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2001 DIGILAW 55 (PAT)

Chandrika Kumar and five v. State of Bihar

2001-01-18

A.K.SINHA, R.N.PRASAD

body2001
JUDGMENT R.N. PRASAD & A.K. SINHA, JJ. :- The appellants have preferred this appeal against the judgment and order dated 18.4.1988 passed by the Sessions Judge, Begusarai in S.T. No. 172/82 whereby the appellants have been convicted for the offence under Section 302/149, I.P.C. and have been sentenced to undergo imprisonment for life. 2. The prosecution case is that informant Radha Kumar gave fardbeyan on 25.4.1981 at 4 p.m. that he and his brother Manohar Kumar, the deceased, were at their residence. Chandrika Kumar, one of the appellant, came and started abusing Manohar Kumar, his deceased, were at their residence. Chandrika Kumar, one of the appellant, came and started abusing Manohar Kumar, his brother. His brother Manohar protested on which he threatened to kill. Soon thereafter Chandrika Kumar with Bhala, Uma Kumar with country made pistol, Dinesh Kumar with Samath (Pestle), Bindeshwari with 'Khanti' and the rest four with lathis came and attacked Manohar Kumar. His brother Manohar Kumar tried to save himself and proceeded towards east. When he proceeded about 20 to 25 cubits, appellant Dinesh Kumar gave a 'samath' blow due to which he fell down. Thereafter, Chardrika Kumar gave Bhala blow, Bindeshwari Kumar gave Khanti blow and rest of the accused persons assaulted with lathi. Accused Uma was threatening that if they moved they would be killed. His brother was raising hulla on which Ramshrestha Kumar, Beyas Kumar, Jhagru Kumar and Balo Kumar came and saw the occurrence. The accused persons ran away towards west. They took him to the Railway hospital but on way he died. The motive of the occurrence was that the deceased Manohar Kumar had taken Rs. 1500/- from Chandrika Kumar. He was demanding money but the deceased refused to return the amount saying that first withdraw the case lodged by him and then the aforesaid amount shall be returned. 3. On the aforesaid fardbeyan a formal First Information Report was drawn. Investigation was taken up. On completion of investigation chargesheet was submitted against 8 persons. The Court took cognizance and committed the case to the Court of Sessions for trial. 4. Trial was taken up. During trial accused Uma was killed and as such only seven persons were put on trial. The trial Court acquitted one of the accused, namely Binod Kumar @ Bindeshwari and convicted six accused persons i.e. appellants for the offence as indicated above. 4. Trial was taken up. During trial accused Uma was killed and as such only seven persons were put on trial. The trial Court acquitted one of the accused, namely Binod Kumar @ Bindeshwari and convicted six accused persons i.e. appellants for the offence as indicated above. However, during pendency of the appeal, appellant Chandrika Kumar died and as such appeal against him abated. 5. The defence of the appellants was that the deceased had enmity with several persons. He was murdered by some other persons in the morning of 25.4.1981. The appellants were innocent and had falsely been implicated in this case out of enmity. 6. The prosecution in support of its case examined 8 witnesses, out of whom P.Ws., 1, 2, 3, 4, 5 & 6 have claimed to be eye-witnesses to the occurrence, P.W.7 is Doctor who held post-mortem over the dead-body. P.W.8 is the Investigating Officer. 7. P.Ws. 1 & 3 are brothers, P.W.5 is mother of the deceased. P.W.6 is brother of the deceased and is informant. P.W.2 is said to be inimical to the appellants. The evidence of P.W.4 has been disbelieved by the trial Court on the ground that he was examined by the police after 3-4 days of the occurrence and he was engaged in railway department and the Muster roll register indicates that he was present there on the day of occurrence and was doing work at different place. However, learned Counsel for the appellants pointed out that the witnesses are either relation of the deceased or inimical to the appellants and as such their evidence should not be accepted. In this regard it would be pertinent to mention herein that law does not require that evidence of such witnesses should be discarded outright rather it is well established rule of law that evidence of such witnesses should be scrutinised with care and caution. Keeping in mind the aforesaid well established rule of law we proceed to examine the evidence of witnesses. 8. P.W. 6 is the informant and brother of the deceased. He was present at the time of occurrence. In the First Information Report he has given vivid picture of the occurrence. In the First Information Report it has been stated that Dinesh Kumar gave 'Samath' blow to the deceased Manohar Kumar due to which he fell down. 8. P.W. 6 is the informant and brother of the deceased. He was present at the time of occurrence. In the First Information Report he has given vivid picture of the occurrence. In the First Information Report it has been stated that Dinesh Kumar gave 'Samath' blow to the deceased Manohar Kumar due to which he fell down. Thereafter, Chandrika Kumar gave bhala blow, Bindeshwari gave Khanti blow and rest of the appellants gave lathi blows to the deceased. In evidence the witness supported the prosecution case with regard to involvement of the appellants in commission of crime and stated that Chandrika Kumar came and demanded money from Manohar Kumar He told him to give money otherwise he would be assaulted and he left the place. Thereafter, all the eight accused persons came. He identified 7 persons who were in the dock at the time of examination. However, he stated that Ganesh Kumar assaulted with 'Samath' although in the First Information Report he stated that it was Dinesh Kumar who gave 'Samath' blow. In evidence he started that the deceased tried to run away towards east but at the same time he started towards west. The witness also stated that Dinesh Kumar had lodged a case against him and the deceased about two years ago. He has become mad because of murder of his brother. His attention was also drawn to the statement made before the police. Learned Counsel for the appellants, however, pointed out that there is variation in the evidence i.e. in the First Information Report Dinesh was alleged to have given 'Samath' blow but in evidence the witness stated that Ganesh had given 'Samath' blow. The deceased had proceeded towards east but the witness stated subsequently that he proceeded towards west. The witness was not mad rather after the occurrence he was working in railway. It is pertinent to mention herein that there is some discrepancy as pointed out. The witness stated that he became 'Mad' because of the murder of his brother but it appears to us that the word mad has been used in loose term. The witness was not mad rather after the occurrence he was working in railway. It is pertinent to mention herein that there is some discrepancy as pointed out. The witness stated that he became 'Mad' because of the murder of his brother but it appears to us that the word mad has been used in loose term. However, the witness was certainly mentally disturbed because of murder of his brother and thus in such a situation such discrepancy as pointed out is not material specially in the fact and circumstances of the case that the witness categorically stated about the involvement of the accused persons and assault by them. 9. P.W.5 is mother of the deceased. She has supported the prosecution case and has given vivid picture of involvement of the appellants and assault by them. However, it was pointed out by the learned Counsel that (sic) when was not named in the First Information Report as witness but merely on such ground the evidence of witness cannot be discarded. It appears that witness was at her house and the occurrence took place in front of the house. In such a situation, she is a natural witness and nothing was indicated by he learned Counsel to disbelieve her evidence. 10. P.W. 1 is another eye-witness. He was at the Dalan of the deceased at the relevant time. The witness has stated that all the accused persons including appellants came and Dinesh Kumar assaulted with 'Samath' and Chandrika Kumar with Bhala, Bindeshwari with Khanti and rest of the appellants with lathi. The witness also stated that occurrence took place in the east of the house. However, learned Counsel pointed out that name of the witness is not mentioned in the First Information Report as witness. In our opinion on such ground the evidence of witness cannot be discarded. 11. P.W. 2 is another eye-witness to the occurrence. He was near the thrasher at the relevant time. He also supported the prosecution case in details with regard to participation and assault by the accused persons including the appellants. However, the witness admitted that he and the deceased were made accused in the case of murder of Uma Kumar. 11. P.W. 2 is another eye-witness to the occurrence. He was near the thrasher at the relevant time. He also supported the prosecution case in details with regard to participation and assault by the accused persons including the appellants. However, the witness admitted that he and the deceased were made accused in the case of murder of Uma Kumar. Learned Counsel for the appellants pointed out that evidence of such witness is not worthy of acceptance but the submission, in our view, has no force at all because of the fact that the witness was examined much earlier and he was made accused in the murder case much thereafter. In such a situation it cannot be taken for any sequence. This witness was also witness to the inquest report and seizure list which were prepared soon after recording fardbeyan, therefore, his presence cannot be doubted. 12. P.W.3 is the brother of P.W.1. He also supported the prosecution case in details with regard to participation and specific overt act committed by the appellants, there is no discrepancy in his evidence. However, the witness admitted that he and the deceased were made accused in a case under Section 394, I.P.C. The admission to the aforesaid effect will not demolish his evidence. If at all the witness had to depose falsely he could have denied the aforesaid fact but it appears that the witness has fairly stated the aforesaid fact also. 13. Therefore, on consideration of the evidence of witnesses as discussed above, it appears that their evidence is consistent on the point of manner of occurrence, place of occurrence, time of occurrence and also participation of the appellants in the alleged occurrence. However, learned Counsel for the appellants drew our attention to the minor discrepancies in evidence and for the said purpose he drew our attention to the evidence of Investigating Officer. It was pointed out that evidence of the witnesses is contradictory and as such the evidence of witnesses be not accepted. 14. P.W.8 is the Investigating Officer. He stated in his evidence that P.W. 1 did not state before him that he had gone to demand money. He did not say that Chandrika Kumar had demanded money and he threatened to kill. 14. P.W.8 is the Investigating Officer. He stated in his evidence that P.W. 1 did not state before him that he had gone to demand money. He did not say that Chandrika Kumar had demanded money and he threatened to kill. The witness did not say before him that he had gone to the house of Manohar Kumar, the deceased, rather he had said that he had gone to the house of Radha Kumar, the brother of the deceased. P.W. 2 did not say before him that he was near the thrasher. P.W. 3 did not say before him that after first incident appellant Chandrika Kumar returned. P.W.5 did not say that Radha, Jhagru and Manohar were at her house. She had stated that she was in her house and the deceased was out of the house in the Sahan. She did not say that Chandrika came and abused rather she stated that Chandrika was abusing from his house. She did not say that Dinesh assaulted with 'Samath' due to which he fell down. The witness stated that Krishnandan and Shyam Kishore were witnessing the occurrence. P.W.6 stated that he was sitting at his house and not at Dalan. The aforesaid evidence, in our view, cannot be taken as contradiction rather it can be taken as omission. Such omission is not vital for the prosecution as it is trivial in nature. Such omission, in our opinion, will not affect the prosecution case specially in the circumstances when the evidence of witnesses is consistent on the relevant point including participation and assault by the appellants. 15. The Investigating Officer P.W., 8 has also stated in his evidence that he recorded the fardbeyan of the informant at 4 p.m. i.e. after about one hour of the occurrence. After recording fardbeyan he inspected the place of occurrence which was in the east of the house of the deceased. He found blood, broken portion of 'Samath', bhala and lathi at the place of occurrence. He seized the aforesaid articles and the blood from the place of occurrence in presence of witnesses. He prepared inquest report in presence of witnesses and also recovered broken piece of 'Samath' from the house of appellant Dinesh Kumar, seized the same and prepared seizure list in presence of witnesses. The Investigating Officer also stated that statement of the witness was also recorded in the same night. He prepared inquest report in presence of witnesses and also recovered broken piece of 'Samath' from the house of appellant Dinesh Kumar, seized the same and prepared seizure list in presence of witnesses. The Investigating Officer also stated that statement of the witness was also recorded in the same night. He sent the blood for examination but report was not received. Therefore, it appears that the Investigating Officer took up the investigation promptly. Therefore, it appears that findings by the Investigating Officer at the place of occurrence also support the prosecution case with regard to manner of occurrence and place of occurrence etc. Thus on consideration it appears that though the witnesses were either relation or inimical to the appellant but on scrutiny we find nothing wrong nor anything was pointed out by the learned Counsel for the appellants to discard/disbelieve their evidence. 16. Ocular evidence of witnesses has also been supported by the evidence of Doctor. It has been alleged that the deceased was assaulted with 'Samath', Bhala, Khanti and lathi. The occurrence is said to have taken place on 25.4.1981 at 3 p.m. Postmortem was held on 26.4.1981 at 3 p.m. The Doctor found injuries caused by Bhala and hard blunt substance. He opined that death was due to shock and haemorrhage duo to the injuries found on the person of the deceased. Time elapsed since death was within 24 hours which fits in with the prosecution case. 17. Learned Counsel for the appellants, however, submitted that conviction of the appellants under Section 302/149, I.P.C. is bad in law. He pointed out that there was no common object of all the appellants to commit murder. In this regard it would be pertinent to mention herein that object is not a thing which can be visualised, but can be gathered by the acts done by the person. The evidence on record is that initially Chandrika Kumar came to demand money from the deceased which he protested. Chandrika Kumar, thereafter, threatened lo kill and left the place. Soon thereafter all the accused persons including appellants came variously armed and ran to assault the deceased. The deceased tried to save himself but he was assaulted by them and they together ran away after the assault. For the purpose of Section 149, I.P.C. there is no need that every accused person must commit overt act. Soon thereafter all the accused persons including appellants came variously armed and ran to assault the deceased. The deceased tried to save himself but he was assaulted by them and they together ran away after the assault. For the purpose of Section 149, I.P.C. there is no need that every accused person must commit overt act. However, in the instant case specific allegation of overt act has also been attributed. Therefore, in the circumstances as discussed above, we do not find any merit in the submission of learned Counsel for the appellants. 18. Learned Counsel for the appellants, however, next submitted that appellants Arun Kumar and Ganesh Kumar were minor at the relevant time of occurrence and as such the conviction and sentence of these appellants are bad in law. In support of his submission he drew our attention to the statement of the accused persons recorded under Section 313 of the Code of Criminal Procedure. The said statement was recorded on 11.12.1987. The age of the aforesaid two appellants was assessed to be 22 yeas. A petition to the aforesaid effect was filed before the trial Court but the same was rejected. The aforesaid fact is also evident from para 17 of the judgment. It is well established rule of law that the Juvenile Justice Act is a beneficial legislation and its object is to secure opportunity and facility to the children to develop in healthy manner and in conditions of freedom and dignity. Child has been protected against exploitation. The requirement of law is that if plea of juvenile is taken before the Court and if the Court is not satisfied then an enquiry has to be made. It appears that a plea was taken in the trial Court but the same was rejected without holding any enquiry. This act of the trial Court cannot be held to be legal. It appears that on 11.12.1987 statement of the appellants was recorded under Section 313 of the Code of Criminal Procedure and the age of Ganesh Kumar and Arun Kumar was assessed to be 22 years. The said fact has not been denied anywhere nor the learned Counsel for the State is in a position to dispute it. On calculation it appears that they were below 16 years on the date of occurrence. Such question can be raised at any stage of the case. The said fact has not been denied anywhere nor the learned Counsel for the State is in a position to dispute it. On calculation it appears that they were below 16 years on the date of occurrence. Such question can be raised at any stage of the case. Requirement is that an enquiry should be made but considering the fact that the occurrence is of 1981 i.e. about 20 years ago and from the statement under Section 313 of the Code of Criminal Procedure and the judgment it appears that they were minor at the relevant time we do not find any reason to send down this aspect for holding enquiry in view of the decision of the Apex Court in the case of Bhola Bhagat v. State of Bihar, 1997 (2) PLJR 161. In similar situation the Apex Court considering several decisions of the Apex Court has maintained conviction but set aside the sentence. Therefore, we also on the same line uphold the conviction of the appellants Ganesh Kumar and Arun Kumar but set aside the sentence. Now they are not required to surrender to serve the remaining period of sentence. Their appeal is dismissed with modification as indicated above. 19. With respect to the other appellants, on consideration we find that the prosecution has succeeded in establishing its case beyond all reasonable doubt. Therefore, heir appeal is hereby dismissed. They are on bail and as such their bail bonds are cancelled and they are directed to surrender before the trial Court to serve the remaining period of sentence.