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CASE NO.: Appeal (crl.)  605 of 2005

PETITIONER: Bunnilal Chaudhary                                  

RESPONDENT: State of Bihar                                              

DATE OF JUDGMENT: 05/07/2006

BENCH: Dr. AR. Lakshmanan & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T W I T H

CRIMINAL APPEAL NO. 606 OF 2005

Magister Chaudhary & Ors.                          .....       Appellants Versus State of Bihar                                             .....     Respondent

Lokeshwar Singh Panta, J.

       These two appeals arise out of common judgment and  order dated 5th November, 2003 passed by the High Court of  Judicature at Patna in Criminal Appeal No. 465/1999 by  which the learned Judges have altered the conviction of  Bunnilal Chaudhary (A-1) from Section 302/149 of the Indian  Penal Code (for short ‘I.P.C.’) to one under Section 302, I.P.C.,  whereas the conviction and sentence imposed upon Birendra  Chaudhary (A-2), Maniraj Chaudhary (A-3) Dashrath  Chaudhary (A-4), Magister Chaudhary (A-5), Amarjit  Chaudhary (A-8), Naresh Chaudhary (A-9) and Rajdhari  Chaudhary (A-10) by the trial court under Section 302/149,  I.P.C., is affirmed. By the impugned judgment, Bali Chaudhary  (A-6) and Jagdish Chaudhary (A-7) have been acquitted of the  charges.  All the accused persons were sentenced to  imprisonment for life.  Both these appeals are taken up and  heard together and shall stand disposed of by this common  judgment.         Briefly stated the facts of this case are that on 13.12.94  P.W.-10, Yogendra Raut, at about 9.45 p.m. lodged Fardbeyan  (Ex. P-5) in Police Station Sidhwalia stating therein that about  17 days from the said date his relative of Paithanpatti, P.S.  Majha, had purchased a she-buffalo from one Sattan  Choudhary, belonging to his village, for a sum of Rs.6,800/-.   His relative had a sum of Rs.700/- short of the full payment of  the price of the she-buffalo, but on his request, the balance  amount was to be paid later on.  His younger brother brought  a sum of Rs.400/- from his relative.  On the day of occurrence,  i.e. 13.12.94, at about 7.45 p.m. Maniraj Choudhary (A-3), son  of Sattan Choudhary, called Yogendra Raut at his house when  he gave a sum of Rs.400/- to Sattan Choudhary and promised  to pay the balance amount of Rs. 300/- on the following day.   Maniraj Choudhary (A-3) took out a country-made pistol and  pointed towards him.  He shouted for help, which attracted his  family members at the house of Sattan Choudhary. He came  to his house along with his family members and later on took

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their dinner.  His father, Brahmdeo Raut (PW-5), and his  brother came out of their house and started going to Bathan.    As soon as they reached mid-way from Bathan suddenly  Bunnilal Chaudhary (A-1), Birendra Chaudhary (A-2), Maniraj  Chaudhary (A-3), Dashrath Chaudhary (A-4), Magister  Chaudhary (A-5), Bali Choudhary (A-6), Jagdish Chaudhary  (A-7), Amarjit Chaudhary (A-8), Naresh Choudhary (A-9) and  Rajdhari Chaudhary (A-10) holding a revolver and lathis in  their hands came at the scene of occurrence and surrounded  them. His younger brother, Shambhu Raut, reached there and  all the accused persons chased him upto some distance when  Bunnilal Choudhary (A-1) attacked Shambhu Raut with knife  at the door of Ambika Ram.  The blow was given on the left  side of the chest.  On seeing the incident, his father,  Brahmdeo Raut (P.W.-5), came running to the house of  Ambika Ram.  His father was given knife blow on his head by  Magister Chaudhary (A-5).   On hearing their noise, many  village people gathered at the scene of occurrence and on  seeing them, all the accused persons fled away.  His brother,  Shambhu Raut, being seriously injured fell down at the door  of Ambika Ram and blood was oozing out of the injury  sustained by him.  Shambhu Raut who was injured was put  on a cot and taken to Sidhwalia Hospital for medical treatment  where the Doctor had declared him dead.  He took the dead- body of Shambhu Raut to the Police Station.  On these  premises, the Police recorded his statement (Ex. P-5).          On the basis of fardbeyan (Ex. P-5) P.S. Case No. 302/94  (Ex. P-4) came to be registered against all the ten accused  persons under Sections 147, 148, 149, 324, 307 and 302 of  the IPC.  On completion of the investigation, charge-sheet  against all the accused persons for the said offences was laid  before the learned Chief Judicial Magistrate, Gopalganj, who  committed the trial of the case to the Court of Sessions.  The  Sessions Judge transferred the case record to the Additional  District & Sessions Judge, IV, Gopalganj, for trial.         In support of its case, the prosecution examined 12  witnesses, namely P.W. 1- Deonath Raut (eye witness), P.W. 2  \026 Sheo Shankar Bind (eye witness), P.W. 3 \026 Bikau Ram (eye  witness), P.W. 4 \026 Kanchan Raut (eye witness), P.W. 5  Brahmdeo Raut (eye witness), P.W. 6 \026 Harishankar Bind,  P.W. 7 \026 Ram Nath Bind (eye witness), P.W. 8 -  Gorakh Bind,  P.W. 9 \026 Smt. Nirmala Devi, sister of the deceased (eye  witness), P.W. 10 \026 Yogendra Raut (informant/eye witness)  and P.W. 11 \026 Dr. Vijay Kumar, who conducted autopsy  on  the body of the deceased  Shambhu Raut on 14.12.1994.  P.W.  12 \026 Ugendra Kumar Singh was a formal witness who had  proved the signature and handwriting of the Investigating  Officer, Shah Nawaz Khan, and formal FIR (Ex. P-4),  Fardbeyan as Ex. P-5, Inquest Report (Ex. P-6) and Seizure  List (Ex. P-7) respectively.  Shah Nawaz Khan, Investigating  Officer, was not examined by the prosecution.  PWs 1, 2, 3,  and 4, the independent eye witnesses, have turned hostile to  the prosecution and they were cross-examined at length by the  learned Public Prosecutor but nothing substantial favourable  to the prosecution could be elicited from their cross- examination.  P.W. 7 Ram Nath Bind is a neighbour of the  informant.  It is his evidence that his statement was not  recorded by the Police during investigation of the case.  In  their statements recorded under Section 313 of the Code of  Criminal Procedure, the accused denied having given knife  blow to the deceased as well as beatings to P.W. 5- Brahmdeo  Raut.  Their defence was that they were implicated in a false  case by the complainant.         The learned Sessions Judge, after taking into  consideration the evidence of P.W. 5, P.W. 9 and P.W. 10.,  the

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relative eye witnesses, found the accused persons guilty of   committing the murder of Shambhu Raut in furtherance of  their common object; convicted and sentenced them under  Section 302/149 of the IPC.  Maniraj Chaudhary (A-3),   Dashrath Chaudhary (A-4), Bali Chaudhary (A-6),  Jagdish  Chaudhary (A-7),  Amarjit Chaudhary (A-8), Rajdhari  Chaudhary (A-10) were also found guilty under Section 147 of  the IPC, whereas Bunnilal Chaudhary (A-1), (A-5), Birendra  Chaudhary (A-2), Magister Chaudhary (A-5) and Naresh  Chaudhary (A-9) were also held guilty under Section 148 IPC.    Consequently, all the accused persons were sentenced to  undergo imprisonment for life under Sections 302/149 of the  IPC.   Bunnilal Chaudhary (A-1), Birendra Chaudhary (A-2),  Magister Chaudhary (A-5) and Naresh Chaudhary (A-9) were  sentenced to rigorous imprisonment for three years under   Section 148 IPC whereas Maniraj Chaudhary (A-3), Dashrath  Chaudhary (A-4), Bali Chaudhary (A-6), Jagdish Chaudhary  (A-7) and Amarjit Chaudhary (A-8) were sentenced to rigorous  imprisonment for two years under Section 147 of IPC.  All the  sentences, however, were ordered to run concurrently.         On appeal, the learned Judges of the High Court have  discussed the matter both from the point of view of actual  evidence led in the case and  also probabilities and altered the  conviction of Bunnilal Chaudhary (A-1) from Section 302/149  IPC to Section 302 IPC simpliciter and acquitted Bali  Chaudhary (A-6) and Jagdish Chaudhary (A-7) of the charges.   The conviction and sentence of other accused persons under  Section 302/149 IPC recorded by learned trial court has been  left unchanged.         Bunnilal Chaudhary (A-1) filed Criminal Appeal  No.605/2005 and Criminal Appeal No. 606/2005 has been  filed by Magister Chaudhary (A-5), Birendra Chaudhary (A-2),  Maniraj Chaudhary (A-3), Dashrath Chaudhary (A-4), Amarjit  Chaudhary (A-8), Naresh Chaudhary (A-9) and Rajdhari  Chaudhary (A-10) after obtaining leave of this Court.            We have scrutinized the evidence of the injured P.W. 5 -  Brahmdeo Raut, father, P.W.9 - Smt. Nirmala Devi, sister, and  P.W. 10 - Yogendra Raut, informant - brother of the deceased  and P.W. 11 - Dr. Vijay Kumar, who conducted the post  mortem on the dead body of Shambhu Raut, and also the  judgment of the High Court and that of the Additional  Sessions Judge.  We think that on a proper perusal of all the  circumstances of the case, the view expounded by the High  Court cannot be preferred in its entirity.  P.W. 10 reported in  FIR  (Ex. P4) that on the day of occurrence at about 7.45 p.m.  he had gone to the house of his co-villager Sattan to give him  Rs. 400/- and promised to pay the balance sum of Rs. 300/-  on the next day.   Maniraj Chaudhary \026 A.3, son of Sattan,  suddenly took out a pistol and pointed it towards the  informant, but  in his deposition before the trial court his  version was that his son Shambhu had gone to Sattan’s house  to give him Rs.400/- where A.3 \026 Maniraj Chaudhary made a  demand of  Rs. 300/- more, as a result verbal discussion  ensued between them and it was Birendra Chaudhary (A-2)  who took out the pistol.  P.W. 7 \026 Ram Nath Bind, a neighbour  who is alleged to be an eye witness, has stated that on hearing  noise from the house of Sattan, he went there and found  Maniraj Chaudhary (A-3) and Shambhu exchanging heated  words with each other.  He has not stated that a pistol was  took out either by Maniraj-A-3 or Birendra Chaudhary A-2 as  stated by P.W. 10 informant in FIR (Exhibit P-4) and in his  deposition before the trial court.  It is the evidence of P.W. 9  Smt. Nirmala Devi, sister of the deceased, that on hearing  noise from the house of Sattan, she went there and saw A-3  Maniraj and her brother Shambhu Raut quarrelling with each

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other.  She has also not stated that A-2 or A-3 took out a  pistol and threatened her brother Shambhu therewith.   Evidences of P.W. 5, P.W. 9 and P.W. 10 have clearly proved  that when Shambhu Raut ran towards west side of the cattle  shed and reached near the door of the house of one Ambika  Ram (not examined), he was apprehended by Bunnilal  Chaudhary (A-1) there and was given one blow of knife which  landed on the left side of the chest of Shambhu Raut.   Shambhu Raut was rushed to the clinic of Dr. Mahesh Singh  in an injured condition where he was declared dead by the  Doctor.  The dead body of Shambhu Raut was taken to police  station where fardbeyan (Ex. P-5) of P.W. 10 \026 informant was  recorded by the Police Officer.  Dr. Vijay Kumar \026 P.W. 11  conducted post mortem on the dead body of Shambhu Raut   and found 1" X ="  penetrating  wound, second intercoastal  space 4" above left nipple.  On dissection, left lung was found  punctured.  Central part of chest cavity was filled with blood  and aorta was punctured.  The injuries were, anti-mortem in  nature, caused within 24 hours of the examination.  What is  remarkable is that Dr. Vijay Kumar could not ascertain the  cause of death.           Mr. S. Chandrashekhar, learned counsel appearing on  behalf of Bunnilal Chaudhary, vehemently contended that if  Bunnilal is held guilty for inflicting fatal injury on the person  of the deceased Shambhu Raut then, he is liable for culpable  homicide not amounting to murder as he had lacked the  requisite intention to cause death.  Mr. Rituraj Biswas,  learned counsel for the State, on the other hand, has sought  to support the finding and reasoning recorded in the  judgment.                We have given our thoughtful and anxious consideration  to the rival contentions of the learned counsel.  The next  question is what is the offence which is brought home to  Bunnilal Chaudhary(A-1)?  It is not in dispute that the injury  inflicted on the left side of the chest of the deceased is single  one. On examination, Dr. Vijay Kumar found the injury  situated above nipple on the left side of the chest extending 1"  X =" penetrating wound.  On dissection, left lung was found  penetrated.  Dr. Vijay Kumar has not opined that the injury  was sufficient in the ordinary course of nature to cause death.   That was not even stated to be likely to cause death.   No  attempt was made by Bunnilal Chaudhary to cause serious  injury on any vital part of the body of the deceased.  There was  no motive or intention of Bunnilal Chaudhary to have  murdered Shambhu Raut.  Therefore, the question is whether  the offence can be said to be covered by Clause (iii) of Section  300 of the IPC.         That Section requires that the bodily injury must be  intended and the bodily injury intended to be caused must be  sufficient in the ordinary course of nature to cause death.   This clause is in two parts:- the first part is a subjective one  which indicates that the injury must be an intentional one and  not an accidental one; the second part is objective in that  looking at the injury intended to be caused, the court must be  satisfied that it was sufficient in the ordinary course of nature  to cause death.  We think that the first part is complied with,  because the injury which was intended to be caused was the  one which was found on the person of Shambhu Raut.  But  the second part, in our opinion, is not fulfilled because but for  the fact that the injury caused had penetrated the lung, death  might not have ensued.  In other words, looking at the matter  objectively, the injury, which Bunnilal Chaudhary intended to  cause, did not include specifically the cutting of the left lungs  but to wound Shambhu Raut in the neighbourhood of the  nipple on left side of chest.  Therefore,  we are of the opinion

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that Clause (iii) of Section 300 does not cover the case.   Inasmuch as death has been caused, the matter must still  come within at least culpable homicide not amounting to  murder.  There again, Section 299 is in three parts.  The first  part takes in the doing of an act with the intention of causing  death.  As we have shown above, Bunnilal chaudhary did not  intend causing death and the first part of Section 299 does not  apply.  The second part deals with the intention of causing  such bodily injury as is likely to cause death.  Here again, the  intention must be to cause the precise injury likely to cause  death and that also, as we have shown above, was not the  intention of Bunnilal Chaudhary.  The matter, therefore,  comes within the third part.  The Act which was done was  done with the knowledge that Bunnilal Chaudhary was likely  by such act to cause the death of Shambhu Raut.  The case  falls within the third part of Section 299 and will be  punishable under the second part of Section 304 IPC as  culpable homicide not amounting to murder.           We, accordingly, alter the conviction of Bunnilal  Chaudhary from Section 302 to Section 304 Part-II, IPC and in  lieu of the sentence of imprisonment for life imposed on him,  we impose a sentence of rigorous imprisonment for five years  and to pay a fine of Rs. 1,000/- with default stipulation of two   months simple imprisonment.  Criminal Appeal No. 605/2005  preferred by Bunnilal Chaudhary (A-1) is partly allowed to the  extent indicated above.   Criminal Appeal No. 606/2005 :-          As far as the conviction of other accused persons   namely, Magister Chaudhary, Birendra Chaudhary, Maniraj  Chaudhary, Dashrath Chaudhary, Amarjit Chaudhary, Naresh  Chaudhary and Rajdhari Chaudhary  is concerned, there is  not an iota of evidence led by the prosecution to sustain the  charge of Section 302/149 IPC against them and the only  evidence,  which has come on record, is the testimony of P.W.  10 \026 informant who stated that Magister Chaudhary came and  surrounded him on the spot.  No witness has proved that the  accused persons had come on the scene of occurrence with an  intention to commit the murder of Shambhu Raut.  None of  them had given any blow to the deceased with the weapons  they allegedly were carrying with them.  We may say here that  it is now the settled law that under Section 149 IPC, the  liability of other members for the offence committed during the  continuance of the occurrence rests upon the fact whether the  other persons knew before hand that the offence actually  committed was likely to be committed in prosecution of the  common object.  Such knowledge may reasonably be collected  from the nature of the assembly, arms or behaviour on or  before the scene of occurrence.  If such knowledge may not  reasonably be attributed to the other members of the assembly  then their liability for the offence committed during occurrence  does not arise.  On scrutiny of the entire evidence on record,  we are of the confirmed opinion that the conviction of the  other accused persons is not sustainable and their appeal  deserves  to be allowed.  We order, accordingly.  Magister  Chaudhary, Birendra Chaudhary, Maniraj Chaudhary,  Dashrath Chaudhary, Amarjit Chaudhary, Naresh Chaudhary  and Rajdhari Chaudhary are acquitted of the offence under  Section 302/149 IPC.  They are on bail. Their bail bonds are  discharged.