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2007 DIGILAW 837 (PAT)

Barhan Bhuia, Pragash Bhuia v. State Of Bihar

2007-04-26

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Whereas the two appellants along with one Shivnandan Bhuia were put on trial for offences under Section 302 read with 149 and 323 read with 34 I.P.C., Pragash Bhuia was further charged for an offence under Sec. 302 I.P.C. in connection with Sessions Trial No. 583/286 of 1990/90 arising out of Imamganj P.S. case No. 17/1987. However, during the pendency of the trial Shivnandan Bhuia was referred to the Mental Hospital at Kanke, Ranchi in his being found to be of unsound mind. By judgment and order dated 14th July, 1992, Sri Someshwar Nath Pathak, the then 8th Additional Sessions Judge, Gaya, convicted both the appellants for the offence under Section 304 Part II I.P.C. and sentenced each of them to undergo Rigorous Imprisonment for ten years. 2. One Munshi Bhuia, father of deceased, Kesho Bhuia, gave his fardbeyan at about 5.30 P.M. on 14.2.1987 at Imamganj State Dispensary, inter alia, stating that earlier that day at about 12 noon the informant along with his son, Kesho Bhuia, were irrigating their field in Marwa Bandh growing sugarcane crops when all of a sudden accused Pragash Bhuia, Shivnandan Bhuia, Kameshwar Bhuia, Tulsi Bhuia and Barhan Bhuia arrived and complained to the informant as to why he was using sorcery against the relations of the accused which resulted in exchange of hot words between the informant Munshi Bhuia and the accused persons. It is alleged that accused Shivnandan Bhuia gave a khanti blow on the head of the informant and accused Pragash Bhuia gave 3-4 lathi blows upon his son Kesho which resulted in the breakage of Keshos tooth and he fell down. It is further alleged that Tulsi Bhuia assaulted the informant by means of lathi and Kameshwar showered lathi blows on Kesho. The cause of occurrence is said to be the fact that 3-4 days prior to the occurrence Barhan Bhuia was taken ill and the informant was alleged to have used sorcery causing illness of Barhan Bhuia which had led to an exchange of abuses from both sides and an altercation developed in the village which at the intervention of the villagers was pacified. It is said that injured Kesho Bhuia was carried to the Imamganj Hospital where he succumbed to his injury. It is said that injured Kesho Bhuia was carried to the Imamganj Hospital where he succumbed to his injury. On the basis of the aforesaid fardbeyan of Munshi Bhuia, Imamganj P.S. Case No. 17 of 1987 under Sections 147, 148, 149, 307, 324, 325 and 323 I.P.C. was registered to which Sec. 302 I.P.C. was added subsequently consequent to the death of Kesho Bhuia by order dated 27.2.1987. 3. After due investigation the police submitted a charge sheet against all 5 accused. During the pendency of the trial Tulsi Bhuia was reported to have expired in jail hospital and the proceeding so far as he is concerned was dropped. The other accused Kameshwar Bhuia was declared to be an absconder and his trial was separated since the other accused were in custody. 4. At the trial the prosecution examined as many as 5 witnesses in support of its case and also exhibited the post mortem report (Ext. 1), formal First Information Report (Ext. 2), fardbeyan (Ext. 3), inquest report (Ext. 4) and the case diary (Ext. 5). Of the five witnesses, Mahendra Singh (P.W. 5) is a formal witness who came to prove the formal First Information Report and the fardbeyan. Dr. Mithilesh Kumar Singh (P.W. 4), Professor and Head of the Department of Forensic Medicines, A.N.M. Medical College and Hospital, Gaya conducted the post mortem examination of the deceased Kesho Bhuia and has also proved the post mortem report. P.W. 3 is Munshi Bhuia, the informant, whereas P.W. 1 Ram Chandra Bhuia, is the younger son of the informant and P.W. 2 is one Bishnu Paswan, a co-villager. It would thus follow therefrom that only three eye witnesses to the alleged occurrence, namely, P.W. 1, 2 and 3 have been examined by the prosecution. 5. The defence before trial Court was one of innocence and false implication. 6. The learned trial Judge on consideration of the materials on record and the submissions advanced by the learned counsels for the parties recorded the verdict of guilt and sentenced the two appellants to Rigorous Imprisonment as stated herein before. 7. 5. The defence before trial Court was one of innocence and false implication. 6. The learned trial Judge on consideration of the materials on record and the submissions advanced by the learned counsels for the parties recorded the verdict of guilt and sentenced the two appellants to Rigorous Imprisonment as stated herein before. 7. It has been submitted on behalf of the appellants that the learned trial Judge erred in arriving at his findings as he did, since at the trial there had been a markable improvement in the prosecution story inasmuch as in the fardbeyan Shivnandan Bhuia is said to have give a khanti blow on the head of the informant and accused Pragash Bhuia inflicted lathi blows on the head of the deceased, Kesho, but in the post mortem report incised wounds were found present on the body of the deceased Kesho and it was only with the purpose of concurring the post mortem report with the fardbeyan that the witnesses in course of their testimony came out with the revised story of deceased Kesho having been assaulted with khanti. According to the learned counsel for the appellants this embellishment in the prosecution story was sufficient for setting aside the impugned judgment and order. 8. I have perused the evidence of P.Ws. 1 to 3. It appears from the evidence of P.W.2 that when he came to the place of occurrence he saw Kesho Bhuia lying on the ground and the informant grappling with the accused. He speaks of assault on the informant and his son Ram Chandra Bhuia (P.W. 1) but he does not speak a word regarding any assault on Kesho Bhuia. That apart it has been stated in the fardbeyan that it was Pragash Bhuia and Shivnandan Bhuia who were carrying khanti and the others were armed with lathi. And P.W. 1 in course of his testimony in Court stated that when Kesho Bhuia went to rescue his father from assault by the accused persons Pragash Bhuia, Shivnandan and Barhan Bhuia etc, assaulted him with lathi and khanti as a result whereof blood started oozing from his ears. P.W. 3 has also stated in course of his testimony in Court that Kesho was assaulted by Pragash and Shivnandan by khanti whereas the others assaulted him with lathi. 9. P.W. 3 has also stated in course of his testimony in Court that Kesho was assaulted by Pragash and Shivnandan by khanti whereas the others assaulted him with lathi. 9. The learned trial Judge in paragraph 7 of the judgment has very lucidly dealt with this aspect of the matter and by cogent reasoning has rightly turned down similar submissions advanced at the trial. It has been stated that the fardbeyan is not an encyclopaedia of the entire case of the prosecution and that it depends upon the receptive capacity of the Police Officer, who records the fardbeyan and on his way of writing. It is also apparent from the deposition of P.W. 3, the informant, that he has tried to explain the alleged inconsistency regarding the weapon of assault as mentioned in the fgrdbeyan and the deposition of the witnesses. Munshi Bhuia has stated that when he was giving his statement in the hospital he was not in the ordinary frame of mind and had used the word "behosh" to indicate his mental condition when he was giving his statement before the Police. As has been explained by the learned trial Judge the word "behosh" amongst rustic people generally mean "a dazed mental state of mind" which is quite a natural phenomenon and that too when the deceased, his son, died before his eyes. The learned trial Judge has also noticed the frail health and advanced age of P.W. 3. 10. I am in full agreement with the reasonings given by the learned trial Judge for rejecting the submissions advanced by the learned counsel for the appellants. Minor discrepancies such as these cannot in any event vitiate the findings of the trial Court. 11. The learned counsel for the appellants next sought to submit that the P.O. had been altered from Dandbak Bandh to Marwa Bandh and the non examination of the I.O had caused prejudice to the defence case. It will appear from the judgment of the trial court that similar point was also raised before the trial Judge which he had negatived by cogent reasons in paragraph 6 of the judgment and I see no reason to differ from the cogent reasonings which I fully endorse. 12. It will appear from the judgment of the trial court that similar point was also raised before the trial Judge which he had negatived by cogent reasons in paragraph 6 of the judgment and I see no reason to differ from the cogent reasonings which I fully endorse. 12. It was also sought to be submitted that although independent witnesses were available, they have not been examined and the only independent witness (P.W. 2) who had been examined had not supported the prosecution case in toto. According to the learned counsel the only support to the prosecution story was from the father and the son (P.Ws. 1 and 3) who were relatives of the deceased and were therefore partisan and interested witnesses. 13. The plea that there was no independent witness examined is of no consequence. The occurrence allegedly took place in the sugarcane fields of the informant. Therefore, presence of independent witnesses would be asking for touching the moon. As observed by the Apex Court in the State of Rajasthan vs. Teja Ram reported in (1999)3 SCC 507 , the over insistence on witnesses having no relation with the victim often results in criminal justice going awry. It was further observed that if the Court has discerned from the evidence or even from the investigation report that some other independent person has witnessed any event connecting the incidence in question then there is justification for making adverse comments against non examination of such persons as prosecution witness. Otherwise merely on surmises the Court should not castigate the prosecution for non examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those, who have witnessed the event and not those who have not seen it. 14. The learned counsel for the appellants next submitted that due to the non examination of the I.O. the defence case had been prejudiced since it could not come on record as to whether any blood had been found at the P.O. or if any blood stained earth had been seized by the I.O. That apart the objective findings of the I.O. regarding the P.O. were also missing to the prejudice of the defence. 15. The argument that non examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. 15. The argument that non examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. The well settled law in this regard is that non examination of the I.O. tan result in failure of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to the statements made during the investigation to undo their credibility or in the like manner when some other material evidence could not.be brought on record except by examining the 10. In the present case nothing of this nature has been brought to my notice save and except the fact that the objective findings of the I.O. has not seen the light of the day and that it could not be ascertained whether the blood had been found at the P.O. I do not find any merit in this submission of the learned counsel for the appellants and the same is noticed only to be rejected. 16. The learned counsel for the appellants next submitted that the appellants had been falsely implicated in this case since they have objected to the alleged sorcery being allegedly practiced by the informant. Unfortunately nothing has been brought on record by the defence either by ocular or by documentary evidence in support of their submissions and accordingly the submission is also noticed to be rejected. 17. The next submission of the learned counsel for the appellants was that the prosecution had not come with clean hands as injury report of Ram Chandra and Bishu, who had also allegedly sustained injuries at the occurrence had not been brought on record. I find no merit in this submission as non bringing on record of the injury reports of the aforesaid two persons was of advantage to the defence only. 18. I find no merit in this submission as non bringing on record of the injury reports of the aforesaid two persons was of advantage to the defence only. 18. So far as the conviction and sentence under Sec. 304 Part II I.P.C. is concerned the learned counsel for the appellants sought to submit that it would appear from the fardbeyan that 3-4 lathi blows had been showered upon Kesho Bhuia by accused Pragash Bhuia which had resulted in the breakage of one of his tooth but the same was not corroborated by the medical evidence inasmuch as the Doctor who performed the autopsy of the dead body of Kesho did not find any broken tooth. It was also submitted that the presence of incised wounds over the left temporal region and two incised wounds over left and right parietal region of skul! could not have been created by lathi blow and, therefore, accused Pragash Bhuia could not be held to be guitly of the offence under Sec. 304 Part II I.P.C. 19. Dr. Mithilesh Kumar Singh (P.W.4) who had conducted the post mortem of the dead body of Kesho Bhuia found the following ante mortem injuries: (i) lacerated injury over left cheek just below left eye size 1" X 1/2" x bone deep lacerated injury over left supra orbital ridge size 1" X 1/2" x bone deep (iii) incised wound over left temporal region extending to left cheek, size 1 1/2" X 1/4" X 1/8" bone deep. On dissection of bone there were extra and subdural haemotoma over left temporal region cerebral hemisphere, brain and menges were congested. Two incised wounds of size 1 3/4" X 1/4" X bone deep over left and right parietal region of skull and there were extra and subdural haemotoma under lying the bone over both cerebral hemispheres. In the opinion of the doctor all the injuries were ante mortem in nature and whereas injury Nos. (iii) and (iv) were grievous and dangerous to life and caused by sharp cutting weapon, injury Nos. (i) and (ii) were simple and caused by hard blunt weapon. Death in the opinion of the doctor was due to shock, compression and coma. In the opinion of the doctor all the injuries were ante mortem in nature and whereas injury Nos. (iii) and (iv) were grievous and dangerous to life and caused by sharp cutting weapon, injury Nos. (i) and (ii) were simple and caused by hard blunt weapon. Death in the opinion of the doctor was due to shock, compression and coma. The word used in the fardbeyan given by the informant is "Jabra" which would correspond to the English word "jaw" and the reference of injury on the jaw and breaking of the tooth would well be explained by injury on the cheek, bone deep. It would be plausible to believe that the doctor may have missed the broken tooth while holding the post mortem since he would be more concerned with the major injuries resulting in the death rather than focus his attention on a broken tooth. 20 The learned trial Judge in paragraph 10 of his judgment has discussed the materials on record and having perused the testimony of the witnesses, I have no reason to disbelieve the findings arrived at by the learned trial Judge. As per the fardbeyan of the informant the two appellants along with others had come to the fields of the informant where his deceased son Kesho Bhuia was also present and after making a grievance of his having practiced sorcery against the relations of the accused there had been exchange of hot words between the informant Munshi Bhuia and the accused persons, and this was followed by the alleged assault. When tempers were running high, in the heat of passion, upon sudden quarrel without any premeditation, the accused assaulted the unarmed deceased. The accused appellants were armed with lathi and Pragas Bhuia allegedly landed a few blows on the head of Kesho Bhuia. In such a situation the learned trial Judge had rightly come to the conclusion that the appellants were guilty of the offence under Sec. 304 Part II I.P.C. and had accordingly sentenced them. 21. It was finally submitted that appellants Pragash Bhuia has been in jail for more than 4 years. Due regard being had to the trauma faced by the appellants due to the protracted criminal proceeding they may not be asked to serve out their sentences in the event that the judgment and sentence awarded were approved. 22. 21. It was finally submitted that appellants Pragash Bhuia has been in jail for more than 4 years. Due regard being had to the trauma faced by the appellants due to the protracted criminal proceeding they may not be asked to serve out their sentences in the event that the judgment and sentence awarded were approved. 22. It appears that initially case was instituted in the year 1987 and the Sessions Trial is of the year 1990 with the judgment and order being pronounced in 1992. This would mean that the appellants had to face the trauma and harassment of criminal proceeding for over 20 years which in my opinion has been a source of sufficient punishment by itself. 23. Due regard being had to the attending circumstan is of the case while approving the conviction under Sec. 304 Part II of the Penal Code, I sentence them to the period already undergone which in my opinion will serve the ends of justice and with this modification in the order of sentence this appeal is dismissed. The appellants who by order of this Court were directed to be released on bail are discharged from the liabilities of their respective bail bonds.