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1999 (4) Crimes 481
PATNA HIGH COURT (DB)
R.N. Sahay and B.P. Sharma, JJ.
Munni Lal Kumhar and others - Appellants
versus
State of Bihar - Respondent
Crl. Appeal No. 534 of 1986
Decided on 7-7-1999
Counsel for the parties:
For the Appellants: M/s. P.N. Pandey. Sr. Advocate with Mr. Pramod Kumar. Advocate.
For the Informant: Mr. Prabhat Kr. Verma, Advocate.
For the Respondent: Mr. Kamta Prasad Gupta, A.P.P.
IMPORTANT POINT
When accused persons armed with weapons went to raise a protest and deceased was hit by one of them on his head rest of accused could not held liable for murder with aid of Section 34 IPC.
Headnote:Indian Penal Code, 1860 - Sections 3021.34, 323/34 and 325/ 34 - Appellant No.1, since deceased, armed with farsa and rest of accused armed with lathi, assaulted deceased and prosecution party - Issue was piling of bricks on land which was protested to by appellants - According to FIR only deceased-appellant had assaulted deceased on his head with farsa - Trial Judge was not right in his finding that some of the accused had assaulted deceased on his head - Appellants had gone to protest and there was altercation and deceased was hit by appellant, now deceased - Rest of appellants could not be held liable for murder charge with aid of Section 34 IPC - Conviction of these appellants for other offences called for no interference. (Paras 11 to 14)
Result: Appeal allowed partly.
JUDGMENT
R.N. Sahay, J. - This is an appeal against the judgment and order of the Sessions Judge. Gopalganj dated 18th September. 1986 in Sessions Trial No. 49/81, whereby the appellants before us, namely, Muni Lal Kumhar, Guru Dayal Kumhar, Jhagru Kumhar and Mahesh Kumhar alongwith one Benchu Kumhar were charged and tried under Sections 302/34, IPC for having committed murder of Suleman Hajam in furtherance of their common intention. They were also tried under Sections 323/34. IPC for voluntarily causing hurt to Basiruddin Hajam and Chhedi Hajam. Jhagru Kumhar and Mahesh Kumhar were further charged under Section 325. IPC for causing voluntarily grievous hurt to Chhedi Hajam. Muni Lal Kumhar was also charged under Section 148. IPC for being armed with pharsa and the rest were charged under Section 147, IPC for committing rioting.
2. Benchu Kumhar was acquitted while these appellants were convicted and sentenced to imprisonment for life and also convicted under Sections 323/34. IPC and sentenced to six months imprisonment. Appellant Jhagru Kumhar has been further convicted under Section 325, IPC and sentenced to R.I. for two years. All the sentences were directed to run concurrently.
3. Appellant No.1 Muni Lal Kumhar, who was principal accused in the case died in an accident on 26-9-1995 is Bokaro Hospital. The appeal of this appellant, therefore stands abated.
4. The incident which led to the trial and conviction of the appellants happened on 10th June, 1980 at village Jagmalwa, PS. Manjhagrah (Thawe) in the district of Gopalganj. Following is the summary of evidence on the strength of which the Sessions Judge convicted the appellants. On 10-6-1980 at about 9.00 a.m. Basiruddin Mian alongwith the deceased Suleman Hajam and Chhedi Hajam were piling bricks at their door. The appellants are alleged to have protested while the bricks were piled. Muni Lal Kumharwas armed with farsa and the rest were armed with lathi. Suleman replied that he was piling the bricks over has land. Muni Lal Kumhar claimed the land to be his and asked Suleman Hajam not to pile his bricks. The acquitted accused Benchu Kumhar, who was at his door instigated the appellants to assault. Appellant Muni Lal Kumhar gave a farsa blow on Suleman who fell down. Chhedi Hajam went to his rescue. Then. Jhagru Kumhar have a lathi blow on his hand as a result of- which has hand was fractured and Chhedi Kumhar also fell down. Appellant Guru Dayal assaulted him with lathi on his head whereas appellant Mahesh Kumhar assaulted him on his waist by lathi.
5. The informant Basiruddin went to the rescue of the two injured whereupon Mahesh Kumhar assaulted him. Jhagru Kumhar assaulted the deceased with lathi on his forehead and Guru Dayal Kumhar assaulted on his knee. On hulla many persons arrived there. After the three injured had fallen down, the accused persons further assaulted them With lathi and fled away. The three injured were taken to Gopalganj Hospital on a Tyre-Cart. The fardbeyan of Basiruddin was recorded by the police on the same day at 12.00 noon. The house of the informant Basiruddin was on the old Gharari, whereas the houses of his two brothers Chhedi and deceased Suleman were of the newly purchased land. Abdul Bari, the son-in-law of the deceased was living as Ghar Jamai. Suleman died the same day at 3.00 p.m. in the hospital. Basiruddin's evidence is that the land where the bricks were being piled leading to the occurrence was settled with Chhedi and Abdul Bari by Bhudan Committee. The factum of settlement of land was disputed by the defence. The defence claimed the disputed land to be in their possession. It was alleged that the prosecution. It was alleged that the prosecution party was forcibly piling the bricks in order to dispossess the appellants from the said land.
6. Learned Sessions Judge on appraisal of the evidence found that the occurrence in question in which Suleman received injuries resulting in his death was admitted fact. Dr. Laxmi Chand Prasad
