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2006 DIGILAW 642 (JHR)

Hari Bhuiyan v. State of Bihar (now Jharkhand)

2006-05-15

N.DHINAKAR, R.R.PRASAD

body2006
By Court.- The appellants no. 1 to 3 were arrayed as A 1 to A3 before the 2nd Addl. Sessions Judge, Dhanbad. They were tried and convicted under section 302 read with Section 34 I.P.C, for which each one of them was sentenced to imprisonment for life. The present appeal is against the said conviction and sentence. 2. There was enmity between the first appellant, Hari Bhuiyan and the deceased Suresh Barhi. The son of the first appellant, Hari Bhuiyan, was murdered and the deceased was accused of the said murder. Thereafter, the first appellant, Hari Bhuiyan, was threatening the deceased with his life, which is said to be the motive for the occurrence, which took place on 12.7.1996 at 4.00 p.m. 3. At 4.00 p.m. on 12.7.1996, PW. 6, Lakhan Mistry, was proceeding to meet his son (deceased in this case), who was working in village-Laltenganj in the house of Bowdha Bhuiyan. When he reached a Tea Shop near the Railway Gate, he saw the first appellant quarreling with his son and a scuffle ensued between the first appellant and the deceased and at that time, the second appellant, Sunder Bhuiyan and the third appellant, Krishna Bhuiyan, as well as Dwarika Bhuiyan (juvenile accused whose case was split up) reached the place. On seeing them, the deceased ran, who was then chased by the appellants. The first appellant caught him and pushed him to the ground. The juvenile accused, Dwarika Bhuiyan, caught his hands, while the third appellant, Krishna Bhuiyan, caught his legs and the second appellant Sunder Bhuiyan, cut the neck of the deceased with a Chura. The deceased died at the place. The occurrence was witnessed by PW. 1 Mahesh Mistry, PW. 2 Shadeo Paswan, P.W. 3 Jagdish Mistry, apart from P.W. 6 who is the father of the deceased. The fardbeyan. Ext. 3, was given by PW. 6 at the police station at 5.45 p.m. It was registered as a crime and Ext. 5 is the first information report. After taking up investigation in the crime, inquest was conducted by PW. 8, Bhuneshwar Singh, and inquest report is Ext. 1. After the inquest, the body was sent to the hospital for autopsy. 4. On receipt of the requisition, Dr. D.K. Dheeraj, PW. 5 is the first information report. After taking up investigation in the crime, inquest was conducted by PW. 8, Bhuneshwar Singh, and inquest report is Ext. 1. After the inquest, the body was sent to the hospital for autopsy. 4. On receipt of the requisition, Dr. D.K. Dheeraj, PW. 7, conducted autopsy and he found the following injuries:- (i) Abrasion measuring 1/2' x 1/4" on the right side of forehead (ii) Abrasion measuring 2" x 1" on the left side of forehead (iii) Abrasion measuring 1/2' x 1/2' on the bridge of nose (iv) Incised wound 5" x 1/2' x bone deep in front of neck cutting big vessels, trachea and esophagus. (v) Incised wound 1/2' x 1/4" x muscle deep on upper and right sternmasteroid muscle. (vi) Incised wound 1" x 1/4" into scalp deep placed 3.4" behind right mastoid. (vii) Linear cut measuring 1 1/4" x muscle deep placed 1/4" apart on the palmar surface of the left thumb." The Doctor issued Ext. 4, the post mortem certificate, with his opinion that death is on account of shock and asphyxia due to the injury, namely, injury no. (iv). 5. After the completion of investigation, final report was filed against the appellants, who denied their complicity in the crime. 6. Learned counsel for the appellants submits that P.Ws. 1, 3 and 6 being closely related to the deceased would have given false evidence and the evidence of P.W. 2 ought to have been rejected as it is not corroborated, since he is the only independent witness, though the occurrence, according to the prosecution, had taken place near a Tea Shop near the Railway Gate. He submits that the first appellant, Hari Bhuiyan and the third appellant, Krishna Bhuiyan, would not have shared the common intention of the second appellant, Sunder Bhuiyan. On the above submission, we have heard Mrs. Banani Verma, learned counsel appearing for the State. 7. There can be no dispute and in fact, it is not disputed that the deceased, Suresh Barhi, died on account of an injury to the throat and the said injury is fatal in nature. Dr. O.K. Dheeraj, who was examined as P.W. 7, and who issued Ext. 4, the post mortem certificate, gave evidence in court and proved the said fact. 8. Dr. O.K. Dheeraj, who was examined as P.W. 7, and who issued Ext. 4, the post mortem certificate, gave evidence in court and proved the said fact. 8. P.W. 1, Mahesh Mistry, who is the brother of the deceased, P.W. 3, Jagdish Mistry, father-in-law of the deceased, P.W.6, Lakhan Mistry, father of the deceased as well as P.W. 2, Shadeo Paswan, who was passing by that side, were examined as witnesses to the occurrence. According to the evidence of the above eye-witnesses, while P.W. 6 was proceeding to the village Laltenganj to meet to deceased, who was working in the house of Bowdha Bhuiyan, the first appellant was seen quarreling with the deceased. It is the further evidence of the witnesses that some time prior to the date of occurrence of this case, the son of the first appellant was murdered and the deceased was accused of the said murder and that the first appellant threatened the deceased before the date of incident and P.W. 6 saw the first appellant and the deceased quarreling with each other and that at that time the other two appellants and Dwarika Bhuiyan, juvenile accused, came there. The evidence further shows that on seeing the appellants and the juvenile accused, Dwarika Bhuiyan, the deceased started running and that the appellants chased him. The first appellant, according to the witnesses, pushed the deceased down and thereafter, the juvenile accused, Dwarika Bhuiyan, caught his hands, while the third appellant, Krishna Bhuiyan, caught his legs and the second appellant, Sunder Bhuiyan, cut the neck of the deceased with a Chura, leading to his death. On going through the evidence of the witnesses, we find no reason to reject their evidence. P.Ws. 1, 3 and 6 though are related to the deceased, their evidence cannot be rejected on that ground, since there is no rule of prudence which has crystallized into a rule of law that the evidence of the eye witnesses, who are closely related to the deceased must be rejected. We also find that their evidence is supported and corroborated in all material aspects by PW 2, who is an independent witness. Their evidence is also supported by medical evidence. In the above background, we are unable to reject their evidence. We, therefore, accept the evidence of P.Ws. We also find that their evidence is supported and corroborated in all material aspects by PW 2, who is an independent witness. Their evidence is also supported by medical evidence. In the above background, we are unable to reject their evidence. We, therefore, accept the evidence of P.Ws. 1 to 3 and P.W. 6 and hold that Sunder Bhuiyan, the second appellant, cut the neck of the deceased with a Chura and that the said injury caused the death of Suresh Barhi. We, accordingly, uphold the conviction of the second appellant, Sunder Bhuiyan, and the consequent sentence imposed upon him. 9. Though we have confirmed the conviction of Sunder Bhuiyan, we are unable to uphold the conviction of Hari Bhuiyan and Krishna Bhuiyan, as in our opinion, the above two appellants could not have shared the common intention of the second appellant, Sunder Bhuiyan. The evidence, which we have extracted and discussed above, shows that the first appellant was aggrieved against the deceased and quarreled with him on earlier occasion. On the date of incident, the witnesses had seen the first appellant quarreling with the deceased. The witnesses have stated that there was scuffle between the first appellant and the deceased and that while the quarreling was going on between the first appellant and the deceased, the second and third appellants and the juvenile accused, Dwarika Bhuiyan reached the place and on seeing them, the deceased, probably out of fear, started running from the place. It is, no doubt, true that all the appellants chased the deceased and that the first appellant pushed the deceased down. The mere fact that the appellants chased the deceased and that the deceased was pushed down by the first appellant will not conclusively show that they knew that the second appellant is going to cause a fatal injury on the neck of the deceased with a Chura. There is no evidence to show that the second appellant reached the scene having a Chura in his hand. It is also, no doubt, true that according to the witnesses, the first and third appellants and the juvenile accused held the hands and legs after the deceased fell down but mere holding of hands and legs will not mean that they knew that the second appellant is going to cause a fatal injury on the deceased. It is also, no doubt, true that according to the witnesses, the first and third appellants and the juvenile accused held the hands and legs after the deceased fell down but mere holding of hands and legs will not mean that they knew that the second appellant is going to cause a fatal injury on the deceased. There is also no evidence to show that the first appellant was expecting the second appellant to reach the place with a Chura in his hands for inflicting a cut on the neck of the deceased. In this background, we have to look at the evidence of the Doctor, P.W. 7 and the injuries noted by him on the dead body. We have already extracted the injuries found by the Doctor on the dead body. The Doctor found three abrasions, one on the right side of the forehead and the other on the left side of the forehead and the third on the bridge of the nose. These three injuries could have been on account of a person falling and rolling and not merely on falling on the ground with his face upwards. At this stage, we have to consider the evidence of the witnesses that the deceased was pushed down by the first appellant and that the deceased fell down and it is not the case of the prosecution that after the deceased fell down, he rolled. If one is pushed down, then it is but natural for the person to fall on the ground with his face upwards. Therefore three abrasions could not have been caused on account of his fall on the ground and on account of pushing by the first appellant and that they must have been account of the deceased rolling on the ground. The question is as to how and with whom the deceased would have rolled on the ground. The answer lies in the medical evidence. The Doctor found "multiple incised injuries" and one of the injuries noticed by the Doctor was on the palm. He also noticed incised injuries on the right and left side of the body of the deceased. This will give an indication that while the deceased was rolling, he was also trying to take control of the weapon from the hands of his assailant. He also noticed incised injuries on the right and left side of the body of the deceased. This will give an indication that while the deceased was rolling, he was also trying to take control of the weapon from the hands of his assailant. We have already noticed that it was the second appellant, Sunder Bhuiyan, who caused the fatal injury with a Chura. Therefore, the deceased and Sunder Bhuiyan with Chura in his hands would have been rolling on the ground and the deceased must have been trying to snatch the Chura from the hands of the second appellant, Sunder Bhuiyan, or must have been preventing the second appellant, Sunder Bhuiyan, from inflicting a cut upon him. The injury on the forehead or the linear cut on the palm indicates that it was a defensive act which means that he would have tried to prevent the attack of the second appellant and in that process suffered other injuries. The Doctor also gave evidence that except injury no. (iv), all other injuries are simple in nature. We are, therefore, of the view that the first and third appellants could not have shared the common intention of the second appellants as they could not have expected Sunder Bhuiyan, with a Chura, to appear in the place and that he will inflict the injuries on the deceased. On the contrary, we are more inclined to take the view that while the quarrel was going on between the first appellant and the deceased, the second appellant and the third appellant appeared there alongwith Dwarika Bhuiyan, juvenile accused and that after the deceased ran to a distance, he was pushed down. At that time, the second appellant took out a Chura from his possession and inflicted injuries on the deceased, leading to his death. In any event, on the facts and circumstances of the case, we feel that the benefit of doubt should go to the first and third appellants. Accordingly, we give the said benefit and we acquit them under section 302 read with Section 34 I.P.C and consequent sentence imposed upon them are set aside. It is reported that they are on bail. They are discharged from their bail bonds. 10. Accordingly, we give the said benefit and we acquit them under section 302 read with Section 34 I.P.C and consequent sentence imposed upon them are set aside. It is reported that they are on bail. They are discharged from their bail bonds. 10. As we are of the view that there will be no prejudice to Sunder Bhuiyan for modifying the conviction from Section 302 read with Section 34 I.P.C. to one under section 302 I.P.C., the conviction of. Sunder Bhuiyan under section 302 read with Section 34 I.P.C. is modified to one under section 302 I.P.C. The sentence imposed upon the second appellant, Sunder Bhuiyan is confirmed. With the aforesaid modification, this appeal is partly allowed and partly dismissed.