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2012 DIGILAW 526 (JHR)

Badri Bhuian v. State of Jharkhand

2012-04-06

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court - This appeal is directed against the judgment of conviction and sentence dated 6.8.2004 and 9.8.2004 respectively passed by learned Sessions Judge. Chatra in Sessions Trial No.324 of 2001/06 of 2011, convicting the appellants under Section 302/34 IPC and sentencing them to undergo rigorous imprisonment for life. 2. The prosecution case in short is that Sunita Devi (PW-8) lodged her fardbeyan at 11.20 hours along with PW-1 that on the previous day i.e. on 11.1.2001 at about 12 hours when her husband Ramji Bhuian (deceased) told his father-appellant No.1 for partition, the appellant No.2 - her bhaisur started abusing her husband and then there was hot exchange of words during which appellant No. 2-Arjun Bhuian assaulted her husband with lathi. Appellant No.1 also started beating her husband due to which he fell and became unconscious. Then, the appellant No.2 said while abusing in filthy language that if her husband asked for partition he will be killed. In the evening the condition of her husband deteriorated and ultimately he died. 3. Counsel for the appellant submitted that so far as appellant No. 1 is concerned he is said to have assaulted the deceased by lathi on his back, but no injury was found by the Doctor on his back. Moreover, the appellant No. 1 must be aged about 72-73 years by now. So far as appellant No.2 is concerned at best his conviction may be converted from Section 302, IPC to Section 304, IPC. 4. On the other hand, learned counsel, appearing for the State, supported the impugned judgment. 5. The prosecution has examined ten witnesses. PWs 1, 2, 3, 4, 5 and 7 are common relations of the parties and have been declared hostile. PW-6 Archi Devi is the wife of appellant No. 1 and mother of appellant No.2. She, inter alia, said that both the appellants assaulted the deceased with lathi due to dispute over partition. At one place she said that at the time of alleged occurrence she was alone in the house, but at another place she said that she was along with her daughter-in-law (PW-8) and the appellants were present at the time of occurrence. PW-8, the informant, inter alia, stated that there was quarrel over partition between the parties during which the appellant No.2 Arjun Bhuian assaulted her husband with lathi on his head and chest. PW-8, the informant, inter alia, stated that there was quarrel over partition between the parties during which the appellant No.2 Arjun Bhuian assaulted her husband with lathi on his head and chest. Appellant No. 2 also assaulted him on his back by lathi. The Doctor (PW-9) found one injury on the head by hard blunt substance, may be lathi and also fracture of multiple ribs. He did not find any injury on the back of the deceased. As per his opinion, the cause of death was shock, however, contributory cause appeared to be asphyxia and coma, also. PW-10 is the Investigating Officer he has supported prosecution case. 6. Thus the prosecution has proved that the appellant No. 2 assaulted the deceased with lathi during quarrel over partition. Appellant No. 1 is said to have assaulted the deceased by lathi on his back but the Doctor did not find any injury on the back of the deceased. Therefore it will not be safe to hold that the appellants had intention to kill the deceased or they shared common intention. In the circumstances it will not be proper to uphold the conviction of appellant No.1. However the appellant No. 2 is convicted under Section 304 IPC. So far as the sentence is concerned it was informed that appellant No. 2 has remained in jail for more than 11 years by now. Accordingly he is sentenced to the period undergone by him. In the result, this appeal is partly allowed as indicated above. Appellant No. 1 is discharged from his liability of bail bond and the appellant No. 2 is directed to be released forthwith if not wanted in any other case. Appeal partly allowed.