JHAGARU PANDIT Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 4.3.1989 passed by the, Ist Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 241 of 1987 whereby the accused-appellant was convicted under Sections 304/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years.

(2.) A fardbeyan Ext-2 was recorded by Sukhari Pandit, the father of the deceased, Devendra Pandit to the effect that on 10.5.1987 Sheoshanker Pandit and his father Jhararu Pandit assaulted the Informant Sukhari Pandit with sandals for which a Panchayati was held on 14.5.1987 at Darua Chauk and both the assailants Jhagaru and his son Sheoshanker Pandit were made to apologise for their action. Subsequently, on the same date i.e. on 14.5.1987 while Devendra Pandit, the deceased was going to Sukki village at about 2 p.m. he was confronted by accused-Jhagaru Pandit armed with iron rod and his son Sheoshankar Pandit thrust a chhura blow on the back of the deceased as a result of which he succumbed to injury. When the informant came to the place of occurrence, he was intimated by his villagers, namely, Jugeshwar Singh, Sonelal Paswan, Jugeshwar Ram, Ramchandra Pandit, Machhu Pandit, Lakha Pandit and others about the alleged occurrence. According to those persons, they had seen the alleged assault on Devendra Pandit. The Police after investigation submitted charge-sheet against both the accusedpersons, namely, Sheoshankar Pandit and Jhagaru Pandit for an offence under Section 302/34, IPC but by a subsequent order dated 7.5.1988, the trial of Sheo Shanker Pandit was separated as he was found to be under 16 years of age and, as such his case was being inquired and tried by the Juvenile Court. On being committed to the Sessions, the charge was framed against the accused-appellant Jhagaru Pandit under Section 302/34, IPC and when the same was read over and explained to the accused-appellant, he denied the same. The defence case is that he has been implicated falsely due to enmity.

(3.) For and on behalf of the prosecution, in total 11 witnesses had been examined out of them PW11 is the Investigating Officer of the case. PW 10 is Machhu Pandit and he happens to be the brother of the Informant. PW 9 Ram Chandra Pandit did not support the prosecution case and he was declared hostile and his statement before the I.O. had been confronted to him. PW 8 is the doctor who held post-mortem examination on the deceased. PWs 3, 4 and 5 are the eye-witnesses who happen to pass through the way when the alleged occurrence took place. PW 6 is the Informant Sukhar Pandit himself. Other witnesses, namely PW 1, PW 2 and PW 7 are just formal witnesses. PWs 3, 4 and 5 had supported the prosecution story in one voice. PW 10 Machhu Pandit although attempted to be an eye-witness to the occurrence but during the corss-exami-nation, he had to admit that when the reached the place of occurrence on hearing hulla, he saw Jhagaru Pandit and Sheoshanker Pandit fleeing away from the place of occurrence. PW 6 is not the eye-witness of the occurrence. Thus, the whole prosecution case hinges on the tes-timonry of the eye-witnesses, PWs 3, 4 and 5. They are not related to Informant also and nothing could be alleged that they had in any way being interested in implicating the accused-appellant. On relying on the evidence of PWs 3, 4 and 5 the learned Sessions Judge came to the finding that the accused-appellant is guilty for an offence under Sections 304/34 of the Indian Penal Code holding that the order co-accused who was not being tried with the accused-appellant had inflicted a single blow that too, on the back side of the deceased and thus, punished the accused-appellant for seven years' rigorous imprisonment. The prosecution story as is revealed is that the accused-appellant waylaid the deceased Devendra Pandit while he was returning to his village and that the accused-appellant was armed with an iron rod when the deceased was waylaid then the other accused Sheo Shanker Pandit, i.e., the son of the Jhagaru Pandit came from the opposite direction and gave a chhura blow on the back of Devendra Pandit as a result of which he died at the spot. That the death was due to injury caused has been proved beyond all reasonable doubt by the doctor who held post-mortem over the dead body. The only question remains in the case that although the accused-appellant did not use his iron rod for the purpose of causing injury on the person of Devendra Pandit and when accused-appellant and his son Sheo Shankar Pandit were not together to assault Devendra Pandit and when there is no evidence of prior meeting of the mind or previous concert whether the accused-appellant can be convicted in the circumstances even if the evidence of prosecution witness are taken as it is by roping Section 34 of the Indian Penal Code. The evidence of the eye-witness although they were chance-witnesses remained unaltered to the effect that it was the accused-appellant who had waylaid the deceased being armed with an iron rod and then the other accused came and assaulted the deceased from the back. Even regarding waylaid of the deceased by the present accused-appellant being armed with weapon has not been cross examined from the side of the defence, so that part of the evidence of the prosecution witnesses remained unchallenged. As soon as the deceased was waylaid being armed with weapon by the accused-appellant other accused who happens to be the son of the accused-appellant came and gave a chhura blow. Common intention cannot be proved by giving substantive piece of evidence rather the same should be gathered from the circumstances of each particular case. In the present case, the mens rea or the intention/motive behind the murder had been specifically averred in the First Information Report and the same has also been adduced in evidence. On the very date of occurrence, both the accused-appellant and his son SheoPandit had been meant to apologise in the Panchyat for doing mischief to the deceased's father, i.e., the informant and, as such, they were feeling insulted. This part of the motive should be considered and has rightly been considered by the learned Sessions Judge while coming to the decision regarding roping of the accused-appellant under Section 34 of the Indian Penal Code.