{"id":197426,"date":"2010-01-27T00:00:00","date_gmt":"2010-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/laldeo-bhuian-vs-state-of-bihar-on-27-january-2010"},"modified":"2018-06-02T23:02:12","modified_gmt":"2018-06-02T17:32:12","slug":"laldeo-bhuian-vs-state-of-bihar-on-27-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/laldeo-bhuian-vs-state-of-bihar-on-27-january-2010","title":{"rendered":"Laldeo Bhuian vs State Of Bihar on 27 January, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
Laldeo Bhuian vs State Of Bihar on 27 January, 2010<\/div>\n
Author: Dharnidhar Jha<\/div>\n
                                                                                1\n\n\n\n\n                  CRIMINAL APPEAL No.72 OF 2003\n                             - - - -\n             Against   the   judgment   of    conviction  dated\n       10.12.2002 and order of sentence dated 12.12.2002\n       passed by 8th Additional Sessions Judge, Gaya, in\n       Sessions Trial No.8 of 2000\/139 of 2000 arising out of\n       Roshanganj P.S.Case No. 15 of 1999, G.R. No. 176 of\n       1999.\n                                - - - -\n       LALDEO BHUIAN   ...          ...        Appellant\n                             Versus\n       STATE OF BIHAR   ...          ...        Respondent<\/pre>\n
       For the appellant: Shri Anil Kumar Singh, Amicus Curiae
\n       For the State    : Shri Ashwini Kumar Sinha, Addl. P.P.<\/p>\n
                           P R E S E N T
\n                   THE HON’BLE Shri JUSTICE DHARNIDHAR JHA
\n                   THE HON’BLE Shri JUSTICE RAKESH KUMAR\n<\/p>\n
                                – – – –\n<\/p>\n
Dharnidhar Jha &
\nRakeksh Kumar, JJ.-       The       solitary    appellant      Laldeo    Bhuian<\/p>\n
       stands convicted under Section 302 of the Indian Penal<\/p>\n
       Code for committing the murder of Sahendra Bhuian alias<\/p>\n
       Satyendra   Bhuian      on    28.3.1999        at   village    Parsachua<\/p>\n
       within Roshanaganj Police Station in the                     District of<\/p>\n
       Gaya. The appellant was tried by the learned Additional<\/p>\n
       Sessions Judge, 8th Court, Gaya in Sessions Trial No.8<\/p>\n
       of 2000\/139 of 2000 arising out of Roshanganj Police<\/p>\n
       Station Case No.15 of 1999( G.R. No.176 of 1999) and by<\/p>\n
       the judgment of conviction dated 10.12.2002 the above<\/p>\n
       order of conviction was recorded by the learned Judge.<\/p>\n
       The   sentence    of    rigorous       imprisonment     for    life    was<\/p>\n
       inflicted   by    the    learned       trial    Judge   on    12.12.2002<\/p>\n
       after hearing the appellant on sentence. The appellant<\/p>\n
       questions   the   propriety       of    the    findings      through   the<\/p>\n
       present appeal.\n<\/p>\n
                                                                              2<\/span><\/p>\n
2.            The prosecution case is contained in Ext.1, the<\/p>\n
F.I.R. of the case, lodged by Mahendra Bhuian( P.W. 9),<\/p>\n
the full brother of the deceased. It was stated by the<\/p>\n
informant in Ext.1 that he had just left his house with<\/p>\n
Rahar( Arhar) for Roshan Bazar so as to bartering it to<\/p>\n
meet his daily expenses and he had traveled                              a few<\/p>\n
steps away from his house                when he heard a hulla that<\/p>\n
his brother had been hacked to death by a tangi by<\/p>\n
being       assaulted     on    the     back    of    his    neck   by     the<\/p>\n
appellant. He also heard that the appellant was running<\/p>\n
away from the scene of occurrence.\n<\/p>\n
3.      P.W. 9, the informant, also rushed to the scene of<\/p>\n
occurrence which was just by the side of the house of<\/p>\n
one Laldeo Bhuian( P.W. 2) and found that his villagers<\/p>\n
Amresh Bhuian( p.w.7) and Krisna Bhuian( not examined)<\/p>\n
were running after the appellant and had caught him<\/p>\n
also. The informant went near his brother and found<\/p>\n
that he had been attacked on his neck as also on his<\/p>\n
right    temple     by    a    tangi.    The    informant     stated      that<\/p>\n
while his brother was being carried to the hospital by<\/p>\n
P.W.    8     Chandradeo       Bhuian,    Amresh      Bhuian,    P.W.7     and<\/p>\n
Rameshwar Bhuian( not examined), he started                          to the<\/p>\n
Police Station           for lodging a report, but his brother<\/p>\n
died on way to the hospital.\n<\/p>\n
4.      The     informant       alleged        that    the      reason     for<\/p>\n
commission of the murder of his brother was that the<\/p>\n
appellant was accusing the deceased of carrying on an
\n                                                                                 3<\/span><\/p>\n
illicit      relationship        with     the   wife     of    the    appellant<\/p>\n
which allegation was unfounded.\n<\/p>\n
5.     The     informant        alleged    that    the    occurrence         took<\/p>\n
place just under the Goldmohar tree which was situated<\/p>\n
by the side of the house of Laldeo Bhuian( P.W. 2)<\/p>\n
where some boys were engaged in some play and, further,<\/p>\n
that the appellant Laldeo Bhuian was brought to the<\/p>\n
police Station with the help of Chaukidar and Dafadar<\/p>\n
after being arrested by the villagers and was handed<\/p>\n
over to it.\n<\/p>\n
6.           The    accused      was    taken     into    custody       by   the<\/p>\n
Officer-in-charge of the Police Station who                            recorded<\/p>\n
the F.I.R., Ext.1, and it appears that the Officer-in-<\/p>\n
charge       S.I.     Subedar      Prasad       himself        took    up    the<\/p>\n
investigation.\n<\/p>\n
7.           P.W. 5, S.I.Subedar Perasad after recording the<\/p>\n
statement of the informant and drawing up the F.I.R.,<\/p>\n
came to the place of occurrence on 29.3.1999, i.e., on<\/p>\n
the next day of the occurrence, and, firstly, inspected<\/p>\n
the place of occurrence which was situated 7-8 feet<\/p>\n
north of the house of P.W. 2 Laldeo Bhuian. It was a<\/p>\n
place under the Goldmohar tree.                   A pathway was running<\/p>\n
east to west and up to the forest in the west and the<\/p>\n
same     was       going   to    the    village     in        the    east.    The<\/p>\n
Investigating Officer found many houses standing around<\/p>\n
the place of occurrence as per his evidence and the<\/p>\n
boys were playing at the same place under the tree.
\n                                                                          4<\/span><\/p>\n
P.W.5     found    blood      stained     earth   and     seized   it   in<\/p>\n
presence of P.W. 2 Laldeo Bhuian and Munarik Bhuian(<\/p>\n
not examined) by preparing a seizure memo and obtaining<\/p>\n
the signatures of the two witnesses. The seizure memo<\/p>\n
has been marked Ext.2. The Investigating Officer has<\/p>\n
stated that he also recovered a blood stained tangi<\/p>\n
from the house of the father-in-law of the appellant in<\/p>\n
presence of the above named two witnesses and prepared<\/p>\n
a seizure memo in that behalf also. The seizure memo<\/p>\n
prepared in respect of the seizure of the tangi has<\/p>\n
been marked        Ext. 2\/1. P.W.5 sent           the dead body for<\/p>\n
post-mortem        examination       to    Magadh    Medical       College<\/p>\n
Hospital, Gaya, and after winding up the investigation,<\/p>\n
sent up the appellant for trial who had already been<\/p>\n
remanded in the case.\n<\/p>\n
8.              The defence of the appellant was that he was<\/p>\n
innocent and had falsely been implicated and that he<\/p>\n
was not arrested while fleeing away from the place of<\/p>\n
occurrence, rather, he was illegally caught while he<\/p>\n
was standing on or around the place of occurrence. He<\/p>\n
denied his complicity in the offence.\n<\/p>\n
9.        The     prosecution       examined      ten     witnesses     in<\/p>\n
support    of     the    charge    framed    against      the   appellant<\/p>\n
under   section         302   of   the    Penal   Code.    P.W.1   Sudama<\/p>\n
Bhuian, P.W. 3 Ram Swaroop Bhuian and P.W.4 Raj Kumar<\/p>\n
Bhuian, though not being named in the F.I.R. along with<\/p>\n
P.W. 6 Ram Pravesh Bhuian, have claimed themselves to
\n                                                                          5<\/span><\/p>\n
be the eye witnesses and appear giving evidence that<\/p>\n
way. P.W. 2 Laldeo Bhjuian, P.W.7 Amresh Bhuian and<\/p>\n
P.W. 8 Chandradeo Bhuian are named in the F.I.R. and<\/p>\n
except P.W. 8, P.Ws. 2 and 7 have given eye witness<\/p>\n
account of the occurrence by claiming their presence at<\/p>\n
the scene of the occurrence. P.W. 9, Mahendra Bhuian,<\/p>\n
has not claimed being an eye witness. P.W.10 Dr. Arvind<\/p>\n
Prasad, was the Head of the Department of the Forensic<\/p>\n
Science Medicine in Magadh Medical College                      Hospital,<\/p>\n
Gaya and has given evidence on the retirement of Dr.<\/p>\n
M.K.Sinha   who    had       held     post-mortem     examination      and<\/p>\n
prepared report Ext.3 and who was not being heard of<\/p>\n
since   after    his     retirement.     On    consideration      of   the<\/p>\n
evidence of the eye witnesses, the learned trial Judge<\/p>\n
came to the conclusion that the accused had committed<\/p>\n
an offence and after recording                  a finding of guilt<\/p>\n
against him inflicted the sentence upon him as pointed<\/p>\n
out at the very out set of the present                judgment.<\/p>\n
10.         As     may       appear    from    the   records     of    the<\/p>\n
present appeal, the appellant had filed the appeal from<\/p>\n
jail and, as such, the Court appointed Shri Anil Kumar<\/p>\n
Singh Amicus Curiae, as appears from the order dated<\/p>\n
25.2.2003. We have heard Shri Singh, finally in the<\/p>\n
present   appeal       who    has     been    very   critical    of    the<\/p>\n
findings recorded by the learned trial Judge and has<\/p>\n
set up some acerbic attack upon the findings recorded<\/p>\n
by the learned trial Judge. It was contended that the
\n                                                                               6<\/span><\/p>\n
place of occurrence has not been established                          which is<\/p>\n
further indicated by the fact that the blood stained<\/p>\n
earth    or    the     so-called      blood    stained       tangi,    on   the<\/p>\n
recovery of which there is varying evidence, were not<\/p>\n
sent     for     chemical       analysis       by      the     Investigating<\/p>\n
Officer. It was contended that as regards the witnesses<\/p>\n
being present at the place of occurrence from before or<\/p>\n
at     the     time    of     occurrence,       the     evidence       of   the<\/p>\n
witnesses is again contrary to each other. There was no<\/p>\n
question put on the finding of the blood stained earth<\/p>\n
or tangi to the accused in his statement under Section<\/p>\n
313 of the Cr. P.C. and again there was contradiction,<\/p>\n
as such, in the evidence of the witnesses in the F.I.R.<\/p>\n
It was also contended that Ext.1, the F.I.R., was hit<\/p>\n
by the mischief of Section 162 of the Cr. P.C. on the<\/p>\n
very evidence of P.W.5 and on this score alone, the<\/p>\n
appellant deserves to be acquitted.\n<\/p>\n
11.            Learned        Additional      Public         Prosecutor     has<\/p>\n
given a very brief reply to the above contentions of<\/p>\n
the learned Amicus Curiae which has been                        supported by<\/p>\n
a    huge     number    of      decisions,          which      we   could    be<\/p>\n
discussing in the relevant part of the judgment, by<\/p>\n
submitting        that after all why the accused would be<\/p>\n
implicated in this case has not been stated nor it has<\/p>\n
been     suggested       to     any   of      the     witnesses       and   the<\/p>\n
witnesses consistently were telling the court that it
\n                                                                                7<\/span><\/p>\n
was this appellant who had given the two blows upon the<\/p>\n
deceased so as to killing him.\n<\/p>\n
12.          We first want to examine the contention on the<\/p>\n
admissibility of the F.I.R. There could be a long line<\/p>\n
of decisions of the Supreme Court which is telling us<\/p>\n
that    if    the    F.I.R.    is    given   or     drawn    up     after    the<\/p>\n
investigation had started then it could be merely a<\/p>\n
statement which could be used only for the purpose of<\/p>\n
contradicting         or    corroborating          the      maker     of     the<\/p>\n
document in the light of the provision of Section 162<\/p>\n
of the Cr. P.C.. Shri Singh was attempting before us to<\/p>\n
bring the F.I.R., Ext.1, within the mischief of the<\/p>\n
provision of Section 162 Cr. P.C. and thereby getting<\/p>\n
it declared as an inadmissible document. The premise<\/p>\n
upon which Shri Singh was framing his argument was that<\/p>\n
P.W.5    has        admitted    in     his     evidence       that     before<\/p>\n
receiving       or    recording       Ext.1,       the    F.I.R.,     he     had<\/p>\n
received some information-the source of which has not<\/p>\n
been    disclosed      to     him-    that     some      Bhuian     people    of<\/p>\n
place-of-occurrence            village       had      quarreled       between<\/p>\n
themselves      and that a           man had    also      been injured by<\/p>\n
being assaulted with tangi. It was contended by Shri<\/p>\n
Singh by citing before us a Division Bench decision of<\/p>\n
this Court reported in 2005(1) P.L.J.R. 446 Deo Pujan<\/p>\n
Thakur Vs. State of Bihar that the F.I.R. had already<\/p>\n
been received by P.W.5 and, as such, the subsequent<\/p>\n
report in the form of Ext.1 was inadmissible on account
\n                                                                         8<\/span><\/p>\n
of it being a mere statement under Section 161 Cr. P.C.<\/p>\n
We have considered the decision of this Court in Deo<\/p>\n
Pujan thakur( Supra) and we find that the same premise<\/p>\n
upon which the Court went to hold the F.I.R. or the<\/p>\n
fardbyan hit by the mischief of Section 162 Cr. P.C.<\/p>\n
was that in Deo Pujan Thakur(supra) the Investigating<\/p>\n
Officer had written the case diary in quite some good<\/p>\n
length, indicating that the investigation had proceeded<\/p>\n
and   had   been    completed        to   some    length   on   certain<\/p>\n
important       aspects of the case. We respectfully agree<\/p>\n
with the view expressed by the Division Bench in the<\/p>\n
above   noted    case,   but    we    respectfully      disagree     with<\/p>\n
learned Amicus Curiae to apply that law to the facts of<\/p>\n
the present case. The reason which appears to us is<\/p>\n
that the ingredients of the F.I.R. or the definition of<\/p>\n
the document which may be culled out from the reading<\/p>\n
of Section 154 Cr. P.C. does not qualify the station<\/p>\n
diary   entry    recorded      by    P.W.5   to   the   class   of   the<\/p>\n
document which is recognized as F.I.R. by the provision<\/p>\n
of Section 154 Cr.P.C. A written report on                      an   oral<\/p>\n
statement given to the Officer-in-charge of the Police<\/p>\n
Station     by     a     person(informant)          disclosing       the<\/p>\n
commission of some cognizable offence by any one known<\/p>\n
or unknown could be qualified to be a document which<\/p>\n
could be    fully covered by the provision of Section 154<\/p>\n
Cr. P.C. Mere rumours which could be lacking in some<\/p>\n
important details may not qualify any statement even if
\n                                                                            9<\/span><\/p>\n
it    were    a   written    statement      to     the    class    of    the<\/p>\n
document as defined by Section 154 Cr. P.C. We have<\/p>\n
given our anxious consideration to the evidence of P.W.<\/p>\n
5 as also to the criticism set up by the learned Amicus<\/p>\n
Curiae on the admissibility of Ext.1. We find there is<\/p>\n
some     details in the evidence of P.W.5 that there had<\/p>\n
been some quarrel and that some one had also received<\/p>\n
some     injury      by   tangi    which    may    give     rise    to   an<\/p>\n
inference that a cognizable offence had been committed.<\/p>\n
Still,       the most important detail as to from whom the<\/p>\n
Officer-in-charge received the information and who had<\/p>\n
indulged      into    the   acts    complained      of    and     that   too<\/p>\n
against whom are clearly absent from the station diary<\/p>\n
entry which was recorded by P.W.5 on picking up the<\/p>\n
rumour from some unknown person. This, to us, appears<\/p>\n
not qualifying the omnibus rumour picked up by P.W.5 to<\/p>\n
be a statement which could qualify as F.I.R. within the<\/p>\n
four walls of the provision of Section 154 Cr. P.C.<\/p>\n
Furthermore, in the case of Deo Pujan Thaiur( supra)<\/p>\n
the    investigation        had     already       started         and    had<\/p>\n
proceeded to some length as appears recorded by the<\/p>\n
Hon’ble      Judge    rendering     the    judgment.      Here,     in   the<\/p>\n
present case, no investigation had started. Even after<\/p>\n
having received the omnibus nature of information or<\/p>\n
rumour the Officer-in-charge of the Police Station had<\/p>\n
not moved out of his               Police station. One may argue<\/p>\n
that the accused had been arrested by the villagers, as
\n                                                                              10<\/span><\/p>\n
appears recorded in Ext.1 and as appears                      coming to us<\/p>\n
from the evidence of almost all                 the witnesses examined<\/p>\n
by    the   learned       trial    Judge.     But,    the    arrest    of    an<\/p>\n
accused could be the part of investigation only when it<\/p>\n
is during the course of investigation and the arrest is<\/p>\n
affected     by     the     Investigating        Officer       or     on    his<\/p>\n
direction by some other police personnel. Here, in the<\/p>\n
present     case,     the    arrest      of    the    accused       could    be<\/p>\n
qualified as one under Section 43 of the Cr.P.C. which<\/p>\n
empowers even an ordinary citizen of India or any other<\/p>\n
person to arrest an accused who has either committed<\/p>\n
cognizable-        non-bailable-       offence in his presence or<\/p>\n
who is known to have committed such an offence. We do<\/p>\n
not want to deliberate much on that issue as that issue<\/p>\n
shall be merely academic in the present context. We<\/p>\n
simply      want     to     record      that     on     account       of     no<\/p>\n
investigation having taken place in the present case<\/p>\n
the    record,      Ext.1,        to   us,    appears       admissible      for<\/p>\n
reasons we have just seen.\n<\/p>\n
13.         The motive has been established and this is<\/p>\n
the reason that learned Amicus Curiae was not attacking<\/p>\n
that part of the prosecution case or the evidence. The<\/p>\n
witnesses say that the attack was made either in their<\/p>\n
presence or just when they were around and further that<\/p>\n
they found the appellant running away from the scene of<\/p>\n
occurrence. The informant is not the eye witness. He<\/p>\n
appears honestly stating the court as to how he came to
\n                                                                              11<\/span><\/p>\n
know about the murderous assault on his brother. Other<\/p>\n
witnesses have stated that they had either seen the<\/p>\n
appellant giving two blows-one on the back of his neck<\/p>\n
and the other on his right temple- and further that<\/p>\n
they, thereafter, saw the appellant running away with<\/p>\n
tangi      which he threw                either at the scene of the<\/p>\n
occurrence or just around it.                    The contention was that<\/p>\n
the tangi was recovered from the house of the father-<\/p>\n
in-law of the appellant. If we go through the evidence<\/p>\n
of the Investigating Officer we could find that the<\/p>\n
house of the father-in-law of this appellant was not<\/p>\n
distantly located, all houses of the Bhuian-folk were<\/p>\n
located around the Goldmohar tree in the vicinity of a<\/p>\n
distance      of      6-7    feet   from     the    tree   itself.     It    is<\/p>\n
further indicated by the evidence of P.W. 5 when he was<\/p>\n
describing the place of occurrence that a pathway was<\/p>\n
also running from the village south east of the place<\/p>\n
of occurrence to the forest situated west of it. Thus,<\/p>\n
the   place      appears      to    us   a   very    compact    place.      The<\/p>\n
witnesses say that the appellant threw away the blood<\/p>\n
stain tangi. No one says that it was thrown into the<\/p>\n
house    of     the    appellant’s       father-in-law.        None   of    the<\/p>\n
witnesses except P.W. 10 stated that he picked up the<\/p>\n
tangi.     If      the      house   of     the     father-in-law      of    the<\/p>\n
appellant was just round the corner and at a distance<\/p>\n
of 6-7 feet at that busy place where some children were<\/p>\n
playing which was watched by some elders, could not it
\n                                                                            12<\/span><\/p>\n
be a possibility that it landed somewhere                       in the house<\/p>\n
of the father-in-law of the appellant and, accordingly,<\/p>\n
it was seized.\n<\/p>\n
14.        Even if the tangi had not been seized, we are<\/p>\n
of the opinion that its non-seizure would not have made<\/p>\n
much of difference. It is a case of direct evidence.<\/p>\n
The witnesses appear to us reliable and, as such, their<\/p>\n
reason     for    presence         at    the      place    of     occurrence<\/p>\n
acceptable and after having considered their evidence<\/p>\n
we do not have any doubt that the wounds were inflicted<\/p>\n
by the appellant. The same reason we assign for the<\/p>\n
non-examination         of   the    Doctor       who   held      post-mortem<\/p>\n
examination also because his evidence would not have<\/p>\n
been of much importance inasmuch as the evidence of the<\/p>\n
witnesses was clearly establishing the fact that it was<\/p>\n
the   appellant     who      gave       two    repeated    blows     to   the<\/p>\n
deceased which ultimately caused his death. After all,<\/p>\n
what is the importance of a medical opinion; it simply<\/p>\n
corroborates the manner of occurrence. The death could<\/p>\n
be proved by direct evidence. In the case of direct<\/p>\n
evidence the medical opinion does not appear of much<\/p>\n
importance except where the defence could be showing to<\/p>\n
the court        that the very manner of occurrence was not<\/p>\n
possible    as    the    injuries         which    were    found     by   the<\/p>\n
Doctor were diametrically dissimilar                      to the ultimate<\/p>\n
result     which could have occurred on account of the<\/p>\n
alleged assault. If the allegation is, say for the sake
\n                                                                                 13<\/span><\/p>\n
of argument, that the deceased was fired at and killed<\/p>\n
and if the medical evidence found no firearm injury and<\/p>\n
rather reported an injury which was caused by a hard<\/p>\n
and     blunt       substance,       then     the     benefit          of     that<\/p>\n
contradictory        opinion        could    accrue       to    the    accused.<\/p>\n
Here, in the present case, all the witnesses say that<\/p>\n
it was the appellant who had given two tangi blows,<\/p>\n
first, on the back of his neck and the second, on his<\/p>\n
right temple.           The document which has been proved by<\/p>\n
P.W.     10,     Ext.     3,     fully      supports       the      manner     of<\/p>\n
occurrence also because two incised wounds are recorded<\/p>\n
in the document which were 4\u00bd” X1″X \u00bd” bone deep and 2″<\/p>\n
X \u00bd” X cranial cavity deep. The opinion of the Doctor<\/p>\n
was that the two injuries were caused by heavy sharp<\/p>\n
cutting      weapon.      This      document    could          be     admissible<\/p>\n
inasmuch       as    in    his      evidence       P.W.        10   has     given<\/p>\n
sufficient       evidence      to    admit   the    document          under    the<\/p>\n
provision of Section 32(2) of the Evidence Act which<\/p>\n
permits such admission of a document if the witness is<\/p>\n
dead or cannot be found or whose attendance could not<\/p>\n
be procured          without an amount of delay or expenses<\/p>\n
which under the circumstance the case appeared to the<\/p>\n
court unreasonable and if the entry or memorandum was<\/p>\n
made by him in discharge of his professional duty. The<\/p>\n
doctor was discharging his professional duty and the<\/p>\n
entry or memorandum of his findings was being recorded<\/p>\n
in     the     officially      prescribed       book       of       post-mortem
\n                                                                                 14<\/span><\/p>\n
examination report under the Bihar Police Manual. P.W.<\/p>\n
10 has stated that Dr. M.K.Sinha, after retirement was<\/p>\n
not heard of. He stated that he does not know whether<\/p>\n
he is alive or not. There is no material before us to<\/p>\n
show that he may be alive or living at a particular<\/p>\n
place.    In     That        view,      the     document      appears     to   us<\/p>\n
admissible.\n<\/p>\n
15.       It was contended in the above context that the<\/p>\n
tangi    may    not     be    a    heavy       sharp    cutting    weapon.     We<\/p>\n
reject the argument inasmuch as a tangi is very much a<\/p>\n
sharp cutting weapon and if at all the defence was<\/p>\n
making such a submission it ought to have made it by<\/p>\n
virtue of cross examining P.W. 10 because he could have<\/p>\n
been competent to render the opinion in that aspect<\/p>\n
also.\n<\/p>\n
16.            The seizure of blood stained earth and tangi<\/p>\n
has   been     testified          by    P.W.2     Laldeo      Bhuian    and    the<\/p>\n
Investigating         Officer,         P.W.5.     The   non-examination        of<\/p>\n
other    witness      Munarik          Bhuian,    to    us,    appears    of   no<\/p>\n
consequence because one of the witnesses has testified<\/p>\n
that the blood stained earth was seized and that the<\/p>\n
blood stained         tangi was also seized in his presence as<\/p>\n
is claimed by P.W.5, the Investigating Officer of the<\/p>\n
case. There is no doubt about the competence of P.W. 2<\/p>\n
Laldeo    Bhuian.       In     the      case     of    Mathura    Yadav    alias<\/p>\n
Mathura Mahto and Ors. Vs. State of Bihar reported in<\/p>\n
2002 S.C.C.(Cri.)1352 and relied by                      the learned Amicus
\n                                                                            15<\/span><\/p>\n
Curiae there were many circumstances for rejecting the<\/p>\n
evidence on seizure of blood stained mud and weapon<\/p>\n
because there could have been many other persons of<\/p>\n
independent character to be associated with the seizure<\/p>\n
and that there was a dispute also that the weapon was<\/p>\n
recovered from the possession of the accused. Here, in<\/p>\n
the    present     case,        there    is    no     challenge      to   the<\/p>\n
competence of P.W. 2 being an independent person. We<\/p>\n
also find after having gone through the whole plethora<\/p>\n
of evidence that         it was not even             suggested to any of<\/p>\n
the    witnesses    as    to     how    he    came    to   falsely    depose<\/p>\n
against the appellant. The houses which were situated<\/p>\n
around    the    place     of    occurrence         were   either    of   the<\/p>\n
witnesses or of the informant or deceased’s father-in-<\/p>\n
law. There was no ill-will between the residents of<\/p>\n
that    minuscule    hamlet.         There     is    no    record    brought<\/p>\n
before us even through oral evidence. In that view, the<\/p>\n
seizure of the blood stained earth and tangi appears to<\/p>\n
us an acceptable part of evidence.\n<\/p>\n
17.       As    regards        its     non-examination       by     chemical<\/p>\n
analyst, we are of the opinion after having accepted<\/p>\n
the evidence of the witnesses directly on the fact of<\/p>\n
seizure, it is fault on the part of the Investigating<\/p>\n
Officer and could not render the judgment illegal. The<\/p>\n
Investigating Officer might have committed an error on<\/p>\n
account of any personal failing or any reason but                         for
\n                                                                                  16<\/span><\/p>\n
that we could not throw out the prosecution case which<\/p>\n
otherwise appears to us fully established.<\/p>\n
18.         Learned Amicus Curiae was placing before us<\/p>\n
other decision on the above point which is reported in<\/p>\n
2003   S.C.C.(Cri.)         481     State    of    U.P.    Vs.     Arun       Kumar<\/p>\n
Gupta. For the same reason we respectfully want to hold<\/p>\n
that the decision was also not to be applied to the<\/p>\n
special facts of the present case.\n<\/p>\n
19.         Learned Amicus Curiae was submitting that it is<\/p>\n
doubtful     that     the    accused       had    been    arrested       by    the<\/p>\n
villagers and was produced before the police by them.<\/p>\n
For the above purpose, learned counsel was referring to<\/p>\n
the evidence of P.W. 5 in paragraph 1 at page 23 of the<\/p>\n
Paper Book in which he has stated that the appellant<\/p>\n
was produced before him after being arrested by Dafadar<\/p>\n
Jagdishs     Paswan        and    Chaukidar       Barho    Paswan.       It     was<\/p>\n
contended that the claim of the informant and other<\/p>\n
witnesses      that    the        appellant       was     captured       by    the<\/p>\n
villagers      on      chase        appears       completely         a        false<\/p>\n
statement.     We     do    not     see    any    reason     to    accept      the<\/p>\n
contention     of     learned       counsel       inasmuch    as     the       very<\/p>\n
basic prosecution document Ext.1 records the production<\/p>\n
of    the   accused        before    the    Officer-in-charge            of     the<\/p>\n
Police      Station.        We      have    already        dealt     with        in<\/p>\n
sufficient details the evidence that the appellant was<\/p>\n
arrested on chase by the villagers. The witnesses have<\/p>\n
stated that he was captured on chase by Laldeo Bhuian,
\n                                                                          17<\/span><\/p>\n
Krishsna Bhuian and some of the villagers firstly and<\/p>\n
thereafter was produced before the Officer-in-charge of<\/p>\n
the Police Station. The informant has stated in his<\/p>\n
evidence that the captured accused was handed over to<\/p>\n
the Chaudkidar and was brought by them in custody to<\/p>\n
the police Station. We have already indicated that the<\/p>\n
arrest by the villagers, thats, the general public, was<\/p>\n
justified under Section 43 of the Cr.P.C. after being<\/p>\n
apprehended on chase and we have satisfactory evidence<\/p>\n
to    say    that    he    was    produced    before    the    Officer-in-<\/p>\n
charge as required by that very provision of Section 43<\/p>\n
of the Cr.P.C. This is the reason that a record was<\/p>\n
made    in    Ext.-1       that    it   was   the   appellant     who   had<\/p>\n
committed an offence under Section 302 of the Penal<\/p>\n
Code    and    had     been       formally    arrested.    The    evidence<\/p>\n
indicates that it were the villagers who had brought<\/p>\n
the appellant to the Police Station. They had simply<\/p>\n
been    accompanied         the     Chaukidar    and    Dafadar    to   the<\/p>\n
Police Station where the appellant was handed over to<\/p>\n
the Officer-in-charge of the Police Station. We find<\/p>\n
the evidence acceptable on that score also.<\/p>\n
20.           On discussion of the evidence on record and<\/p>\n
considering the findings recorded by the learned trial<\/p>\n
Judge, in that light, we find that the learned Judge<\/p>\n
did not commit any error in recording the guilt of the<\/p>\n
appellant      for        committing    an    offence     of   murder   of<\/p>\n
Sahendra      Bhuian alias Satyendra Bhuian and, as                  such,
\n                                                                   18<\/span><\/p>\n
          he was rightly convicted for committing that offence.<\/p>\n
          The sentence was the minimum which could     be prescribed<\/p>\n
          under law.\n<\/p>\n
          21.          The appeal appears, as such, of no merits<\/p>\n
          and the same is dismissed.\n<\/p>\n<\/p>\n
                                       ( Dharnidhar Jha, J.)<\/p>\n
                                       ( Rakesh Kumar J.)<\/p>\n
Patna High Court
\nThe 27th January, 2010
\nKanth\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Laldeo Bhuian vs State Of Bihar on 27 January, 2010 Author: Dharnidhar Jha 1 CRIMINAL APPEAL No.72 OF 2003 – – – – 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-197426","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nLaldeo Bhuian vs State Of Bihar on 27 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/laldeo-bhuian-vs-state-of-bihar-on-27-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Laldeo Bhuian vs State Of Bihar on 27 January, 2010 - 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