Jharkhand High Court
Pritam Baitha (Died During Pendency Of ... vs The State Of Bihar (Now Jharkhand) on 10 January, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.443 of 1993(P)
(Against the Judgment of conviction and Order of sentence dated 20th
September, 1993, passed by the 3rd Additional Sessions Judge, Dumka
(S.P) in Sessions Case No.295 of 1991)
1. Pritam Baitha (died during pendency of the appeal)
2. Jugal Baitha @ Gopal Baitha
3. Situ Baitha .... Appellants
Versus
The State of Bihar (Now Jharkhand) ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mr. Rajeeva Sharma, Sr. Advocate
Mr. Sunil Kumar Sinha, Advocate
For the State : Mr. Manoj Kumar Mishra, APP
.....
C.A.V. on 04.01.2023 Pronounced on 10.01.2023
Subhash Chand, J.:- Heard learned counsel for the appellants and learned
counsel for the State.
1. The instant criminal appeal is preferred on behalf of the
appellants against impugned Judgment of conviction and Order of
sentence dated 20th September, 1993 passed by the 3rd Additional
Sessions Judge, Dumka (S.P.) in Sessions Case No.295 of 1991,
whereby, the appellants nos.1 and 2, namely, Pritam Baitha and
Jugal Baitha @ Gopal Baitha had been convicted under Sections
302/34 of the Indian Penal Code and the appellant no.3, namely,
Situ Baitha had been convicted for the offences under Sections 302
of the Indian Penal Code and the appellants had been sentenced to
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undergo rigorous life imprisonment; while two of the co-accused had
been acquitted of the charge framed against them.
2. The brief facts giving rise to this criminal appeal are that the
informant-Jairam Baitha (the brother of the deceased-Pairu Baitha)
made his fard beyan to the police on 03.11.1990 stating therein that
on 02.11.1990 at 11:00 a.m. his brother Pairu Baitha was removing
clay from the wall in the lane. The accused Pritam Baitha, Jugal
Baitha, Situ Baitha, Bhagan Baitha and Sabitri Devi all with intent to
kill the said brother of the informant came there and opposed the
removal of the clay. They also abused to the brother of the
informant. Accused-Bhagan Baitha and Sabitri Devi caught the
brother of the informant-Pairu Baitha; while accused-Pritam Baitha
and Judgal Baitha assaulted his brother with lathi and the accused-
Situ Baitha assaulted with farsa to the brother of the informant on his
head; consequently the brother of the informant fell down on the
ground in unconscious condition. The informant and other witnesses,
namely, Andu Tatwa, Madhu Tatwa, Dinesh Baitha also attracted
there and all the accused persons managed to flee away. It is further
stated that his brother was brought to Dumka hospital in unconscious
condition for treatment and on the basis of fard beyan, Saraiyahat
(Hansdiha) P.S. Case No.128 of 1990 was instituted under Sections
147, 323, 324, 341 and 307 of the Indian Penal Code on 05.11.1990.
The Investigating Officer conducted the investigation and offence
under Section 302 I.P.C. was also enhanced and charge-sheet was
also filed to the court of Chief Judicial Magistrate, Dumka against the
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five accused persons for the offence under Section 302 read with 34
of I.P.C. who after having taken cognizance on the same committed
the case to the court of Sessions, who subsequently transferred the
same to 2nd Additional Sessions Judge, Dumka and thereafter further
the same was also transferred to 3rd Additional Sessions Judge,
Dumka.
3. After commitment of the case to the Court of Session, the trial
court framed under Sections 302/34 of the Indian Penal Code against
the accused-Pritam Baitha, Jugal @ Gopal Baitha, Bhagan Baitha,
Sabitri Devi while against accused-Jairam Baitha charge was framed
under Section 302 of the Indian Penal Code. The charge was read
over and explained to the all accused, who denied the charge and
claimed for trial.
4. On behalf of the prosecution in oral evidence examined P.W.1-
Bhagwati Devi, P.W.2-Nunulal Tatwa, P.W.3-Dinesh Baitha, P.W.4-
Jhakasi Mandalain, P.W.5-Andu Tatwa, P.W.6- Madhu Tatwa, P.W.7-
Jairam Baitha (the informant), P.W.8- Dr. Indra Kant Mishra, P.W.9-
Surendra Kumar Rajak and P.W.10- Surendra Prasad Singh.
5. On behalf of the prosecution in documentary evidence Ext.1 is
autopsy report, Ext.2 is signature of Surendra Kumar Rajak on
inquest report, Ext.2/1 is signature of Dilip Rajak on inquest report.
Ext.3 is fard beyan, Ext.4 is endorsement on inquest report
(Pristhankan) and Ext.5 is inquest report.
6. The statement of accused persons under Section 313 of the
Cr.P.C. was also recorded, wherein the accused persons denied the
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incriminating circumstances against them and stated to adduce
defence evidence.
7. On behalf of the defense in oral evidence examined D.W.-1
Ashiw Kumar Das, D.W.-2 Dr. Dilip Kumar Mishra and D.W.-3 Wakil
Chandra Das while in documentary evidence adduced injury report of
Pritam Baitha as Ext. A, register pertaining to the entry of Pritam
Baitha and Jugal Baitha made by the Dr. K.D. Dubey as Ext.B and B/1
respectively and prescriptions as Ext. C and C/1.
8. The learned trial court after hearing the learned counsel for the
parties passed the judgment of conviction and order of sentence
against the accused Pritam Baitha, Jugal @ Gopal Baitha and Situ
Baitha for the charge under Sections 302/34 of the I.P.C. and
sentenced with rigorous imprisonment for life; while the accused
Bhagan Baitha and Sabitri Devi were acquitted for the charge framed
against them.
9. The aforesaid convicts being aggrieved with the judgment of
conviction and order of sentence dated 20th September, 1993
preferred this present criminal appeal on the ground that the
judgment of conviction and order of sentence passed by the learned
trial court is bad in law and on facts as well. The learned trial court
had also failed to consider the injuries sustained by the appellants
and held that the manner of occurrence as suggested by the
prosecution did not match with the medial evidence as there is no
incise wound among the ante mortem injuries of the deceased. The
witnesses upon whom the trial court had relied were the interested
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witness. The learned trial court did not appreciate the grudge which
the informant had against the appellants/convicts on issue of the
land dispute. The learned trial court did not appreciate the evidence
of the defense witnesses while passing the impugned judgment of
conviction. The prosecution witness upon whom the learned trial
court relied were examined by the Investigating Officer belated. The
prosecution has not examined the Investigating Officer which goes
against the prosecution. At the most the learned trial court should
have convicted the appellants for the offence under Section 325 of
the Indian Penal Code. Accordingly, prayed to allow the appeal and
to set aside the impugned judgment of conviction and order of
sentence passed against the appellants.
10. Heard learned senior counsel for the appellants and learned
A.P.P. for the State of Jharkhand and perused the materials available
on record.
11. On perusal of record, it appears that during pendency of this
appeal, the appellant no.1, namely, Pritam Baitha died and no
legal heirs of the deceased-Pritam Baitha stepped ahead to
pursue this appeal. Hence, vide order dated 4th January,
2023, this appeal was abated against the said appellant.
12. On behalf of the prosecution to prove its case in oral evidence
examined ten witnesses out of them P.W.-1 Bhagwati Devi and P.W.-
7 Jairam Baitha are the eye-witnesses of the occurrence.
13. P.W.-1 Bhagwati Devi in her examination-in-chief stated that
on the date and time of occurrence her husband was removing clay
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from the wall and she was also present there. In the meantime,
Pritam Baitha, Jugal Baitha, Sito Baitha, Bhagan Baitha and the wife
of Pritam Baitha, namely, Sabitri Devi had come there. Pritam and
Jugal were armed with Lathi; while Sito was armed with farsa. The
rest of the accused were empty handed. All the accused persons
began to hurl abuse to the husband of the informant which was
opposed by him. At this Bhagan Baitha and Sabitri Devi both caught
hold of her husband; while Jugal Baitha and Pritam Baitha both
assaulted with lathi and Sito Baitha assaulted with farsa on the head
of her husband. Thereafter her husband fell down in unconscious
condition and on being alarmed by her, Dinesh, Nunulal, Andu,
Madhu etc. attracted there and the accused persons fled away. She
also stated that she identified all the accused persons. In cross-
examination, this witness stated that the occurrence took place
between 10 to 11 of day time and after hurling of abuse, the maar-
peet was done in which her husband died. The persons of the village
came there after her husband fell down on the ground. She further
stated that Nunulal, Madhu, Dinesh, Andu and Jhakasi were told in
regard to the occurrence by her. Her husband also sustained injuries
on several parts of the body inflicted by lathi. The several blow of
lathi were given and the blood also oozed. She only saw one assault
given by the farsa, whereby the head of her husband ruptured.
These persons also chased her to assault but she managed to flee
away. The police had interrogated her while she was in Dumka
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Hospital and she told in regard to the occurrence to the police on
Monday.
14. P.W.-7 Jairam Baitha in his examination-in-chief
corroborated the contents of fard beyan (Ext.3) and also stated that
first of all Situ Baitha assaulted with farsa on the head of his brother.
When he fell down, Pritam Baitha and Jugal Baitha also assaulted
with lathi, thereafter, hearing hue and cry Nunulal Tatwa, Dinesh
Baitha, Madhu Tatwa and Andu Tatwa of the village attracted there.
All these persons intervened and the accused persons managed to
flee away. His brother Pairu became unconscious. He, wife of Pairu
and Gotiya took injured Pairu to the house; from where they took
him to Nonihat, where the doctor expressed his inability to treat him.
So they took him to Sadar Hospital, Dumka by the bullock cart and
on Saturday night he died. His statement was also recorded by
Daroga ji in Dumka Hospital and he also put his thumb impression
thereon. His re-statement was also recorded by Daroga ji and he also
put his thumb impression on the application for inquest report. In
cross-examination, this witness stated that the accused persons had
given several lathi blows to his brother, who sustained several
injuries on his body. He further stated that whether the accused
persons had given blow with farsa from the reverse side he cannot
say. He had not seen the injuries on the body of the accused
persons. After the occurrence, Dinesh Baitha, Nunulal, Andu and
Madhu reached at the place of occurrence and he told in regard to
the occurrence to them. He took his brother to Nonihat and the
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doctor refused to treat him, thereafter, on the same day in the
evening at 4 o' clock they reached to Dumka Hospital wherein his
brother was admitted and on Saturday night his brother died. The
doctor had demanded police papers while admitting in Dumka
Hospital, therefore, he went to Dumka Hospital to bring the police
papers. The Daroga ji had handed over one paper on Friday to get
his brother admitted in hospital and on Saturday his restatement was
recorded by the Daroga ji.
15. P.W.-10 Surendra Prasad Singh has stated that he
recorded the fard beyan of the informant Jairam Baitha in
Dumka Hospital. The same read over to him and he put his thumb
impression thereon which is marked as Ext.3. The endorsement was
made by the officer-in-charge, Dumka P.S. Sri N. Singh which he
identified and marked Ext.4. The inquest report was prepared by
Abdul Aziz, S.I. Dumka which is in his writing and signature. He
identifies the same as marked as Ext.5. This witness in cross-
examination denies the suggestion that the fard beyan was prepared
later on.
16. P.W.-2 Nunulal Tatwa in his examination-in-chief stated that
he had seen Pritam, Jugal, Situ Baitha inflicting with lathi to Pairu.
Except Jugal, Pritam and Situ no other accused was there. He had
seen the three accused. In cross-examination, this witness has stated
that there were several injuries on the body of Pairu. At the place of
occurrence Dinesh, Madhu, Andu and Nunulal came later on.
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17. P.W.-3 Dinesh Baitha in his examination-in-chief stated that
he reached at the place of occurrence and Madhu, Andu and Nunulal
were there and Pairu had fallen on the ground. Pritam was also
injured to whom Pairu had inflicted injuries. He also saw Gopal in
injured condition. There were injury on the head and tample of Pairu
and his whole body was brutally injured.
18. P.W.-4 Jhakasi Mandalain had stated that she had seen the
three accused Pritam, Jugal and Situ assaulting to Pairu. Situ was
armed with farsa. The place of occurrence was visible from her house
from where she had been watching the occurrence.
19. P.W.-3 Andu Tatwa in his statement stated that when he
reached at the place of occurrence, Pairu Baitha had fallen on the
ground. Pritam, Jugal and Situ were fleeing away from the place of
occurrence.
20. P.W.-6 Madhu Tatwa in his statement stated that he had
seen the occurrence from Khalihaan which was visible from there. He
saw Pritam, Jugal and Situ assaulting with lathi to Pairu Baitha, who
had fallen on the ground due to sustaining injuries. He was also
rushed to Dumka hospital.
21. P.W.-8 Dr. Indra Kant Mishra has proved the autopsy report
of the deceased Pairu Baitha and following ante mortem injuries were
shown :
(i). Lacerated wound 2"x1/2"x bone deep over right parital
region of the scalp.
On dissection there was fracture of right side of
frontal and right parital bones. On further dissection the
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membrances and brain matter found lacerated and blood
clot present in the cranium.
(ii). Abrasion 2"x1"and 1"x1/2" over left leg below knee
joint.
(iii). Abrasion 2"x1" over right knee joint.
(iv). Abrasion 2"x1/2"over anterior aspect of elbow of left
arm.
(v). Abrasion 2"x1" over anterior aspect of right upper arm.
This witness also opined that cause of death was shock and
haemorrhage as a result of injury no.(i) which was sufficient
enough to cause death in the ordinary course of business.
The weapon used was hard and blunt substance and this autopsy
report was prepared by him and is under his signature which was
marked as Ext.1.
22. Learned senior counsel for the appellants has contended that
the fard beyan (Ext.3) is dated 3rd November, 1990; while in inquest
report and autopsy report the date of fard beyan is shown 2nd
November, 1990. As such the fard beyan of 02.11.1990 which is not
on record has been suppressed.
Though this plea has not been raised in ground of appeal on
behalf of the appellants, yet so far as this contention of learned
counsel for the appellants is concerned the same does not affect the
prosecution case because the fard beyan of the informant-Jairam
Baitha was recorded on 3rd November, 1990. In the fard beyan itself,
the date of occurrence is shown 2nd November, 1990 at 11 o' clock of
day time and this fard beyan was recorded on 3rd November, 1990
which has been proved by the informant-P.W.-7 Jairam Baitha and
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also by P.W.9 Surendra Prasad Singh, who recorded the fard beyan
of Jairam Baitha and informant had put his thumb impression
thereon. The same was also endorsed by the Officer-in-Charge of
Dumka (Nagar) Police Station which has been marked as Ext.3 and 4.
On behalf of the defense counsel before the trial court during cross-
examination of P.W.-7 Jairam Baitha, the informant and the scribe of
the fard beyan. P.W.-9 Surendra Prasad Singh were not put even a
suggestion that there was fard beyan of 2nd November, 1990 which
might have been suppressed. Even no cross-examination was made
from these two witnesses in regard to the fard beyan being of 2nd
November, 1990 in place of 3rd November, 1990. As such merely
mentioning the date of fard beyan 3rd November, 1990 in the inquest
report and autopsy report by the I.O. does not adversely affect the
prosecution case. More so, the fard beyan dated 3rd November, 1990
has been duly exhibited by the prosecution witness.
23. The learned senior counsel for the appellants also contended
that the F.I.R. of this case was lodged belated. The occurrence is of
2nd November, 1990 and the F.I.R. was lodged on 5th November,
1990 and there is no cogent explanation on behalf of the prosecution
in regard to inordinate delay in lodging the F.I.R. It is further
contended that this F.I.R. was also sent to the Magistrate concerned
on 7th November, 1990, as such, the checks which are being imposed
under Section 157 Cr.P.C. have been violated by the prosecution
which makes the prosecution's case tainted. From the very perusal of
the F.I.R., it is evident that the date of occurrence is 2nd November,
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1990 of 11 o'clock of day time and the fard beyan was recorded on
3rd November, 1990. Distance of police station from the place of
occurrence is ten kilometers away and this F.I.R. was lodged on 5th
November, 1990. Learned senior counsel for the appellants, in
support of his contentions, relied on Meharaj Singh (L/Nk.) vs.
State of U.P. reported in (1994) 5 Supreme Court Cases 188.
24. Per contra, Learned A.P.P. has contended that the fard beyan
of the informant-Jairam Baitha was recorded on the very next day of
occurrence i.e., 3rd November, 1990. Reason being the deceased
brother of the informant Pairu Baitha was grievously injured; firstly
he was rushed to Nonihat where the doctor expressed his inability to
give treatment. Thereafter on the very day he was taken to Sadar
Hospital, Dumka by the bullock cart. The injured was also admitted at
Sadar Hospital Dumka and they also made demand of the police
papers. The informant Jairam Baitha went to the police station and
brought the police paper, thereafter, he was given treatment in Sadar
Hospital, Dumka. On 3rd November, 1990 in the night injured Pairu
Baitha died. This fact is well proved from the statement of P.W.1
Bhagwati Devi (the wife of the deceased), P.W.7- Jairam Baitha (the
informant) and also from the statement of P.W.10 Surendra Prasad
Singh, who recorded the fard beyan of the informant on 3rd
November, 1990. As such, the delay in lodging the F.I.R. was only on
the part of the police, not on the part of the informant. Further this
F.I.R. was registered as Saraiyahat P.S. Case No.128 of 1990 on 5th
November, 1990 and the inquest report was prepared on 4th
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Cr. Appeal (DB) No.443 of 1993(P)
November, 1990. The postmortem was also conducted on 4th
November, 1990. Certainly, this F.I.R. was seen by the Magistrate
concerned on 7th November, 1990.
25. Certainly, there are latches on the part of the police in not
lodging the F.I.R. on the very day when the fard beyan was recorded
on 3rd November, 1990 and the F.I.R. was lodged on 5th November,
1990 and the same was sent to the magistrate concerned on 7 th
November, 1990. The delay in sending the F.I.R. to the Magistrate
concerned not always fatal for the prosecution case. However, the
delay is significant when the genesis of the prosecution case is
doubtful. The Hon'ble Apex Court in the case of Jafel Biswas vs.
State of West Bengal reported in AIR 2019 Supreme Court 519
has held that the delay in sending the F.I.R. to the Magistrate
concerned not always fatal to the prosecution case. However it
becomes significant when the genesis of the prosecution case is
doubtful.
Moreover, in the present case, the fard beyan of the informant
was recorded on 3rd November, 1990 on the very next day of
occurrence. As such the delay in lodging the F.I.R. and sending the
same to the Magistrate concerned belated on the part of police
cannot be fatal to the prosecution case if the same is proved from
the cogent and trustworthy evidence.
26. The learned senior counsel for the appellants also contended
that on behalf of the prosecution case, the eye-witness of the
occurrence, who have been produced before the learned trial court
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are the interested witnesses and their testimony cannot be believed.
So far as the eye-witness account is concerned they are at variance
with the medical evidence produced on behalf of the prosecution.
There is only one injury which was fatal to life while the remaining
four injuries were simple abrasions; while all the prosecution
witnesses have stated that the accused persons had given several
blow to deceased Pairu Baitha by Lathi and farsa as well.
27. Per contra, learned A.P.P. contended that the prosecution case
is based on direct evidence. P.W.1- Bhagwati Devi and P.W.-7 are
the eye-witness of the occurrence. Though these witnesses are
related witness, yet their presence at the place of occurrence is not
doubted at all. Moreover on raising alarm by these two eye-witnesses
the several persons of the locality also attracted there and they also
saw the occurrence. They have been examined as P.W.2 Nunulal
Tatwa, P.W.-3 Dinesh Baitha, P.W.4 Jhakasi Mandalain, P.W.5 Andu
Tatwa, P.W.6- Madhu Tatwa and also corroborated the prosecution
story. It is further contended that in regard to the same occurrence
on behalf of the appellants-accused persons a F.I.R. was also lodged
against the persons of the informant's side which was registered as
Saraiyahat P.S. Case No.127 of 1990. So far as the variation in
testimony of the witnesses with the medical evidence is concerned,
the same is not material; rather it corroborates the eye-witness
account.
28. P.W.-1 Bhagwati Devi and P.W.-7 Jairam Baitha are the
eye-witnesses of the occurrence. Both these witnesses have
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stated that when deceased Pairu Baitha was removing the clay from
the wall at the same time, Pritam Baitha, Jugal Baitha, Situ Baitha,
Magan Baitha along with Sabitri Devi came there and Pritam Baitha
and Jugal Baitha assaulted with lathi to Pairu Baitha while Sito Baitha
assaulted with farsa on the very issue of removing the clay from the
wall. Magan Baitha and Sabitri Devi were empty handed. These
witnesses also stated that they also raised alarm when the accused
persons were assaulting to Pairu Baitha. On their raising alarm,
Nunulal, Madhu, Dinesh, Andu and Jhakasi also came there,
thereafter, the accused persons fled away. The testimony of these
two eye-witnesses, who are related witness of the deceased
is also corroborated with the evidence of independent
witness of the village, who were examined by the
prosecution as P.W.2 Nunulal Tatwa, P.W.-3 Dinesh Baitha,
P.W.-4 Jhakasi Mandalain, P.W.-5 Andu Tatwa, P.W.-6
Madhu Tatwa. All these witnesses have stated that when they
reached at the place of occurrence, maar peet was also going on and
Pairu had fallen in unconscious condition. They have stated that they
had seen the occurrence, although the eye witness Bhagwati Devi
(P.W.-1) and Jairam Baitha (P.W.-7) have stated that all the
independent witness of the village who have been examined by the
prosecution came at the place of occurrence later on and they told in
regard to the occurrence to them. To the contrary, all the
independent witnesses produced on behalf of the prosecution have
stated that as they reached at the place of occurrence, the injured
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Pairu Baitha was lying in unconscious condition on the ground and
the accused persons Pritam Baitha, Jugal Baitha and Sito Baitha were
armed with Lathi and farsa. On reaching the place of occurrence by
them, the accused persons fled away. As such the testimony of
these independent witnesses P.W.2, P.W.3, P.W.4, P.W.5 and
P.W.6 shall be admissible under Section 6 of the Evidence
Act as res gestae evidence.
29. The testimony of the eye-witnesses even if they are relative
cannot be disbelieved in view of the corroborative testimony of the
independent witnesses. This ocular evidence is also corroborated with
the medical evidence, though the deceased Pairu was not medically
examined on the very date of occurrence. Its reason is explained by
the prosecution witness P.W.-1 Bhagwati Devi and P.W.-7 Jairam
Baitha as well that on the very date of occurrence, they rushed to the
injured Pairu Baitha to Nonihat where the doctor expressed his
inability to give treatment and thereafter they took injured Pairu to
Sadar Hospital Dumka and ultimately he died therein on the very
next day i.e., 3rd November, 1990 at night. P.W.-7 Jairam Baitha also
stated that they took injured Pairu Baitha by the bullock cart.
Admittedly no medical examination was done by the doctor. After his
death when the postmortem was conducted, the five ante mortem
injuries were found on his body out of which injury no.(i) was the
lacerated wound on the vital part of the body i.e., head. As per
opinion of the doctor this injury no.(i) was sufficient in ordinary
course of business to cause death. As such the proximate cause of
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death is the injuries which the deceased Pairu Baitha has sustained in
the occurrence of 2nd November, 1990 which is well proved by the
eye-witness account and also corroborated with the medical
evidence.
30. So far as the injuries sustained by the deceased in the
occurrence of 2nd November, 1990 is concerned, the same is also
proved from the suggestions given by the defense counsel to the
prosecution eye-witness P.W.1 and P.W.7 as well. As per defense
case, the deceased Pairu had also assaulted to Pritam Baitha and his
son Gopal Baitha. The F.I.R. of the same was also lodged by them
against Pairu Baitha and Shrawan Baitha which was registered as
Sariyahat P.S. Case No.127 of 1990. The copy of the F.I.R. of said
case was also produced in defense evidence on behalf of the accused
persons. Even the injury report of Pritam Baitha was also filed on
behalf of the accused persons in defense evidence. The lodging of
the F.I.R. of cross case which was registered as Saraiyahat P.S. Case
No.127 of 1990 also confirms that on 2nd November, 1990, the
alleged occurrence took place. The testimony of the eye-
witnesses and the independent witnesses proved that the
accused persons, who had objected the removal of clay from
the wall by Pairu were the aggressor. The accused person
opposed the same and also assaulted to Pairu, who
sustained grievous injury and became unconscious on the
spot and who ultimately died due to sustaining injuries.
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31. So far as some improvement and discrepancy in the statements
of the eye-witnesses is concerned, the same is not material as some
discrepancy are bound to come on account of social background of
the witness and way of perceiving the occurrence. In the case of
Bherulal Vs. State of Rajasthan reported in 2009 (66) ACC 997
(SC), the Hon'ble Apex Court had held that the evidence of eye-
witnesses cannot be thrown away, merely because the witnesses
have exaggerated or are the interested witness.
32. It is settled law that the testimony of the related or interested
witness should be examined cautiously. In the case in hand, P.W.1
Bhagwati Devi and P.W.-7 Jairam Baitha, who are the eye-witnesses
their testimony are found trust worthy and reliable. Their presence at
the place of occurrence is not shaked during cross-examination, even
their testimony is also corroborated with the testimony of
independent witnesses P.W.-2 to P.W.-6. As such the testimony of
these eye-witnesses inspires truth in regard to the occurrence.
33. Learned senior counsel for the appellants submitted that in this
case the deceased sustained only one fatal injury i.e., injury no.(i)
but the eye-witnesses have stated that Pritam Baitha and Jugal
Baitha had assaulted with repeated lathi blow and Situ Baitha had
assaulted with farsa while as per opinion of the doctor, the injury
no.(i) which was fatal to life was caused by hard and blunt object. As
such, this injury was not inflicted by Situ Baitha, who has been
assigned role of assaulting with farsa.
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34. From prosecution evidence it is evident that the eye-witnesses
have attributed specific role of assaulting with lathi to the accused
Pritam Baitha and Jugal Baitha; while accused-Situ Baitha has been
attributed role of assaulting with farsa to the deceased. Certainly as
per opinion of the doctor, the injury no.(i) which was inflicted with
hard and blunt object. Be that as it may be, but this injury was
caused by the accused persons in furtherance of common intention.
The common intention of all the accused persons is inferred from
their conduct and act at the place of occurrence. From the
prosecution evidence, it is proved that the accused Pritam Baitha,
Jugal Baitha both were armed with lathi; while Situ Baitha was armed
with farsa. These three persons had assaulted with the weapons in
their hand to the injured Pairu Baitha and all the three accused
persons along with two other accused Sabitri Devi and Magan Baitha
came together and all fled away from the place of occurrence
together after committing the occurrence. Their thorough conduct
and act at the place of occurrence shows that they shared common
intention in committing the alleged offence. The injury no.(i) inflicted
to injured Pairu Baitha was sufficient in ordinary course of business
to cause death. The nature of the weapons was deadly with which
the accused persons were armed also reflected their intention to
commit murder of the deceased. As such in view of constructive
liability under Section 34 of the I.P.C., all the three accused persons
are liable to commit murder of the deceased-Pairu Baitha.
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35. The Hon'ble Apex Court in the case of State of U.P. vs. Atul
Singh etc. etc., reported in AIR 2009 (SC) 2173, has held that
Section 34 of I.P.C. is a rule of evidence and does not create
substantive offence. The intention can be inferred from the
circumstances appearing from the proved facts of the case. Meeting
of minds of all accused to commit offence should be established. Not
necessary to show the overt act on part of every accused.
The Hon'ble Apex Court in the case of Bengai Mandal @
Begai Mandal vs. State Of Bihar reported in AIR 2010 (SC) 686
has also held that the common intention in most of the cases is to
inferred from the act and conduct of the accused and other relevant
circumstances.
In the case of Thoti Manohar vs. State of Andhra Pradesh
reported in 2012 (78) A.C.C. 511 SC, the Hon'ble Apex Court has
held that previous meetings of minds with pre-arranged plan or prior
concert is difficult to establish by way of direct evidence. It has to be
inferred from the conduct of the accused and the circumstances.
36. In view of the above cited judicial pronouncements of Hon'ble
Apex Court and from the evidence adduced on behalf of the
prosecution, all the appellants are liable for murder of Pairu Baitha as
they had shared common intention to commit murder as discussed
hereinabove.
37. Learned senior counsel for the appellants also contended that
in this case the I.O. has not been examined and even the blood
stained soil was also not sent for examination to State Forensic
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Science Laboratory. The learned trial court did not consider this
defect in the investigation and convicted the appellants.
38. Certainly, in this case, the I.O. was not examined on behalf of
the prosecution. This case is based on direct evidence and the eye-
witnesses P.W.1- Bhagwati Devi and P.W.-7 Jairam Baith both were
examined before the trial court. In their Statement under Section 161
Cr.P.C. and the statement given before the trial court no
contradiction could be drawn by the defense counsel during cross-
examination. Likewise, the other independent witnesses i.e., P.W.-2
to P.W.-6 were also cross-examined and in their testimony there is
nothing on record to show any contradiction in the statement given
by these witnesses under Section 161 Cr.P.C. to the I.O. and the
statement given by them before the learned trial court. Even the
occurrence is also admitted by the accused /appellants as from the
side of appellants, the counter case of the same occurrence was also
lodged as Saraiyahat P.S. Case No.127 of 1990 against Pairu Baitha
and Shrawan Baitha. In this occurrence Pritam Baitha and Jugal
Baitha @ Gopal also alleged to have sustained injuries and their
injury report have also been adduced on behalf of the
accused/appellants in defense evidence. Therefore non-
examination of the I.O. is not found fatal for the prosecution
case. The prosecution case is also proved from the eye-witness
account which is also corroborated with the medical evidence. Simply
not sending the blood stained soil to the SFSL is not fatal as the place
of occurrence where the occurrence took place is not disputed.
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The Hon'ble Apex Court in the case of Bihari Rai vs. State of
Bihar (now Jharkhand) reported in 2009 (3) SCC Criminal
1209 has held that non-examination of the I.O., who had only
conducted inquest report which was also marked exhibit without any
objection and there was no challenge to the correctness of the
report. The non-examination of the I.O. does not in any way corrode
the credibility of the prosecution version.
In the case in hand, the I.O. who recorded the statement of
prosecution witnesses and their testimony are found in consonance
with the statement given by these witnesses under Section 161
Cr.P.C. The examination of the I.O. was necessary had there been
any contradiction in the statement of the prosecution witness under
Section 161 Cr.P.C. and the statement given before the Court to
explain that why the prosecution witnesses were giving the
contradictory statement under Section 161 Cr.P.C. No such
contradiction is found in testimony of the prosecution witnesses, as
such, the non-examination of the I.O. is not found fatal to the
prosecution case.
39. Learned senior counsel for the appellants also contended that
the presence of the eye-witnesses cannot be relied as they did not
intervene at the time of occurrence.
40. The aforesaid contention of the learned senior counsel for the
appellants is not tenable. More so from the evidence it is found that
these eye-witnesses had raised alarm, though did not intervene on
account of fear as the accused persons were armed with deadly
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weapon. On their raising alarm, the persons of the locality also
attracted there, who had been examined on behalf of the prosecution
to corroborate the testimony of these interested eye-witnesses.
The Hon'ble Apex Court in the case of Suresh Yadav @
Guddu vs. State of Chhatisgarh reported in 2022 Livelaw SC
217 has held that the evidence of the eye-witnesses cannot be
discarded merely because they did not raise any alarm or did not
tried to intervene when the deceased was being ferociously assaulted
and stabbed.
41. After critical appraisal of the prosecution case and the evidence
available on record, we are of the considered opinion that the
learned Court below has committed, no illegality or infirmity in
recording the findings of conviction of accused/appellants. As such
there appears no justification for interference by this Court in the
impugned judgment of conviction. The judgment of conviction dated
20th September, 1993 passed by the court below convicting the
accused/ appellants is hereby affirmed. Accordingly, this appeal is
hereby dismissed.
42. So far as the sentence passed by the learned trial court is
concerned, it is found that the trial court has sentenced the
accused/appellants with life imprisonment without imposing fine;
while in view of Section 302 of I.P.C. imposing fine along with
imprisonment is also mandatory. Such omission on the part of the
learned trial court is curable. Accordingly, the fine of Rs.20,000/- to
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each of the appellants is also imposed and to this extent the
sentence passed by the learned trial court stands modified.
43. The appellants/convicts, namely, Jugal Baitha @ Gopal Baitha
and Situ Baitha who were granted bail during pendency of the
appeal, their bail bonds are cancelled and they would surrender
before the learned trial court who would send them jail to serve out
the sentence. Let the lower court's record be sent to the court
concerned forthwith along with a copy of this judgment for necessary
compliance.
I agree (Sujit Narayan Prasad, J.)
Sujit Narayan Prasad, J.
(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated, the 10th January, 2023. Rohit Pandey/ A.F.R.