Partly allowed

Bijwa Dome and Ans Vs

Patna HC22 Jul 2013CR. APP (DB)/515/1990

Case brief

AI extract

What is this about?

In two criminal appeals by three accused challenging a life imprisonment conviction for murder, the Patna High Court found the prosecution failed to prove intent to kill. The Court converted the conviction to Section 324/34 IPC for voluntarily causing hurt and reduced the sentence to the custody period already undergone.

What did the court decide?

Conviction converted from Section 302/34 IPC to Section 324/34 IPC; sentence reduced to period of custody undergone.

Bijwa Dome and Ans Vs — Murder and Culpable Homicide | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.491 of 1990

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[Against the judgment of conviction dated 30.08.1990 and order of sentence dated 31.08.1990 passed by Sri Surendra Kumar Sinha, IInd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 295 of 1987]

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=========================================================== Ashok Dome, Son of Late Prasadi Dom, resident of Mohalla-Naz Cinema Kamruddinganj, P.S.- Murarpur, District- Nalanda.

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The State of Bihar.

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.... .... Appellant. Versus .... .... Respondent. with

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Versus

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Criminal Appeal (DB) No. 515 of 1990

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===========================================================

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Bijwa Dome

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Piyaria Dome, both sons of Jamuna Dom, both resident of Mohalla Salugunj, P.S. Bihar Sharif, District- Nalanda.

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.... .... Appellants.

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Versus

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The State of Bihar.

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.... .... Respondent.

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=========================================================== Appearance :

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For the Appellants : Mr. Md. Najmul Hoda, Advocate (Amicus Curiae) (In both the appeals)

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For the State : Mr. Ajay Mishra, A.P.P. (In both the appeals)

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=========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA

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and

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HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 22-07-2013

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Cr. Appeal (DB) No. 491 of 1990 filed by Ashok Dom and Cr. Appeal No.(DB) No. 515 of 1990 filed by Bijwa Dome and Piyaria Dome have been hard together and are being disposed of by this Judgment because both the appeals arise out of one judgment of conviction dated 30.08.1990 and order of sentence dated 31.08.1990

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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passed by the learned IInd Additional Sessions Judge, Nalanda at Biharshari in Sessions Trial No. 295 of 1987 holding all the three appellants guilty under Section 302/34 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for life.

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With regard to occurrence of 24.04.1987 at 4 PM, Fardebyan (Ext.2) of Lalchand Dome (deceased) was recorded at Sadar Hospital, Biharsharif by S.I., Ajit Kumar (PW-7) on 25.04.1987 at 11 AM wherein Lalchand Dome has given description of assault upon him. He stated that on preceding day, i.e., 24.04.1984 at about 4 P.M. Bijwa Dome, Piyaria Dome and Ashok Dome intercepted him and demanded the money of meat (fork). The informant told that unless Kurta was return, no money would be given. Then Bijwa Dome assaulted upon the head of the informant by “Fouri” whereas Piaria Dome given a fouri butt blow on the stomach of the informant and Ashok Dome assaulted by fist and slap. The motive of the occurrence is that on the eve of Holi one pig was scarified and amount was not given by the informant. The occurrence was witnessed by Mahendra Dome, PW-2 and Krishna Dome, PW-5. The Faradebyan was resulted into a formal FIR (Ext.2/1) and the case was registered under Sections 323 and 324/34 of the Indian Penal Code, but subsequently when injured died, Section 302 of the Indian Penal Code was added by the order of learned Chief Judicial Magistrate, Nalanda on 05.05.1987.

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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The investigation commenced and in course of investigation, inquest report (Ext.5) was prepared, postmortem report (Ext.6) was obtained and place of occurrence was inspected. The statements of the witnesses were recorded. Charge sheet was submitted by the Investigating Officer. After cognizance, this case was committed to the court of Sessions where charge under Section 302/34 of the Indian Penal Code was explained to the accused persons. The accused persons pleaded innocence hence, trial proceeded.

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Before the trial court, the prosecution has examined Rajendra Dome as formal witness P.W.1 and he has put his signature upon inquest report (Ext.1). P.W.6, Chameli has been tendered. P.W.4, Dular Chand is another witness of inquest report. Ajit Kumar, P.W.7, is the Investigating Officer. Bachcha Upadhayay, P.W.8, is also a formal witness of inquest and F.I.R. Surup Chand (P.W.3) though not named as a witness in the Faradebyan, but he has subsequently supported the prosecution case and version given by the informant. Mahendra Dome, P.W.2 and Krishna Dome, P.W.5 are the witnesses whose names have been mentioned in the Faradebyan as eye witnesses of the occurrence. Dr. Ram Krishna Prasad Singh, (P.W.9) has performed the autopsy upon the dead body of Lalchand Dome. No defence witness has been examined.

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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The trial court after considering the entire evidence on record and after hearing the arguments of the learned counsel for the parties and after hearing the reply of the substance of the evidence given by the accused persons-appellants, under Section 313 of the Cr.P.C., opined that the prosecution has been able to prove the charges against the accused persons beyond shadow of all reasonable doubts and has passed the order of conviction and sentence, as stated above.

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This Court is required to reappraise the evidences on record and to see as to whether there were materials on record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not.

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There are two eye witnesses, whose names have been mentioned in the Fardebyan they are Mahendra Dome, P.W.2 and Krishna Dome, P.W.5. Besides them, the prosecution has relied upon the testimony of other witnesses.

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The Doctor (P.W.9) has held autopsy upon the dead body of Lalchand Dome on 28.04.1987 at 10 A.M. and it was the body of male aged about 30 years. Rigormortis was present all over the body and there was no decomposition. The following anti-mortem injuries were found:-

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I. Abrasion was found on the right elbow 1/2”x 1/2”.

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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II. Stitched wound 7”x1/2” abdominal cavity deep was found on the right side of abdomen.

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III. Drainage tube was found on the right lower flank of the abdomen.

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IV. Small intestine was found repaired at one place by stitches 1.1/2” in length.

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V. Peritoneal cavity contained 100 C.C. of Puss mixed with blood.

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VI. Stitched wound was found on the top of vertex place in the antroposterior direction 1.1/2”x skin deep.

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VII. The left parietal bone under neath injury no.6 was depressed and fracture 1.1/2”x1/4”.

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VIII. The brain under neath injury no. 7 was lacerated and congested.

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The viscera in general were congested. According to the opinion of the Doctor, the death was occurred within 24 hours of holding the postmortem examination.

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The opinion of the Doctor regarding kind of used weapon could not be given due to surgical interference and he stated that final opinion could be obtained from the Doctor who initially made surgery.

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P.W.9 is the only Doctor, who conducted the

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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postmortem examination of the deceased, was examined on behalf of the prosecution but neither the Doctor who examined the deceased firstly at Sadar Hospital, Biharsharif and later on in Patna Medical College and Hospital have been examined on behalf of the prosecution nor any injury report has been brought on the record.

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Now the ocular evidence of P.W.2 has given the time of occurrence at 2 P.M. which was not the time given by the injured and other witness. This person is a service holder and he was at least aware with the time framed. Any how he has stated that his uncle Lalchand Dome assaulted by the accused -appellants by “Fouri”. The “Fouri” has been described by him to be a long bamboo containing spade at the end. Describing the occurrence he has stated that after assault by Piyaria Dome and Ashok Dome, the injured was taken to the Sadar Hospital Biharshari and thereafter Patna Medical College and Hospital. Another witness who has been cited in the F.I.R. is Krishna Dome who deposed as P.W. 5 has stated that as soon as he reached near the house of Raj Kumar, where all the accused persons were having “Fauri” and chain. Piyaria Dome and Bijwa Dome were demanded money for meat whereas Lalchand Dome was demanding money of shirt. The altercation was going on and thereafter Bijwa Dome gave „Fauri” blow on the head of Lalchand Dome, as a result thereof his head was broken. Thereafter, Piyaria Dome gave butt blow

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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upon the stomach of Lalchand Dome and Ashok Dome assaulted with fist and slaps. The evidence of this witness, P.W. 5 described the assault and if that is read in isolation then only version in his evidence is that he is a witness to whole part of the occurrence from beginning to end which led to cause injury to Lalchand Dome and later on he was shifted to Sadar Hospital but when he was put to crossexamination then he has recited and has stated that when he reached then he saw, the head was broken and others were tried to carry him. He is repeated his replies and the repetitions were that he came after the occurrence. He has later on stated that Mahendra Dome P.W. 2 had come after him. P.W. 5 Krishna Dome has stated that he was the first person to arrive at the place of occurrence after assault. Regarding place of occurrence, he has stated that others have followed him and if statement of P.W. 5 is believed then it is apparent that nobody had seen the occurrence as P.W. 5 himself had arrived after the occurrence and other witnesses came thereafter. Therefore, his evidence creates a doubt as to whether other witnesses are present or not rather his evidence negates the evidence of others that they were witnessed of the occurrence.

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There are two contradictory views on the record. One view is that P.W. 5 came after the occurrence and saw Lalchand Dome injured and others followed him, whereas P.W. 2 Mahendra

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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Dome has claimed himself to be eye witness. These contradictions should have been clarified by examination of others but they have not examined. However, even if, for the sake of argument, it is presumed that Lalchand Dome was assaulted in the manner as stated by him in his Fardbeyan, then it is also apparent that nobody had intended or had knowledge that such an act could cause death. There was no provocation in either side and there was no pre-mediation, the assault was not repeated that is why the Fardebyan was resulted into a case under Sections 323 and 324/34 of the Indian Penal Code the informant is no more to support the version, even if, that version is deemed to be dying declaration then it is also apparent that nobody had intended to cause death rather the assault was for the purpose of giving some threatening to Lalchand Dome. For proving the charge of murder it has to be proved that the action was with the intention of causing death or the accused persons were having knowledge that such act is likely to cause death.

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Learned counsel on behalf of the appellants has submitted that if there was no intention of causing murder, then it could not be proper to find that the charge for committing murder under Section 302/34 of the Indian Penal Code is established.

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On the other hand, learned counsel for the State submitted that the Fardebyan has been taken to be the dying

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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declaration and that has led to death.

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There are certain inconsistencies in the prosecution case. Certain dates are relevant. The occurrence took place afternoon of 24.04.1987. Thereafter, the injured was carried to his home and on the next date his Fardebyan was recorded meaning thereby that Fardebyan was recorded on the date following of occurrence though place of occurrence and police station are hardly at the distance of 3 k.m. The delay has not been explained. The surprising aspect of the case is that the F.I.R. was registered on 27.04.1987, i.e., after two days of Fardebyan and it was sent to Court on 29.04.1987. Meaning thereby that there was gap of five days between the occurrence and report of occurrence to court. Under Section 158 of the Cr.P.C., it is mandatory provision of law that if the police received information of the offence cognizable which has been committed then the matter should be reported to the Magistrate without delay. The purpose of incorporation of this Section is that the police is not left with sole discretion to keep Fardebyan confined rather it should reach the court without delay. The Magistrate in seisin of the case has to be keep watch that the investigations are not carried upon his discretion and if the delay is caused between the occurrence and sending the Fardebyan to the court, it creates doubt whether the prosecution has come with the correct version or not.

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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Considering the entire facts on the record, it is apparent that there were three witnesses of the occurrence, out of whom P.W.3 can be said to be a witness who was passing through the place of occurrence at the relevant date. Regarding others it can be said that they have contradicted themselves, so far as timing of occurrence are concerned or it relates the reaching of witness at the place of occurrence. P.W.5 has claimed himself to be the first witness who arrived at the place of occurrence, but he has not seen the occurrence. He stated that the other followed him and the simple interpretation would be that he had not seen the occurrence. There is no explanation as to why treatment report either of Sadar Hospital, Biharsharif or Patna Medical College and Hospital has not been brought on record. These were vital evidence which could have linked offenders with the offence.

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In any view of the matter and in view of the aforesaid discussion, it is apparent that the prosecution has not at all been able to establish that conduct of the accused could be termed to be in the category of murder as no evidence has come that either the accused persons were having knowledge or intention to cause death. In absence of that, the charge under Section 302/34 of the Indian Penal Code is not made out but the Fradbyan declaration is with regard to assault, then it is apparent that there was assault by the accused

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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persons and for that the accused persons deserves to be punished. For proper punishment the accused persons/ appellants should be held guilty for causing injury and for that they deserve to be punished under Section 324 of the Indian Penal Code.

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In view of the aforesaid discussion, we are of the view that the accused- appellants deserve to be punished under Section 324/34 of the Indian Penal Code that would suffice to meet the ends of justice. Accordingly, conviction of the appellants is converted with Section 324/34 of the Indian Penal Code. Once the accused persons-appellants have been held guilty for the offence under Section 302/34 of the Indian Penal Code, the custody period has to be seen for awarding sentence. We have perused the lower court record and it reveals that all the accused have remained in custody for a considerable longer time. In that circumstances, it would be not proper to send them to custody once again and the period undergone by them would be sufficient for the ends of Justice. Accordingly, the sentence of the appellants is reduced with the period already undergone by them.

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With the aforesaid modification in the conviction and sentence, these appeals are dismissed.

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As none was appearing on behalf of the appellants in these appeals, Mr. Md. Najmul Hoda, Advocate, was appointed

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Patna High Court CR. APP (DB) No.491 of 1990 dt.22-07-2013

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Amicus Curiae to assist the court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr. Hoda.

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Let a copy of first page and last page of the judgment be given to Mr. Hoda, Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna.

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(Shyam Kishore Sharma, J)

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Bhardwaj/-Safik N.A.F.R.

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(Rajendra Kumar Mishra, J)

Bijwa Dome and Ans Vs

Case brief

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Bijwa Dome and Ans Vs

Case brief

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