JUDGMENT
1. By the impugned judgment and order dated 27-5-2002 passed by Fast Track Judge III (Additional Sessions Judge), Bhojpur, Ara in Sessions Trial Nos. 223 of 1992/140 of 2001, appellant No. 1, Bhadai Bari, has been convicted under Section 302 IPC and further he along with appellants No. 2, Shiv Behari Bari and appellant No. 3, Lal Behari Bari, has been convicted of the charge under Section 302 read with Section 34 of the IPC for which they have been awarded R1 for life. No separate sentence under Section 302 IPC has been passed against appellant No. 1.
2. The prosecution case as contained in the Fardbeyan of Kusma Devi (PW3) recorded within four hours of the occurrence at her village, is to the effect that on 12-7-1991 at about 6.00 a.m. she was at her Darwaza tying the cattle and all the accused persons arrived in the field in front of her Darwaza and started with the work of cutting the ridge. This was protested by her husband, Tuntun Bari (the deceased). Exchange of hot words and abuses began and on the order of appellant No. 2, Shiv Behari Bari, appellant No. 3, Lal Behari Bari caught her husband and appellant No. 1, Bhadai Bari, assaulted her husband with Barchi which caused injury on the neck. Her husband fell down and uttered words to the effect that Bhadai has caused his death and died soon thereafter. According to the version in the Fardbeyan, the informant raised hulla upon which her sons, Surendra Bari (PW2) and Yogendra Bari (PW1) and some other co-villagers came running, to whom she disclosed the occurrence and all of them saw the accused persons running away. It is the prosecution case that all the three accused appellants are own brothers of the deceased and they had been cultivating the land in front of house of the deceased although the land belonged to late Doman Bari and the occurrence took place because of cutting of ridge between that land and the house of the deceased,
3. The materials on record disclose that after sending the dead body for postmortem examination, the police investigated the case and submitted charge-sheet against the three accused appellants. They pleaded not guilty to the charges framed against them in course of trial. Their defence as appearing from the trend of cross-examination is that the deceased and the informant were engaged in sale of illicit liquor due to which undesirable elements used to come to their house and one of such elements might have killed the deceased during night hours. Two defence witnesses have also been examined to support such defence and to show that actually the dead body was noticed by the defence witnesses earlier at about 4.00 or 4.30 in the morning when hulla was raised by the informant. After trial, the accused appellants have been convicted, as noticed above.
4. In order to prove its case, the prosecution has examined only five witnesses in total. PW1, Yogendra Bari and PW2, Surendra Bari are sons of the deceased whereas PW3, Kusma Devi, is wife of the deceased and informant in this case. All of them have claimed to be eye witnesses of the alleged occurrence. PW 4, Dr. Shri Krishna Singh, conducted autopsy and has proved postmortem examination report as Ext. 1. PW. 5, Brij Nandan Singh, is a formal witness who has proved the Fardbeyan as Ext. 2 and the formal FIR as Ext. 3.
5. On behalf of the appellants it was submitted that according to the Fardbeyan PWs 1 and 2 along with some villagers came on hulla and they were told about the occurrence by the informant and they allegedly saw the appellants running away and hence, PWs 1 and 2 should not be believed as eye witnesses of the alleged occurrence. It was further submitted that no co-villager or independent witness has been examined to support the prosecution case and only the two sons of the informant have come forward to support the case of the informant against these appellants. It was further submitted that appellants being own brothers of the deceased, had no good reason or motive to commit the offence and their defence that they have been implicated because of family dispute, is fit to be accepted. Lastly, it was submitted in the alternative that even if the version of the informant is accepted from her deposition in the Court and other circumstances it would appear that a scuffle between one of the accused and the deceased started in the field and there was exchange of hot words and abuses and in that situation, in course of scuffle only one Barchi injury was caused in the heat of the moment and may be to help one of the brothers from being assaulted by the deceased in the scuffle and the location of the injury on the neck should not be taken as the determining factor for finding out motive because in course of scuffle the Barchi could have hit on the neck even inadvertently while being aimed at some other portion of the body.
6. No doubt, PWs 1 and 2 have claimed to be eye witnesses and have in essence supported the version of the informant, who is their mother but even if the submission of learned Counsel for the appellants is accepted and they are treated not to be eye witnesses of the alleged occurrence, there is no good reason why the similar version of the informant herself, who is wife of the deceased, should not be accepted. She being the wife of the deceased is not expected to leave the real assailants and incriminate others. Further, there is no material on record to persuade us to hold that there was such a difference or enmity between the brothers that the informant and her sons would seek to implicate three brothers of the deceased who are the appellants. Considering that the police came to the village on its own because apparently the family members must have been in distress due to death of a 45 year old bread earner of the family, Fardbeyan was clearly recorded without any undue delay at 9.45 a.m. and the formal FIR was lodged at the police station on the same day at 1.00 pm. Even the postmortem examination was conducted on the same day at 4.10 p.m. In such circumstances, there is clearly no delay in lodging of the case which may give rise to the suspicion that a false case was concocted after due deliberation or advice.
7. The widow of the deceased (PW3) Kusma Devi has supported the prosecution case in all material particulars. According to her deposition in Court when she was tying the cattle in the morning hours the three accused persons came and began cutting the ridge between her land and field “of the late Doman Bari. This was protested by the deceased. It resulted in exchange of abuses and then accused appellant Shiv Behari Bari ordered for assault, on which accused appellant Lal Behari Bari caught the waist of her husband and in that situation accused appellant Bhadai Bari caused a Barchi injury on the neck of the deceased due to which he fell down and died. She has stated that after the occurrence, police came and her Bay an was recorded. She has also stated that one independent witness Baban Singh was already dead. In cross examination, she has admitted that at the time of the occurrence her husband and the accused persons were joint. She has further added that even at the time of her deposition, there was no regular or formal partition. She has also stated that neither she nor anybody else went for rescuing the deceased and alter he received Barchi injury, Lal Behari Bari left his waist. She has denied the suggestion that she has implicated the accused appellants on account of any family dispute.
8. The evidence of PW 4, Dr. Sri Krishna Singh and the contents of Ext. 1, the postmortem report show that the doctor found the ante-mortem injury on the body of the deceased to be situated on the left side of neck of the size 1 inch x 1/2 inch x 1 1/2 inch. He also found an abrasion on the right hand and an abrasion on the left side front portion of the chest. The injuries found by the doctor support the prosecution case according to which Barchi blow by appellant No. 1, Bhadai Bari, had caused injury on the neck portion. The two abrasions are easily explainable by the prosecution case that there was some scuffle between the deceased and one of the accused who had allegedly caught him by the waist. Further abrasion could have been caused even due to fall of the deceased after he received Barchi injury.
9. The evidence of two defence witnesses are to the effect that as co-villagers they heard hulla at about 4.30 in the morning and came to know about murder of deceased, Tuntun Bari. According to them, the assailants were unknown persons and not the accused. In fact, DW2, Ram Badan Rai, has gone to the extent of deposing that on the date of occurrence accused Bhadai Bari was not present in the village and had gone outside. No such defence has been taken by mat accused and even his statement under Section 313 Cr PC does not raise any plea of alibi. Both the defence witnesses have admitted that they were not witnesses before the police and had deposed in the case for the first time in the Court. The defence witnesses do not inspire confidence.
10. The materials available on record, particularly the evidence of informant (PW3) Kusma Devi, supported by the medical evidence of PW 4 prove the prosecution case in all material particulars. There is no reason for not accepting the evidence of the informant against the three appellants who are brothers of her late husband. Hence, it is accepted that as alleged by the prosecution the occurrence took place at the alleged place and time in which the deceased received one Barchi injury at the hands of accused appellant, Bhadai Bari which caused his death.
11. In view of aforesaid finding, now, it remains to be seen whether the alternative submission advanced on behalf of the appellants that they had no intention of causing death of the deceased and in the facts and circumstances they are entitled to the benefit of exception 4 to Section 300 of the IPC, is worth acceptance or not. On a careful consideration of all the materials on record and the deposition of witnesses, it is clear that prosecution has not been able to show any motive for killing of the deceased by his brothers, the appellants. In her deposition in Court, the informant has not alleged that initially the appellants came with weapons. According to her deposition while the appellants were working in the field of late Doman Bari and cutting the ridge, the deceased arrived and raised objections. That was followed by exchange of hot words and abuses. Even the words of encouraging for assault alleged by the informant in Court against appellant No. 2, Shiv Behari Bari, is that he ordered for assault and not that he ordered for killing the deceased. According to prosecution case itself, when the deceased and the accused appellants were engaged in altercation and abuses, Lal Behari Bari caught the waist of the deceased and in course of such scuffle, appellant Bhadai Bari gave a single Barchi blow which caused injury on the neck of the deceased. In the aforesaid facts and circumstances, the plea raised on behalf of the appellants that they had no intention to cause death appears probable’ and fit to be accepted. It is also evident that the occurrence took place on account of sudden quarrel and in heat of the moment. Hence, exception 4 to Section 300 is attracted and the culpable homicide in this case would not amount to murder. Hence, the offence alleged against Bhadai Bari appears to be covered by Section 304 Part II as he had no intention to cause death or such bodily injury which may cause death and in course of scuffle, the deceased received Barchi injury at a place which may not have been intended. Hence giving benefit of doubt, the appellant No. 1, Bhadai Bari is discharged from his conviction under Section 302/34 of the IPC and help convicted for the offence under Section 304, Part II of the IPC. In the facts of the caste, the ends of Justice would be satisfied if he is awarded R1 for seven years for that offence. We accordingly sentence appellant No. 1, Bhadai Bari, to RI for seven years.
12. So far as the remaining two appellants are concerned, it would not be proper to convict them for the same offence as appellant No. 1 with the aid of Section 34 of the IPC because they may not be responsible for the sudden single blow Which caused death of the deceased and in any case it is difficult to hold that there was any common intention between the accused appellant to cause death of the deceased. Hence, the only common intention which can be applied to them is that in course of the scuffle they intended to cause injuries to the deceased. Hence, they are held guilty for the offence under Section 324/34 of the IPC and are sentenced to RI for two years for that offence. Their conviction under Section 302/ 34 of the IPC is set aside. The ball bonds of appellants No. 2 and 3, Shiv Behari Bari and Lal Behari Bari, shall stand cancelled and they shall be taken into custody forthwith so that they may serve the remaining sentence In accordance with law.
13. The appeal is dismissed but with the aforesaid modification in the conviction and sentences of all the three appellants.