been awarded. 2. The prosecution case is that on 4.6.1984 at 6 p.m. one Ganesh Chaudhary gave his fardbeyan that at about 2 p.m. his brother Ramanand Chaudhary and Ram Dhyan son of Phagu Chaudhary quarrelled among themselves Ramanand Chaudhary came to his house and made a complaint to his father Basgit Chaudhary. Basgit Chaudhary went to the house of Phagu Chaudhary and protested. On protest, Deopujan Chaudhary assaulted Godni Devi, wife of Basgit Chaudhary. Indri Devi tried to save her but she was also assaulted by Deopujan Chaudhary. Gouni Devi raised alarm on which her husband Basgit Chaudhary tried to save her. Manik Chand Chaudhary gave a blow with iron rod on his head due to which he fell down and thereafter, it has been alleged that appellants Deopujan Chaudhary and Phagu Chaudhary assaulted the deceased. After assault Basgit Chaudhary died on the spot. 3. On the aforesaid fardbeyan a formal first information report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above. 4. The defence of the appellants was that they were innocent and were falsely implicated in this case due to quarrel between the children. The deceased died due to accidental fall from mango tree. 5. The prosecution in support of its case examined eight witnesses out of whom PW 1 is a doctor, who held postmortem examination over the dead body of Basgit Chaudhary. PW 6 is witness to the inquest and PW 8, Raj Kishore Chaudhary, is investigating officer. PW 7, Ganesh Chaudhary, is informant and claimed to be eye-witness to the occurrence. PW 2, PW 3, PW 4 and PW 5 also claimed to be eye-witnesses to the occurrence. 6. PW 6 is witness to the inquest and PW 8, Raj Kishore Chaudhary, is investigating officer. PW 7, Ganesh Chaudhary, is informant and claimed to be eye-witness to the occurrence. PW 2, PW 3, PW 4 and PW 5 also claimed to be eye-witnesses to the occurrence. 6. The case of the prosecution is that the occurrence took place due to quarrel between Ramanand Chaudhary, the son of the deceased, and Ram Dhyan, the son of Phagu Chaudhary. PW 7 is informant. He stated in his evidence that on the day of occurrence at about 2 p.m. there was quarrel between his brother Ramanand Chaudhary and Ram Dhyan, the son of Phagu Chaudhary. His father protested the quarrel to Phagu Chaudhary and thereafter appellant, Deo Pujan Chaudhary, assaulted Godni Devi, the wife of the deceased. Indri Devi tried to save her but she was also assaulted by appellant Deo Pujan Chaudhary. Godni Devi raised alarm on which the deceased, Basgit Chaudhary, came. It has been stated that when Basgit Chaudhary came Manik Chand Chaudhary gave iron blow on his head due to which he fell down and thereafter, Deopujan Chaudhary and Phagu Chaudhary assaulted him with lathi causing his death. 7. PW 3, mother of the informant, PW 4, wife of the informant, PW 2, wife of PW 5 and PW 5 supported the prosecution case and stated that there was quarrel between Ramanand Chaudhary, the son of the deceased and Ram Dhyan, the son of appellant Phagu Chaudhary, at about 2 p.m. Ramanand Chaudhary complained to his father about the incident and as such the deceased protested the incident to appellant, Phagu Chaudhary. On protest, Deo Pujan Chaudhary assaulted Godni Devi. When Indri Devi tried to save her Deo Pujan Chaudhary assaulted her also. On cry of Godni Devi when Basgit Chaudhary came it has been stated that Manik Chand Chaudhary gave iron-rod blow on his head due to which he fell down and thereafter appellant, Deopujan Chaudhary, also assaulted with lathi. Therefore, it is evident that the prosecution case with regard to genesis and assault is consistent except minor omissions and contradictions, which are flimsy in nature. 8. Learned counsel for the appellants, Mr. Lala Kailash Bihari Prasad, pointed out that even if prosecution case is accepted the conviction of the appellants under Sections 302/34 of the Indian Penal Code is bad in law. 8. Learned counsel for the appellants, Mr. Lala Kailash Bihari Prasad, pointed out that even if prosecution case is accepted the conviction of the appellants under Sections 302/34 of the Indian Penal Code is bad in law. He also pointed out that appellants Deopujan Chaudhary and Phagu Chaudhary are liable for their individual act. In this regard, it would be apt to mention herein that in the fardbeyan no specific motive has been attributed about the occurrence except that there was quarrel between Ramanand Chaudhary, the son of the deceased and Ram Dhyan, the son of appellant Phagu Chaudhary. On protest by the father of Ramanand Chaudhary, the deceased, it has been alleged that Deopujan Chaudhary assaulted Godni Devi, PW 3, and Indri Devi, PW 2. When Godni Devi raised alarm the deceased came on which appellant, Manik Chand Chaudhary gave iron rod blow on his head due to which he fell down and thereafter Deo Pujan Chaudhary and Phagu Chaudhary gave lathi blow. The doctor, PW 1, held post-mortem examination over the dead body of Basgit Chaudhary. He stated in his evidence that he found three injuries on the person of the deceased. Those were bruise with abrasion 3" x 1" on front of right side of chest. Lacerated wound 3" x 1/2" x bone deep on right side of scalp. Diffused swelling on the back of left hand. On dissection, he found linear fracture of right temporal and frontal bone under injury No. 2. It has categorically been stated that injury No. 2 was sufficient to cause death without injury Nos. 1 and 3. It has also been stated that injury Nos. 1 and 3 were not sufficient to cause death. 9. It is inconsistent evidence of the prosecution witnesses that occurrence took place on the spur of the moment. There was no preparation or meeting of mind prior to the occurrence rather occurrence took place due to quarrel between the son of the deceased and the son of the appellant, Phagu Chaudhary. Appellant Manik Chand Chaudhary and Deopujan Chaudhary are son of Phagu Chaudhary. There is nothing on the record that they had intention to kill rather from the evidence it can safely be gathered that occurrence took place on the spur of the moment due to quarrel between son of the deceased and son of the appellant, Phagu Chaudhary. Appellant Manik Chand Chaudhary and Deopujan Chaudhary are son of Phagu Chaudhary. There is nothing on the record that they had intention to kill rather from the evidence it can safely be gathered that occurrence took place on the spur of the moment due to quarrel between son of the deceased and son of the appellant, Phagu Chaudhary. Therefore, it is evident that there was no prior consent to kill but at the same time, it cannot be denied that the blow given by Manik Chand Chaudhary caused death. However, injuries inflicted by Deo Pujan Chaudhary and Phagu Chaudhary were found not sufficient to cause death. In such a situation, the conviction of the appellants under Sections 302/34 of the Indian Penal Code cannot be held to be legal. Furthermore, appellants Deopujan Chaudhary, and Phagu Chaudhary were responsible for their individual act. The injuries inflicted by Deo Pujan Chaudhary on the person of PW 2 and PW 3, Ext. 3 and Ext. 3/1 were found to be simple in nature. The injury on the person of the deceased was also found to be superfluous. Therefore, they are responsible for inflicting injuries for their own acts and cannot be held guilty for the offence under Sections 302/34 of the Indian Penal Code. In the circumstances, conviction of the appellant, Manik Chand Chaudhary under Sections 302/34 is converted into one under Section 304 Part II of the Indian Penal Code and he is sentenced to the period already undergone. So far as Deo Pujan Chaudhary and Phagu Chaudhary are concerned, their conviction under Sections 302/34 cannot be held to be legal rather they are responsible for their individual act and as such their conviction under Sections 302/34 is hereby set aside and they are held guilty for the offence under Section 323 of the Indian Penal Code and are sentenced to the period already undergone. 10. With the modification as stated above, this appeal is dismissed. The appellants who are on bail are discharged from the liability of their bail-bonds. Appeal dismissed after modification.