Deb Bansh Mahto vs Prem Prakash Sharma, Secretary

Heard learned counsel for the surviving appellants Hariher Bhuian

and Sudeshwer Bhuian and the learned counsel for the State.

The appellants are aggrieved by the Judgement of conviction and

Order of sentence dated 05.09.1992 passed by the learned Second

Additional Sessions Judge, Palamau in S.T. No. 172 of 1990, whereby

these appellants along with the other two co-appellants, who are since

dead, have been convicted for the offences under Sections 302 and

307 of the Indian Penal Code read with Section 34 of the Indian Penal

Code. The appellant Hariher Bhuian was also found guilty for the

offence under Section 323 of the Indian Penal Code for assaulting P.W.-

3, Kalo Devi. Upon hearing on the point of sentence the appellants were

sentenced to undergo rigorous imprisonment for life for the offence

under Sections 302 / 34 of the Indian Penal Code and no separate

sentence was passed for the other offence.

At the very outset it may be stated that the conviction of the

appellant Hariher Bhuian for the offence 323 of the Indian Panel Code

cannot be sustained in the eyes of law, in as much as, he was not even

charged for that offence and without framing the charge for that

offence and tried for that, he has been convicted for the same. The

other two co-appellants Bhikhu Bhuian and Mahipat Bhuian died during

the pendency of this appeal and accordingly, this appeal stood abated

qua them by order 11.08.2016.

According to the prosecution story on 16.05.1989 at about 8:00

a.m., the informant Prabhuwan Bhuian had gone to take bath on the

State Hand Pump besides his house, when it is alleged that Bhikhu

Bhuian (since dead) came armed with Tangi and assaulted and injured

him on his head and shoulder. The other three appellants Hariher

Bhuian, Sudeshwer Bhuian and Mahipat Bhuian (since dead) also came

there armed with Lathi and assaulted the informant. On the alarm

raised, his father Raman Bhuiyan came to his rescue, upon which

Bhikhu Bhuian assaulted him with Tangi injuring him and the other

three appellants also assaulted him by Lathi badly injuring him. In the

F.I.R. it is also stated that the family members of the informant had also

witnessed the occurrence and the occurrence had taken place due to

previous enmity between the parties. Both the injured were being

brought to police station on rickshaw, but the father of the informant

died in the way. Thereafter, the informant along with the dead body

came to the police station and lodged the F.I.R., on the basis of which

Lesliganj P.S. Case No. 30 of 1989, corresponding to G.R. No. 612

of 1989, was instituted for the offences under Sections 302, 307, 324,

323 of the Indian Penal Code and investigation was taken up. after

investigation, the police submitted the charge-sheet against the

accused appellants.

After the commitment of the case to the Court of Session, charge

was framed against the appellants for the offence under Section 302 of

the Indian Penal Code. Separate charges for the offence under Section

307 of the Indian Panel Code against the accused Bhikhu Bhuian (since

dead) and under Sections 307 / 34 against the remaining three

accused, for causing hurt to Prabhuwan Bhuian with intention to cause

his death, were also framed, and upon the accused persons'' pleading

not guilty and claiming to be tried, they were put to trial. It appears

that as in the F.I.R., there was no allegation of causing any hurt to P.W.-

3, Kalo Devi, no charge was framed against any accused for the same.

In course of trial the prosecution has examined 12 witnesses. The

Investigating Officer of the case has not been examined and

accordingly, the F.I.R., the seizure list and the Inquest Report have

been proved by a formal witness who was examined as C.W.-1

Puranchand Singh. P.W.-6 Bhagwano Devi was only tendered by the

prosecution.

P.W.-8 Prabhuwan Bhuiyan is the informant in the case, who has

supported the prosecution case. He has stated that on the day of

occurrence at about 8:00 a.m. in the morning he had gone on the State

Hand Pump for taking bath when Bhikhu Bhuian came there armed with

Tangi and assaulted him on his head with the intention to cause his

death. The accused Mahipat Bhuian, Hariher Bhuian and Sudeshwer

Bhuian also came there and they assaulted him with Lathi

indiscriminately. Upon the alarm raised by him, his wife Kalo Devi came

to his rescue when Hariher Bhuian assaulted her also by Lathi. His

mother Puna Devi, Radhika Devi and Biro Bhuian also came there and

raised alarm, whereupon his father who was tending cattle in a nearby

field, came to his rescue, whereupon the accused persons started

assaulting him. Bhikhu Bhuian assaulted him with Tangi whereas

Hariher Bhuian, Sudeshwer Bhuian and Mahipat Bhuian assaulted him

with Lathi badly injuring him. Thereafter the accused persons fled

away. The wife of this witness called the Choukidar and two rickshaws

were called on which the injured were being taken to hospital, but while

they reached Jagatpurwa More, the father of the informant died,

thereafter they came to the police station and this witness gave his

statement which was recorded and he put his thumb impression

thereon. He has stated that he and his wife were treated at hospital. He

has also stated that the occurrence had taken place due to previous

enmity between the parties. This witness has identified the accused

persons in the Court. Though this witness has been put to extensive

cross-examination by the defence, but except for minor discrepancies

there is nothing of much importance in his cross-examination so as to

discredit his testimony.

P.W.-1 Biro Bhuiyan, who is the maternal uncle of the informant.

P.W.-3 Kalo Devi, who is the wife of the informant, P.W.-4 Puna Devi,

who is the mother of the informant and the wife of the deceased, P.W.-

5 Radhika Devi, who is the wife of the younger brother of the informant

have also supported the prosecution case as the eye witnesses to the

occurrence, giving more or less the same details about the prosecution

case as stated by P.W.-8 Prabhuwan Bhuiyan. P.W.-2 Bal Kuar Bhuiyan,

who is the other maternal uncle of the informant and P.W.-7 Mahangoo

Bhuiyan, who is the brother-in-law of the informant, have also

supported the prosecution case as hearsay witnesses, as they are not

the eye witness to the occurrence. They had seen the dead body of the

deceased at Jagatpurwa More, upon getting the information about the

occurrence.

P.W.-10 Ramjit Bhuiyan is one of the Rickshaw puller, on whose

rickshaw the injured were being taken to hospital and he has stated

that while the injured were being taken to hospital the deceased died

on the way and they were brought to police station. P.W.-11 Sitaram

Bhuiyan is the another rickshaw puller, but this witness has turned

hostile.

P.W.-9 is Dr. Kamendra Singh, who had conducted the post-

mortem examination on the dead body of the deceased on 17.05.1989

at 10:00 a.m. and had found the following ante-mortem injuries:-

(i) Lacerated injury of the left leg 4" above the ankle joint

leading to laceration of underlying muscles and fracture of

both bones.

(ii) Multiple lacerated injuries on right leg varying in size from

3" to 1" to 1" x 1 1/2". All injuries were muscle-deep.

(iii) Lacerated injury on the left arm 1" x 1/2 " x 1/2.

(iv) Swelling of neck and face. On dissection there were

ecchymosis and fracture of maxilla and mandible on the left

side of check.

(v) Lacerated injury on the left side of skull just above the left

ear 1" x 1/2" x 1/2" leading to fracture of left temporal bone.

On dissection of brain it was pale.

He has stated that the death was due to shock and hemorrhage,

caused by the above mentioned injuries caused by hard and blunt

substance such as blunt portion of Tangi and Lathi. He has also stated

that all the injuries were sufficient in ordinary course of nature to cause

the death. He has identified the post-mortem report to be in his pen and

signature, which was marked Ext-1. In his cross-examination this

witness has stated that injury No. (iii), singly and individually was not

sufficient to cause death in ordinary course of nature and similarly injury

Nos. (i) and (ii) alone were not sufficient to cause death, whereas injury

No. (iv) individually was sufficient to cause death instantaneously. He

has stated that he did not find any incised wound on the deceased.

P.W.12 Dr. Rakesh Kr. Sinha is the Medical Officer who had

examined Kalo Devi, the wife of the informant as also the informant

Prabhuwan Bhuiyan on 16.05.1989. On Kalo Devi he had found the

following injuries:-

(i) Swelling 1" x 1/2" right forearm above wrist.

(ii) Swelling 1" x 1" dorsum of left hand.

Both injuries were caused by hard and blunt substance such as

Lathi, and were simple in nature. He has identified the injury report of

Kalo Devi to be in his pen and signature, which was marked Ext-2.

Upon Prabhuwan Bhuiyan, he had found the following injuries:-

(i) One incised wound 3" x 1" x 1/2" left axilla with bleeding.

(ii) One incised wound 2" x 1/2" x facia deep left forearm.

(iii) Lacerated wound 1" x 1/2" x skin deep over right parietal

region.

(iv) Lacerated wound 1" x 1/2" x skin deep left forearm below

elbow.

(v) Incised wound 1" x opposing edge x 1/2" deep between index

and middle finger right hand.

(vi) Abrasion 1" x 1" right leg above ankle posterior surface.

(vii) Abrasion 2" x 1" over bruise of 2" size at 1" lateral to injury

No. (vi).

(viii) Two linear bruises 4" x 1/2" over left scapula and 3 1/2x 1" over

left supra scapular area.

He has stated that injuries (i), (ii) and (v) were caused by sharp

edged weapon such as Tangi, whereas injuries Nos. (iii), (iv), (vi), (vii)

and (viii) were caused by hard and blunt substance such as Lathi.

Injuries (i) to (vii) were simple in nature, but opinion with respect to

injury No. (viii) was kept reserved for X-Ray which was not brought

before him. He has identified the injury report of the informant

Prabhuwan Bhuiyan, which was marked Ext-2/1.

Four witnesses were examined in behalf of the defence out of

whom, D.W.-1 Bikau Bhuiyan and D.W.-2 Sachidanand Shukla, are the

witnesses on the point of alibi of the accused Mahipat Bhuian (since

dead), and hence they are not of much importance now. D.W.-3, Bhardul

Bhuiyan, has come to depose that one Nihora Shukla had entered the

house of the informant prior to occurrence and had outraged the

modesty of the wife of Pradeep Bhuiyan, the brother of the informant,

for which a police case was also instituted. The case of the defence is

that the occurrence had taken place due to this case. D.W.-4 Mahesh

Prasad is a formal witness, who had proved the F.I.R. and charge-sheet

of two cases which were marked Exts.-''A'' series and ''B'' series

respectively.

Learned counsel for the appellants has submitted that the

impugned Judgement of conviction and Order of sentence passed by the

Trial Court below are absolutely illegal and cannot be sustained in the

eyes of law, inasmuch as, even though it is stated by the witnesses that

the persons nearby had also assembled, but none of the independent

witnesses have been examined in this case. It is submitted that all the

witnesses are the interested witnesses being the family members of the

informant and they have only supported the prosecution case. Learned

counsel has also submitted that there are discrepancies in the evidence

of the witnesses also and ocular evidence is not supported by the

medical evidence, inasmuch as, no injury caused by any sharp cutting

weapon was found on the deceased, even though there is specific

allegation of assault on him by Tangi also. Learned counsel for the

appellants has also submitted that the Investigating Officer of the case

has not been examined in the case which has caused prejudice to the

defence. However, learned counsel could not point out anything from

the evidence, causing prejudice to the defence due to

non-examination of the I.O. In support of his contentions, learned

counsel has placed reliance upon the decisions of the Hon''ble Supreme

Court of India in Amar Singh and Ors. Vs. State of Punjab, reported

in (1987) 1 SCC 679, Mani Ram and Ors Vs. State of U.P., reported

in 1994 Supp (2) SCC 289, Kapildeo Mandal and Ors. Vs. State of

Bihar, reported in (2008) 16 SCC 99, and of this Court in Govind Sah

Vs. State of Jharkhand, reported in 2004 (1) East Cr. C. 557 (Jhr), and

other cases.

Learned counsel for the prosecution on the other hand has

submitted that the eye witnesses of this case are the natural eye

witness, who had come to the rescue of the informant at the time of

occurrence being the family members. The place of occurrence is just

besides the house of the informant and accordingly, these witnesses are

the natural witnesses whose testimony cannot be disbelieved. It is also

submitted that the ocular evidence of these witnesses is fully

supported by the medical evidence of P.W.-9 Dr. Kamendra Singh and

P.W.-12, Dr. Rakesh Kr. Sinha. Upon the deceased though there were

only lacerated wounds, but the doctor has stated that it could be caused

by the blunt portion of the Tangi also and the injuries collectively were

sufficient to cause the death of the deceased, whereas one injury was

individually sufficient to cause the death of the deceased. On the

informant several injuries were found, including the injuries caused by

sharp cutting weapon such as Tangi and caused by hard and blunt

substance such as Lathi, which fully corroborate the prosecution case. It

is submitted by the learned counsel that on the basis of these evidences

the prosecution has been able to prove the charge against the

appellants beyond all reasonable doubts.

Having heard learned counsels for both the sides and upon going

through the record, we find that the informant Prabhuwan Bhuiyan who

was examined as P.W.8, has fully supported the prosecution case.

Though this witness has stated that his wife was also assaulted by the

appellant Hariher Bhuian and her injury report has also been proved in

the case, but the fact remains that this allegation is not there in the

F.I.R. and no charge was also framed for this evidence. However, so far

as the allegation of assault by the accused persons on himself and his

deceased father are concerned, this witness has fully supported the

prosecution case and this evidence is also fully supported by P.W.-1 Biro

Bhuiyan, P.W.-3 Kalo Devi, P.W.-4 Puna Devi, and P.W.-5 Radhika Devi,

who are all the eye witness to the occurrence. P.W.-2 Bal Kuar Bhuiyan

and P.W.-7 Mahangoo Bhuiyan have also supported the case as hearsay

witness as they were informed about the occurrence and they reached

Jagatpurwa More, where they saw the dead body of the deceased on the

rickshaw and the informant and his wife injured. One rickshaw puller,

P.W.-10 Ramjit Bhuiyan has also supported the fact that the victims

were being taken on two rickshaws and in the way the deceased died.

These ocular evidences are fully corroborated by the medical evidence

of P.W.-9 Dr. Kamendra Singh and P.W.-12 Dr. Rakesh Kr. Sinha, and the

post-morten report of the deceased and the injury report of the

informant proved by them as Exts.-1 and 2/1 respectively. We are of the

considered view that in view of the specific allegations against these

surviving appellants also to have assaulted the deceased as well as the

informant by Lathi and injuring them in the furtherance of the common

intention of all, the offences are clearly made out against them under

Sections 302 / 34 of the Indian Penal Code for causing the death of the

deceased Raman Bhuiyan and under Sections 307 / 34 of the Indian

Penal Code for assaulting the informant Prabhuwan Bhuiyan with the

intention to cause his death. The conviction of the appellant Hariher

Bhuian for the offence under Section 323 of the Indian Penal Code for

causing hurt to P.W.-3, Kalo Devi, cannot be sustained in the eyes of law

for the reason already stated above.

Accordingly, we hereby set aside the conviction of the appellant

Hariher Bhuian for the offence under Section 323 of the Indian Penal

Code, but the conviction and sentence of both these appellants for the

offence under Sections 302 / 34 of the Indian Penal Code, for causing

the death of the deceased Raman Bhuiyan and their conviction for the

offence under Sections 307 / 34 of the Indian Penal Code, for causing

hurt to the informant Prabhuwan Bhuiyan with intention to cause his

death, are hereby, confirmed. We do not find any illegality in the

impugned Judgement of conviction and Order of sentence dated

05.09.1992 passed by the learned Second Additional Sessions Judge,

Palamau in S.T. No. 172 of 1990, to the aforesaid extent.

Consequently, we find no merit in this appeal and the same is

accordingly, dismissed. Both the appellants are on bail. Their bail bonds

are hereby, cancelled. Both the appellants are directed to surrender

forthwith in the Court below to serve out the sentence. The Trial Court below is also directed to forthwith issue process compelling the

production / surrender of the appellants for serving out the sentence.

Let the Lower Court Records be sent back forthwith along with the

copy of this Judgement.