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CRIMINAL APPEAL No.72 OF 2003
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Against the judgment of conviction dated
10.12.2002 and order of sentence dated 12.12.2002
passed by 8th Additional Sessions Judge, Gaya, in
Sessions Trial No.8 of 2000/139 of 2000 arising out of
Roshanganj P.S.Case No. 15 of 1999, G.R. No. 176 of
1999.
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LALDEO BHUIAN ... ... Appellant
Versus
STATE OF BIHAR ... ... Respondent
For the appellant: Shri Anil Kumar Singh, Amicus Curiae
For the State : Shri Ashwini Kumar Sinha, Addl. P.P.
P R E S E N T
THE HON’BLE Shri JUSTICE DHARNIDHAR JHA
THE HON’BLE Shri JUSTICE RAKESH KUMAR
– – – –
Dharnidhar Jha &
Rakeksh Kumar, JJ.- The solitary appellant Laldeo Bhuian
stands convicted under Section 302 of the Indian Penal
Code for committing the murder of Sahendra Bhuian alias
Satyendra Bhuian on 28.3.1999 at village Parsachua
within Roshanaganj Police Station in the District of
Gaya. The appellant was tried by the learned Additional
Sessions Judge, 8th Court, Gaya in Sessions Trial No.8
of 2000/139 of 2000 arising out of Roshanganj Police
Station Case No.15 of 1999( G.R. No.176 of 1999) and by
the judgment of conviction dated 10.12.2002 the above
order of conviction was recorded by the learned Judge.
The sentence of rigorous imprisonment for life was
inflicted by the learned trial Judge on 12.12.2002
after hearing the appellant on sentence. The appellant
questions the propriety of the findings through the
present appeal.
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2. The prosecution case is contained in Ext.1, the
F.I.R. of the case, lodged by Mahendra Bhuian( P.W. 9),
the full brother of the deceased. It was stated by the
informant in Ext.1 that he had just left his house with
Rahar( Arhar) for Roshan Bazar so as to bartering it to
meet his daily expenses and he had traveled a few
steps away from his house when he heard a hulla that
his brother had been hacked to death by a tangi by
being assaulted on the back of his neck by the
appellant. He also heard that the appellant was running
away from the scene of occurrence.
3. P.W. 9, the informant, also rushed to the scene of
occurrence which was just by the side of the house of
one Laldeo Bhuian( P.W. 2) and found that his villagers
Amresh Bhuian( p.w.7) and Krisna Bhuian( not examined)
were running after the appellant and had caught him
also. The informant went near his brother and found
that he had been attacked on his neck as also on his
right temple by a tangi. The informant stated that
while his brother was being carried to the hospital by
P.W. 8 Chandradeo Bhuian, Amresh Bhuian, P.W.7 and
Rameshwar Bhuian( not examined), he started to the
Police Station for lodging a report, but his brother
died on way to the hospital.
4. The informant alleged that the reason for
commission of the murder of his brother was that the
appellant was accusing the deceased of carrying on an
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illicit relationship with the wife of the appellant
which allegation was unfounded.
5. The informant alleged that the occurrence took
place just under the Goldmohar tree which was situated
by the side of the house of Laldeo Bhuian( P.W. 2)
where some boys were engaged in some play and, further,
that the appellant Laldeo Bhuian was brought to the
police Station with the help of Chaukidar and Dafadar
after being arrested by the villagers and was handed
over to it.
6. The accused was taken into custody by the
Officer-in-charge of the Police Station who recorded
the F.I.R., Ext.1, and it appears that the Officer-in-
charge S.I. Subedar Prasad himself took up the
investigation.
7. P.W. 5, S.I.Subedar Perasad after recording the
statement of the informant and drawing up the F.I.R.,
came to the place of occurrence on 29.3.1999, i.e., on
the next day of the occurrence, and, firstly, inspected
the place of occurrence which was situated 7-8 feet
north of the house of P.W. 2 Laldeo Bhuian. It was a
place under the Goldmohar tree. A pathway was running
east to west and up to the forest in the west and the
same was going to the village in the east. The
Investigating Officer found many houses standing around
the place of occurrence as per his evidence and the
boys were playing at the same place under the tree.
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P.W.5 found blood stained earth and seized it in
presence of P.W. 2 Laldeo Bhuian and Munarik Bhuian(
not examined) by preparing a seizure memo and obtaining
the signatures of the two witnesses. The seizure memo
has been marked Ext.2. The Investigating Officer has
stated that he also recovered a blood stained tangi
from the house of the father-in-law of the appellant in
presence of the above named two witnesses and prepared
a seizure memo in that behalf also. The seizure memo
prepared in respect of the seizure of the tangi has
been marked Ext. 2/1. P.W.5 sent the dead body for
post-mortem examination to Magadh Medical College
Hospital, Gaya, and after winding up the investigation,
sent up the appellant for trial who had already been
remanded in the case.
8. The defence of the appellant was that he was
innocent and had falsely been implicated and that he
was not arrested while fleeing away from the place of
occurrence, rather, he was illegally caught while he
was standing on or around the place of occurrence. He
denied his complicity in the offence.
9. The prosecution examined ten witnesses in
support of the charge framed against the appellant
under section 302 of the Penal Code. P.W.1 Sudama
Bhuian, P.W. 3 Ram Swaroop Bhuian and P.W.4 Raj Kumar
Bhuian, though not being named in the F.I.R. along with
P.W. 6 Ram Pravesh Bhuian, have claimed themselves to
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be the eye witnesses and appear giving evidence that
way. P.W. 2 Laldeo Bhjuian, P.W.7 Amresh Bhuian and
P.W. 8 Chandradeo Bhuian are named in the F.I.R. and
except P.W. 8, P.Ws. 2 and 7 have given eye witness
account of the occurrence by claiming their presence at
the scene of the occurrence. P.W. 9, Mahendra Bhuian,
has not claimed being an eye witness. P.W.10 Dr. Arvind
Prasad, was the Head of the Department of the Forensic
Science Medicine in Magadh Medical College Hospital,
Gaya and has given evidence on the retirement of Dr.
M.K.Sinha who had held post-mortem examination and
prepared report Ext.3 and who was not being heard of
since after his retirement. On consideration of the
evidence of the eye witnesses, the learned trial Judge
came to the conclusion that the accused had committed
an offence and after recording a finding of guilt
against him inflicted the sentence upon him as pointed
out at the very out set of the present judgment.
10. As may appear from the records of the
present appeal, the appellant had filed the appeal from
jail and, as such, the Court appointed Shri Anil Kumar
Singh Amicus Curiae, as appears from the order dated
25.2.2003. We have heard Shri Singh, finally in the
present appeal who has been very critical of the
findings recorded by the learned trial Judge and has
set up some acerbic attack upon the findings recorded
by the learned trial Judge. It was contended that the
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place of occurrence has not been established which is
further indicated by the fact that the blood stained
earth or the so-called blood stained tangi, on the
recovery of which there is varying evidence, were not
sent for chemical analysis by the Investigating
Officer. It was contended that as regards the witnesses
being present at the place of occurrence from before or
at the time of occurrence, the evidence of the
witnesses is again contrary to each other. There was no
question put on the finding of the blood stained earth
or tangi to the accused in his statement under Section
313 of the Cr. P.C. and again there was contradiction,
as such, in the evidence of the witnesses in the F.I.R.
It was also contended that Ext.1, the F.I.R., was hit
by the mischief of Section 162 of the Cr. P.C. on the
very evidence of P.W.5 and on this score alone, the
appellant deserves to be acquitted.
11. Learned Additional Public Prosecutor has
given a very brief reply to the above contentions of
the learned Amicus Curiae which has been supported by
a huge number of decisions, which we could be
discussing in the relevant part of the judgment, by
submitting that after all why the accused would be
implicated in this case has not been stated nor it has
been suggested to any of the witnesses and the
witnesses consistently were telling the court that it
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was this appellant who had given the two blows upon the
deceased so as to killing him.
12. We first want to examine the contention on the
admissibility of the F.I.R. There could be a long line
of decisions of the Supreme Court which is telling us
that if the F.I.R. is given or drawn up after the
investigation had started then it could be merely a
statement which could be used only for the purpose of
contradicting or corroborating the maker of the
document in the light of the provision of Section 162
of the Cr. P.C.. Shri Singh was attempting before us to
bring the F.I.R., Ext.1, within the mischief of the
provision of Section 162 Cr. P.C. and thereby getting
it declared as an inadmissible document. The premise
upon which Shri Singh was framing his argument was that
P.W.5 has admitted in his evidence that before
receiving or recording Ext.1, the F.I.R., he had
received some information-the source of which has not
been disclosed to him- that some Bhuian people of
place-of-occurrence village had quarreled between
themselves and that a man had also been injured by
being assaulted with tangi. It was contended by Shri
Singh by citing before us a Division Bench decision of
this Court reported in 2005(1) P.L.J.R. 446 Deo Pujan
Thakur Vs. State of Bihar that the F.I.R. had already
been received by P.W.5 and, as such, the subsequent
report in the form of Ext.1 was inadmissible on account
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of it being a mere statement under Section 161 Cr. P.C.
We have considered the decision of this Court in Deo
Pujan thakur( Supra) and we find that the same premise
upon which the Court went to hold the F.I.R. or the
fardbyan hit by the mischief of Section 162 Cr. P.C.
was that in Deo Pujan Thakur(supra) the Investigating
Officer had written the case diary in quite some good
length, indicating that the investigation had proceeded
and had been completed to some length on certain
important aspects of the case. We respectfully agree
with the view expressed by the Division Bench in the
above noted case, but we respectfully disagree with
learned Amicus Curiae to apply that law to the facts of
the present case. The reason which appears to us is
that the ingredients of the F.I.R. or the definition of
the document which may be culled out from the reading
of Section 154 Cr. P.C. does not qualify the station
diary entry recorded by P.W.5 to the class of the
document which is recognized as F.I.R. by the provision
of Section 154 Cr.P.C. A written report on an oral
statement given to the Officer-in-charge of the Police
Station by a person(informant) disclosing the
commission of some cognizable offence by any one known
or unknown could be qualified to be a document which
could be fully covered by the provision of Section 154
Cr. P.C. Mere rumours which could be lacking in some
important details may not qualify any statement even if
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it were a written statement to the class of the
document as defined by Section 154 Cr. P.C. We have
given our anxious consideration to the evidence of P.W.
5 as also to the criticism set up by the learned Amicus
Curiae on the admissibility of Ext.1. We find there is
some details in the evidence of P.W.5 that there had
been some quarrel and that some one had also received
some injury by tangi which may give rise to an
inference that a cognizable offence had been committed.
Still, the most important detail as to from whom the
Officer-in-charge received the information and who had
indulged into the acts complained of and that too
against whom are clearly absent from the station diary
entry which was recorded by P.W.5 on picking up the
rumour from some unknown person. This, to us, appears
not qualifying the omnibus rumour picked up by P.W.5 to
be a statement which could qualify as F.I.R. within the
four walls of the provision of Section 154 Cr. P.C.
Furthermore, in the case of Deo Pujan Thaiur( supra)
the investigation had already started and had
proceeded to some length as appears recorded by the
Hon’ble Judge rendering the judgment. Here, in the
present case, no investigation had started. Even after
having received the omnibus nature of information or
rumour the Officer-in-charge of the Police Station had
not moved out of his Police station. One may argue
that the accused had been arrested by the villagers, as
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appears recorded in Ext.1 and as appears coming to us
from the evidence of almost all the witnesses examined
by the learned trial Judge. But, the arrest of an
accused could be the part of investigation only when it
is during the course of investigation and the arrest is
affected by the Investigating Officer or on his
direction by some other police personnel. Here, in the
present case, the arrest of the accused could be
qualified as one under Section 43 of the Cr.P.C. which
empowers even an ordinary citizen of India or any other
person to arrest an accused who has either committed
cognizable- non-bailable- offence in his presence or
who is known to have committed such an offence. We do
not want to deliberate much on that issue as that issue
shall be merely academic in the present context. We
simply want to record that on account of no
investigation having taken place in the present case
the record, Ext.1, to us, appears admissible for
reasons we have just seen.
13. The motive has been established and this is
the reason that learned Amicus Curiae was not attacking
that part of the prosecution case or the evidence. The
witnesses say that the attack was made either in their
presence or just when they were around and further that
they found the appellant running away from the scene of
occurrence. The informant is not the eye witness. He
appears honestly stating the court as to how he came to
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know about the murderous assault on his brother. Other
witnesses have stated that they had either seen the
appellant giving two blows-one on the back of his neck
and the other on his right temple- and further that
they, thereafter, saw the appellant running away with
tangi which he threw either at the scene of the
occurrence or just around it. The contention was that
the tangi was recovered from the house of the father-
in-law of the appellant. If we go through the evidence
of the Investigating Officer we could find that the
house of the father-in-law of this appellant was not
distantly located, all houses of the Bhuian-folk were
located around the Goldmohar tree in the vicinity of a
distance of 6-7 feet from the tree itself. It is
further indicated by the evidence of P.W. 5 when he was
describing the place of occurrence that a pathway was
also running from the village south east of the place
of occurrence to the forest situated west of it. Thus,
the place appears to us a very compact place. The
witnesses say that the appellant threw away the blood
stain tangi. No one says that it was thrown into the
house of the appellant’s father-in-law. None of the
witnesses except P.W. 10 stated that he picked up the
tangi. If the house of the father-in-law of the
appellant was just round the corner and at a distance
of 6-7 feet at that busy place where some children were
playing which was watched by some elders, could not it
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be a possibility that it landed somewhere in the house
of the father-in-law of the appellant and, accordingly,
it was seized.
14. Even if the tangi had not been seized, we are
of the opinion that its non-seizure would not have made
much of difference. It is a case of direct evidence.
The witnesses appear to us reliable and, as such, their
reason for presence at the place of occurrence
acceptable and after having considered their evidence
we do not have any doubt that the wounds were inflicted
by the appellant. The same reason we assign for the
non-examination of the Doctor who held post-mortem
examination also because his evidence would not have
been of much importance inasmuch as the evidence of the
witnesses was clearly establishing the fact that it was
the appellant who gave two repeated blows to the
deceased which ultimately caused his death. After all,
what is the importance of a medical opinion; it simply
corroborates the manner of occurrence. The death could
be proved by direct evidence. In the case of direct
evidence the medical opinion does not appear of much
importance except where the defence could be showing to
the court that the very manner of occurrence was not
possible as the injuries which were found by the
Doctor were diametrically dissimilar to the ultimate
result which could have occurred on account of the
alleged assault. If the allegation is, say for the sake
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of argument, that the deceased was fired at and killed
and if the medical evidence found no firearm injury and
rather reported an injury which was caused by a hard
and blunt substance, then the benefit of that
contradictory opinion could accrue to the accused.
Here, in the present case, all the witnesses say that
it was the appellant who had given two tangi blows,
first, on the back of his neck and the second, on his
right temple. The document which has been proved by
P.W. 10, Ext. 3, fully supports the manner of
occurrence also because two incised wounds are recorded
in the document which were 4½” X1″X ½” bone deep and 2″
X ½” X cranial cavity deep. The opinion of the Doctor
was that the two injuries were caused by heavy sharp
cutting weapon. This document could be admissible
inasmuch as in his evidence P.W. 10 has given
sufficient evidence to admit the document under the
provision of Section 32(2) of the Evidence Act which
permits such admission of a document if the witness is
dead or cannot be found or whose attendance could not
be procured without an amount of delay or expenses
which under the circumstance the case appeared to the
court unreasonable and if the entry or memorandum was
made by him in discharge of his professional duty. The
doctor was discharging his professional duty and the
entry or memorandum of his findings was being recorded
in the officially prescribed book of post-mortem
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examination report under the Bihar Police Manual. P.W.
10 has stated that Dr. M.K.Sinha, after retirement was
not heard of. He stated that he does not know whether
he is alive or not. There is no material before us to
show that he may be alive or living at a particular
place. In That view, the document appears to us
admissible.
15. It was contended in the above context that the
tangi may not be a heavy sharp cutting weapon. We
reject the argument inasmuch as a tangi is very much a
sharp cutting weapon and if at all the defence was
making such a submission it ought to have made it by
virtue of cross examining P.W. 10 because he could have
been competent to render the opinion in that aspect
also.
16. The seizure of blood stained earth and tangi
has been testified by P.W.2 Laldeo Bhuian and the
Investigating Officer, P.W.5. The non-examination of
other witness Munarik Bhuian, to us, appears of no
consequence because one of the witnesses has testified
that the blood stained earth was seized and that the
blood stained tangi was also seized in his presence as
is claimed by P.W.5, the Investigating Officer of the
case. There is no doubt about the competence of P.W. 2
Laldeo Bhuian. In the case of Mathura Yadav alias
Mathura Mahto and Ors. Vs. State of Bihar reported in
2002 S.C.C.(Cri.)1352 and relied by the learned Amicus
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Curiae there were many circumstances for rejecting the
evidence on seizure of blood stained mud and weapon
because there could have been many other persons of
independent character to be associated with the seizure
and that there was a dispute also that the weapon was
recovered from the possession of the accused. Here, in
the present case, there is no challenge to the
competence of P.W. 2 being an independent person. We
also find after having gone through the whole plethora
of evidence that it was not even suggested to any of
the witnesses as to how he came to falsely depose
against the appellant. The houses which were situated
around the place of occurrence were either of the
witnesses or of the informant or deceased’s father-in-
law. There was no ill-will between the residents of
that minuscule hamlet. There is no record brought
before us even through oral evidence. In that view, the
seizure of the blood stained earth and tangi appears to
us an acceptable part of evidence.
17. As regards its non-examination by chemical
analyst, we are of the opinion after having accepted
the evidence of the witnesses directly on the fact of
seizure, it is fault on the part of the Investigating
Officer and could not render the judgment illegal. The
Investigating Officer might have committed an error on
account of any personal failing or any reason but for
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that we could not throw out the prosecution case which
otherwise appears to us fully established.
18. Learned Amicus Curiae was placing before us
other decision on the above point which is reported in
2003 S.C.C.(Cri.) 481 State of U.P. Vs. Arun Kumar
Gupta. For the same reason we respectfully want to hold
that the decision was also not to be applied to the
special facts of the present case.
19. Learned Amicus Curiae was submitting that it is
doubtful that the accused had been arrested by the
villagers and was produced before the police by them.
For the above purpose, learned counsel was referring to
the evidence of P.W. 5 in paragraph 1 at page 23 of the
Paper Book in which he has stated that the appellant
was produced before him after being arrested by Dafadar
Jagdishs Paswan and Chaukidar Barho Paswan. It was
contended that the claim of the informant and other
witnesses that the appellant was captured by the
villagers on chase appears completely a false
statement. We do not see any reason to accept the
contention of learned counsel inasmuch as the very
basic prosecution document Ext.1 records the production
of the accused before the Officer-in-charge of the
Police Station. We have already dealt with in
sufficient details the evidence that the appellant was
arrested on chase by the villagers. The witnesses have
stated that he was captured on chase by Laldeo Bhuian,
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Krishsna Bhuian and some of the villagers firstly and
thereafter was produced before the Officer-in-charge of
the Police Station. The informant has stated in his
evidence that the captured accused was handed over to
the Chaudkidar and was brought by them in custody to
the police Station. We have already indicated that the
arrest by the villagers, thats, the general public, was
justified under Section 43 of the Cr.P.C. after being
apprehended on chase and we have satisfactory evidence
to say that he was produced before the Officer-in-
charge as required by that very provision of Section 43
of the Cr.P.C. This is the reason that a record was
made in Ext.-1 that it was the appellant who had
committed an offence under Section 302 of the Penal
Code and had been formally arrested. The evidence
indicates that it were the villagers who had brought
the appellant to the Police Station. They had simply
been accompanied the Chaukidar and Dafadar to the
Police Station where the appellant was handed over to
the Officer-in-charge of the Police Station. We find
the evidence acceptable on that score also.
20. On discussion of the evidence on record and
considering the findings recorded by the learned trial
Judge, in that light, we find that the learned Judge
did not commit any error in recording the guilt of the
appellant for committing an offence of murder of
Sahendra Bhuian alias Satyendra Bhuian and, as such,
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he was rightly convicted for committing that offence.
The sentence was the minimum which could be prescribed
under law.
21. The appeal appears, as such, of no merits
and the same is dismissed.
( Dharnidhar Jha, J.)
( Rakesh Kumar J.)
Patna High Court
The 27th January, 2010
Kanth/A.F.R.