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2005 DIGILAW 36 (PAT)

Murari Thakur v. State Of Bihar

2005-01-12

M.L.VISA, MRIDULA MISHRA

body2005
Judgment M.L.Visa, J. 1. Both these appeals which arise out of same judgment dated 7.6.2001 and order dated 8.6.2001 passed by IVth Additional Sessions Judge, Sitamarhi in Sessions Trial No. 107 of 1999/ 191 of 2000 convicting and sentencing Murari Thakur and Sudhir Thakur, appellants of Criminal Appeal No. 266 of 2001 and Sunil Kumar Thakur, appellant of Criminal Appeal No. 292 of 2001 to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to undergo further rigorous imprisonment for a period of two years under Section 302/34 of Indian Penal Code (in short "I P C"), are being disposed of by this common judgment. 2. The case of prosecution, in short, is that on 26.8.1998 at about 3 PM, Dhaneshwar Mishra (PW4), elder brother of informant was going for grazing his buffalo when he saw his deceased nephew Bal Krishna Mishra with appellants going across the river in Parti land and when Dhaneshwar Mishra enquired from them where they were going, they all replied that they were on a stroll and they went towards east of river. Dhaneshwar Mishra also went across the river with his buffalo but after sometime at about 4 PM, he heard the sound of gasping from the other side of a field of sugarcane and leaving his buffalo, he went towards the sugarcane field where he found that on a ridge under the tree of Jamun (rose apple), appellant Murari Thakur had caught hold of legs of deceased, appellant Sudhir Thakur was sitting on the back of deceased holding his both hands and appellant Sunil Thakur after pressing the neck of deceased was rasping it. Dhaneshwar Mishra saw this incident from a distance of ten laggis and he ran raising hulla and appellants fled away towards west of sugarcane field and when Dhaneshwar Mishra reached the place, he found that all the three appellants had already committed the murder of deceased by rasping his neck. On hulla of Dhaneshwar Mishra Devendra Singh (PW6), Kishore Jha (PW2), Baleshwar Mishra (PW3), Paras Nath Mishra (PW7) and a number of other persons came there and they saw the dead body of deceased. About motive of occurrence, case of prosecution is that twelve days prior to occurrence, some altercation had taken place with appellant Sunil Thakur. On hulla of Dhaneshwar Mishra Devendra Singh (PW6), Kishore Jha (PW2), Baleshwar Mishra (PW3), Paras Nath Mishra (PW7) and a number of other persons came there and they saw the dead body of deceased. About motive of occurrence, case of prosecution is that twelve days prior to occurrence, some altercation had taken place with appellant Sunil Thakur. On the date of occurrence at about 8 PM when informant Bhuneshwar Mishra (PW8), father of deceased came to his house from Sitamarhi, he came to know that his son had been killed and Dhaneshwar Mishra told him about the entire incident. On the night between 26.8.1998 and 27.8.1998 about 1.30 hours, Fard-e-bayan of informant was recorded at the place of occurrence and case under Section 302/34 of Indian Penal Code was registered against all the three appellants and police, after investigation, submitted chargesheet against them under the same heading. Cognizance of the case was taken and the case was committed to the Court of Session where after trial, appellants were held guilty and were convicted and sentenced, as stated above. 3. The case of appellants, as it appears from the trend of cross-examination of prosecution witnesses, is that they are innocent and have been falsely implicated in this case. No witness on their behalf has been examined. 4. In order to prove its case, prosecution has examined eleven witnesses. Bhuneshwar Mishra (PW8) is informant. Shobha Kant Jha (PW1), Dhaneshwar Mishra (PW4), Sushil Kumar Mishra (PW5) are eye witnesses to the occurrence. Kishore Jha (PW2) had reached the place of occurrence after hearing hulla and he saw the dead body of deceased and was told by Dhaneshwar Mishra (PW4) that appellants committed the murder of deceased. Baleshwar Mishra (PW3) after hearing hulla went towards eastern side of river and saw appellants fleeing away and appellant Sunil Thakur was armed with a Khukhri. Devendra Kumar (PW6) and Paras Nath Mishra (PW7) had gone to place of occurrence after hearing hulla and saw appellants fleeing away from there and further saw appellant Sunil Kumar Thakur armed with a Khukhri. Birendra Mishra (PW10) is said to be a witness in whose presence, appellant Sudhir Thakur and Murari Thakur took away the deceased with them and subsequently he heard hulla about the murder of deceased and went to place of occurrence where he saw the dead body of deceased with bleeding injury on his neck. Birendra Mishra (PW10) is said to be a witness in whose presence, appellant Sudhir Thakur and Murari Thakur took away the deceased with them and subsequently he heard hulla about the murder of deceased and went to place of occurrence where he saw the dead body of deceased with bleeding injury on his neck. Sheo Kumar Thakur (PW9) is the doctor who conducted autopsy on the dead body of deceased and Ramakant Tiwary (PW11) is the Investigating Officer. 5. Sheo Kumar Thakur (PW9), in his evidence, has said that on 27.8.1998, he was posted as Medical Officer, Sadar Hospital, Sitamarhi and on that date at about 12.40 PM, he held post mortem examination on the dead body of Bal Krishna Mishra and noticed that rigor mortis was found on the dead body and following ante mortem injuries were found: Sharp cut wound across whole neck from front to both sides of the size 6"x3" bone deep with blood clots. About internal finding, he has said that on opening skull, cranium was found intact but brain matter was pale and all structures of neck were cut except vertebral bone. He has further said that time elapsed since death and post mortem examination was within twenty four hours and about the cause of death, he has said that it was haemorrhage and shock as a result of neck injury caused by sharp weapon which may be Khukhri and injury was sufficient to cause death in the ordinary course of nature. He has proved his post mortem examination report which is marked Exhibit-9. The evidence of doctor shows that the death of deceased was homicidal. Now it has to be seen what evidence the prosecution had led to prove its case against the appellants. 6. Dhaneshwar Mishra (PW4) is the uncle of deceased Bal Krishna Mishra. He has proved his post mortem examination report which is marked Exhibit-9. The evidence of doctor shows that the death of deceased was homicidal. Now it has to be seen what evidence the prosecution had led to prove its case against the appellants. 6. Dhaneshwar Mishra (PW4) is the uncle of deceased Bal Krishna Mishra. He, in his evidence, has said that on the date of occurrence at about 3 PM, he was grazing his buffalo and at about 3.30 PM he saw deceased and appellants going towards east of river and when he enquired from his deceased nephew where he was going, he replied that he was going for stroll and will return with fishes and, thereafter, deceased after crossing the river went towards eastern side and he himself took his buffalo in the river for its drinking water and, thereafter, he went towards northern side of Parti land of Umesh Singh for grazing his buffalo. After sometime, he heard the sound of gasping and leaving his buffalo, he ran towards tho place and from a distance of about ten Laggis, he saw that all the three appellants had thrown the deceased and appellant Murari Thakur had caught hold of both legs of his nephew, appellant Sudhir Thakur was sitting on the back of his nephew and appellant Sunil Thakur, by lifting the face of deceased from his left hand was rasping his neck with a Khukhri by his right hand. He raised hulla on which P. Ws. 1 and 5 came and saw the occurrence and when he raising hulla, went near his nephew, he found that his neck had been cut from front side and blood was oozing out. On his hulla, appellants fled away and P. Ws. 2, 3, 6, 7, Babulal Mishra (not examined), Birendra Mishra (not examined) came there. He has further said that his brother Bhuneshwar Mishra reached the house at about 8 PM and he narrated the entire incident to him. Shobha Kant Jha (PW 1) and Sushil Kumar Mishra (PW 5) are other eye witnesses who had seen the occurrence. 2, 3, 6, 7, Babulal Mishra (not examined), Birendra Mishra (not examined) came there. He has further said that his brother Bhuneshwar Mishra reached the house at about 8 PM and he narrated the entire incident to him. Shobha Kant Jha (PW 1) and Sushil Kumar Mishra (PW 5) are other eye witnesses who had seen the occurrence. Shobha Kant Jha (PW 1) has said that on the date of occurrence, he had gone to the bank of Bokraha river for bringing bark of Chatvan (herbal medicine) because his daughter-in- law had given birth a child and when he was returning after taking the herbal at about 4 PM, he heard sound of gasping from a sugarcane field and when he went there, he saw that three persons had thrown a man on the ridge of sugarcane field and were rasping his neck and at the same time, Dhaneshwar Mishra (PW 4) came there raising hulla and those three persons fled away from the place of occurrence. He has further said that the persons, who were fleeing away, were Sunil Thakur carrying a Nepali Khukhri and he was followed by appellants Murari Thakur and Sudhir Thakur who were empty handed. He has further said that when he went near, he saw Bal Krishna Mishra, minor son of informant Bhuneshwar Mishra lying dead and his neck was cut on front side and blood was oozing. Sushil Kumar Mishra (PW 5), in his evidence, has said that at the time of occurrence, he was returning from Kothia Janakpur to his house at Harpurkala through Bhokhraha Sarehar and when he was at a distance of about 25/30 yards from the place of occurrence, he heard the sound of gasping and when he hurriedly proceeded towards there, he found that three persons had thrown a person on the ridge and were cutting his neck from front side and there was a jamun tree near the place of occurrence. Making it more clear, he has said that appellant Sunil Thakur by lifting the face of deceased by his left hand was rasping his neck with a Nepali Khukhri by his right hand and appellant Sudhir Thakur was sitting on his waist by holding his both hands and appellant Murari Thakur had caught both legs of deceased. He has further said that the moment he reached P. Ws. He has further said that the moment he reached P. Ws. 1 and 4 also came there raising hulla and they also saw the occurrence and appellants fled away towards west. 7. Kishore Jha (PW 2) has said that on the date of occurrence at about 4.30 PM, he was in his house when he heard hulla that a boy of Bhokhraha had been killed and he then went to the place of occurrence where he saw the dead body of deceased with cut injury on front side of his neck and the dead body was of Bal Krishna, son of informant, and he also found blood fallen on the ground and Dhaneshwar Mishra (PW 4) told him that appellant Sunil Thakur had cut the neck of deceased with Khukhri, appellant Murari Thakur had caught his legs and appellant Sudhir Thakur, by sitting on the back of deceased, had pressed his arms. Baleshwar Mishra (PW 3) has said that at the time of occurrence, he was scrapping grass towards eastern side of river and after hearing hulla when he proceeded towards eastern side, he found appellants running away towards west and appellant Sunil Thakur was armed with a Khukhri and, thereafter, when he went towards the ridge of the field of Umesh Singh, he found P. Ws. 1, 4, 5, 6 and others assembled there and PW 4 was raising hulla that appellants had killed his nephew and when he went further close to the place of occurrence, he found the dead body of deceased having cut injury on his neck and blood was oozing out from that wound. Devendra Singh (PW 6) has said that at the time of occurrence, he was in his paddy field which is situate south of place of occurrence and he heard hulla and he went to place of occurrence and saw that Sunil Thakur carrying a Nepali Khukhri in his hands was running away alongwith appellants Murari Thakur and Sudhir Thakur. PW 4 was raising hulla that all the three appellants committed the murder of his deceased nephew Bal Krishna Mishra and he also saw dead body of Bak Krishna Mishra with a bleeding cut injury on his neck. PW 4 was raising hulla that all the three appellants committed the murder of his deceased nephew Bal Krishna Mishra and he also saw dead body of Bak Krishna Mishra with a bleeding cut injury on his neck. Birendra Mishra (PW 10), in his evidence, has said that on the date of occurrence, he was sitting at his Darwaza alongwith deceased when appellant Sunil Thakur and Murari Thakur came and asked deceased to accompany them for stroll near river and further said that they would catch fishes with Gamcha and, thereafter, deceased went with them with a Gamcha but he did not return and, thereafter, he heard hulla that deceased had been killed by appellants and he went to place of occurrence where he saw deceased lying dead on the ridge of the sugarcane field of Umesh Singh near a Jamun tree and his neck was cut on front side with a bleeding injury and blood had fallen on the ridge also. He has admitted that he is the nephew of informant. 8. Bhuneshwar Mishra (PW 8), the7 informant is father of deceased. He is not an eye witness to the occurrence and has said that at the time of occurrence, he was in his school at Sitamarhi and on the date of occurrence at about 8 PM, he had come to his house at Bhokhraha where he came to know that his son had been killed and hearing this news, he went to place of occurrence which is a sugarcane field of Umesh Singh across the river and there he found dead body of his son on the ridge of the field of Umesh Singh and his neck had been cut from front side. He has further said that at the place of occurrence, his elder brother Dhaneshwar Mishra (PW 4) told him the entire details of the occurrence. In para-5 of his evidence, he has said that twelve days prior to occurrence, some altercation had taken place between appellant Sunil Thakur and his deceased son. He has further said that police reached the place of occurrence at about 1.30 oclock in the night and because the road was damaged owing to flood, therefore, it took time to police in reaching the place of occurrence. He has further said that his Fard-e-bayan was recorded by police on which he put his signature (Exhibit-1). 9. He has further said that police reached the place of occurrence at about 1.30 oclock in the night and because the road was damaged owing to flood, therefore, it took time to police in reaching the place of occurrence. He has further said that his Fard-e-bayan was recorded by police on which he put his signature (Exhibit-1). 9. Ramakant Tiwary (PW 11) is the Investigating Officer. He has said that on the date of occurrence at about 10 PM, he heard floating rumour that a man had been killed at Bhokhraha river and he then made a station diary entry No. 303 and alongwith force, proceeded for place of occurrence but because it was rainy season and there was flood, therefore, it took sometime in reaching the place of occurrence. He has said that at the place of occurrence, he recorded the Fard-e-bayan (Exhibit-3) of informant, prepared inquest report (Exhibit- 4), recorded the statements of some witnesses and in the morning sent the Fard-e-bayan of informant to Police Station for instituting a case and inspected the place of occurrence which is a Sareh of Bhokhraha. He has further said that on the ridge of a sugarcane field, he found the dead body of deceased with a cut injury on his neck suggesting cut by a sharp edged weapon and the face of deceased was smeared with blood and on the ground, there was blood in copious quantity and a green colour napkin of deceased was also smeared with blood. He has further said that he found ground near the place of occurrence wet on which there were footprints of some running persons. He has further said that he received post mortem examination report and after completing investigation, submitted chargesheet. 10. The learned counsel of appellants has first of all argued that there has been much delay in lodging the first information report. According to him, the occurrence is said to have taken place at about 4 PM and although it is alleged that Dhaneshwar Mishra (PW 4) who is none else but the own uncle of deceased, P. Ws. 10. The learned counsel of appellants has first of all argued that there has been much delay in lodging the first information report. According to him, the occurrence is said to have taken place at about 4 PM and although it is alleged that Dhaneshwar Mishra (PW 4) who is none else but the own uncle of deceased, P. Ws. 1 and 5 saw the occurrence and on their hulla, other persons also came to place of occurrence immediately but it is very surprising that none of them took the trouble to go to Police Station for lodging the case and they all waited the arrival of informant who had also reached the village at about 8 PM on the date of occurrence but his Fard-e-bayan was recorded at 1.30 oclock in the night. The learned counsel of appellants has submitted that with due deliberation at the instance of Shobha Kant Jha (PW 1) who is an advocates clerk and who is a resident of a different village, this case has been lodged because in fact PW 1 had not seen the occurrence and he was called and, thereafter, at his advice, a case was lodged. No cogent ground has been shown by defence that why PW 1 would get the appellants falsely implicated in this case except a suggestion to this witness that because he happens to be a casteman of informant, therefore, he has deposed falsely in this case which has been denied by this witness. It is further argued that Dhaneshwar Mishra (PW 4), the elder brother of informant, in para-2 of his evidence, has said that informant reached the house at about 8 PM and has further said that he told the entire details of occurrence to him. By this evidence, the defence wanted to submit that informant came to know about the occurrence from PW 4 at 8 PM on the date of occurrence when he reached his home from Sitamarhi. By this evidence, the defence wanted to submit that informant came to know about the occurrence from PW 4 at 8 PM on the date of occurrence when he reached his home from Sitamarhi. Although it is true that PW 4 has stated that the informant reached the house at about 8 PM and he has also said that he told the informant about the entire details of occurrence but he has not said that he told the informant about the incident at his house because he, in para-5 of his evidence, has said that right from the moment he saw occurrence till 2 oclock in night, he remained near the dead body. Informant PW 8 has also, in his evidence, stated that when he reached his house at 8 PM on the date of occurrence, he came to know that his son had been killed and, thereafter, he went running to place of occurrence where PW 4 told him about the details of occurrence. 11. The next argument on behalf of appellants is that Investigating Officer, in his evidence, has stated that he received rumour that a man had been killed and he made station diary entry but he has not produced the station diary entry which is the first information report of this case and the first information report proved by Investigating Officer is hit by Section 162 of Criminal Procedure Code. We are unable to accept this argument. Investigating Officer has simply stated that he received floating rumours that a man at Bhokhraha river had been killed. Although Investigating Officer has said that he recorded station diary entry after receiving this rumour but non- production of that station diary entry does not in any way affect the case of prosecution because it is not the case of appellants that same information of occurrence was given by any body to police before Fard-e-bayan of informant was recorded. The delay in reaching the police at the place of occurrence is fully explained by Investigating Officer and informant that because of flood, the road was damaged. It has also been argued on behalf of appellants that Investigating Officer, in his evidence; has admitted that PW 1 had not stated before him that appellant Sunil Thakur was rasping the neck of deceased and appellant Sudhir Thakur was sitting on his back arid appellant Murari Thakur had caught his legs. It has also been argued on behalf of appellants that Investigating Officer, in his evidence; has admitted that PW 1 had not stated before him that appellant Sunil Thakur was rasping the neck of deceased and appellant Sudhir Thakur was sitting on his back arid appellant Murari Thakur had caught his legs. From the evidence of PW 1, we find that he first said that he saw three persons throwing a person on the ridge of a field, rasping his neck with Napali Khukhri and at the same time, Dhaneshwar Mishra (PW 4) came there making hulla and all those three persons fled away towards west and, thereafter, he has said that appellant Sunil Thakur carrying a Nepali Khukhri was ahead followed by other two appellants. His statement that he saw three persons rasping the neck of deceased and that he saw appellants running away and appellant Sunil Thakur carrying a Napali Khukhri has not been challenged on the ground that he had not earlier stated like that. For the sake of argument, if on the basis of evidence of Investigating Officer that this witness had not stated that he saw appellants rasping neck and holding his hands, arms and legs is discarded, even then there remains the evidence of Dhaneshar Mishra (PW 4) and Sushil Mishra (PW 5) who are other eye witnesses to the occurrence. From the evidence of eye witnesses and other witnesses who immediately reached the place of occurrence after hearing hulls of Dhaneshar Mishra, we find that prosecution has proved its case. The medical evidence further supports the case of prosecution. 12. In the result, we find no merit in both the appeals which are, accordingly, dismissed. The judgment and order of Court below convicting and sentencing the appellants is hereby confirmed. 13. The bail bonds of appellants Murari Thakur and Sudhir Thakur, who are on bail are cancelled and they are directed to surrender before the Court below to serve out the sentence passed against them. Mridula Mishra, J. 14 I agree.