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2006 DIGILAW 404 (JHR)

Deva Paharia v. State of Bihar (now Jharkhand)

2006-04-19

N.DHINAKAR, R.R.PRASAD

body2006
JUDGMENT : By Court.-The appellants, Deva Paharia and Sundra Paharia are brothers. They were charged under Section 320/34 of the Indian Penal Code and the allegation against them under the said charge is that the 1st appellant, Deva Paharia beat the deceased Baga Paharia with lathi and that on account of the said injuries, the said Baga Paharia diei at the hospital, where he was taken for treatment and that Sundra Paharia, the 2nd appellant, shared the common intention of the 1st appellant, Deva Paharia. The Trial Judge finding both the appellants guilty, as charged, sentenced each one of them to imprisonment for life. The present appeal is against the said conviction and sentence. 2. The deceased is the son-in-law of the 1st appellant, Deva Paharia and Bamni Paharin is the wife of the deceased, Baga Paharia. The case of the prosecution is that the deceased Baga Paharia was asking share in the land, which was in possession of the 1st appellant and that the 1st appellant was not ready to give any share to his son-in-law. At about 6.00 p.m. on 14.1.1988, the deceased returned to the house alongwith his wife Bamni Paharin after purchasing articles from Hiranpur market. While Bamni Paharin was cutting vegetables, the 1st appellant entered the house and told his daughter that her husband will not get any share. The deceased asked the 1st appellant as to why he should not get a share. This angered the 1st appellant. The 1st appellant gave a blow with the blunt portion of Kulhari on the deceased. The deceased evaded the attack. At that time, Sunder Paharia, who was also present with his brother, Deva Paharia, pushed him down. The 1st appellant thereafter beat the deceased with a lathi, as a result of which deceased Baga Paharia became unconscious. On 15.1.1988, Baga Paharia was taken to police station and Fardbayan, Ext. 2, was given by Bamni Paharin, on the basis of which a crime was registered. Investigation in the crime was taken by PW-6. While the investigation was proceeding, Baga Paharia breathed his last at the hospital and on receipt of the said information, the crime was altered to one under Section 302 of the Indian Penal Code. The officer went to the hospital, conducted inquest report and prepared the inquest report, Ext. 4. A requisition was given by him to the doctor to conduct autopsy. 3. The officer went to the hospital, conducted inquest report and prepared the inquest report, Ext. 4. A requisition was given by him to the doctor to conduct autopsy. 3. On receipt of the requisition, PW-1, Dr. M.M. Prasad, conducted autopsy. He found, on internal examination, frontal parietal and temporal bone on the left side fractured into pieces. The doctor issued Ext. 1, with his opinion that the death is on account of excessive intracranial haemorrhage. 4. After completion of the investigation, final report was filed. Both the appellants denied their complicity in the crime, when they were questioned under Section 313 of the Code of Criminal Procedure. 5. The learned counsel appearing for the appellants strenuously submits that PW-3 could not have witnessed the occurrence, since in cross-examination, he has stated that he was sleeping in the room after bolting the door and that PW-4 in his evidence stated that he was present along with PW-3. The learned counsel further submits, as an alternative argument, that the facts do not make out any offence against the 2nd appellant, Sundra Paharia, as there is nothing to show that he shared the common intention of the 1st appellant and that even the 1st appellant cannot be convicted under Section 302 of the Indian Penal Code, as according to the prosecution, the occurrence took place in a quarrel and that the 1st appellant only inflicted a blow with lathi, during the said quarrel. 6. We have heard Mrs. Banani Verma, learned A.P.P., on the above contention. 7. Baga Paharia died on account of the homicidal death. The said, fact is not in dispute. The doctor conducted autopsy and issued post mortem certificate, Ext. 1. On the medical evidence, we hold that Baga Paharia died on account of the injuries suffered by him. 8. The prosecution, in the trial court, examined PW-2, Bamna Paharia, PW-3, Chandu Paharia, and PW-4, Sundra Paharia as witness to the occurrence and out of them, PW-2 was treated hostile. PW-3, Chandu Paharia fully supported the prosecution case and stated that he saw the deceased being beaten by the 1st appellant. PW-4 also supported the prosecution by implicating the 1st appellant as the person, who inflicted the blow on the deceased' with a lathi. They are not related to the deceased and, in fact, is related to the 1st appellant. 9. PW-4 also supported the prosecution by implicating the 1st appellant as the person, who inflicted the blow on the deceased' with a lathi. They are not related to the deceased and, in fact, is related to the 1st appellant. 9. On going through the evidence of PWs 3 and 4, we are unable to reject their evidence. It is, no doubt, true that in cross-examination PW-3 has stated that after taking dinner, he went to the bed inside the room after bolting the door. This answer of PW-3, in cross-examination, will not show that PW-3 was sleeping inside the room at the time of occurrence which took place at 6.00 p.m. and at best the said answer will only show that after the occurrence, PW-3 had taken his dinner, went to bed in his room after bolting the door. 10. On the ground that PW-3 has stated that he has taken bed inside the room after taking dinner, his evidence cannot be rejected, as we have already noticed that the occurrence took place at 6.00 p.m. and nobody takes dinner and goes to bed before that. 11. Once we hold that the admission of PW-3 that he went to the bed after taking dinner, means that he' must have gone to the bed after the occurrence, then the evidence of PW-4 also cannot be rejected as, according to PW-4, he was with PW-3. We, therefore, do not reject the prosecution version by accepting the contention of the counsel that PWs-3 and 4 must have been sleeping inside the room after taking dinner at 6.00 p.m. We accept the evidence of PWs-3 and 4 that the 1 st appellant inflicted a lathi blow on the deceased and that the deceased died on account of the said injuries. 12. The question that is to be decided by us is the nature of the offence committed by the 1st appellant. 13. The 1st appellant is the father-in-law of the deceased. A perusal of Fardbayan, Ext. 2, itself shows that the 1st appellant went to the police station alongwith his daughter, Bamni Paharin, where the Fardbayan was given. This shows the conduct of the 1st appellant in going to the police station and that he must have felt sorry for the unfortunate incident and proceeded to the police station alongwith his daughter. 14. 2, itself shows that the 1st appellant went to the police station alongwith his daughter, Bamni Paharin, where the Fardbayan was given. This shows the conduct of the 1st appellant in going to the police station and that he must have felt sorry for the unfortunate incident and proceeded to the police station alongwith his daughter. 14. In this background, when we look at the evidence of PWs-3 and 4, it could be seen that the deceased was asking for share in the property of his father-in-law (appellant no. 1) and that the father-in-law was refusing to give any share to his son-in-law. On the date of incident, the deceased returned home and when the 1st appellant informed the deceased that he will not get any share, it was the deceased who questioned the 1st appellant, which angered him. Thereafter, he inflicted a blow with a lathi, which unfortunately proved fatal. We, on the facts and circumstances of the case, hold that the deceased was attacked by the 1st appellant without any premeditation or without any intention, but with the knowledge that he will be causing an injury on the deceased, which is likely to cause his death. We, therefore, set aside the conviction of the appellant under Section 302 of the Indian Penal Code and instead find him guilty under Section 304 Part-II of the Indian Penal Code, for which he is sentenced to five years rigorous imprisonment. 15. As we have already held that the 1st appellant acted without any premeditation and in fit of anger, it is difficult to hold the conviction of appellant no. 2, on the ground that he shared the common intention of the appellant no. 1. Neither the 1st appellant nor the 2nd appellant entered the house of the deceased after deciding to beat the deceased to death and as we have already noticed, it was only when the deceased questioned his father-in-law, he was beaten by the 1st appellant. The mere fact that the appellant no. 2 pushed the deceased will not mean that 1st appellant is going to beat the deceased with a stick. From the above circumstances, it could only be inferred that the 1st appellant must have taken a stick, which was available nearby and had beaten the deceased. The mere fact that the appellant no. 2 pushed the deceased will not mean that 1st appellant is going to beat the deceased with a stick. From the above circumstances, it could only be inferred that the 1st appellant must have taken a stick, which was available nearby and had beaten the deceased. Therefore, we hold that the 2nd appellant could not have shared the common intention of the 1st appellant and hence we acquit him of the charges. 16. In the result, the 2nd appellant, Sundra Paharia, is acquitted of the charges and his conviction and sentence are set aside. It is reported that he is on bail; he is discharged from the liabilities of bail bonds. The conviction of the 1st appellant, Deva Paharia, under Section 302 of the Indian Penal Code is set aside and instead he is found guilty under Section 304 Part II of the Indian Penal Code, for which he is sentenced to five years rigorous imprisonment. The period already undergone by the 1st appellant will be given set off. He is on bail; his bail bond is cancelled and he is directed to surrender before the court be low for serving the remaining sentence. The court below is also directed to take all coercive steps for his arrest.