Patna High Court
Bharat Baitha @ Bhairo Baitha & Ors vs State Of Bihar on 2 January, 2018
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.556 of 2002
===========================================================
Bharat Baitha @ Bhairo Baitha & Ors
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Abimanyu, Amicus Curiae
For the Respondent/s : Mr. Sujit Kumar Singh, APP.
===========================================================
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 02-01-2018
Assail is of judgment of conviction dated 12.09.2002 and order
of sentence dated 16.09.2002, passed by Smt. Vidyut Prabha Singh,
1st Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial
No. 322 of 1990, by which the appellants were held guilty under
Section 307/34 of the Indian Penal Code (hereinafter referred to as
"the IPC" ) Appellant Bharat Baitha @ Bhairo Baitha was sentenced
to undergo R.I. for seven years, whereas, appellants, namely, Dinesh
Choudhary @ Chhote Choudhary and Mahesh Choudhary @ Upendra
Choudhary were sentenced to undergo R.I. for ten years with a fine of
Rs. 2,000/- each and in default of payment of fine further R.I. for
three years. Further appellant Bharat Baitha @ Bhairo Baitha was also
convicted under Section 323 of the IPC, however, no separate
sentence was awarded.
2. Prosecution case emerging from materials on records, in short
is that on 29.09.1988, when the informant had come to Rajakhand
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
2/11
Village, he saw appellant - Mahesh Choudhary @ Upendra
Choudhary was having some altercation with a fish seller on which
the informant asked his associate, namely, Shiv Lal to go and pacify
the dispute, on which, appellant Bharat Baitha @ Bhairo Baitha came
near to the informant and started abusing him, which was objected by
the son of the informant. Thereafter, appellant Bharat Baitha @
Bhairo Baitha started assaulting him and ordered his sons to kill them,
upon which, appellants Dinesh Choudhary @ Chhote Choudhary and
Mahesh Choudhary @ Upendra Choudhary took out two bamboo
clamps and started assaulting the informant on his head. It is further
alleged that appellant -Bharat Baitha @ Bhairo Baitha took son of the
informant to a nearby ditch and tried to drown him. Thereafter, people
assembled and accused persons fled away and the injured was taken to
hospital, where statement of informant was recorded, on the basis of
which, FIR was registered against the appellants and after
investigation charge-sheet was submitted. Cognizance of the offence
was taken and, thereafter, the case was committed to the court of
sessions, which ultimately came to the file of Smt. Vidyut Prabha
Sinha, 1st Additional Sessions Judge, Vaishali at Hajipur, for trial and
disposal.
3. Charges were framed against all the appellants under Sections
307/34 of IPC and under Section 323 against the appellant Bharat
Baitha @ Bhairo Baitha.
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
3/11
4. During the trial, altogether eight witnesses have been examined
from the side or prosecution. They are: P.W. 1- Sambhu Ram, P.W. 2
- Shiv Lal, P.W. 3- Ashwani Kumar (son of the informant) P.W.4-
Sambhu Prasad Verma (informant ), P.W. 5 - Rajesh Kumar Singh,
the doctor, who examined the injured. P.W. 6 - Hari Shankar Pandey,
(I.O.), P.W. 7 - Ram Nath Sahni and P.W. 8 - Sunil Kumar Mishra.
5. Apart from that following documents have been brought on
record and marked as: Ext. 1- Signature of informant on production
list, Ext. 2- Injury report of Shambhu Prasad Verma (informant), Ext.
2/1- Injury report of Ashwani Kumar, Ext. 3 - Fardbeyan, Ext. 4 -
Formal F.I.R, Ext. 5 - Seizure list, Ext. 6 - Police report and Ext. 6/1
- forwarding report on police report ( Ext. 6.)
6. From the side of defence also, five witness have been
examined. They are; D.W. 1- Yogendra Baitha, D.W. 2- Nandan
Paswan, D.W. 3- Surendra Prasad Singh, D.W. 4- Ramiji Singh and
D.W. -5 is Pramod Kumar Singh.
7. From perusal of the evidence of defence witnesses as well as
the statement of appellants recorded under Section 313 Cr.P.C., it
appears that the defence of the appellants is of false implication and
denial of occurrence.
8. Post trial, the learned trial court convicted all the appellants
under Section 307/34 of the IPC and also convicted appellant Bharat
Baitha @ Bhairo Baitha under Section 323 IPC and sentenced them in
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
4/11
the manner as stated above.
9. Learned Amicus Curiae, appearing on behalf of the appellants
has argued that evidence of witnesses suffers from material
discrepancy and is self contradictory. Further the evidence of
witnesses; itself show that there was no intention of appellants to kill
anyone rather the occurrence took place on the spur of moment, which
will appear from the fact that the appellants were not armed with any
kind of weapon and the medical report clearly suggests that the
injuries caused to the informant and his son was found to be simple in
nature and, therefore, there is no application of Section 307/34 of IPC,
when intention or mens rea is not proved coupled with the fact that
the injuries found on the person of the injured were simple in nature.
Further contention of learned Amicus Curiae is that trial court has
failed to appreciate the contention of appellants that the present case is
a counter blast of Goraul P.S. Case No. 118/88 and also rejected the
plea of alibi without assigning the sufficient reason. On the basis of
the above submission, learned Amicus Curiae has submitted that
conviction of appellants under Section 307/34 and 323 of IPC is bad
in law and suffers from serious infirmities.
10. Per contra, learned counsel appearing for the respondent - State
has contended that the evidence of all the witnesses satisfactorily
establishes the overt act of the accused persons and informant and his
son being the injured witness, the veracity of these witnesses cannot
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
5/11
be doubted. It has also been argued that there are sufficient consistent
and reliable evidence available on record to show that the appellants -
Dinesh Choudhary @ Chhote Choudhary and Mahesh Choudhary @
Upendra Choudhary assaulted the informant on his head by bamboo
clamps, whereas, the appellant Bharat Baitha @ Bhairo Baitha tried to
kill the son of the informant by drowning him into near by ditch and
as such there is no infirmity in the impugned Judgment and conviction
of appellant under Section 307/34 and 323 of IPC is just and proper.
11. P.W. 4 is the informant in this case and his evidence disclosed
that on the date of occurrence, he along with his son had come to
village Rajakhand at about 5.00 P.M. to take part in pethia, which was
used to be held on every Sunday and Thursday on his land. His
evidence shows that he saw appellant Mahesh Choudhary @ Upendra
Choudhary, quarreling with a fish seller and when his associate Shiv
Lal Ram went to intervene in the matter, they assaulted him and
abused him. Thereafter, appellant Bharat Baitha @ Bhairo Baitha
came near to the informant and started abusing him, which was
objected by his son, on which appellant Bharat Baitha @ Bhairo
Baitha assaulted his son by means of fists and slaps and called his two
sons and ordered them to kill the informant and his son, then appellant
Dinesh Choudhary @ Chhote Choudhary and Mahesh Choudhary @
Upendra Choudhary assaulted on the head of the informant, causing
injuries to him. Meanwhile, the appellant Bharat Baitha @ Bhairo
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
6/11
Baitha forcibly took the son of informant to near by ditch and tried to
kill him by drowning him. His evidence further disclosed that on hulla
people assembled there and appellants succeeded in fleeing away.
This witness has also been cross-examined on the point that a large
number of cases are going on between him and appellant Bharat
Baitha @ Bhairo Baitha and a suggestion in this regard was also given
to him that all the cases was decided in favour of appellant Bharat
Baitha @ Bhairo Baitha and further a proceeding under Section 107
of Cr.P.C was going on and a title suit was also pending between the
parties in the court of Munsif -II, Hajipur.
12. P.W. 3 is the son of informant, who had also received injuries.
He has supported the prosecution story as stated by P.W. -4 and has
stated about the assault to his father by appellant Dinesh Choudhary
@ Chhote Choudhary and Mahesh Choudhary @ Upendra
Choudhary. His evidence further disclosed that he was dragged by the
appellant Bharat Baitha @ Bhairo Baitha to near by ditch with a view
to kill him by drowning in the said ditch. Thereafter, they had been
taken to the hospital.
13. P.W. 2 is the Shivlal Ram, as per F.I.R, he was also present at
the time of occurrence and has supported the prosecution story with
regard to assault to informant and his son. However, his evidence in
chief shows that the ditch was only 2 to 2 ½ ft. water in the ditch and
there was a scuffle between appellant Bharat Baitha @ Bhairo Baitha
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
7/11
and the son of informant in the said ditch.
14. P.W. 5 is the doctor in this case, who had examined the injured
-informant (P.W. 4) and found following injuries on the person of
informant.
1. Cut injury above mid portion of skull size 3" x ¼ x ¼ "
2. Tenderness over chest.
3. Lacerated wound over them middle ring finger of right
hand thumb 1" x ¼ X ¼ " with regular finger with 1"x ¼ x ¼"
with regular margin.
15. His evidence also disclosed that on the same day he examined
another injured, namely, Ashwani Kumar (P.W. 3) and found
following injuries.
1. Tenderness and def sed defused swelling over the right
side of chest.
2. Tenderness over leg near the knee joint.
3. Tenderness over left side of shoulder.
16. He further opined that all the injuries found on the person of
injured were simple in nature caused by hard and blunt substance.
17. P.W. 6 is the Investigating Officer in this case. He has
inspected the place of occurrence, which was a pitch road and also
found about three ft. water in the ditch.
18. Other witnesses have also been examined in this case and they
have supported the case of prosecution, so far manner of occurrence is
concerned. No doubt, there are some contradictions in their evidence
Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018
8/11
but the said contradiction does not go into the root of the case.
19. On behalf of defence as stated above five witnesses have been
examined. D.W. 1 was the then P.A to Collector Vaishali and is a
formal witness in this case, who has proved the order dated
13.04.1994, signature of District Magistrate, Vaishali. D.W. 2 is also a formal witness in this case, who has proved the signature of appellants as Ext. D and E. D.W. 3 has proved Ext. E/1. D.W. 4 has proved the signature of accused Ext. E/II and similarly D.W. 5 is also a formal witness, who proved Ext. G.
20. On perusal of the evidence of the prosecution witnesses, it appears that they are consistent on the point of altercation between the parties, in which appellant Bharat Baitha @ Bhairo Baitha started abusing the informant, which was objected by the son of the informant, upon which the appellant Bharat Baitha @ Bhairo Baitha assaulted the son of informant and called out his two other sons, who took out bamboo clamps and assaulted the informant causing injuries on his head. Appellant Bharat Baitha @ Bhairo Baitha further went on to drag the son of informant to nearby ditch and tried to drown him in the said ditch. However, the evidence of P.W. 2 and evidence of P.W. 6 (I.O.) clearly show that only two to three feet water was available in the said ditch and evidence of P.W. 2 also disclosed that there was scuffle between Bharat Baitha @ Bhairo Baitha and P.W. 3 in the ditch. No doubt, appellants have come with an alibi as well as the Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018 9/11 fact that the present case lodged by the informant is actually a counter blast of earlier case filed by the appellants' side against the informant, however, the said claim of appellants have been disbelieved by learned trial court on the ground that except first information report and fardbeyan, which are Exts. A and B, no other evidence has been brought on record in support of the said claim and further the claim of alibi was also rejected as the defence could not prove the same beyond all reasonable doubts. However, the trial court has not taken into consideration the fact that the determinative facts to decide the nature of the offence are the intention or the knowledge to commit a crime. In the instant case, the facts and circumstances speak for themselves that the accused had no such intention or requisite knowledge that by causing such injury, if death is caused, they would be guilty of murder. The appellants never knew that informant and his son would arrive at the village on the relevant day. This court finds force in submission of learned Amicus Curiae that when the intention is not proved and the injuries caused to the informant was found to be simple in nature, there is no application of section 307/34 of the IPC.
21. Allahabad High Court in the case of Kalloo & Another v. State [1993 (1) Crimes 397] has observed that when the gun shot injuries on the person of injured were simple in nature, though were on the vital part of the body, but the doctor opined them neither grievous nor dangerous, the offence falls under Section 324 and not Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018 10/ 11 under Section 307 IPC. Similar view was taken by the Hon'ble Apex Court in the case of Tukaram Gundu Naik vs. State of Maharashtra [1994 Cri. L.J. 224]. However, the Hon'ble Apex Court in the case of Parsuram Pandey and others v. State of Bihar reported in (2004) 13 SCC 189 has held that for the purpose of Section 307 what is material is intention or knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention of knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence of attempt to murder. In the case in hand, it is clearly manifest from the materials on record, that the injuries caused to the persons were found to be simple in nature and the prosecution has also failed to prove the intention of the appellants.
22. Considering the above discussions, it appears that the appellants could more appropriately be convicted under Section 323/34 of IPC. Hence the conviction of appellants under Section 307/34 IPC is altered to conviction under Section 323/34 of IPC and so far sentence is concerned, it appears that appellant Dinesh Choudhary @ Chhote Choudhary has remained in custody for more than seven months, Patna High Court CR. APP (SJ) No.556 of 2002 dt.02-01-2018 11/ 11 appellant Mahesh Choudhary @ Upendra Choudhary remained in custody for more than one month and appellant Bharat Baitha @ Bhairo Baitha has remained in custody for twenty two days during appeal and is aged about 67 years, as such, their sentences are modified to one which has already been undergone by them in judicial custody.
23. With the above modification in conviction and sentence, this appeal is dismissed.
(Vinod Kumar Sinha, J) sunil/-
AFR/NAFR AFR CAV DATE N/A Uploading Date 08.01.2018 Transmission 08.01.2018 Date