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CASE NO.: Appeal (crl.)  985 of 2005

PETITIONER: Murari Thakur and another

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 14/12/2006

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

       This appeal has been filed against the judgment and order  dated 12.1.2005 of the Patna High Court in Criminal Appeal No.  266 of 2001. By that judgment the conviction of the appellants by  the trial court under Section 302/34 IPC was upheld.  

       Heard learned counsel for the parties and perused the record.

The case of the prosecution, in short, is that on 26.8.1998 at  about 3 p.m., Dhaneshwar Mishra (PW4), elder brother of the first  informant Bhuneshwar Mishra was going for grazing his buffalo  when he saw his deceased nephew Bal Krishna Mishra with the  appellants going across the river in Parti land.  When Dhaneshwar  Mishra enquired from them where they were going, they all replied  that they were on a stroll and they went towards east of the river.   Dhaneshwar Mishra also went across the river with his buffalo.   After sometime at about 4 p.m., he heard the sound of gasping  from the other side of a field of sugarcane and leaving his buffalo,  he went towards the sugarcane field he found that on a ridge under  the tree of Jamun (rose apple), appellant Murari Thakur had caught  hold of the legs of deceased, appellant Sudhir Thakur was sitting  on the back of the deceased holding both his hands, and the third  accused Sunil Kumar (who is not before us) after pressing the neck  of the deceased was cutting it with a sharp edged weapon.   Dhaneshwar Mishra saw this incident from a distance of ten laggis,  and he ran raising hulla and the appellants and Sunil Kumar fled  away towards west of the sugarcane field. When Dhaneshwar  Mishra reached the place, he found that all the three appellants had  already committed the murder of the deceased by cutting his neck.   On hulla of Dhaneshwar Mishra, Devendra Singh (PW6), Kishore  Jha (PW2), Baleshwar Mishra (PW3), Paras Nath Mishra (PW7)  and a number of other persons came there and they saw the dead  body of the deceased.  About motive of the occurrence, the case of  the prosecution is that twelve days before the occurrence, some  altercation had taken place with appellant Sunil Kumar.   On the  date of the occurrence at about 8 p.m. when the informant  Bhuneshwar Mishra (PW8), father of the deceased came to his  house from Sitamarhi, he came to know that his son had been  killed and Dhaneshwar Mishra told him about the entire incident.   On the night between 26.8.1998 and 27.8.1998 about 1.30 hours,  Fard-e-bayan of the first informant was recorded at the place of the  occurrence and a case under Section 302/34 of Indian Penal Code  was registered against all the three appellants.  The police, after  investigation, submitted chargesheet against them under the same

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heading.  Cognizance of the case was taken and the case was  committed to the Court of Session where after trial, appellants  were held guilty and were convicted and sentenced, as stated  above.

Against the judgment of the Trial Court, the appellant filed  an appeal in the High Court, which was dismissed and hence this  appeal.

Learned counsel for the appellant firstly submitted that the  appellants are entitled to the benefit of the Juvenile Justice (Care  and Protection of Children) Act 2000 as amended by the  amendment of 2006.  We are of the opinion that this point cannot  be raised at this stage because neither was it taken before the Trial  Court nor before the High Court.  Even otherwise we do not find  any merit in the said contention. The question of age of the  accused appellants is a question of fact on which evidence, cross- examination, etc. is required and, therefore, it cannot be allowed to  be taken up at this late stage.  Hence, we reject this submission of  the learned counsel for the appellant.

Learned counsel for the appellant then submitted that there  was delay in filing the FIR.  We are of the opinion that there is no  such delay which can be said to be fatal to the prosecution case.   The occurrence took place on 26.8.1998 at 4 p.m.  The first  informant, the father of the deceased, Bhuneshwar Mishra (PW8),  was at Sitamarhi and returned  home on 8 p.m., when he came to  know from his brother Dhaneshwar Mishra that his minor son Bal  Krishna Mishra aged about 14 years had been murdered.  After  Bhuneshwar Mishra learnt about this from his brother Dhaneshwar  Mishra (PW4), then he went and lodged the FIR.  R.K. Tiwari  (PW11), the Investigating Officer, has stated in his evidence that it  was rainy season and there was flood in the area and he reached  the place of the occurrence on the night of 26.8.1998/27.8.1998 at  about 1.30 a.m. and recorded the Fard-e-bayan of the informant.   In these circumstances, we are of the opinion that there was no  such fatal delay in lodging the FIR.

We agree with the view taken by the High Court and the  Trial Court that the accused had committed murder of deceased  Bal Krishna Mishra after overpowering him in furtherance of their  common intention on 26.8.1998 at 4 p.m.  No doubt it was Sunil  Thakur, who is not before us, who cut the neck of the deceased but  the appellants before us (Murali Thakur and Sudhir Thakur) also  participated in the murder.  Murali Thakur had caught the legs of  the deceased and Sudhir Thakur sat on the back of the deceased at  the time of commission of this murder.  Hence Section 34 IPC is  clearly applicable in this case.

In these circumstances, we find no merit in this appeal and  hence it is dismissed.