Thakur and Another Vs. State of Bihar  Insc
961 (14 December 2006)
B. Sinha & Markandey Katju Markandey Katju, J.
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.
learned counsel for the parties and perused the record.
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.
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.
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.
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.
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 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.
the judgment of the Trial Court, the appellant filed an appeal in the High
Court, which was dismissed and hence this appeal.
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.
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.
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.
these circumstances, we are of the opinion that there was no such fatal delay
in lodging the FIR.
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
these circumstances, we find no merit in this appeal and hence it is dismissed.