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2022 Supreme(Pat) 174
IN THE HIGH COURT OF JUDICATURE AT PATNA
A.M. Badar, Sunil Kumar Panwar, JJ.
Baidhyanath Mukhiya S/o Late Laxmi Mukhiya - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No.483, 526 of 2014
Decided On : 12-04-2022
Advocate Appeared:
For the Appellant :Mr. Binod Murari Mishra, Advocate, Mr. Bashistha Mishra, Advocate
For the Respondent:Dr. Mayanand Jha, Senior Advocate (A.P.P.)
Headnote:
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Questions which are put to accused while exercising powers under Section 313 of Code of Criminal Procedure must be simple – Each circumstance is required to be put up to accused separately – Complex questions are required to be awarded – Object is to afford accused a fair and proper opportunity of explaining circumstances which appear against him in order to follow principles of natural justice – In order to give a fair chance to accused to defend himself, all incriminating material is required to be put to him and material which is not put to accused is required to be eschewed from consideration. (Paras 5 and 6)
Indian Penal Code, 1860 – Section 302 – Murder – Homicidal death of victim can be proved even on the basis of circumstances provided that evidence adduced by prosecution on this aspect unerringly leads to only conclusion of guilt of accused – Discovery of dead body has never been considered as only mode of proving corpus delicti in cases relating to murder – One of essential ingredients of offence of murder is proof of fact that deceased died homicidal death but "body" doctrine is merely a rule of caution and if evidence on record unerringly points out that accused had caused death of victim alleged to have been killed, offence can be made out. (Para 10)
Criminal Law – Appreciation of evidence – Falsus in uno, falsus in omnibus is a principle which cannot be applied in an Indian culture – Many time under the impression that their versions may not be accepted by Court, the witnesses try to add embellishment – However, it becomes duty of Court to find out acceptable portion from evidence of such witnesses who are deposing truth partially – Evidence of such witnesses who are not wholly reliable is required to be accepted when it is corroborated by other evidence on record. (Para 11)
Indian Penal Code, 1860 – Sections 302/34 and 201/34 – Arms Act, 1959 – Section 27 – Murder and disappearance of evidence – Common intention – Life sentence – Dead body of victim of subject crime could not be found after incident – Incident in question took place at the spot surrounded with flood water – Evidence on record shows that incident took place in field submerged in flood water – All three eye witnesses have consistently deposed about prosecution case including the fact that that at the time of incident the water level of flood was consistently increasing and incident took place at place surrounded by flood water – Relevant circumstance was rightly put to accused – Conviction and sentence partly affirmed. (Paras 10, 17, 20 to 23)
JUDGMENT :
A.M. BADAR, J.
Criminal Appeal (DB) No.483 of 2014 has been filed by appellant/convicted accused Baidhyanath Mukhiya whereas Criminal Appeal (DB) No.526 of 2014 has been filed by appellant/convicted accused Basu Yadav. Both of them are convicted on 28.04.2014 by the learned Adhoc Sessions Judge-IV, West Champaran, Bettiah, in Sessions Trial No.407 of 2009 for the offence punishable under Section 302 read with 34 and under Section 201 read with 34 of the Indian Penal Code. On 30.04.2014, they came to be sentenced to suffer imprisonment for life and fine of Rs.20000/-each as well as rigorous imprisonment for three years and fine of Rs.5000/- each on each count respectively. In addition, appellant/convicted accused Basu Yadav is also convicted of the offence punishable under Section 27 of the Arms Act and is sentenced to suffer rigorous imprisonment for three years apart from fine of Rs.5000/-. Substantive sentences are directed to run concurrently by the learned trial court. For the sake of convenience, appellants/convicted accused shall be referred to in their original capacity as ‘accused’.
2. Facts in brief leading to the prosecution of the accused can be summarized thus :
(a). It is alleged by the prosecution that the accused persons, in furtherance of their common intention, had committed murder of Gulli Mukhiya on 16.07.1996 and caused disappearance of evidence of the offence by letting the dead body to flow in the flood water. It is averred by the prosecution that accused Basu Yadav used gun in contravention of the provisions of the Arms Act for committing this offence.
(b). Janki Devi is widow of deceased Gulli Mukhiya. She lodged the F.I.R. of the incident on 17.07.1996. According to the prosecution case, Janki Devi who happens to be resident of village-Dehi Madarpur under the Police Station-Jogapatti, District-West Champaran, was doing agricultural operations near her house at about 05.00 P.M. of 16.07.1996. At that time, her daughter P.W.3 Dhanraji Devi came to her and disclosed her that Shankar Yadav, Ashraf, accused Basu Yadav and two others abducted Gulli Yadav on the point of guns and had taken him away. First Informant/P.W.6 Janki Devi also came to know about this fact from a lady named Gujri Devi, who in addition also disclosed name of accused Baidhyanath Mukhiya as one of the abductors. Hence, P.W.6 Janki Devi along with her nephews P.W.4 Dinesh Mukhiya and P.W.5 Dular Mukhiya went in search of her husband Gulli Yadav. They saw that at the field of sugarcane in between Madarpur Mallah Tola and Chaumukha village, accused Basu Yadav along with Shankar Yadav and Ashraf fired the bullets from the guns and murdered Gulli Mukhiya. When P.W.4 Dinesh Mukhiya and P.W.5 Dular Mukhiya tried to reach to victim Gulli Mukhiya, they were shooed away on the point of guns. At that time, there was flood on the spot of the incident and the flood water was increasing continuously. Therefore, P.W.4 Dinesh Mukhiya, P.W.5 Dular Mukhiya and P.W.6 Janki Devi could not reach up-to the dead body of Gulli Mukhiya. They returned to their house and on the very next day, P.W.6 Janki Devi lodged report of the incident which came to be recorded by P.W.7 Shivjee Singh the Investigating Officer at the house of P.W.6 Janki Devi. Accordingly, the subject crime came to be registered. The wheels of investigation were then set in motion.
(c).During the course of investigation, the Investigating Officer visited the spot of the incident in order to trace out the dead body. However, because of flood, the dead body was found to be flown away and it could not be recovered.
(d). Statements of the witnesses came to be recorded. Accused persons were arrested and on completion of investigation, they came to be chargesheeted. However, accused Shankar Yadav was reportedly dead by that time.
(e). Charge for the offences punishable under Sections 302, 201 read with 34 of the Indian Penal Code came to be framed against both the accused persons and in addition,
