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2000 DIGILAW 699 (PAT)

Pradip Beldar v. State Of Bihar

2000-05-10

ASHOK KUMAR VERMA, N.PANDEY

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Judgment N.Pandey and Ashok Kumar Verma JJ. 1. This appeal has been directed against the judgment of the Trial Court dated 22nd February. 1993 whereby, appellant No.1 Pradip Beldar was convicted under Sec. 302 of the Indian Penal Code and sentenced to undergo life imprisonment on the allegation that he had committed the murder of Charitar Beldar. The remaining appellants have however, been convicted under Secs. 302/149 of the Indian Penal Code and sentenced to undergo life imprisonment. The charge under Sec. 337 of the Indian Penal Code has failed since the prosecution was not able to prove it 2. The prosecution case, in short is that on 21-9-1976 at 3.00 p.m. at Village-Danara Beldari Tola, Police Station Massaurhi, appellant Musafir Beldar was putting earth on the wall after removing the Naad and Khuta of Bajrangi Beldar (PW 5). When Bajrangi. Beldar protested against the uprooting of Naad, Khuta, etc. appellant Musafir Beldar assaulted him and his wife. In the meantime, PW 6 (Birbal Beldar, son of Bajrangi) by way of protest of the assault of his father. gave a lathi blow to Musafir Beldar. Being infuriated by such act of Birbal Beldar, Musafir Beldar went to his house and immediately came back to the place of occurrence alongwith the other accused persons, armed with lathi, Gaita and brick-bats etc. It is alleged that on the direction of co-accused Ram Sundar (since dead), the other accused-persons started assaulting the informant, his brother Bajrangi, the wife of Bajrangi Jethu and Birbal by lathi and brick-bats. In the meantime, as it has been alleged in the First Information Report. Appellant No. 1 Pradip Beldar took out a Gatta and assaulted the deceased Charital who ultimately succumbed to the injuries. On the basis of the above statement of Jhapai Beldar, the informant (PW 8), the police registered a regular case and after completing investigation. submitted charge-sheet. 3. The defence of the accused persons was total denial of the alleged occurrence in the manner, it was alleged by the prosecution. 4. The prosecution, as would appear from the record, had examined altogether twelve witnesses to support its case. Out of them, PWs 1. (Raj Nandan Beldiu). 2 (Raj Ballav Beldar), 4 (Md. Illiash), 5. (Bajrangi, 6. (Birbal Bind), 7, (Tedu Bind), 8. (Jhapcy Beldar) and 10. 4. The prosecution, as would appear from the record, had examined altogether twelve witnesses to support its case. Out of them, PWs 1. (Raj Nandan Beldiu). 2 (Raj Ballav Beldar), 4 (Md. Illiash), 5. (Bajrangi, 6. (Birbal Bind), 7, (Tedu Bind), 8. (Jhapcy Beldar) and 10. (Lakhpato) have come forward to support the case of the prosecution that the accused-persons had arrived at the place of occurrence armed with lathi and brick bats etc. They have also stated that while the altercation was going on and accused-persons were throwing brickbats etc. appellant Pradip Beldar took out a Giata and assaulted deceased Charitar. 5. PW 12 is Dr. S.K. Roy who had conducted the autopsy of Charitar Beldar (deceased). In the opinion of the doctor cause of death of Charitar Beldar was fracture and dislocation of cervical vertebras causing haemorrhage in the spinal canal as well as the injuries on the spinal cord. From the evidence of the doctor as well as the post-mortem report there appears no doubt that the death of Charitar Beldar was homicidal. 6. Although the Investigating Officer of this case was not examined by the prosecution to prove the place of occurrence but from the consistent evidence of the eye-witnesses, there appears no manner of doubt that Charitar Beldar sustained injuries at the same place where the prosecution had indicated. Like wise the origin of occurrence of the case also as would appear from the case of the prosecution, was fully established. Because apart from what has been stated in the First Information Report the eye witnesses have also accepted that while appellant Musaflr Beldar was constructing a wall. PW 5 Bajrangi Beldar made a protest, since according to him, Musafir had uprooted the Naad and Khuta of the prosecution party. It has also been admitted by the prosecution that PW 6 Birbal having seen his father being assaulted by appeVant Musafir, had given him a lathi blow which in fact infuriated Musafir, where upon he went to his house and came alongwith other accused persons. Therefore, in these backgrounds there appears no doubt that the occurrence in this case took place at a time, when Musafir Beldar had started constructing a wall. According to the defence such a construction was being made on the land of Musafir whereas as per the prosecution case, he had started construction after uprooting the. Naad Charan" etc. 7. Therefore, in these backgrounds there appears no doubt that the occurrence in this case took place at a time, when Musafir Beldar had started constructing a wall. According to the defence such a construction was being made on the land of Musafir whereas as per the prosecution case, he had started construction after uprooting the. Naad Charan" etc. 7. Learned counsel for the appellants however contended that as would appear from the evidence of the prosecution witnesses there are several vital contradictions regarding the time of occurrence as well as the matter with regard to participation of the accused persons. He pointed out that as per the specific case of the prosecution, the occurrence took place about 3.00 p.m. on 21-9-1976 whereas in their deposition PWs 5 and 7 have stated that the occurrence had taken place at 9.00 a.m. 8. He next contended although in the First Information Report there was specific allegation that the accused persons had assaulted Bajrangi, his wife Jethu and Birbal Beldar with lathi and brick-bats, but in Court none of the eyewitnesses has made any allegation against the appellants that they had also assaulted the above-mentioned persons. The only allegation that they have supported is that appellant Pradip Beldar all of a sudden took out a Gatta and assaulted Charitar Beldar due to which he died. Therefore, in absence of any evidence on record it would not be proper to hold other accused-persons guilty for the offence under Sec. 302 read with Sec. 149 of the Indian Penal Code. Because this is not the case of the prosecution that there was any conspiracy or all the accused-persons had premeditated a plan with common object to commit the murder of Charitar Beldar. 9. He next contended even accepting the case of the prosecution that Pradip Beldar took out a Gaita and assaulted Charital Beldar, it cannot be said that such a blow was given with an intention to commit murder. Because as would appear from the case of the prosecution the origin of occurrence had originated at the time when Musafir Beldar was constructing a wall. At that stage Charitar Beldar was not at all in picture. Similarly as would appear from the case of the prosecution at the initial stage Charitar was also not at all in picture. In fact he had arrived there alongwith the members of the prosecution party. At that stage Charitar Beldar was not at all in picture. Similarly as would appear from the case of the prosecution at the initial stage Charitar was also not at all in picture. In fact he had arrived there alongwith the members of the prosecution party. Therefore, even accepting the case of the prosecution that the accused persons after having arrived at the place of occurrence started throwing brick-bats, etc. and in the meantime, Pradip Beldar abruptedly took out Gaita and assaulted Chari tar Beldar, it cannot be said that such a blow was given with an intention to commit murder. 10. In our view the above submission of the learned counsel deserves consideration. Because as we have already noticed there is no evidence to make out any allegation on behalf of the prosecution against other accused person so as to establish an offence under Secs. 302/149 of the Indian Penal Code. 11. Similarly, in the background of the facts as stated above the conviction of appellant No.1 Pradip Beldar also under Sec. 302 of the Indian Penal Code cannot be held justified. Because as we have already noticed that the blow of Gaita given by this appellant was not, with an intention to commit murder. Thus his conviction under Sec. 302 of the Indian Penal Code is altered to Sec. 304, Part II of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for seven years. 12. But in the facts and circumstances of the case, the conviction against other appellants namely Muneshwar Beldar. Ram Autar Beldar. Jagdish Beldar. Musafir Beldar, Jethu Beldar. Chandradip Beldar. Akal Beldar, Chandeshwar Beldar. Kalut Beldar and J awahir Beldar, under Secs. 302/149 of the Indian Penal Code cannot sustain since there is no evidence on behalf of the prosecution that these accused-persons had either shared the common intention of the main accused Pradip Beldar or had arrived at the place of occurrence with a common object of the main accused to commit murder of Charitar Beldar nor there is any evidence that they had assaulted the deceased in any manner. Therefore, they are acquitted of that charge and their conviction and sentence under Secs. 302/149 of the Indian Penal Code is set aside. All these appellants namely appellants No. 2 to 11 are on bail. Therefore, they are discharged from liabilities of bail-bonds. Therefore, they are acquitted of that charge and their conviction and sentence under Secs. 302/149 of the Indian Penal Code is set aside. All these appellants namely appellants No. 2 to 11 are on bail. Therefore, they are discharged from liabilities of bail-bonds. But the appeal on behalf of appellant No. 1 Pradip Beldar is dismissed with the above modification of conviction and sentence.