Patna High Court
State Of Bihar vs Chukia Uraon And Anr. on 17 January, 1969
Equivalent citations: AIR2003PAT43, 1969CRILJ1524
JUDGMENT Bahadur, J.
1. This is a reference under Section 374 of the Code of Criminal Procedure from the Sessions Judsie of Purnea for the confirmation of the sentence of death imposed upon two persons, namely, Chukia Uraon and Birwa Uraon, on their conviction for the offence of murder under Section 302/34 of the Indian Penal Code. Chukia Uraon and Birwa Uraon have also appealed from jail and their appeals are respectively numbered as criminal appeal No. 404 of 1968 and cri-
minal appeal No. 403 of 1968. The reference and the two appeals have been heard together and they will be governed by this judgment. Mr. Thakur Gurusewak Singh has appeared in the case as an amicus curiae in support of the appeals.
2. It appears that Chukia Uraon is the younger brother of Dasu Uraon, the husband of Mosst. Dasia (P. W. 5) of village Korgama within the jurisdiction of police station Kahtiar. Birwa Uraon is the son of the sister of Dasu Uraon. Dasu died about nine years before the alleged oc-turrence which took place on the 23rd of December, 19C5. Dasu had left behind him his widow Dasia and a son named Shyam Lal Uraon (P. W. 1). pn Dasu's death, his land came in possession of Mosst. Dasia who had them cultivated through her brother Tetar Uraon (P. W. 2). One Dewani who was a distant cousin of Shyam Lal Uraon (P. W, 1) assisted Mosst. Dasia in her cultivation, Chukia is said to have been creating obstruction in the way of Mosst. Dasia in having her lands cultivated and harvested, after the death of her husband. Some litigation took place between Chukia and Dasia over the lands and a suit was pending between them at the time of the occurrence. The prosecution case is that at about 12 noon on the afore-mentioned date, namely, 23-12-1965, Budhu Uraon {P. W. 6), while he was taking rest in his house, heard a hulla and came out and proceeded towards the house of Chukia where he found Chukla with a blood-stained kudal in his hand and Birwa with a Pharsa fleeing away towards the west and found Tetar Uraon (P. W. 2), Shyam Lal Uraon (P. W. 1) and Hathi Uraon (P. W. 3) and others collected at the place of occurrence. On going there, he found his son Dewani fallen dead in a pool of blood on the ground. Budhu also noticed Tetar being injured who told him (Budhu) that his son Dewani had been killed by accused Chukia Uraon and Birwa Uraon who had fied at the arrival of the witnesses. Budhu was also informed that Chukia had forcibly harvested the Tori crop of Mosst. Dasia over which there was some altercation between Dewani and Chukia as a result of which both the accused had killed his son. This was the information given by Budhu at the police station at 4 P.M. on the said date, which was the basis of the first information report and it was recorded by Ram Narain Singh (P. W. 10) who was officer-in-charge.
3. The prosecution case further is that on the date of occurrence Chukia along with Birwa had forcibly harvested the Tori crop in the morning and sent them to the house of Chukia upon which there was some exchange of hot words between Dewani and Chukia, after which Dewani and other persons returned to the house of Chukia and at about 12 noon both the accused persons came armed with Kudal and Pharsa and caused hurt to the various persons as stated by Budhu in his first information report,
4. The Sub-Inspector of police (P. W. 10), after recording the first information report, reached the place of occurrence the same evening at 7.50 P.M. and found it to be a field belonging to one Mathura Mahto on the contiguous west and backside of which was the house of one Khir-dhari Mahto, also known as Girdhari. He found the dead body lying with his head towards south and feet towards north. He held inquest over the dead body and arranged to send the corpse for postmortem examination. P. W. 10 examined some persons and stayed on the night at the place.
5. On the next date, 24-12-1965, he examined P. Ws. 3, 4 and some other persons and searched the houses of Birwa and Chukia, and recovered a blood-stained Kudal (Ext. I) from the house of Birwa. He had on the previous day collected blood-stained earth from near the dead body. He also inspected the Tori field and prepared the sketch map which is Ext. 4. He had found P.Ws. 1, 2 and 5 to be injured and had sent them to Katihar hospital. He had sent the blood-stained earth, blood-stained Kudal and bloodstained Charkhana half shirt and a dhoti to the Chem'cal Examiner for examination. He found village Korgama to be a scattered village where there were only about 8 houses near the place of occurrence. The village Korgama was also known as village Kelabari. After completing the investigation in due course, P. W. 10 submitted chargesheet against these two persons who are hereafter referred to as the appellants.
6. The defence of the appellants at the trial, as can be gathered from their statements under Section 342 of the Code of Criminal Procedure and from the trend of cross-examination of the prosecution witnesses was that Dewani and Chukia were jointly in possession of the family lands and the Tori crops which had been harvested by the accused on the date of occurrence had been grown by Chukia and not by the widow of Dasu, namely, Mosst. Dasia. Their further plea was that the deceased Dewani was a wrestler type of man who had been engaged by Dasia for fighting with accused Chukia and that on the date of occurrence after the harvesting of the Tori crops. Dewani along with Tetar and Shyam Lal had gone to the house of Chukia and adopted a threatening attitude, which resulted in a serious altercation between them. Their further plea was that Dewani used to be engaged by the villagers in their quarrels and it is possible that he may have been killed in one of those encounters. The specific defence of Eirwa was that he was not at all present in village Korgama on the date of occurrence and he denied the presence or the recovery of the bloodstained Kudal from his house.
7. The learned Judge on consideration of the evidence led by the prosecution came to the conclusion that the charge Under Section 302/34 of the Indian Penal Code had been established against the appellants. He further found that Chukia Uraon was also guilty under Section 324 of the Indian Penal Code for causing hurt to P. W. 5 Mosst. Dasia: and Birwa Uraon was further guilty under Section 324 of the Indian Penal Code for causing hurt to P. Ws. 1 and 2, namely, Shyam Lal Uraon and Tetar Uraon. The learned Judge, however, passed on separate sentence under the said count.
8. There can be no doubt that Dewani was brutally assaulted on the day in question as alleged by the prosecution. The evidence of the prosecution witnesses, namely, P. Ws. 1, 2, 3 and 4, clearly shows that Dewani had been assaulted which resulted in his death. Their evidence finds support from the medical evidence, namely, that of P. W. 12, Dr. S. S. Prasad who was at the relevant time the Civil Assistant Surgeon of Purnea Sadar Hospital, He held the post-mortem examination on the corpse of Dewani on 25-12-1965 and found the following nine ante-mortem injuries:
1. Three incised wounds on left sida of head, behind left ear :--
(a) 2"x1/2"x bone cut.
(b) 3"x1/2"x bone cut.
(c) 2 and half inches x 1/2"x bone cut.
Thick marks due to pressure of weapon were present at the end of each of the injuries contiguous to the injuries due to the heavy-cutting weapon used and were soiled with dry earth and mud.
2. Incised wound on the back of head 2 and half inches x 1/2"x bone cut and also fractured depressed in bone with the cut over the bone due to heavy-cutting weapon.
3. One punctured wound with incised margins 1/4"x1/6"x3/4" on left side of the neck by sharp pointed weapon.
4. Three punctured wounds with incised margins on left cheek :--
(a) 1/4"x1/6"x bone fractured.
(b) 1/2" x 1/4" x bone fractured.
(c) 1/2" x1/6"x bone fractured. caused by sharp-pointed weapon.
5. Two incised wounds on back of left forearm in lower part above the wrist.
(a) 1/2" x 1/6" x bone fractured left radius.
(b) 1/2" x 1/6" x 1/4" with the pressure marks of the weapon connecting the two injuries in the same bone. This was due to heavy cutt-ing weapon.
6. Incised wound on left calf 2 1/2" x 1/2" x 3/4" due to sharp cutting weapon.
7. A thick linear impression two inches long caused by a heavy cutting weapon.
8. Two superficial linear incised marks in upper part of right arm on its back and inner aspects :--
(a) 1/4" long.
(b) 1-1/6" long. Both caused by heavy cutting weapon,
9. Incised wound on upper part of right arm on its back and inner aspects raising a slanting flat of skin 1" x 1/2" X 3/4" situated at a higher level than injury No. 8 caused by sharp cutting weapon.
On dissection, the membrane of brain was found cut at the site corresponding to injury No. 2. The brain was found injured. The time between death and the post-mortem examination was about two or three days, i.e., between 48 to 72 hours. In the opinion of the doctor, death was due to haemorrhage, shock and injuries caused to the vital organs. The injuries appeared to have been caused by a heavy cutting weapon which may have been by a Kudal. The doctor further stated that a Pharsa could cause both punctured and cut wounds if both the ends were pounced. It was elicited from him in his cross-examination that injury No. 3 could be caused by a bhala, if gently used. He further stated that if a Pharsa had no pointed end, it could not cause punctured wounds. The learned Judge has also considered this matter in great detail and has come to a finding that Dewani was murdered on the date as suggested by the prosecution. This part of the prosecution case is, therefore, clearly established and it is not necessary to deal further with this aspect of the matter.
9-11. The only question that requires consideration is whether these two appellants were the assailants of Dewani as also of the three other persons, namely, P. Ws. 1, 2 and 5. The evidence of the eye witnesses has, therefore, to be examined. (After examining the evidence of prosecution witnesses, his Lordship pro-
ceeded.) If the evidence of these witnesses are accepted, as has been accepted by the trial Judge then there can be no doubt that the charges have been clearly established against these appellants.
12. Learned counsel arguing the case for the appellants has raised a number of points which may now be noticed. His contention is that the prosecution has failed to establish the place of occurrence in the case and it is not known, whether it was the angan of Dasia where the occurrence took place or whether at the place where the Pual was kept. The consistent evidence of the eye witnesses's that Dasia was assaulted by Chukia with a Kudal and when Dewani wanted to intervene, then the two accused persons ran up to him and when Dewani fled for his life, he was assaulted by them in the field of Mathura Mahto on the back of Khir-dhari's house at a distance of half a rasi north-west of the house of Mosst. Dasia. This evidence finds full support from the evidence of the Investigating Officer who had occasion to inspect the place of occurrence as already stated in the earlier part of the judgment He had also found the dead body to be lying close to the place. Learned counsel endeavoured to support his contention by taking us through the evidence of P. W. 1 where slight discrepancy appears in his evidence, but thai has hern clarified by the learned Judge. We have also examined the evidence of the other witnesses and I have no hesitation in holding that the place of oc-currence has been established as alleged by the prosecution and the slight difference that appears from the evidence of P. W. 1 is not of material importance as the map clearly shows that the places are quite close to each other.
13. Learned counsel has then contended that the manner of occurrence has not been proved in this case and, therefore, the appellants are entitled to an acquittal. It is difficult to accept this contention as the witnesses are quite consistent in their evidence about the manner of occurrence also. This evidence can be divided into three parts, namely, the incident in the morning and then the assault on the three other persons followed by the chase and assault on Dewani and there is no serious discrepancy in the evidence of any of the eye witnesses so as to accept the submission made on behalf of the appellants.
14. Learned counsel has also urged that none of the witnesses should be accepted as eye witnesses. In view of the reappraisal of the evidence of the witnesses. I am satisfied that the evidence of P. Ws. 1, 2, 3 and 4 has been rightly accepted to be the evidence of eye witnesses.
15. Lastly, learned counsel has urged that the application of Section 34 with Section 302 is erroneous and that it should be held that there is no evidence worth the name to sustain the conviction of these appellants for the murder of Dewani and for the assault on the three persons. I am not persuaded by this argument because on clear and consistent evidence of the eye witnesses there can be no doubt that the three persons, namely, P. Ws. 1, 2 and 5 had been assaulted; as also Dewani had been seriously assaulted which resulted in his death as alleged by the prosecution. There is also clear evidence that there was enmity between Mosst. Dasia and Chukia and Dewani was helping Dasia in her cultivation. It has been found that, there was an incident in the morning and later in the day these two appellants came together armed con-1 cealing weapons in their clothes and they caused injuries to the three persons and then also pursued Dewani and caused injuries on his person. The common intention to kill Dewani of these two appellants which must have suddenly developed can, therefore, be gathered from ther -act, namely, their conduct and the weapons they had used and the injuries which they caused on Dewani. In this view of the matter, I am satisfied that they had common intention to kill Dewani and, therefore, the appellants have been rightly convicted under Section 302/34 of the Indian Penal Code, which is affirmed. In view of the evidence the conviction of the appellants under Section 324 of the Indian Penal Code, which is affirmed. In view of the evidence the conviction of the appellants under Section 324 of the Indian Penal Code, of Chukia for the injury on P. W. 5; and of Birwa for the injury on P. Ws. 1 and 2, are also upheld.
16. There is, however, a question regarding the sentence which should be imposed upon the appellants for their conviction under Section 302/34 of the Indian Penal Code. I have examined this matter very carefully and have also considered the reasons given by the learned Judge for imposing the sentence of death on them. I do not agree with the observation of the learned Judge that the murder was committed in a well planned manner. It is true that the appellants had pursued Dewani and then assaulted him and caused a number of injuries on his person, but it must also be borne in mind that there was admittedly enmity between Chukia and Mosst. Dasia over the land; and Birwa had also a grievance that his claims as a near relation were also being ignored. It will not be, therefore, unreasonable to hold that these persons being Uraon and being aged about 30 years each were liable to sudden accession of rage when they were not perhaps entirely responsible for their action. Having regard to these, circumstances, I do not think that the extreme penalty provided by law is necessarily called for. I think, therefore, that on the facts and circumstances of this case, the ends of justice would be met by commuting their sentence to rigorous imprisonment for life.
17. For the foregoing reasons, the reference is discharged and the appeals are dismissed with the modification that the sentence of death imposed upon the two appellants is altered to one of rigorous imprisonment for life.
Banerji, J.
18. I agree