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2006 DIGILAW 66 (JHR)

Bihari Rai v. State of Bihar (now Jharkhand)

2006-01-25

M.Y.EQBAL, N.DHINAKAR

body2006
By Court.- The appellants, Bihari Rai, Tulsi Rai and Ghutru Rai, were arrayed as A 1, A3 and A2 respectively in Sessions Case No. 156 of 1980/21 of 1985. In this judgment the appellants will be referred as A 1 to A3 in the same order as they were arrayed before the Sessions Judge. They were charged for an offence under section 302 read with Section 34 I.P.C. on the allegation that at about 9.00 a.m. on 28.6.1978, they, in furtherance of common intention of one another, caused the death of Badri Rai by the first accused appellant inflicting injuries with an axe and that the other two accused beat him with lathis leading to his death. The Trial Judge, accepting the prosecution version brought out through oral and documentary evidence, convicted the accused appellants and sentenced each one of them to imprisonment for life. The present appeal is against the said conviction and sentence. 2. P. W. 1, Ramfali Rai, is the son of the deceased, Badri Rai. There was a long standing dispute pending between the appellants' family and the deceased's family. Proceedings were initiated under section 145 Cr.PC. and several suits were also filed. The disputes between the two families were pending from the year 1952 and according to the prosecution, it is said to be the motive for the unfortunate occurrence. 3. On 28.6.1978, the deceased left for his field accompanied by his servant, Mantu Rai. P.W. 1, Ramfali Rai, stayed at home and at about 9.00 a.m., he heard shouts, "Maro Maro" and came out of the house and started running towards the north from where the shouts were emanating. Reaching some distance, he found his father, Badri Rai, being chased by the first accused, Bihari Rai and the other two accused, Tulsi Rai and Ghutru Rai, were also found at that place. The first accused, Bihari Rai, inflicted three blows-two on the head and one on the hand of the deceased, Badri Rai, and the deceased fell down and the accused 2 and 3 also gave lathi blows and thereafter all the three accused left the place. The occurrence was witnessed by PW. 1, Ramfali Rai, PW. 2, Horil Rai, PW. 5, Kuwa Rai, PW. 6, Gopi Rai and PW. 7, Jarman Rai. The occurrence was witnessed by PW. 1, Ramfali Rai, PW. 2, Horil Rai, PW. 5, Kuwa Rai, PW. 6, Gopi Rai and PW. 7, Jarman Rai. In the meantime, information was received at Jama Police Station by Sudhir Kumar Sinha, Sub-Inspector, that some occurrence had taken place in the village-Barudih. The said Sub-Inspector, after making an entry in the station diary, left for the scene of occurrence and reached there, where the fardbeyan, Ext. 5, given by P.W. 1 was recorded at 3.00 p.m. The said fardbeyan was registered as a complaint and the printed first information report of the said complaint is Ext. 6. Ext. 1 is the signature of P.W. 1, Ramfali Rai, in the said complaint, Ext. 5. Investigation was taken up and the inquest was conducted, which stands marked as Ext. 2/2, during which witnesses were examined. After the inquest, the body was sent to the hospital with a request to the Doctor to conduct autopsy. P.W. 9, Dr. Upendra Prasad Sinha, Civil Assistant Surgeon, Sadar Hospital, Dumka, conducted post mortem on the body of the deceased, Sadri Rai, and he found the following injuries:- (i) Incised wound 1" x 1/2" x 1" on outer side of left arm; (ii) Incised wound 8" x 1" x 4" cutting the posterior left side of the scalp bone including the brain substance with a large haemorrhage (In the post mortem report the expression 'haematoma" and not haemorrhage as has been deposed by the Doctor) inside the brain substance; (iii) Incised wound 6" x 1" x 3 ½” cutting the posterior right side of scalp bone including the brain substance with a large haemorrhage (here also the expression in the post mortem report is haematoma) inside the brain substance. The Doctor issued the post mortem certificate, Ext. 4, with his opinion that injuries (ii) and (iii) found on the body are sufficient in the ordinary course of nature to cause death and that death must have occurred within. 36 hours. 4. After completion of the investigation, the final report was filed against the accused appellants. 5. The accused appellants denied all the incriminating circumstances put to them. 6. Learned counsel appearing for the appellants contends that since the printed first information report, Ext. 36 hours. 4. After completion of the investigation, the final report was filed against the accused appellants. 5. The accused appellants denied all the incriminating circumstances put to them. 6. Learned counsel appearing for the appellants contends that since the printed first information report, Ext. 6, was not immediately dispatched and was dispatched only on 29.6.1978, the prosecution case is to be disbelieved, as, according to him, the said complaint would have been prepared at much later point of time. It is his further submission that P.Ws. 2, 6 and 7 not having been named in the fardbeyan given by P. W. 1, their evidence cannot be accepted. Learned counsel appearing for the appellants further submits that according to the prosecution, accused 2 and 3 inflicted lathi blows on the deceased indiscriminately, but P.W. 9, who conducted autopsy, did not find a single contusion corroborating the oral evidence and in the above circumstances, the appellants 2 and 3 are entitled to acquittal. Learned counsel for the appellants further submits that even if the prosecution case is accepted by the Court, the offence committed by the first accused, Sihari Rai, will fall within the ambit of Section 304 Part I I.P.C., since the occurrence took place even, according to the witnesses, during a quarrel between him and the deceased. 7. On the above contention, we have heard Mrs. Sanani Verma, learned counsel appearing for the State. 8. It is not in dispute that there was an occurrence at 9.00 a.m. on 28.6.1978 and that in the said occurrence, the deceased, Sadri Rai, suffered injuries and died. The prosecution, in order to establish that the deceased died on account of homicidal violence, examined P.W. 9, Medical Officer attached to the Sadar Hospital, Dumka, who, in his evidence stated that death was account of injuries (ii) and (iii) and they are sufficient in the ordinary course of nature to cause death. He has also marked the post mortem certificate as Ext. 4 containing his opinion. We, on the medical evidence, hold that Sadri Rai died on account of homicidal violence, which fact was not disputed either before the trial court or before this Court. 9. He has also marked the post mortem certificate as Ext. 4 containing his opinion. We, on the medical evidence, hold that Sadri Rai died on account of homicidal violence, which fact was not disputed either before the trial court or before this Court. 9. The prosecution before the trial court, in order to prove that the deceased suffered injuries at the hands of A 1 to A3 and died on account of the said injuries, examined five witnesses, who had witnessed the occurrence and they are P.Ws. 1, 2, 5, 6 and 7. P.W. 1 is the son of the deceased and according to him, on 28.6.1978, his father, Sadri Rai, left his house at about 6.00 a.m. accompanied by his servant to plough the field and later at 9.00 a.m., on hearing cries, he came out of the house and ran towards the place from where cries were emanating. He has further stated in his evidence that after running to a distance, he found that the first accused chasing the deceased and inflicting blows with an axe on the head. P.Ws. 2, 5, 6 and 7 have also supported the said statement of P. W 1 that the deceased was inflicted blows with axe by A 1. According to the witnesses, two blows were inflicted on the head and one blow on the hand of the deceased by the first accused. We have to consider now whether their evidence can be accepted in toto 'or accepted only in part. 10. On the evidence of the eye-witnesses, which we have extracted above, we will take up the case of Ghutur Rai A2 and Tulsi Rai A3. According to witnesses, the deceased was beaten indiscriminately with lathi by Ghutru Rai and Tulsi Rai. The Doctor, P.W 9, who conducted autopsy, did not find any injury indicating that he had been beaten with lathis. If the deceased was beaten with lathis indiscriminately, that too with force, as claimed by the witnesses, the Doctor would have noticed contusions over the body of the deceased. The Doctor did not find any contusion and hence, the case of the prosecution as against A2 and A3 gets weakened since the evidence of the witnesses is not corroborated by the medical evidence. The Doctor did not find any contusion and hence, the case of the prosecution as against A2 and A3 gets weakened since the evidence of the witnesses is not corroborated by the medical evidence. 'In this background, we cannot also lose sight of the evidence of P.W 7, who did not whisper about A2 and A3 beating the deceased with lathis. It is, therefore, clear that the evidence of P.Ws. 1, 2, 5 and 6 is not only not corroborated by the medical evidence but is also not corroborated by P.W 7, the other eye-witness, as regards the part played by A2 and A3. In the above background, we find it unsafe to uphold the conviction of A2 Ghutru Rai and A3 Tulsi Rai. We, therefore, give the benefit of doubt to A2 Ghutru Rai and A3 Tulsi Rai and acquit them. We are unable to hold that on the facts and circumstances of the case, they shared the common intention of the other accused, Bihari Rai, and the reasons, we will presently mention, while dealing with the case of the first accused. 11. We will take up the case of the first accused. It is, no doubt, to be remembered that the names of PWs. 2, 6 and 7 were not given by P. W 1 as witness to the occurrence when he gave fardbeyan, Ext.5: that by itself cannot be a reason to reject their evidence. It is also to be remembered that PW. 1, on hearing cries of his father, came out the house, ran towards the place and found the first accused inflicting injuries on the deceased and therefore, at that time, he could not have noticed the persons, PWs. 2, 6 and 7, at the scene of occurrence, since he must have been concentrating only on the attack made on his father by the first accused. In any event, we find no material in the evidence of PWs. 2, 6 and 7 to hold that they were procured witnesses. Their evidence is also supported by PW 1 as well as P.W 5. On going through the evidence of P.Ws. 1, 2, 5, 6 and 7, we find no infirmity in their evidence and the defence also did not elicit any answer in cross-examination in favour of the first accused for us to reject their evidence. We are satisfied with the evidence of P. Ws. On going through the evidence of P.Ws. 1, 2, 5, 6 and 7, we find no infirmity in their evidence and the defence also did not elicit any answer in cross-examination in favour of the first accused for us to reject their evidence. We are satisfied with the evidence of P. Ws. 1, 2, 5, 6 and 7, that the first accused inflicted blows on the head and hand of the deceased. We, therefore, accept their evidence as regards the part played by the first accused. 12. We find no substance in the argument of the learned counsel for the appellants that because there was delay in dispatching the complaint to the court, the prosecution case is to be rejected and the other contentions, which have been considered by us in the earlier part of the judgment while discussing the merits of the case. 13. The final question that is to be decided by us is that whether A1 is to be convicted under section 302 I.PC., or under section 304 Part I I.P.C. 14. The prosecution before the trial court did not produce any material to show that the disputed land was in possession of the deceased though they came out with a case that there was a long standing enmity between the deceased's family and the appellants' family as regards the enjoyment of the said disputed land. The defence, by marking several documents when P.W. 1 was in the box, tried to establish that the disputed land was not in possession of the deceased during the relevant period and that the deceased actually entered the said land which was in possession of the accused and started ploughing. Hence, it is clear that there were two versions-one given by the prosecution to the effect that the disputed land was in possession of the deceased and the other given by the appellants that the said land was not in possession of the deceased. In absence of any conclusive material, we do not find it safe to give any finding, in this criminal appeal, as to who was in possession of the property though one of the documents marked by the side of the accused, which is an order (Ext. In absence of any conclusive material, we do not find it safe to give any finding, in this criminal appeal, as to who was in possession of the property though one of the documents marked by the side of the accused, which is an order (Ext. B) passed in the year 1952 by the Munsif Magistrate, Dumka, in a proceeding initiated under section 145 Cr.P.C., shows that the disputed land was held to be in possession of the ancestors of the accused. The evidence of P.Ws. 2, 5,6 and 7 shows that just before the occurrence, the deceased and the first accused quarreled and thereafter, the first accused inflicted blows with an axe, which he had in his hand, on the deceased. P.W. 1, son of the deceased, was not present when the quarrel commenced and even, according to him, he came to the scene of occurrence on hearing the cries of his father and saw the first appellant inflicting blows on the deceased. The evidence of the other witnesses shows that the first accused inflicted blows on the deceased during a quarrel and hence, we are of the view that he is' entitled to the benefit of Exception 4 to Section 300 I.P.C. In the case of Surinder Kumar vs. Union Territory, Chandigarh reported in AIR 1989 SC 1094 , the Supreme Court held that to invoke Exception 4 to Section 300 I.P.C., four requirements must be satisfied and that they are:-(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The Supreme Court further held that the cause of the quarrel is not relevant, nor is it relevant who offered the provocation or started the assault and that the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger; of course, the offender must not have taken any undue advantage or acted in a cruel manner and where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 15. The facts in the present case fall within the four corners of the principles laid down by the Supreme Court in the above judgment. As we have held on the facts that the first appellant beat the deceased during a quarrel, it cannot be said that the appellants 2 and 3 shared the common intention of the first accused. The occurrence itself had taken place without any premeditation and, therefore, A2 and A3 could not have shared the common intention of the first accused. 16. In view of the discussion made above, while we set aside the conviction and sentence of A2 Ghutru Rai (appellant no. 3) and A3 Tulsi Rai (appellant no. 2) we also set aside the conviction of A 1 Bihari Rai (appellant no. 1) under section 302 read with Section 34 I.P.C.; but we find him (Bihari Rai) guilty under section 304 Part I I.P.C., for which he is directed to undergo rigorous imprisonment for a period of seven years. It is reported that the appellants are on bail. The appellant no. 2, Tulsi Rai, and appellant no. 3, Ghutru Rai, are discharged from their bail bonds. The learned court below, V Addl. Sessions Judge, Dumka, is directed to take steps to commit the appellant no. 1, Bihari Rai, to prison for serving the remaining part of the sentence. With the above modification, this appeal stands disposed of. Mr. Mukesh Sinha, being appointed Amicus Curiae, has assisted this Court.