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2001 DIGILAW 840 (PAT)

Bhola Thakur v. State Of Bihar

2001-09-06

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Occasional clashes and quarrels to occur in the family and it was with Gandhari Thakur PW 3 also who quarreled with his wife in the preceding date of incident and family members of the appellants, suspecting their affairs being discussed, in the quarrel, came to the house of Parwati Devi at about 6.00 p.m. on 24.1.1986 and took Gita Devi PW8 to task. As usually happens, the female members began to abuse each other, there was exchange of abuses, and as usual in the female members of the rustic family, they began to pull out the hairs of their rivals. It was alleged that Parwati Devi PW 10 came out of her house and in her bid to pacify the agitating female members, suffered injury on her person when appellant Bhola Thakur, it is alleged, came out from his house with Samath (Wooden substance for husking paddy) and dealt blow on her head, causing bleeding injury on her person and that was not end of the chapter, as it was alleged, that shortly thereafter, when Somar Thakur (deceased) came to pacify them, he too suffered wrath of the appellant, as he thrashed him to the ground and gave foot blow on the back side of the neck, when Somar Thakur died instantaneously and with these narrations made by Parwati Devi PW 10, first information report was registered at Silao Police Station at 2.15 a.m. on 24th January, 1986 ad investigation commenced. During investigation, the police officer recorded statement of witnesses under Section 161 of the Code of Criminal Procedure, got Parwati Devi examined by doctor, prepared inquest report over the dead body of Somar Thakur, sent the dead body to mortuary for postmortem examination. visited place of occurrence and on receipt of autopsy report and on conclusion of investigation laid charge- sheet before the Court and the appellants on being committed to the Court of Sessions were eventually tried. In the eventual trial, the prosecution examined altogether 13 witnesses including Parwati Devi PW 10 who was stamped witness and also other family members, which include Bachu Thakur PW 1, Gendhari Thakur PW 3, Mano Devi PW 6 and Gita Devi PW 8. Prosecution also examined Pappu Thakur PW 2 who was tendered by the prosecution and there was nothing material in his evidence to merit consideration. Prosecution also examined Pappu Thakur PW 2 who was tendered by the prosecution and there was nothing material in his evidence to merit consideration. The State also brought on the record the evidences of Rajendra Pandey alias Rajju Pandey PW 4 and Bankey Bihari Singh alias Bankey Singh PW 5 who turned volte face, lending no assurance to the prosecution either about the deceased having suffered injury at the hands of the appellants or Parwati devi having received injury by them. The State also examined Krishna Thakur PW 7 and Rampati Chaudhary PW 9 who were witnesses of preparation of injuries report by the Police Officer. The prosecution examined Dr. Bindu Bhushan Singh PW 12 who held autopsy over the dead body of Somar Thakur. Dr. Laxmi Chaudhari PW 13 was examined to bring on the record the positive finding recorded by the doctor, pursuant to examination of Parwati Devi by him and yet there is evidence of Ram Ekbal Singh, Sub-Inspector of Police PW 11 who was Investigating Officer of the case. 2. The State went for trial of the appellant Bhola Thakur under Section 302, 324 and 323 of the Indian Penal Code. Appellant Shanti Devi and Bhaso Devi were also tried for the offence punishable under Section 323 of the Indian Penal Code along with Bhola Thakur. However, the trial Court on appreciation of evidences placed on the record finding the appellant Bhola Thakur not guilty under Sections 302 and 323 of the Indian Penal Code, rendered verdict of guilt finding him guilty under Section 304. Part II and also under Section 324 of the Indian Penal Code and while on first count, the appellant was to suffer rigorous imprisonment for ten years, no sentence was awarded on second count. Though the trial Court found Bhatani Devi and Bhaso Devi guilty under Section 323 of the Indian Penal Code, instead of sentencing them at once to substantive imprisonment while suspending their sentence, directed their release under Section 360 of the Code of Criminal Procedure on execution of bond to the satisfaction of the trial Court with a clause that they would maintain peace and be of a good behaviour during the period of probation. 3. 3. Now adverting to the evidence placed on the record one would find Parwati Devi PW 10 reiterated her early version which he rendered before the police with some minor variation about the appellant dealing blows with fist and hands on the neck of the deceased. She would state before the Court that shortly after she came out from her house, when there was a quarrel between her daughter-in-law Gita Devi PW 8, and sister and mother of appellant No. 1 when latter came out with a samath when she wanted to pacify them. She would state that thereafter he dealt blow with the said instrument on her head when she dropped to the ground. She would allege that after her husband came with the same mission to pacify the agitated female members, appellant dealt blows with fist on his nose and having thrashed him on the ground, dealt foot blows on back part of his neck. She would allege that a day preceeding the incident, Gandhari Thakur had a quarrel in his house with his wife when mother and sister of the appellant Bhola Thakur, suspecting the quarrel between husband and wife to been their affairs, came to her house and had a scuffle with Gita Devi. The narrations made by Bachu Thakur PW 1, Gandhari Thakur PW 3, Mano Devi PW 6 and Gheta Devi PW 8 were more or less in similar terms about appellant Bhola Thakur dealing blows with wooden substance on the head of Par-wati Devi when she came to pacify them. and similar was their evidences about appellant dealing blows with fist on nose of Somar Thakur and having thrashed him to the ground, dealing blows with foot on back part of the neck. Since the narrations made by the witnesses were more or less in similar terms, on material particulars of the case, I do not intend to delve upon discussing evidence of the individual witness which would be merely repetition which I have discussed. Now adverting to the finding recorded by the doctor, one comes accross the evidence of Dr. Bindu Bhushan Singh. PW 12 who stated to have conducted autopsy over the dead body of Somar Thakur. Now adverting to the finding recorded by the doctor, one comes accross the evidence of Dr. Bindu Bhushan Singh. PW 12 who stated to have conducted autopsy over the dead body of Somar Thakur. The doctor stated to have noticed one bruise 1/2" x 1/3" on nose and also one another bruise measuring 1" x 1/2" on the back of the neck of the deceased which were ante-mortem in nature. On dissection, the doctor stated to have found that bridge of the nose was not fractured and critical vertebras were intact and there was no fracture or dislocation. The cause of death in the estimation of the doctor could not be ascertained because there was no sufficient injury present on the body to cause death, though viscera was preserved. 4. Dr. Laxmi Chaudhary PW 13 who clinically examined Parwati Devi PW 10 noticed cut injury 2/1" x 1/2" scalp deep over the vertex. The nature of injury was simple and caused by sharp edged weapon. Ram Ekbal Singh PW 11. Sub Inspector of Police who was Investigating Officer of the case stated to have recorded statement of Parwati Devi in presence of Bachu Thakur and Gendhari Thakur, pursuant to which First Information Report was drawn. He stated to have prepared the inquest report over the dead body of Somar Thakur of which Ram Pati Chaudhary PW 9 and Krishna Thakur PW 7 were witnesses. He stated to have visited place of occurrence which was a lane, north to the house of Parwati Devi. Though he did not find blood drops at the place of occurrence, noticed tiles of the roof damaged. This is all the evidence that has been adduced on behalf of the prosecution. 5. The finding recorded by trial Court has been assailed by the learned counsel for the appellants on twin premises and it is sought to be urged that regard being had to attending circumstances of the case. the act of the appellant Bhola Thakur was not so im-manently dangerous which in all probabilities, would cause death or such bodily injury which was likely to cause death. the act of the appellant Bhola Thakur was not so im-manently dangerous which in all probabilities, would cause death or such bodily injury which was likely to cause death. The contentions were raised that admitted case of the State was that appellant Bhola Thakur dealt blow on Somar Thakur with fist on the nose and foot blows on the back of the neck, while he was holding wooden substance with him with which Parwati Devi was allegedly assaulted by him, and, in this backdrop it is sought to be urged that had the appellant been clothed with intention of killing Somar Thakur, it was most unlikely that he would not use weapon with which he was armed. The contentions were raised that the act attributed to the appellant. by no stretch of imagination would impute him with either intention or knowledge to commit such act which was likely to cause death of the deceased. Added to these infirmities, it is urged on behalf of the appellants that if the evidence of Parwati Devi PW 10 was taken to be true on its face value, her sons and daughter-in-law were inside the house during the incident and once this acceptance made on behalf of the informant is in force, it is urged that it will exclude possibility of presence of Bachu Thakur PW 1, Gendhari Thakur PW 3 and Mano Devi PW 6, Yet it is urged on behalf of the appellants that though in her early version which Parwati Devi (PW 10) rendered before the police, while she was not narrating about any blow having been dealt on the nose of the deceased by the appellant, some embellishments were sought to be introduced in her evidence which she made in court, as she stated that the appellant dealt blows also on the nose of the deceased. The other contention raised on behalf of the appellants was that though the incident was suggested to have been witnessed even by Rajendra Pandey and Bankey Bihari Singh if their evidences were considered, it would be noticed that they had turned volte face lending no assurance to the prosecution allegation against the appellant and in quick succession it is urged that now the prosecution was left with the evidence of only persons who were family members of the deceased were most interested persons in his affairs. Learned counsel for the appellant while but tressing the contentions raised at Bar would urge that regard being had to the circumstances and the alleged act committed by the appellant. the case of appellant Bhola Thakur apparently falls within the ambit of Section 323 of the Indian Penal Code and on this score reliance has been placed on a decision of the Apex Court in the case of State of Karnataka V/s. Shivalingaiah, AIR 1988 SC 115 . In the case cited at Bar the accused squessed the testicles of a victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of moment. Observations were made by the Apex Court of the land that it could not be said that the accused had any intention of causing death of deceased when be committed the act in a action nor he could be attributed with knowledge that much act was likely to cause his cardiac arrest resulting is his death. The Hon ble apex Court however observed that it cannot be however said that in all circumstances, such an act would not be covered by clause third Section 300 and therefore would not amount to culpable homicide amounting to murder punishable under Section 302 or culpable homicide not amounting to murder punishable under Section 304, Part II, as it all depends on the facts and circumstances of each case as to whether the accused had the requisite intention or knowledge. The facts of the case in hand are, however, otherwise. while in the case cited at Bar the deceased pursuant to squeezing of the testicles died of cardiac arrest almost instantaneously which was not reasonably expected, in the instant case, the appellant had chosen most sensitive and vital part of the body for infliction of blows and hence he can well be imputed with the knowledge that it was likely to cause death or to cause such bodily injury likely to cause death, though there being no such intention. Learned counsel appearing for the State would counter the arguments canvassed on behalf of the appellants to sustain the conviction recorded by the trial Court and it is urged that the prosecution had led evidence which were most unimpeachable and clinching and the finding recorded by the trial Court did not merit interference. 6. Learned counsel appearing for the State would counter the arguments canvassed on behalf of the appellants to sustain the conviction recorded by the trial Court and it is urged that the prosecution had led evidence which were most unimpeachable and clinching and the finding recorded by the trial Court did not merit interference. 6. The facts of the case are tell a tale which emerged in the evidences of those who claimed to be ocular witnesses. True it is that Bankey Bihari and Rajendra Pandey who were cited to be ocular witnesses of the incident, turned hostile in the court and it is not unusual that the persons who are even ocular witnesses of the incident are most reluctant to be aided as witnesses. Be that as it may, the State had led evidence of witnesses, who claimed to be ocular and no mitigating evidences did appear in their statements, which could detract their probative value, and hence paucity of independent witness in view of clinching evidence of family members which did not suffer serious infirmity, did not warrant rejection of prosecution case. 7. Though the doctor who examined Parwati Devi failed to state in his report as to whether the injury suffered by Parwati Devi was straight or curve, that too did not wash out the positive finding recorded by the doctor about Parwati Devi sustaining injury on her head by sharp cutting weapon. though in all probability an instrument like samath is expected to cause some curve injury. However, it is not known the angle by which samath was dealt on the person of Parwati Devi. 8. One more contention raised on behalf of the appellants can not be remained unnoticed as it has been urged at Bar that if evidence of Gandhari Thakur PW 3 is taken into consideration, his father did not suffer illness and he had no difficulty to move. However, the subsequent statement of the witnesses cannot be lost sight of that his father was of week feature and was also infirm. The argument canvassed at Bar about incident having taken place at the spur of moment for a trivial matter like Jamanika between the parties was also meritless, though the genesis of incident in early version of Parwati Devi, was suggeste to be a dispute between the parties with regard to Jamanika. The argument canvassed at Bar about incident having taken place at the spur of moment for a trivial matter like Jamanika between the parties was also meritless, though the genesis of incident in early version of Parwati Devi, was suggeste to be a dispute between the parties with regard to Jamanika. Though such suggestions were given to Gendhari Thakur which was strongly refused by him. Appellant Bhola Thakur was an old man and constitution of body of the deceased in itself was also an important circumstance which imputed positive knowledge on the part of the appellant. The trial Court has not found the doctor to be credible as he was considered to be hostile for the reason that while in one breath he stated before the court that the injury found on the person of deceased was not sufficient to cause death, on a pointed question by the State, he would admit that death could be possible by injury No. 2 which was at the back of the neck. The omission in FIR on part of the informant. to make narration about appellant Bhola Thakur dealing blows on the nose of the deceased would not constitute infirmity in the prosecution case, for the simple reason that even finding recorded by the doctor about injury on the nose was not considered to be cause of death. 9. Learned counsel appearing for the appellants would lastly urge that the appellant had faced the agony of the criminal trial for the last 15 years and hence the Court should be lenient in awarding sentence against appellant No. 1 who has remained in custody for more than nine months. 10. Having bestowed serious consideration to the facts and circumstances of the case and also the evidences placed on the record about allege overt act attributed to appellant Bhola Thakur in spur of moment and in heat of passion and also regard being had to the fact that the parties were agnates and on visiting terms, as has been evidence, while maintaining conviction of the appellant Bhola Thakur under Section 304, Part II and also under Section 324 of the Indian Penal Code, the sentence of he appellant is reduced to a period of four years under Section 304, Part II of the In-dian Penal Code with no sentence under Section 324 of the Indian Penal Code. As the period of probation has already elapsed, I find no good reason to interfere with the finding recorded by the trial Court in recording conviction against two other female appellant i.e. Bhatani Devi and Bhaso Devi. With the modification in sentence of appellant No. 1 Bhola Thakur, the appeal stands dismissed.