Patna High Court
Ram Udgar Jha And Ors. vs State Of Bihar on 2 May, 1986
Equivalent citations: 1987CRILJ113
ORDER M.P. Varma, J.
1. The three appellants have been convicted Under Section 302/34 of the I.P.C. (hereinafter referred to as 'the Code') and each one of them has been sentenced to undergo rigorous imprisonment for life. They have further been found guilty of the offence Under Section 323/34 of the Code, but no separate sentence has been awarded under this charge.
2. The occurrence of murder took place on 21st May, 1983 in village Rajour Rambhadrapur under police station Rosra in the district of Samastipur. All the three appellants are own brothers. We get from the evidence of the witnesses that one Bairagi had three sons namely, Basudeo Jha, Jaydeo Jha and Bachcha Jha. The three accused appellants are sons of Basudeo Jha. The deceased Nunu Jha was son of Jaydeo Jha, deceased's brother Bindeshwari Jha (P.W. 10) is the informant of the case. Bachcha Jha, third son of Bairagi Jha died leaving behind his widow Jashoda Devi and a daughter Shashi Kala Devi. Jasoda Devi also died. Shashi Kala is married to one Baijnath Mishra, who is said to be in possession of the estate of Bachcha Jha.
3. Evidence is not very clear. But it seems that there had been a division of the properties in the family. There is an orchard in the village. The trees of mango fruits and Jamun fruits (black berries) were there in the orchard P. W. 10, the informant has said that Jamun tree was still in the joint possession of the parties.
4. It was some time in the morning on 21-5-1975 that accused appellant 2 Mahabir Jha had asked one Parmeshwar Mistry (who has been examined as P.W. 5) to cut the woods of Jamun tree. When this witness P. W. 5 was cutting the wood, the informant P. W. 10 Bindeshwari Jha forebade him from cutting the tree as the tree was held in jointness by both the parties. Bindeshwari Jha protested to it before the aforesaid three accused appellants, on which they gave out that they would cut the tree and if the prosecution had the courage to stop it, let them come to the spot and settle the score. At the same time, appellant 2 Mahabir Jha took up a bamboo pole, accused Ram Udgar (appellant 1) took up a Farsa and the third accused Ramji Jha (appellant 3) took up a lathi. They all advanced towards Bindeshwari Jha. Bindeshwari Jha ran to his house probably to take out some weapon, but he was stopped in the courtyard by his wife (P. W. 8) and his daughter Mithila DevL This Mithila Devi is also now dead. Since Bindeshwari was stopped by then he could not come out. The case of the prosecution is that Bindeshwari's brother Nunu Jha, the deceased was at the Darwaza. He unfortunately became the victim. Accused Mahabir dealt a blow on his head. Numi Jha fell down and thereupon the allegation is that all the three appellants began assaulting Nanu Jha again. Nunu Jha's wife Dulari Devi (now she is also dead and could not be examined as witness) and his daughter Sithila Devi P.W. 9 and Bindeshwari's daughter Mithila Devi (now dead) rushed out, but before they could intervene, all the accused assaulted them also and it is for this assault on the three women that the three accused have been further charged Under Section 323/34 of the Code.
5. Prosecution further alleges that when people started coming to the scene of occurrence, all the three accused ran away, but while getting back they bodily lifted Nunu Jha and carried him up to their own Darwaza. By the time some villagers arrived on Hulla. They left Nunu Jha on the Sahan and fled away from the place. In the meantime, the P. W. 10 Bindeshwari Jha had also come out. He brought Nunu Jha to his own Darwaza and kept him on a Chowki. The inmates of the house attempted to give some first aid, but he could not survive and died of the result of the injuries sustained at the hands of the three accused. The three accused threrefore, were charged at the trial stage that they, in furtherance of common intention, caused the death of Nunu Jha.
6. P.W. 11 Police Officer, who was camping in village nearby in connection with investigation of some other case, having heard a rumour that a Marpit took place in village Rambhadrapur came there and took the statement of Bindeshwari Jha. This Fardbeyan (marked Ext. 2) was forwarded to the police station Rosra for registering a case and he - himself took up the investigation at the time when P. W. 11 had arrived Nunu Jha was alive, but was gasping for breath. He was unconscious and could not make any statement and died soon after. P. W. 11 therefore, prepared inquest report marked Ext. 5 and sent the dead body to Samastipur hospital for post-mortem examination.
7. P. W. 11 then proceeded further with the investigation, took the statements of some of the witnesses, inspected the place of occurrence and it was on 25-5-1975 that he handed over charge of the investigation to the officer incharge of Rosra police station who finally submitted charge-sheet. The accused were thus, put on trial.
8. The dead body of Nunu Jha was sent to Samastipur hospital, where the doctor P. W. 12 conducted post mortem examination. The doctor found the following ante mortem injuries on the dead body.
(i) Swelling of the whole of the upper top and left parietal and temporal regions of the
(ii) Swelling 3" x 3", circular, with acchymosis around both right and left eyeballs.
(iii) Swelling with blackening of nose with fronthy blood tinged fluid oosing out from nose and mouth.
(iv) Incised wound 1" x 1/4" x muscle deep on distal central phalanx of the right middle finger and also of proximal phalanx of the right ring finger.
(v) Incised wound 1" x 1/4" x muscle deep on the dorsum of the big toe of right foot.
(vi) The whole of back of chest and abdomen swollen with multiple ecchymosis, bruises, abrasions and five different sized incised wounds ranging from 1/2" to 3" in length x 1/4" skin deep, situated from nape of neck to waist.
9. On dissection of the dead body the doctor found 7th and 8th ribs on the left side broken, with pointed end piercing the part of the left lung. On dissection of the skull and brain, the doctor found massive subcutaneous haematoma all over the scalp. There was marked depressed fracture of both right and left parietal bones with fracture going down on both the sides up to the ear lobes and crack in front of the lower part of the forehead The depressed fracture on the head and the crack on the left orbital bone were in continuity and according to the report of the doctor these injuries were probably the result of injury No. 11 possibly caused by a blunt weapon on the head. These injuries, which caused shock and haemorrhage caused the intantaneous death.
10. The three women, who were also assaulted at the place of occurrence, were examined by P. W. 6 Dr. Rammohan Jha. He was then Medical Officer at Rosra hospital. On examination of Shitla Devi (P. W. 9) he found injuries like abrasion on the middle of the forehead with wound IVz" x IW' and also swelling over both the eyelids and abrasion 1" x 1/6" on the right shoulder. The doctor on examination of Mithila Devi found one bruise W x 1" on the back of the neck and on Deodulari Devi, he found abrasion IVi" x 1" with swelling of the size of 1" x 1/4" on the upper part of the forehead. According to the doctor all these injuries were simple in nature and might have been caused by hard and blunt substance.
11. At the trial stage the prosecution examined altogether 14 witnesses to prove the charge, out of whom P. Ws. 2 and 8 were tendered for cross-examination. P. W. 1 is of a most formal character. He claims to have gone to the place of occurrence where he found Nunu Jha lying unconscious. As pointed out above, P. W. 5 is a carpenter who was engaged by the accused appellant 2 Mahabir Jha for cutting the wood. He has said in his evidence that he was asked by accused Mahabir to cut the wood of Jamun tree and he was cutting the same with his son Ramjee. He further stated that Bindeshwari Jha came to the orchard and asked him not to cut the wood as the tree was in jointness of both the parties. He did not stop cutting and as discussed above, further case of the prosecution is that Bindeshwari Jha came to the accused persons and made a serious protest regarding the cutting of the Jamun tree. P. Ws. 3,4,7 and 9 and also the informant of P. W. 10 are the eye-witnesses of the occurrence. P. Ws. 6 and 12 are the two doctors, whose evidences have been discussed in the foregoing paragraphs. P. W. 11 is the Investigating Officer, who had arrived at the place on getting the rumour of commission of some Marpit and had recorded the fardbeyan of P. W. 10 Bindeshwari Jha. The other two witnesses P. Ws. 14 and 13 are also formal in character. P. W. 14 is the witness to the recovery of a bamboo pole from the house of accused appellant 2 Mahabir Jha and witness No. 14 has been examined to state that the report of the serologist with regard to the blood stained earth was lost and the the original could not be proved on record.
12. At the trial stage all the three, caused pleaded ignorance, but accused appellant No. 3 Ramji Jha had taken the plea of alibi, but the same was rejected by the trial Court and I may state here that the Counsel for the appellant did not address us on this aspect of the case, I mean, on the plea of alibi taken by this appellant.
13. The simple point which was raised by the Counsel for the appellants is that the Investigation Officer P. W. 11 found blood like stains at two different places. It has also been stated that it is the consistent statements of the informant as well as of other witnesses that the accused, while retreating lifted up Nunu Jha and carried him up to the Sahan land, from where Bindeshwari Jha brought him back to his Darwaza and kept on a Chowki. In this context it has been stated that there is no such statement in the F.I.R. and it is a clear addition of new facts only to explain the blood stains found at two different places and this falsifies the very manner of occurrence. I am not inclined to accept the contention on this issue. The evidence is very clear that both the parties apart from their being cousins have their houses nearby intervened by a Sahan land. When Nunu Jha fell down it is quite likely and as the evidence transpires, that they attempted to remove Nunu Jha from the place of occurrence but-left him on the Sahan land when the villagers arrived. The omission on this part of the story from the F.I.R. does not discredit the prosecution case as a whole and it cannot be denied that P. W. 11 arrived at the scene of occurrence on hearing a rumour of Marpit. Nunu Jha was then gasping for breath. Admittedly, when Nunu Jha was assaulted and fell down, the members of the family would not leave him at the place when he was still alive and it was quite natural that he was brought to the Darwaza and kept on the Chowki. I have already said.that there is (Evidence that women inmates of the house started attending on him, but it was unfortunate that he could not survive. This does not change the place of occurrence in any manner and it may also be stated here that while referring to this aspect of the argument the learned Advocate felt difficulty as the attention of the informant was not drawn to his earlier statement made in the fardbeyan and further more, in any view this may be considered to be an omission which does not affect the prosecution version at all.
14. I need not state that the fardbeyan on the basis of which the F.I.R. has been drawn contains the entire incidence beginning from cutting of the Jamun tree up to the arrival of P. W. 10 at the place of occurrence. But it is not expected nor it is possible to put down the minute details in the F.I.R. regarding which our attention has been drawn in course of the argument by the Counsel for the appellant. I therefore, say that the omission on this part of the story from the F.I.R. does not discredit the informant nor any other witness and the statements of all of them are very much consistent that all the three assaulted Nunu Jha, who fell down on receiving the blow and died at the Darwaza soon after.
15. There is another attempt by the learned Counsel for the appellants to argue that P. W. 10, who ran inside the courtyard could not have seen the occurrence. I do not consider it necessary to. discuss this issue in detail as P. W. 11 has said that the place is quite visible from the Angan and other witnesses have also given out, particularly the women inmates of the house that finding the accused assaulting Nunu Jha they all rushed out and intervened to save Nunu Jha. It is at this stage that they too were assaulted and their injuries have been duly proved by P. W. 6. These circumstances, fully corroborate the manner of occurrence and also the place where it happened, suggesting the prosecution the story that the three accused assaulted Nunu Jha which resulted in his death.
16. No other point has been raised to attack the judgment of the trial Court Nothing has been shown to us regarding other eyewitnesses, who all appeared to be very much competent in this case, specially the evidence of P. W. 9, who received injuries at the hands of this accused and in these circumstances, I am inclined to accept the testimony of each one of them to uphold the accused guilty of causing the death of Nunu Jha and also assaulting the three women of the house related to the deceased.
17. The learned Advocate in the end, however, made submission on the question of sentence. It has been rather argued that the circumstances indicate that the case, if accepted, falls Under Section 304 of the I.P.C. and not Under Section 302 of the Code read with Section 34, as held by the trial Court. It has been contended that from the evidence, as alleged by the prosecution, it is quite clear that P. W. 10 Bindeshwari Jha had intervened and objected to the cutting of the Jamun tree. Since P. W. 5 did not stop cutting, P. W. 10 came over to the accused and made protest against their conduct in cutting the tree as the same belonged jointly to all of them. It appears that this caused annoyance to the accused persons and on hearing the protest they not only threw a challenge to Bindeshwari Jha to come to the field and settle the dispute, but at the same time, picked up their weapons, i.e. Mahabir taking up a bamboo pole, accused Ramudgar taking Farsa and appellant 3 Ramji Jha taking lathi advanced towards Bindeshwari Jha. The learned Advocate contends that from this it is quite apparent that Bindeshwari Jha was the main target. The evidence further shows that Bindeshwari Jha ran inside and quite likely to pick up some weapon. But Nunu Jha, who was at the Darwaza suddenly fell victim of the appellants, as he came just in between them. In other words, the learned Advocate attempted to argue and in my opinion rightly, to some extent, that the accused persons at no stage intended to cause the murder of Nunu Jha. But nonetheless, their act of assault was so dangerous that it resulted in his death.
18. The evidence is very clear that appellant 2 Mahabir Jha wielded the bamboo pole which hit Nunu Jha on his head and this injury alone proved to be fatal causing the death. It has been noticed that the doctor found massive haemorrhage above the scalp all around. There was depressed fracture both on the right and left parietal bone and the crack was going down up to the ear lobes.
19. The other two accused, no doubt, Ijoined in assaulting Nunu Jha when the latter fell down, but I do not get any evidence of preconcert or meeting of minds of these three accused for committing the murder of either Bindeshwari Jha or of Nunu Jha, who have unfortunately been killed. In absence of any positive and concrete evidence of sharing the common intention for causing murder, as it all happened on the spur of the moment, when Bindeshwari Jha protested against the cutting of the tree and under that situation, for want of evidence of any such conspiracy, the two appellants i.e. appellants 1 and 3 cannot reasonably be held guilty of the charge Under Section 302/34 of the Code, but they appear to be guilty of Section 325/34 of the Code, because of the fact that they too joined in assaulting Nunu Jha when he fell down on the ground. The evidence of the doctor shows that there are fractures on the ribs which are grievous injuries in nature. I am inclined to take hold of this view, as I could not get from the evidence that anyone of these injuries, except that on the head, was directly related to the particular accused. There is no such evidence except the general statement that both assaulted Nunu Jha and that possibly caused such grievous injuries, which is an offence punishable Under Section 325 read with 34 of the Code.
20. Coming to the case of the third accused appellant 2 Mahabir Jha, as I have said that he wielded his bamboo pole which hit on the head causing severe fatal injuries. Learned Advocate has argued that Mahabir Jha did not repeat any blow on the head and the evidence remains quite vague and general that even after Nunu Jha fell down they began assaulting the victim. In other words the learned Advocate contends that it cannot be said that Mahabir Jha had at any time the intention of causing the death of Nunu Jha and while advancing this argument it has again been repeated that Nunu Jha became the victim as he came in between when the accused were running after Bindeshwari, who ran to his house. It is quite likely that Mahabir Jha might not have intended to cause the death of Nunu Jha, but at the same time it must be held that brandishing the bamboo pole on the head, in all probabilities might cause death and in fact, the death ensued sometime after. Thus, admittedly, as it is very much clear from the evidence of all the eye-witnesses that he caused such bodily injury, which was not only likely to cause death but in fact, it resulted in the death of Nunu Jha and his case may not come under the purview of Section 302 of the Code simpliciter, but nonetheless, he appears guilty for the offence Under Section 304, Part I of the Code. In the circumstances, the conviction of appellant 2 Mahabir Jha Under Section 302/34 of the Code is altered to that Under Section 304, Part I of the Code and is sentenced to undergo rigorous imprisonment for seven years and also to pay afineofRs. 1,000/-, in default, to suffer further imprisonment of one year.
21. So far the other two appellants Ram Udgar Jha (appellant 1) and Ramji Jha (appellant 3) are concerned, as discussed above, their conviction Under Section 302/34 is also altered to Section 325/34 of the Code, as the evidence is that they joined appellant No. 1 in making further assault on Nunu Jha when he fell down and he sustained grievous injuries, as a result of the assault perpetrated on him. It has been pointed out that both of them have been in jail for more than two years. Considering this aspect of the case and also the relationship between the parties, their sentence is reduced to the period already undergone by them with further sentence of fine of Rs. 500/- each, in default of payment of the fine to undergo rigorous imprisonment for six months each. So far their conviction Under Section 315/34 of the Code is concerned, the same is upheld, but no separate sentence is passed under this head. In case if the fines are realised the same may be deposited in Court below, who will issue notice to P. W. 9 Shitla Devi, daughter of the deceased and the same may be paid to her as compensation for the loss and agony suffered by her.
22. With the modification in the convictions and sentences as aforesaid, the appeal is dismissed. Appellant 2 (Mahabir Jha) must surrender to serve the sentence passed against him.
P.S. Sahay, J.
23. I agree.