Bunnilal Chaudhary Vs. State of Bihar  Insc 375 (5 July 2006)
Ar. Lakshmanan & Lokeshwar Singh Panta
APPEAL NO. 606 OF 2005 Magister Chaudhary & Ors. ..... Appellants Versus
State of Bihar ..... Respondent Lokeshwar Singh Panta,
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.
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/-.
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
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 their
dinner. His father, Brahmdeo Raut (PW-5), and his brother came out of their
house and started going to Bathan.
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).
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.
support of its case, the prosecution examined 12 witnesses, namely
Deonath Raut (eye
Sheo Shankar Bind
Bikau Ram (eye
Kanchan Raut (eye
Ram Nath Bind
Smt. Nirmala Devi,
sister of the deceased (eye witness),
(informant/eye witness) and
Dr. Vijay Kumar,
who conducted autopsy on the body of the deceased Shambhu Raut on 14.12.1994.
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.
learned Sessions Judge, after taking into consideration the evidence of P.W. 5,
P.W. 9 and P.W. 10., the 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.
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
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.
conviction and sentence of other accused persons under Section 302/149 IPC
recorded by learned trial court has been left unchanged.
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.
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 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 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 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 other. She has also not stated that A-2 or A-3 took
out a pistol and threatened her brother Shambhu therewith.
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.
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 informant was recorded by
the Police Officer. Dr. Vijay Kumar 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.
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
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.
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.
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
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 that
Clause (iii) of Section 300 does not cover the case.
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.
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.
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 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.