Hariher Bhuian and Anr Vs. State of Bihar - Court Judgment

SooperKanoon Citationsooperkanoon.com/110171
CourtJharkhand High Court
Decided OnMay-16-2017
AppellantHariher Bhuian and Anr
RespondentState of Bihar
Excerpt:
1 in the high court of jharkhand at ranchi cr. appeal no. 174 of 1992 (r) 1. hariher bhuian 2. sudeshwer bhuian … … appellants versus the state of bihar (now jharkhand) … … respondent -------- coram : hon’ble mr. justice h. c. mishra hon’ble mr. justice dr. s.n.pathak for the appellants : m/s. pankaj kumar dubey, advocate for the state : m/s. satish kumar keshari, a.p.p. -------- c.a.v. on 17.04.2017 pronounced on 16.05.2017 h.c. mishra, j.:- heard learned counsel for the surviving appellants hariher bhuian and sudeshwer bhuian and the learned counsel for the state.2. the appellants are aggrieved by the judgement of conviction and order of sentence dated 05.09.1992 passed by the learned second additional sessions judge, palamau in s.t. no. 172 of 1990, whereby these appellants along with the other two co-appellants, who are since dead, have been convicted for the offences under sections 302 and 307 of the indian penal code read with section 34 of the indian penal code. the appellant hariher bhuian was also found guilty for the offence under section 323 of the indian penal code for assaulting p.w.- 3, kalo devi. upon hearing on the point of sentence the appellants were sentenced to undergo rigorous imprisonment for life for the offence under sections 302 / 34 of the indian penal code and no separate sentence was passed for the other offence.3. at the very outset it may be stated that the conviction of the appellant hariher bhuian for the offence 323 of the indian panel code cannot be sustained in the eyes of law, in as much as, he was not even charged for that offence and without framing the charge for that offence and tried for that, he has been convicted for the same. the other two co-appellants bhikhu bhuian and mahipat bhuian died during 2 the pendency of this appeal and accordingly, this appeal stood abated qua them by order 11.08.2016.4. according to the prosecution story on 16.05.1989 at about 8:00 a.m., the informant prabhuwan bhuian had gone to take bath on the state hand pump besides his house, when it is alleged that bhikhu bhuian (since dead) came armed with tangi and assaulted and injured him on his head and shoulder. the other three appellants hariher bhuian, sudeshwer bhuian and mahipat bhuian (since dead) also came there armed with lathi and assaulted the informant. on the alarm raised, his father raman bhuiyan came to his rescue, upon which bhikhu bhuian assaulted him with tangi injuring him and the other three appellants also assaulted him by lathi badly injuring him. in the f.i.r. it is also stated that the family members of the informant had also witnessed the occurrence and the occurrence had taken place due to previous enmity between the parties. both the injured were being brought to police station on rickshaw, but the father of the informant died in the way. thereafter, the informant along with the dead body came to the police station and lodged the f.i.r., on the basis of which lesliganj p.s. case no. 30 of 1989, corresponding to g.r. no. 612 of 1989, was instituted for the offences under sections 302, 307, 324, 323 of the indian penal code and investigation was taken up. after investigation, the police submitted the charge-sheet against the accused appellants.5. after the commitment of the case to the court of session, charge was framed against the appellants for the offence under section 302 of the indian penal code. separate charges for the offence under section 307 of the indian panel code against the accused bhikhu bhuian (since dead) and under sections 307 / 34 against the remaining three accused, for causing hurt to prabhuwan bhuian with intention to cause his death, were also framed, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. it appears 3 that as in the f.i.r., there was no allegation of causing any hurt to p.w.- 3, kalo devi, no charge was framed against any accused for the same.6. in course of trial the prosecution has examined 12 witnesses. the investigating officer of the case has not been examined and accordingly, the f.i.r., the seizure list and the inquest report have been proved by a formal witness who was examined as c.w.-1 puranchand singh. p.w.-6 bhagwano devi was only tendered by the prosecution.7. p.w.-8 prabhuwan bhuiyan is the informant in the case, who has supported the prosecution case. he has stated that on the day of occurrence at about 8:00 a.m. in the morning he had gone on the state hand pump for taking bath when bhikhu bhuian came there armed with tangi and assaulted him on his head with the intention to cause his death. the accused mahipat bhuian, hariher bhuian and sudeshwer bhuian also came there and they assaulted him with lathi indiscriminately. upon the alarm raised by him, his wife kalo devi came to his rescue when hariher bhuian assaulted her also by lathi. his mother puna devi, radhika devi and biro bhuian also came there and raised alarm, whereupon his father who was tending cattle in a nearby field, came to his rescue, whereupon the accused persons started assaulting him. bhikhu bhuian assaulted him with tangi whereas hariher bhuian, sudeshwer bhuian and mahipat bhuian assaulted him with lathi badly injuring him. thereafter the accused persons fled away. the wife of this witness called the choukidar and two rickshaws were called on which the injured were being taken to hospital, but while they reached jagatpurwa more, the father of the informant died, thereafter they came to the police station and this witness gave his statement which was recorded and he put his thumb impression thereon. he has stated that he and his wife were treated at hospital. he has also stated that the occurrence had taken place due to previous enmity between the parties. this witness has identified the accused 4 persons in the court. though this witness has been put to extensive cross-examination by the defence, but except for minor discrepancies there is nothing of much importance in his cross-examination so as to discredit his testimony.8. p.w.-1 biro bhuiyan, who is the maternal uncle of the informant. p.w.-3 kalo devi, who is the wife of the informant, p.w.-4 puna devi, who is the mother of the informant and the wife of the deceased, p.w.- 5 radhika devi, who is the wife of the younger brother of the informant have also supported the prosecution case as the eye witnesses to the occurrence, giving more or less the same details about the prosecution case as stated by p.w.-8 prabhuwan bhuiyan. p.w.-2 bal kuar bhuiyan, who is the other maternal uncle of the informant and p.w.-7 mahangoo bhuiyan, who is the brother-in-law of the informant, have also supported the prosecution case as hearsay witnesses, as they are not the eye witness to the occurrence. they had seen the dead body of the deceased at jagatpurwa more, upon getting the information about the occurrence.9. p.w.-10 ramjit bhuiyan is one of the rickshaw puller, on whose rickshaw the injured were being taken to hospital and he has stated that while the injured were being taken to hospital the deceased died on the way and they were brought to police station. p.w.-11 sitaram bhuiyan is the another rickshaw puller, but this witness has turned hostile.10. p.w.-9 is dr. kamendra singh, who had conducted the post- mortem examination on the dead body of the deceased on 17.05.1989 at 10:00 a.m. and had found the following ante-mortem injuries:- (i) lacerated injury of the left leg 4” above the ankle joint leading to laceration of underlying muscles and fracture of both bones. (ii) multiple lacerated injuries on right leg varying in size from 3” to 1” to 1” x 1½". all injuries were muscle-deep. 5 (iii) lacerated injury on the left arm 1” x ½ " x ½. (iv) swelling of neck and face. on dissection there were ecchymosis and fracture of maxilla and mandible on the left side of check. (v) lacerated injury on the left side of skull just above the left ear 1” x ½” x ½” leading to fracture of left temporal bone. on dissection of brain it was pale. he has stated that the death was due to shock and hemorrhage, caused by the above mentioned injuries caused by hard and blunt substance such as blunt portion of tangi and lathi. he has also stated that all the injuries were sufficient in ordinary course of nature to cause the death. he has identified the post-mortem report to be in his pen and signature, which was marked ext-1. in his cross-examination this witness has stated that injury no. (iii), singly and individually was not sufficient to cause death in ordinary course of nature and similarly injury nos. (i) and (ii) alone were not sufficient to cause death, whereas injury no. (iv) individually was sufficient to cause death instantaneously. he has stated that he did not find any incised wound on the deceased.11. p.w.12 dr. rakesh kr. sinha is the medical officer who had examined kalo devi, the wife of the informant as also the informant prabhuwan bhuiyan on 16.05.1989. on kalo devi he had found the following injuries:- (i) swelling 1” x ½” right forearm above wrist. (ii) swelling 1” x 1” dorsum of left hand. both injuries were caused by hard and blunt substance such as lathi, and were simple in nature. he has identified the injury report of kalo devi to be in his pen and signature, which was marked ext-2. upon prabhuwan bhuiyan, he had found the following injuries:- (i) one incised wound 3” x 1” x ½” left axilla with bleeding. (ii) one incised wound 2” x ½” x facia deep left forearm. 6 (iii) lacerated wound 1” x ½” x skin deep over right parietal region. (iv) lacerated wound 1” x ½” x skin deep left forearm below elbow. (v) incised wound 1” x opposing edge x ½” deep between index and middle finger right hand. (vi) abrasion 1” x 1” right leg above ankle posterior surface. (vii) abrasion 2” x 1” over bruise of 2” size at 1” lateral to injury no. (vi). (viii) two linear bruises 4” x ½” over left scapula and 3´x 1” over left supra scapular area. he has stated that injuries (i), (ii) and (v) were caused by sharp edged weapon such as tangi, whereas injuries nos. (iii), (iv), (vi), (vii) and (viii) were caused by hard and blunt substance such as lathi. injuries (i) to (vii) were simple in nature, but opinion with respect to injury no. (viii) was kept reserved for x-ray which was not brought before him. he has identified the injury report of the informant prabhuwan bhuiyan, which was marked ext-2/1.12. four witnesses were examined in behalf of the defence out of whom, d.w.-1 bikau bhuiyan and d.w.-2 sachidanand shukla, are the witnesses on the point of alibi of the accused mahipat bhuian (since dead), and hence they are not of much importance now. d.w.-3, bhardul bhuiyan, has come to depose that one nihora shukla had entered the house of the informant prior to occurrence and had outraged the modesty of the wife of pradeep bhuiyan, the brother of the informant, for which a police case was also instituted. the case of the defence is that the occurrence had taken place due to this case. d.w.-4 mahesh prasad is a formal witness, who had proved the f.i.r. and charge-sheet of two cases which were marked exts.-‘a’ series and ‘b’ series respectively. 7 13. learned counsel for the appellants has submitted that the impugned judgement of conviction and order of sentence passed by the trial court below are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, even though it is stated by the witnesses that the persons nearby had also assembled, but none of the independent witnesses have been examined in this case. it is submitted that all the witnesses are the interested witnesses being the family members of the informant and they have only supported the prosecution case. learned counsel has also submitted that there are discrepancies in the evidence of the witnesses also and ocular evidence is not supported by the medical evidence, inasmuch as, no injury caused by any sharp cutting weapon was found on the deceased, even though there is specific allegation of assault on him by tangi also. learned counsel for the appellants has also submitted that the investigating officer of the case has not been examined in the case which has caused prejudice to the defence. however, learned counsel could not point out anything from the evidence, causing prejudice to the defence due to non-examination of the i.o. in support of his contentions, learned counsel has placed reliance upon the decisions of the hon'ble supreme court of india in amar singh and ors. vs. state of punjab, reported in (1987) 1 scc679 mani ram and ors vs. state of u.p., reported in 1994 supp (2) scc289 kapildeo mandal and ors. vs. state of bihar, reported in (2008) 16 scc99 and of this court in govind sah vs. state of jharkhand, reported in 2004 (1) east cr. c. 557 (jhr), and other cases.14. learned counsel for the prosecution on the other hand has submitted that the eye witnesses of this case are the natural eye witness, who had come to the rescue of the informant at the time of occurrence being the family members. the place of occurrence is just besides the house of the informant and accordingly, these witnesses are the natural witnesses whose testimony cannot be disbelieved. it is also 8 submitted that the ocular evidence of these witnesses is fully supported by the medical evidence of p.w.-9 dr. kamendra singh and p.w.-12, dr. rakesh kr. sinha. upon the deceased though there were only lacerated wounds, but the doctor has stated that it could be caused by the blunt portion of the tangi also and the injuries collectively were sufficient to cause the death of the deceased, whereas one injury was individually sufficient to cause the death of the deceased. on the informant several injuries were found, including the injuries caused by sharp cutting weapon such as tangi and caused by hard and blunt substance such as lathi, which fully corroborate the prosecution case. it is submitted by the learned counsel that on the basis of these evidences the prosecution has been able to prove the charge against the appellants beyond all reasonable doubts.15. having heard learned counsels for both the sides and upon going through the record, we find that the informant prabhuwan bhuiyan who was examined as p.w.8, has fully supported the prosecution case. though this witness has stated that his wife was also assaulted by the appellant hariher bhuian and her injury report has also been proved in the case, but the fact remains that this allegation is not there in the f.i.r. and no charge was also framed for this evidence. however, so far as the allegation of assault by the accused persons on himself and his deceased father are concerned, this witness has fully supported the prosecution case and this evidence is also fully supported by p.w.-1 biro bhuiyan, p.w.-3 kalo devi, p.w.-4 puna devi, and p.w.-5 radhika devi, who are all the eye witness to the occurrence. p.w.-2 bal kuar bhuiyan and p.w.-7 mahangoo bhuiyan have also supported the case as hearsay witness as they were informed about the occurrence and they reached jagatpurwa more, where they saw the dead body of the deceased on the rickshaw and the informant and his wife injured. one rickshaw puller, p.w.-10 ramjit bhuiyan has also supported the fact that the victims were being taken on two rickshaws and in the way the deceased died. 9 these ocular evidences are fully corroborated by the medical evidence of p.w.-9 dr. kamendra singh and p.w.-12 dr. rakesh kr. sinha, and the post-morten report of the deceased and the injury report of the informant proved by them as exts.-1 and 2/1 respectively. we are of the considered view that in view of the specific allegations against these surviving appellants also to have assaulted the deceased as well as the informant by lathi and injuring them in the furtherance of the common intention of all, the offences are clearly made out against them under sections 302 / 34 of the indian penal code for causing the death of the deceased raman bhuiyan and under sections 307 / 34 of the indian penal code for assaulting the informant prabhuwan bhuiyan with the intention to cause his death. the conviction of the appellant hariher bhuian for the offence under section 323 of the indian penal code for causing hurt to p.w.-3, kalo devi, cannot be sustained in the eyes of law for the reason already stated above.16. accordingly, we hereby set aside the conviction of the appellant hariher bhuian for the offence under section 323 of the indian penal code, but the conviction and sentence of both these appellants for the offence under sections 302 / 34 of the indian penal code, for causing the death of the deceased raman bhuiyan and their conviction for the offence under sections 307 / 34 of the indian penal code, for causing hurt to the informant prabhuwan bhuiyan with intention to cause his death, are hereby, confirmed. we do not find any illegality in the impugned judgement of conviction and order of sentence dated 05.09.1992 passed by the learned second additional sessions judge, palamau in s.t. no. 172 of 1990, to the aforesaid extent.17. consequently, we find no merit in this appeal and the same is accordingly, dismissed. both the appellants are on bail. their bail bonds are hereby, cancelled. both the appellants are directed to surrender forthwith in the court below to serve out the sentence. the trial court 10 below is also directed to forthwith issue process compelling the production / surrender of the appellants for serving out the sentence.18. let the lower court records be sent back forthwith along with the copy of this judgement. (h.c. mishra, j.) dr. s.n. pathak, j.:- (dr. s.n. pathak, j.) jharkhand high court, ranchi. dated the 16th of may, 2017. d.s./n.a.f.r.
Judgment:

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal No. 174 of 1992 (R) 1. Hariher Bhuian 2. Sudeshwer Bhuian … … Appellants Versus The State of Bihar (Now Jharkhand) … … Respondent -------- CORAM : HON’BLE MR. JUSTICE H. C. MISHRA HON’BLE MR. JUSTICE Dr. S.N.PATHAK For the Appellants : M/s. Pankaj Kumar Dubey, Advocate For the State : M/s. Satish Kumar Keshari, A.P.P. -------- C.A.V. on 17.04.2017 Pronounced on 16.05.2017 H.C. Mishra, J.:- Heard learned counsel for the surviving appellants Hariher Bhuian and Sudeshwer Bhuian and the learned counsel for the State.

2. The appellants are aggrieved by the Judgement of conviction and Order of sentence dated 05.09.1992 passed by the learned Second Additional Sessions Judge, Palamau in S.T. No. 172 of 1990, whereby these appellants along with the other two co-appellants, who are since dead, have been convicted for the offences under Sections 302 and 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code. The appellant Hariher Bhuian was also found guilty for the offence under Section 323 of the Indian Penal Code for assaulting P.W.- 3, Kalo Devi. Upon hearing on the point of sentence the appellants were sentenced to undergo rigorous imprisonment for life for the offence under Sections 302 / 34 of the Indian Penal Code and no separate sentence was passed for the other offence.

3. At the very outset it may be stated that the conviction of the appellant Hariher Bhuian for the offence 323 of the Indian Panel Code cannot be sustained in the eyes of law, in as much as, he was not even charged for that offence and without framing the charge for that offence and tried for that, he has been convicted for the same. The other two co-appellants Bhikhu Bhuian and Mahipat Bhuian died during 2 the pendency of this appeal and accordingly, this appeal stood abated qua them by order 11.08.2016.

4. According to the prosecution story on 16.05.1989 at about 8:00 a.m., the informant Prabhuwan Bhuian had gone to take bath on the State Hand Pump besides his house, when it is alleged that Bhikhu Bhuian (since dead) came armed with Tangi and assaulted and injured him on his head and shoulder. The other three appellants Hariher Bhuian, Sudeshwer Bhuian and Mahipat Bhuian (since dead) also came there armed with Lathi and assaulted the informant. On the alarm raised, his father Raman Bhuiyan came to his rescue, upon which Bhikhu Bhuian assaulted him with Tangi injuring him and the other three appellants also assaulted him by Lathi badly injuring him. In the F.I.R. it is also stated that the family members of the informant had also witnessed the occurrence and the occurrence had taken place due to previous enmity between the parties. Both the injured were being brought to police station on rickshaw, but the father of the informant died in the way. Thereafter, the informant along with the dead body came to the police station and lodged the F.I.R., on the basis of which Lesliganj P.S. Case No. 30 of 1989, corresponding to G.R. No. 612 of 1989, was instituted for the offences under Sections 302, 307, 324, 323 of the Indian Penal Code and investigation was taken up. after investigation, the police submitted the charge-sheet against the accused appellants.

5. After the commitment of the case to the Court of Session, charge was framed against the appellants for the offence under Section 302 of the Indian Penal Code. Separate charges for the offence under Section 307 of the Indian Panel Code against the accused Bhikhu Bhuian (since dead) and under Sections 307 / 34 against the remaining three accused, for causing hurt to Prabhuwan Bhuian with intention to cause his death, were also framed, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. It appears 3 that as in the F.I.R., there was no allegation of causing any hurt to P.W.- 3, Kalo Devi, no charge was framed against any accused for the same.

6. In course of trial the prosecution has examined 12 witnesses. The Investigating Officer of the case has not been examined and accordingly, the F.I.R., the seizure list and the Inquest Report have been proved by a formal witness who was examined as C.W.-1 Puranchand Singh. P.W.-6 Bhagwano Devi was only tendered by the prosecution.

7. P.W.-8 Prabhuwan Bhuiyan is the informant in the case, who has supported the prosecution case. He has stated that on the day of occurrence at about 8:00 a.m. in the morning he had gone on the State Hand Pump for taking bath when Bhikhu Bhuian came there armed with Tangi and assaulted him on his head with the intention to cause his death. The accused Mahipat Bhuian, Hariher Bhuian and Sudeshwer Bhuian also came there and they assaulted him with Lathi indiscriminately. Upon the alarm raised by him, his wife Kalo Devi came to his rescue when Hariher Bhuian assaulted her also by Lathi. His mother Puna Devi, Radhika Devi and Biro Bhuian also came there and raised alarm, whereupon his father who was tending cattle in a nearby field, came to his rescue, whereupon the accused persons started assaulting him. Bhikhu Bhuian assaulted him with Tangi whereas Hariher Bhuian, Sudeshwer Bhuian and Mahipat Bhuian assaulted him with Lathi badly injuring him. Thereafter the accused persons fled away. The wife of this witness called the Choukidar and two rickshaws were called on which the injured were being taken to hospital, but while they reached Jagatpurwa More, the father of the informant died, thereafter they came to the police station and this witness gave his statement which was recorded and he put his thumb impression thereon. He has stated that he and his wife were treated at hospital. He has also stated that the occurrence had taken place due to previous enmity between the parties. This witness has identified the accused 4 persons in the Court. Though this witness has been put to extensive cross-examination by the defence, but except for minor discrepancies there is nothing of much importance in his cross-examination so as to discredit his testimony.

8. P.W.-1 Biro Bhuiyan, who is the maternal uncle of the informant. P.W.-3 Kalo Devi, who is the wife of the informant, P.W.-4 Puna Devi, who is the mother of the informant and the wife of the deceased, P.W.- 5 Radhika Devi, who is the wife of the younger brother of the informant have also supported the prosecution case as the eye witnesses to the occurrence, giving more or less the same details about the prosecution case as stated by P.W.-8 Prabhuwan Bhuiyan. P.W.-2 Bal Kuar Bhuiyan, who is the other maternal uncle of the informant and P.W.-7 Mahangoo Bhuiyan, who is the brother-in-law of the informant, have also supported the prosecution case as hearsay witnesses, as they are not the eye witness to the occurrence. They had seen the dead body of the deceased at Jagatpurwa More, upon getting the information about the occurrence.

9. P.W.-10 Ramjit Bhuiyan is one of the Rickshaw puller, on whose rickshaw the injured were being taken to hospital and he has stated that while the injured were being taken to hospital the deceased died on the way and they were brought to police station. P.W.-11 Sitaram Bhuiyan is the another rickshaw puller, but this witness has turned hostile.

10. P.W.-9 is Dr. Kamendra Singh, who had conducted the post- mortem examination on the dead body of the deceased on 17.05.1989 at 10:00 a.m. and had found the following ante-mortem injuries:- (i) Lacerated injury of the left leg 4” above the ankle joint leading to laceration of underlying muscles and fracture of both bones. (ii) Multiple lacerated injuries on right leg varying in size from 3” to 1” to 1” x 1½". All injuries were muscle-deep. 5 (iii) Lacerated injury on the left arm 1” x ½ " x ½. (iv) Swelling of neck and face. On dissection there were ecchymosis and fracture of maxilla and mandible on the left side of check. (v) Lacerated injury on the left side of skull just above the left ear 1” x ½” x ½” leading to fracture of left temporal bone. On dissection of brain it was pale. He has stated that the death was due to shock and hemorrhage, caused by the above mentioned injuries caused by hard and blunt substance such as blunt portion of Tangi and Lathi. He has also stated that all the injuries were sufficient in ordinary course of nature to cause the death. He has identified the post-mortem report to be in his pen and signature, which was marked Ext-1. In his cross-examination this witness has stated that injury No. (iii), singly and individually was not sufficient to cause death in ordinary course of nature and similarly injury Nos. (i) and (ii) alone were not sufficient to cause death, whereas injury No. (iv) individually was sufficient to cause death instantaneously. He has stated that he did not find any incised wound on the deceased.

11. P.W.12 Dr. Rakesh Kr. Sinha is the Medical Officer who had examined Kalo Devi, the wife of the informant as also the informant Prabhuwan Bhuiyan on 16.05.1989. On Kalo Devi he had found the following injuries:- (i) Swelling 1” x ½” right forearm above wrist. (ii) Swelling 1” x 1” dorsum of left hand. Both injuries were caused by hard and blunt substance such as Lathi, and were simple in nature. He has identified the injury report of Kalo Devi to be in his pen and signature, which was marked Ext-2. Upon Prabhuwan Bhuiyan, he had found the following injuries:- (i) One incised wound 3” x 1” x ½” left axilla with bleeding. (ii) One incised wound 2” x ½” x facia deep left forearm. 6 (iii) Lacerated wound 1” x ½” x skin deep over right parietal region. (iv) Lacerated wound 1” x ½” x skin deep left forearm below elbow. (v) Incised wound 1” x opposing edge x ½” deep between index and middle finger right hand. (vi) Abrasion 1” x 1” right leg above ankle posterior surface. (vii) Abrasion 2” x 1” over bruise of 2” size at 1” lateral to injury No. (vi). (viii) Two linear bruises 4” x ½” over left scapula and 3´x 1” over left supra scapular area. He has stated that injuries (i), (ii) and (v) were caused by sharp edged weapon such as Tangi, whereas injuries Nos. (iii), (iv), (vi), (vii) and (viii) were caused by hard and blunt substance such as Lathi. Injuries (i) to (vii) were simple in nature, but opinion with respect to injury No. (viii) was kept reserved for X-Ray which was not brought before him. He has identified the injury report of the informant Prabhuwan Bhuiyan, which was marked Ext-2/1.

12. Four witnesses were examined in behalf of the defence out of whom, D.W.-1 Bikau Bhuiyan and D.W.-2 Sachidanand Shukla, are the witnesses on the point of alibi of the accused Mahipat Bhuian (since dead), and hence they are not of much importance now. D.W.-3, Bhardul Bhuiyan, has come to depose that one Nihora Shukla had entered the house of the informant prior to occurrence and had outraged the modesty of the wife of Pradeep Bhuiyan, the brother of the informant, for which a police case was also instituted. The case of the defence is that the occurrence had taken place due to this case. D.W.-4 Mahesh Prasad is a formal witness, who had proved the F.I.R. and charge-sheet of two cases which were marked Exts.-‘A’ series and ‘B’ series respectively. 7 13. Learned counsel for the appellants has submitted that the impugned Judgement of conviction and Order of sentence passed by the Trial Court below are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, even though it is stated by the witnesses that the persons nearby had also assembled, but none of the independent witnesses have been examined in this case. It is submitted that all the witnesses are the interested witnesses being the family members of the informant and they have only supported the prosecution case. Learned counsel has also submitted that there are discrepancies in the evidence of the witnesses also and ocular evidence is not supported by the medical evidence, inasmuch as, no injury caused by any sharp cutting weapon was found on the deceased, even though there is specific allegation of assault on him by Tangi also. Learned counsel for the appellants has also submitted that the Investigating Officer of the case has not been examined in the case which has caused prejudice to the defence. However, learned counsel could not point out anything from the evidence, causing prejudice to the defence due to non-examination of the I.O. In support of his contentions, learned counsel has placed reliance upon the decisions of the Hon'ble Supreme Court of India in Amar Singh and Ors. Vs. State of Punjab, reported in (1987) 1 SCC679 Mani Ram and Ors Vs. State of U.P., reported in 1994 Supp (2) SCC289 Kapildeo Mandal and Ors. Vs. State of Bihar, reported in (2008) 16 SCC99 and of this Court in Govind Sah Vs. State of Jharkhand, reported in 2004 (1) East Cr. C. 557 (Jhr), and other cases.

14. Learned counsel for the prosecution on the other hand has submitted that the eye witnesses of this case are the natural eye witness, who had come to the rescue of the informant at the time of occurrence being the family members. The place of occurrence is just besides the house of the informant and accordingly, these witnesses are the natural witnesses whose testimony cannot be disbelieved. It is also 8 submitted that the ocular evidence of these witnesses is fully supported by the medical evidence of P.W.-9 Dr. Kamendra Singh and P.W.-12, Dr. Rakesh Kr. Sinha. Upon the deceased though there were only lacerated wounds, but the doctor has stated that it could be caused by the blunt portion of the Tangi also and the injuries collectively were sufficient to cause the death of the deceased, whereas one injury was individually sufficient to cause the death of the deceased. On the informant several injuries were found, including the injuries caused by sharp cutting weapon such as Tangi and caused by hard and blunt substance such as Lathi, which fully corroborate the prosecution case. It is submitted by the learned counsel that on the basis of these evidences the prosecution has been able to prove the charge against the appellants beyond all reasonable doubts.

15. Having heard learned counsels for both the sides and upon going through the record, we find that the informant Prabhuwan Bhuiyan who was examined as P.W.8, has fully supported the prosecution case. Though this witness has stated that his wife was also assaulted by the appellant Hariher Bhuian and her injury report has also been proved in the case, but the fact remains that this allegation is not there in the F.I.R. and no charge was also framed for this evidence. However, so far as the allegation of assault by the accused persons on himself and his deceased father are concerned, this witness has fully supported the prosecution case and this evidence is also fully supported by P.W.-1 Biro Bhuiyan, P.W.-3 Kalo Devi, P.W.-4 Puna Devi, and P.W.-5 Radhika Devi, who are all the eye witness to the occurrence. P.W.-2 Bal Kuar Bhuiyan and P.W.-7 Mahangoo Bhuiyan have also supported the case as hearsay witness as they were informed about the occurrence and they reached Jagatpurwa More, where they saw the dead body of the deceased on the rickshaw and the informant and his wife injured. One rickshaw puller, P.W.-10 Ramjit Bhuiyan has also supported the fact that the victims were being taken on two rickshaws and in the way the deceased died. 9 These ocular evidences are fully corroborated by the medical evidence of P.W.-9 Dr. Kamendra Singh and P.W.-12 Dr. Rakesh Kr. Sinha, and the post-morten report of the deceased and the injury report of the informant proved by them as Exts.-1 and 2/1 respectively. We are of the considered view that in view of the specific allegations against these surviving appellants also to have assaulted the deceased as well as the informant by Lathi and injuring them in the furtherance of the common intention of all, the offences are clearly made out against them under Sections 302 / 34 of the Indian Penal Code for causing the death of the deceased Raman Bhuiyan and under Sections 307 / 34 of the Indian Penal Code for assaulting the informant Prabhuwan Bhuiyan with the intention to cause his death. The conviction of the appellant Hariher Bhuian for the offence under Section 323 of the Indian Penal Code for causing hurt to P.W.-3, Kalo Devi, cannot be sustained in the eyes of law for the reason already stated above.

16. Accordingly, we hereby set aside the conviction of the appellant Hariher Bhuian for the offence under Section 323 of the Indian Penal Code, but the conviction and sentence of both these appellants for the offence under Sections 302 / 34 of the Indian Penal Code, for causing the death of the deceased Raman Bhuiyan and their conviction for the offence under Sections 307 / 34 of the Indian Penal Code, for causing hurt to the informant Prabhuwan Bhuiyan with intention to cause his death, are hereby, confirmed. We do not find any illegality in the impugned Judgement of conviction and Order of sentence dated 05.09.1992 passed by the learned Second Additional Sessions Judge, Palamau in S.T. No. 172 of 1990, to the aforesaid extent.

17. Consequently, we find no merit in this appeal and the same is accordingly, dismissed. Both the appellants are on bail. Their bail bonds are hereby, cancelled. Both the appellants are directed to surrender forthwith in the Court below to serve out the sentence. The Trial Court 10 below is also directed to forthwith issue process compelling the production / surrender of the appellants for serving out the sentence.

18. Let the Lower Court Records be sent back forthwith along with the copy of this Judgement. (H.C. Mishra, J.) Dr. S.N. Pathak, J.:- (Dr. S.N. Pathak, J.) Jharkhand High Court, Ranchi. Dated the 16th of May, 2017. D.S./N.A.F.R.