Patna High Court
Sanjay Kr. Sharma vs The State Of Bihar on 21 August, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.335 of 1991
(Against the judgment and order dated 22.08.1991
passed by the learned 2nd Additional Sessions Judge,
Arrah in Sessions Trial No.484/1988)
===========================================================
1. Santosh Kr Tiwari, son of Aditya Nath Tiwari.
2. Abhay Tiwari, son of Aditya Nath Tiwari.
3. Lalji Tiwari @ Awadhesh Tiwari, son of late Jaya Datt Tiwari.
4. Tribhuwan Tiwari, son of Sri Tapeshwari Tiwari (since dead) (All are residents of Mohalla-Mahajan Toli, P.S.-Arrah Town, District- Bhojpur) .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With =========================================================== Criminal Revision No. 851 of 1991 =========================================================== Sanjay Sharma, son of late Surendra Sharma, resident of village- Kulharia, P.S.- Koilwar, District- Bhojpur, at present resident of Mohalla-Mahajan Toli No.2, P.S.- Arrah Towan, District- Bhojpur.
.... .... Petitioner/s Versus
1. The State of Bihar.
2. Udai Tiwari, son of Aditya Nath Tiwari.
3. Mritunjay Tiwari, son of Dina Nath Tiwari.
(Sl.Nos. 2 and 3 are residents of Mohalla-Mahajan Toli, No.2, P.S.-Ara Town District- Bhojpur)
4. Lachhuman Tiwari @ Lachman Dubey, son of Chhotak Dubey @ Ramdas Dubey, resident of Karja, P.S.-Behia, District- Bhojpur.
.... .... Opposite Parties =========================================================== Appearance :
(In CR. APP (DB) No. 335 of 1991) For the Appellant/s : Mr. Surendra Singh, Senior Advocate Mr. Akhileshwar Pd. Singh, Senior Advocate Mrs. Anita Kumari Singh, Advocate Mr. Abhishek Anand, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA And HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL C.A.V. JUDGMENT (Per: HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL) Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 2/20 Date: 21-08-2014 Cr. Appeal (DB) No.335/1991 and Cr. Revision No.851/1991 arise out of the judgment and order dated 22.08.1991 passed by the learned 2nd Additional Sessions Judge, Arrah in Sessions Trial No.484/1988 by which opposite party nos. 2, 3 and 4 have been acquitted of the charge under sections 364 and 302/34 of the Indian Penal Code and appellant no.1 Santosh Kumar Tiwari has been convicted under Section 302 of the Indian Penal Code and the remaining appellants Abhay Tiwari, Lalji Tiwari @ Awadhesh Tiwari and Tribhuwan Tiwari have been convicted under Sections 302/34 of the Indian Penal Code and all the appellants have been sentenced to undergo rigorous imprisonment for life.
2. During the pendency of the appeal, appellant no.4 Tribhuwan Tiwari died, as such, his appeal has been abated vide order dated 16.12.2005.
3. The prosecution case, in brief, is that on 29.05.1988 at about 11.00 P.M., the accused Santosh Tiwari, Uday Tiwari, Mritunjay Tiwari, Abhay Tiwari, Tribhuwan Tiwari and Lalji Tiwari, all residents of Mahajan Toli No.2 in the town of Arrah and Lachhuman Dubey came to the house of the informant Sanjay Kumar Sharma (P.W.10) and abused his father Surendra Kumar Sharma (deceased). Surendra Sharma came out of his house and asked as to Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 3/20 why they were abusing him. Thereafter, all the accused persons assaulted him (deceased) and dragged him in the lane and in their house and assaulted him. The reason for the occurrence is that Sidhnath Tiwari, son of late Mangala Prasad Tiwari and his wife Dharamshila Devi executed a deed of gift in favour of Meena Sharma (P.W.1), mother of the informant. The occurrence was also witnessed by Gyan Datt Tiwari, Meena Sharma (P.W.1) and Pravin Kumar Sharma, the younger brother of the informant. The fardbeyan of the informant Sanjay Sharma (P.W.10) was recorded by Sub-Inspector of Police M.M. Prasad (P.W.11) of Arrah Town Police Station at Sadar Hospital, Arrah on 30.05.1988 at 1.30 hours. On the basis of aforesaid fardbeyan, Arrah Town P.S. Case No.164/1988 was instituted against all the accused. After investigation, charge-sheet was submitted.
Cognizance was taken. The case was committed to the court of sessions. The charge was framed against appellant no.1 for the offence punishable under Section 302 of the Indian Penal Code and against the remaining six accused under Sections 302/34 of the Indian Penal Code and against all the accused under Section 364/34 of the Indian Penal Code to which they denied and claimed to be tried.
4. The defence of the appellants is the denial of the occurrence as alleged by the informant due to enmity and grudge and also that the prosecution party were aggressors and they indulged in Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 4/20 assaulting the appellants and others by entering in their house variously armed with deadly weapons for which defence has also filed a case which was registered as Arrah Town P.S. Case No.165/1988.
5. After the trial, the appellants were convicted and sentenced, as aforesaid, and the accused Udai Tiwari, Mritunjay Tiwari and Lachhuman Tiwari @ Lachman Dubey have been acquitted of the charge.
6. The learned counsel for the appellants has submitted that the witness named in the fardbeyan Pravin Kumar Tiwari has not been examined. P.W.2 Arpana Sharma and P.W.3 Shashikala Sharma are the daughters of the deceased and sisters of the informant, who have deposed in the court that they had seen the occurrence, but their names have not been mentioned in the F.I.R. The prosecution case is full of doubts and malafide. Since it indicates that they were not present at the place of occurrence and had not seen the occurrence, as such, the trial court should have rejected their evidence. The trial court had erred in not taking into consideration the litigation between the parties. The witnesses have contradicted their statement. The learned trial court has not considered the fact that the prosecution party was the aggressors and they had entered into the house of the appellants and had committed the offence for which Arrah Town P.S. Case No.165/1988 was lodged against the prosecution party for the Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 5/20 offence punishable under Sections 147, 148, 323, 324 and 307 of the Indian Penal Code and after investigation, charge-sheet was submitted against Sanjay Sharma (P.W.10), Gyan Prakash Tiwari, Pinki Tiwari (P.W.7), Anil Tiwari (P.W.9), but the court had taken cognizance against them for the offence punishable under Section 307 of the Indian Penal Code.
He has further submitted that conviction under section 302 of the I.P.C. is not made out, at best, the case would come under the purview of Section 304 of the I.P.C. In support of his contention, he has referred the following decisions :
(i) Riasat Versus State of U.P. (1969 Un
reported Judgment (SC) 9 (1969).
(ii) State of Haryana Vs. Prabhu and ors. (
AIR 1979 Supreme Court 1019)
(iii) Dalip Singh and others Vs. State of
Haryana (AIR 1993 Supreme Court
2302)
(iv) Adu Ram Vs. Mukna and others (AIR
2004 Supreme Court 5064).
7. The learned counsel for the State has submitted that the prosecution has examined 13 witnesses in support of its case. They are : P.W.1 Mina Sharma, P.W.2 Arpana Sharma, P.W.3 Shashikala Sharma, P.W.4 Jamuna Prasad, P.W.5 Ali Imam, P.W.6 Udeshwar Pd. Sinha, P.W.7 Rakesh Kumar Tiwari @ Pinki Tiwari, Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 6/20 P.W.8 Dr. Bishundeo Prasad, P.W.9 Anil Tiwari, P.W.10 Sanjay Sharma, P.W.11 Manmohan Prasad, P.W.12 Shishir Kumar Sharan and P.W.13 Pashupati Nath Upadhaya. Out of whom, P.Ws. 1, 2, 3, 9 and 10 are the witnesses to the occurrence and they have supported the prosecution case. P.W.4 and P.W.5 are the constables, who have also heard the noise and went to the place of occurrence and asked the accused to open the door which was refused. Thereafter, both of them rushed to the police station. The accused has filed Arrah Town P.S. Case No.165/1988 against the informant and others as a retaliation to save their skin. Four accused persons have been arrested on the spot while they were committing the offence. The deceased was found senseless in the house of the appellants and he was rushed to the hospital where he succumbed to his injury.
8. After hearing the learned counsel for both the parties and on perusal of record, it appears that prosecution has examined 13 witnesses, out of whom P.Ws. 1, 2, 3, 9 and 10 are the eye witnesses to the occurrence. They have supported the prosecution case.
9. P.Ws. 4 and 5 are the constables, who have stated that they were on the patrolling duty at about 11.30 P.M. There was noise. There were ten persons including women and girls and on query they came to know that Santosh Tiwari and others confined Surendra Sharma (deceased) in their house. Both the constables rushed to the Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 7/20 place of occurrence and found that the door was closed, even after their effort, the door was not opened. The noise of assaulting was coming out. They rushed to the police station and later on, they came to know that the police went to the place of occurrence.
10. P.W.6 is the Sub-Inspector of Police, who has prepared the inquest report of the deceased at P.M.C.H, Patna (Ext.1).
11. P.W.7 has been tendered.
12. P.W.8 has held the post-mortem examination on the dead body of the deceased Surendra Sharma on 30.05.1988 at 9.30 A.M. at P.M.C.H, Patna and found the following ante mortem injuries:
Head was bandaged both eyes bruised and swelling present over both the eyes. Ante mortem abrasion over left eyelid 1" x 1". Ante mortem abrasion over left shoulder 4" x 3". Right shoulder abrasion 8" x 2". Ante mortem abrasion on the right leg. Anterior aspect of the middle of the leg 2" x 1". Left buttock abrasion 5" x 1".
On dissection, he found that left side ribs of the chest rib no. II, III, IV, V, VI and VII were fractured. The left lung was ruptured. The chest contained 400 C.C. of blood. He further found lungs, liver and splin pale. Stomach contained one ounce of digested fluid. Urinary bladder and heart chambers were found empty. In the opinion of the doctor, the cause of death was chest injury. Nature of Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 8/20 violence was hard and blunt substance. Post mortem was done within 36 hours.
In the opinion of the doctor, chest injury was sufficient in ordinary course of nature to cause death. The post mortem examination report has been marked as Ext.2.
13. P.W.12 is the Dy.S.P. He has made the supervision of Arrah Town P.S. Case Nos.164/1988 and 165/1988 and has submitted the supervision note. He had found Arrah Town P.S. Case No.165/1988 (filed by the appellant no.1) as false. He has also visited the place of occurrence and has found bloodstain and broken glass in the room of the accused/appellants.
14. P.W.10 is a formal witness, who has proved the destruction report (Ext.4) of an application.
15. P.W.1 is the wife of the deceased. She has stated that her husband was a permanent resident of another village. Dharmshila, the elder sister of her husband Surendra Sharma (deceased) was married to Shiv Nath Tiwari, son of Mangla Tiwari. Mangla Dutt Tiwari was the brother of Nayay Dutt Tiwari. Aditya Nath Tiwari, Dina Nath Tiwari and Awadhesh Tiwari are the sons of Nayay Dutt Tiwari. Santosh Tiwari, Laxman Tiwari and Lalji Tiwari are the sons of Aditya Nath Tiwari. Mritunjay Tiwari is the son of Dinanath Tiwari. Tribhuwan Tiwari is their Gotia and Laxman Dubey is the Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 9/20 friend of Santosh Tiwari. She has further stated that Dharamshila Devi had no issue. As such, she was keeping Surendra Sharma (deceased) with her from his childhood. Dharamshila Devi and her husband Shiv Nath Tiwari executed a deed of gift in favour of Meena Sharma (P.W.1), wife of the deceased Surendra Sharma. Against that deed of gift, Sidhnath has filed a case in conspiracy with Aditya Nath Tiwari. She has further stated that on 29.05.1988 at about 11.30 P.M. she was in her house with all members of her family. There was sound of abusing from the outside of her house. Her husband (deceased) opened the door of his house and came out and asked the persons as to why they were abusing. Her husband was followed by other members of her family. They saw Santosh Tiwari, Tribhuvan Tiwari, Laxman Dubey and Awadhesh Tiwari. They dragged her husband in the house of Santosh Tiwari. The three other persons Mritunjay Tiwari, Abhay Tiwari and Uday Tiwari were also present and they closed the door of their house. Thereafter, they started assaulting her husband. Her husband fell down, even thereafter, they assaulted him. P.W.1 and others tried to get the door opened, but the accused did not open the door. The deceased was making request to the assailants not to kill him, he would leave the house and would also leave the property but they did not stop assaulting him. Thereafter, her son Sanjay Sharma (P.W.10) rushed to the police station. The police personnel came there Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 10/20 and got the door opened. Santosh Tiwari was kneeling on the chest of her husband. Her husband was rushed to the hospital. Due to assault, Surendra Sharma was not in a position to speak. The doctor referred him to P.M.C.H, Patna. He succumbed to the injuries in the way to P.M.C.H, Patna. She has identified all the accused. In her cross- examination, she has stated that she does not know the number of the case instituted by Sidhnath Tiwari against the deed of gift. Her husband was making Pairvi in that case. She has also stated that prior to the occurrence, there was altercation between both the parties, but there was no occurrence of assault prior to this occurrence. She has also stated that her son had gone to the police station. Prior to their return, two policemen also came there. She has also stated that there was no assault to her husband with sharp cutting weapon. She has been cross-examined at length, but it appears that her evidence has remained constant and there is no material contradiction in her evidence. Her evidence is convincing.
16. P.W.2 is the daughter of the deceased, who also supported the prosecution case. She has stated that the door of Santosh Tiwari is at a distance of 15-20 steps from her house. At the time of occurrence, she was studying in her courtyard and the other members of her family were present in the house. They heard hurling of abuse made by Tribhuwan Tiwari and others. Her father (deceased) Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 11/20 came out of his house. The other members also followed him and saw that in front of the electric pole Santosh Tiwari, Trivuwan Tiwari, Lalji Tiwari and Laxman Dubey dragged her father in the house of Santosh Tiwari where Abhay Tiwari, Mritunjay Tiwari and Uday Tiwari were standing. All the seven went to the house of Santosh Tiwari and closed the door of Santosh Tiwari. The members of the family of the deceased tried to get opened the door, but failed to get the door open. Her father was stating not to kill him, he would relinquish all properties, even thereafter they did not stop. The police was informed. The police personnel came there only thereafter the door was opened and the four accused persons were arrested/ apprehended on the place of occurrence. She has also been cross- examined at length, but it appears that there is no material contradiction in her statement. Her statement appears to be convincing.
17. P.W. 3 is also the daughter of the deceased. She has also supported the prosecution case as P.W.2.
18. P.W.9 is the neighbour of both the parties. He has stated that in the night at about 11.00 P.M., he was at his house and heard the noise and he came out in the lane and saw that four persons Santosh Tiwari, Lalji Tiwari, Tribhuwan Triwari and Laxman Dubey were dragging Surendra Sharma in the house of Santosh Tiwari. Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 12/20 Mritunjay Tiwari, Uday Tiwari and Abhay Tiwari were present there from the before. Surendra Sharma was dragged in the house of Santosh Tiwari and the door was closed. They started assaulting the deceased. The deceased was requesting them to leave him and not to assault him. He was also begging not to damage his eyes. He would relinquish the property. Sanjay Sharma (P.W.10) went to the police station and police party came there and got the door opened and took out Surnedra Sharma from the house of Santosh Tiwari. Santosh Tiwari, Lalji Tiwari, Tribhuwan Tiwari and Abhay Tiwari were arrested. Surendra Sharma was taken to the Hospital. He has also identified the accused. He is an independent witness and he has also supported the prosecution case. He has also been cross-examined at length, but there is no material contradiction in his evidence.
19. P.W.10 is the informant and the son of the deceased. He has also supported the prosecution case.
20. P.W.11 is the Investigating Officer. He has stated that in the night he was on duty. Sanjay Sharma (P.W.10) gave him the information about the occurrence. He rushed to the place of occurrence with the police force and found that the members of the family of Sanjay Sharma (P.W.10) were standing outside the door. The door was closed. He got opened the door of Santosh Tiwari. The deceased was found inside the house in injured condition. He took Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 13/20 Santosh Tiwari, Lalji Tiwari, Abhay Tiwari and Tribhuwan Tiwari into custody. The injured Surendra Sharma was taken to the Hospital. He looked into the injuries on the person of Surendra Sharma and prepared injury report and gave it to the doctor. The injury report has been marked as Exhibit 1/1. The doctor examined the injured. He (P.W.11) took the statement of the informant, which has been marked as Ext.3. He took the restatement of Sanjay Sharma (P.W.10) and also statement of Mina Sharma (P.W.1) in the hospital and went to the place of occurrence at 2.15 A.M. and visited the place of occurrence. The place of occurrence is the house of Santosh Tiwari in which there is a door in the northern side. There was mark of violence. There were also two windows. Glass of Almirh was broken. There was also bloodstain in the room and was also tampering mark. The articles were found in hampered condition. He also took the statement of Arpana Kumari (P.W.2) on the place of occurrence. After visiting the place of occurrence, he rushed to the Hospital. The injured Surendra Sharma had already been referred to P.M.C.H. Thereafter, again he went to the place of occurrence and took the statement of other witnesses. He got the post mortem examination report. After investigation, submitted the charge-sheet. In his cross-examination, he has stated that Santosh Tiwari gave him a written application in the Hospital. He took it and gave it to the Officer-in-charge, which has Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 14/20 been marked as Ext. X for identification. The formal FIR has been marked as Ext.B and the endorsement has been marked as Ext.C. He also investigated the other case which was registered as Arrah Town P.S. Case No.165/1988. In paragraph 13, he has stated that he did not find anything on the person of the arrested person.
21. The defence has examined D.W.1 Dr. B.P. Yadav. He has stated that on 30.05.1988 he was posted at Arrah Sadar Hospital and examined Tribhuwan Tiwari at 1.50 P.M. and found the following injuries :
(i) Lacerated wound ½" x ½" x 1/6" on
the tip of the index finger of right hand.
(ii) Swelling with tenderness 1" x 1" on the
left knee.
(iii) Echymosis 6" x ½" also on the back.
On the same day, he examined Awadhesh Nandan
Tiwari, who had two simple injuries i.e. (i) Scratch ½" x ½" with swelling and tenderness around it measurement 1" x 1". The medial aspect of the left ankle joint and (ii) Ecchymosis wound2" x 2 ½" on left shoulder. Age of injury-12 hours. Nature- Simple caused by hard and blunt substance.
On the same day, he examined Santosh Kumar Tiwari and found three simple injuries on his person :
(i) One incised wound 3" x ½" x 1/6" over left
forearm.
Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 15/20
(ii) Ecchymosis 1 ½" x ½" over right shoulder.
(iii) Tenderness with swelling 1" x 1" on the left knee.
Age of injuries was found to be 6 hours on Tribhuwan Tiwari and Santosh Tiwari, whereas, 12 hours on Awadhesh Nandan Tiwari.
22. On careful consideration of the material on the record, it appears that the deceased had been dragged into the house of accused-appellant Santosh Tiwari from his own in the night and was confined in the room where he was assaulted by the accused persons. There has been litigation between both the parties as the deceased was an outsider to the family of the accused and who had inherited properties from one of the members of their family. This was the main cause of the occurrence. It is quite natural that the deceased might have protested against the accused, who were assaulting him. There is specific evidence against Santosh Tiwari, who had thrashed the deceased and broken his rib. There is also injury on the head of the deceased. The ocular evidence gets support from the medical evidence. The doctor has found the ribs of the deceased broken and that was the cause for the death of the deceased. There is unimpeachable evidence of the prosecution that the deceased was dragged into the house of the accused Santosh Tiwari by Santosh Tiwari and others. The deceased was confined in the room of Santosh Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 16/20 Tiwari and the entry doors were closed, which were opened only by the police personnel. The police personnel found the deceased lying in the house of Santosh Tiwari and also found the accused persons there. Santosh Tiwari, Abhay Tiwari, Lalji Tiwari and Tribhuwan Tiwari were arrested from the place of occurrence. The defence of the accused is that they were also assaulted by the deceased for which Ara Town P.S. Case No.165/1988 was instituted. The written report is said to have been made by Santosh Tiwari, but it is not on the record nor any evidence to that effect was led by the accused placing before the trial court the other version of the incident which, as per them, had taken place. The injuries found on the person of accused Santosh Tiwari, Tribhuwan Tiwari, Awadhesh Tiwari are simple in nature and the doctor had opined that such injuries might be caused by fall on the ground or due to being dashed against the door or flank or wall. It appears that the deceased was dragged in the house of Santosh Tiwari where the appellants assaulted the deceased. The deceased was aged about 50 years and had a built up body as may appear from the postmortem examination report. There must have been scuffle and the accused might have also got injuries. The deceased must also have resisted being assaulted and in that attempt must have made serious attempt to free himself from the clutches of accused persons. The prosecution is not expected to explain all the minor injuries which Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 17/20 might have been caused while assaulting the deceased and the deceased was trying to get out from the clutches of the assailants. There is sufficient evidence on the record to show that the appellants Santosh Tiwari, Tribhuwan Tiwari, Lalji Tiwari and Abhay Tiwari did not open the door in spite of the deceased Surendra Sharma had become unconscious and was struggling for life. They have been caught red handed after opening the doors from inside the house of appellant no.1 Santosh Kumar Tiwari where the deceased was lying on the ground in an injured condition. They have rightly been convicted under section 302/34 of the Indian Penal Code. Out of them, Tribhuwan Tiwari died during the pendency of the appeal as has been stated earlier.
23. In case of Riasat Vs. State of U.P. [U.J. (S.C.) 6 (69)], there was no motive at all for the appellant to intentionally cause death of Smt.Halima or even to cause intentionally such an injury as would, in the ordinary course of nature, result in her death, but in the present case, it has been found that there was motive of the appellants to cause the death of the deceased. The deceased was taken into the house of Santosh Kumar Tiwari and the door was closed and subsequently, he was assaulted and the door was opened at the instance of the police when the deceased became senseless, as such, this decision is not helpful to the appellants.
Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 18/20
24. In case of State of Haryana Vs. Prabhu and others (AIR 1979 Supreme Court 1019, the nature of injury was showing that there was no common object to kill nor was it possible to infer that any member had the knowledge that death was likely to be caused in prosecution of the common object of assault and as such, the High Court was justified in converting the conviction from one under Section 302 read with Section149 to Section 325 read with Section 149 of the Indian Penal Code.
25. In case of Dalip Singh and others Vs. State of Haryana (AIR 1993 Supreme Court 2302), there was no intention to kill. The accused were sharing common intention to beat the deceased violently.
26. In case of Adu Ram Vs. Mukna and others (AIR 2004 Supreme Court 5064), it was found that the assaults were made in course of quarrel, as such, conviction was altered from Section 302 read with Sections 148, 149 and 341 to Section 304 Part-I of the Indian Penal Code.
27. But, in the present case, we have found that the accused were abusing the deceased in the midnight and as a protest, when he came out from his house, he was dragged into the house of Santosh Kumar Tiwari (appellant no.1) and the door was closed. The appellants assaulted him brutally. While being so mercilessly Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 19/20 assaulted the deceased was pleading with the accused not to kill him as he would relinquish all the properties in their favour, but the accused/appellants continued to assault the deceased so much so that he was unconscious. The members of the family of the deceased tried to get the doors opened, but it was denied. The police was informed and at the instance of police force, the doors were opened. The deceased was found unconscious and the four accused Santosh Tiwari, Abhay Tiwari, Lalji Tiwari and Tribhuwan Tiwari were found inside the house near the deceased. There was dispute between both the parties prior to the occurrence, as such, above-noted decisions are not applicable in the facts and circumstances of the case, which do indicate a strong determination in the accused to finally kill the deceased.
28. There is no cogent evidence against the accused- opposite party nos. 2 to 4 of Criminal revision application, Uday Tiwari, Laxman Tiwari @ Laxman Dubey and Mritunjay Tiwari and they have not been found near the deceased when the police force got the door opened. As such, they have been rightly acquitted by the learned trial court by giving them the benefit of doubt.
29. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment passed by the learned trial court.
Patna High Court CR. APP (DB) No.335 of 1991 dt.21-08-2014 20/20
30. In the result, Cr. Appeal No.335/1991 (D.B.) and Cr. Rev. No.851/1991 are dismissed. The appellants are on bail. The bail bonds of appellant nos. 1, 2 and 3 are cancelled. They are directed to surrender in the trial court to serve out the sentence imposed by the learned trial court.
(Amaresh Kumar Lal, J) Dharnidhar Jha, J :- I agree.
(Dharnidhar Jha, J) V.K. Pandey/-
N.A.F.R. U T