Md. Sainul vs State of Bihar - 2022 Supreme(Pat) 394

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 394

IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and RAJESH KUMAR VERMA, JJ.
(24.6.2022)
Criminal Appeal (DB) No.881 of 2015
Md. Sainul & Anr. : Appellants
Vs.
State of Bihar : Respondent

Advocates appeared:
For the Appellants : M/s Bimlendu Mishra, Mr. Sanjay Sinha.
For the State : Mr. Ajay Mishra , A.P.P.

Headnote:
Indian Penal Code, 1860 – Sections 324 and 302 read with 34 – Murder and hurt – Common intention – Life sentence – Considering nature of internal damage caused by blow of sword stick, one has to conclude that said blow was certainly inflected with intention of causing death – Prosecution has certainly established offence under Section 300 of Indian Penal Code, punishable under Section 302 of Indian Penal Code as against accused no.1 – Star witnesses for prosecution are close relatives of deceased – F.I.R. cannot be an encyclopedia of crime and each and every fact trivial is not required to be mentioned in F.I.R. – Conviction and sentence partly affirmed. (Paras 14, 19, 21, 32, 35 and 36)
Criminal Law – Appreciation of evidence – As a rule of caution and prudence, evidence of such close relatives is required to be scrutinized carefully and if same is found to be wholly trustworthy and reliable, then conviction can be based on testimony of such witness – Close relative cannot be characterized as an interested witness – Close relatives, on many occasions are natural witnesses to incident and there is no proposition of law that relatives are untruthful witnesses – On the contrary, there is no possibility that such close relatives would save actual culprits and falsely implicate accused. (Para 14)
Indian Penal Code, 1860 – Section 300 – Murder – Intention of person causing injury has to gathered from careful examination of facts and circumstances of each case – Intention to cause requisite type of injury is a subjective inquiry and then there would be further inquiry whether injury was sufficient in ordinary course of nature to cause the death is of objective nature – "Merely because death of human being is caused is not enough to constitute offence of murder – Unless one of mental status mentioned in ingredient of Section 300 is present, act causing death cannot amount to culpable homicide amounting to murder – It must be proved that there was intention to inflict particular bodily injury actually found to be present – Culpable homicide" is genus and "murder" is species – "Culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder" – Even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature and did not extend to intention of causing death, offence would be that of murder. (Paras 23, 24, 26 and 28)
Shubhendu Nath Tewary Vs. The State of Bihar, 2007 (1) PLJR 90 – Referred.
Ganesh Datt Vs. State of Uttarakhand, (2014) 12 SCC 389 ; Bunnilal Chaudhary Vs. State of Bihar, AIR 2006 SC 2531 ; Buddhu Singh, Ledwa Singh and Another Vs. State of Bihar, 2011(3) PLJR (SC) 20 – Distinguished.
Namdeo Vs. State of Maharashtra, (2007) 14 SCC 150 ; Harbans Kaur Vs. State of Haryana, (2005) 9 SCC 195; Willie Slaney V/s State of M.P. AIR 1956 SC 116; Kirkar Singh V/s State of Rajasthan (1993) 4 SCC 238; Virsa Singh Vs. State of Punjab, AIR 1958 SC 465; Jai Prakash Vs. State (Delhi Administration), (1991)2 SCC 32 ; Chahat Khan Vs. State of Haryana, (1972)3 SCC 408, Chamru Bhdhwa Vs. State of M.P., AIR 1954 SC 652; Pulicherla Nagaraju Vs. State of A.P. (2006) 11 SCC 444; Singapagu Anjaiah Verus State of A.P.,(2010) 9 SCC 799; State of Rajasthan Vs. Kanhaiya Lal, (2019) 5 SCC 639 – Relied.

A. M. Badar, J.:–By this appeal, appellant/convicted accused no.1 Md. Sainul and appellant/convicted accused no.2 Md. Jabbar are challenging the Judgment and Order dated 31.08.2015 and 04.09.2015 respectively passed by the learned 7th Additional Sessions Judge, Bhagalpur, in Sessions Trial No.866 of 2012 thereby convicting both of them of offences punishable under Sections 324 and 302 read with 34 of the Indian Penal Code. By the impugned order, they both of them were sentenced to undergo imprisonment for life apart from a direction to pay fine of Rs.5000/- by each of them and in default, to undergo simple imprisonment for six months for the offence punishable under Section 302 read with 34 of the Indian Penal Code. They were also sentenced to undergo simple imprisonment for three years for the offence punishable under Section 324 read with 34 of the Indian Penal Code with direction that the substantive sentences shall run concurrently. For the sake of convenience, the appellants shall be referred to in their original capacity as “accused no.1 Md. Sainul” and “accused no.2 Md. Jabbar”.

2. Facts in brief leading to the prosecution of the accused persons as gathered from the police report can be summarized thus:—

(a) Accused no.1 Md. Sainul and accused no.2 Md. Jabbar were resident of village-Ismailpur Garhotiya falling under the jurisdiction of Police Station-Lodipur of District- Bhagalpur. Md. Azad, chargesheeted accused no.3, was their father, who died during the pendency of the trial. According to the prosecution case, all accused persons in furtherance of their common intention, caused hurt by means of dangerous weapon- Gupti (sword stick) to Md. Mintu (since deceased) and committed his murder at about 08.00 P.M. of 06.12.2011 at their village-Ismailpur Garhotiya.

(b) It is case of the prosecution that P.W.8 Md. Shamsul is maternal uncle of Md. Mintu (since deceased) and Md. Nahid, the first Informant, is brother of the deceased. Marriage of Md. Mintu was fixed with younger daughter of P.W.8 Md. Shamsul and, therefore, on occasion of Muharram, Md. Mintu came to his native place Ismailpur Garhotiya from Hyderabad where he used to work for earning livelihood.

(c) Accused No.1 Md. Sainul had married Nadira, who is daughter of P.W.8 Md. Shamsul, about 15 years prior to the date of the incident. However, after a long drown legal battle, which lasted for ten years, the couple came to be divorced and accused no.1 Md. Sainul had to pay Mehar to his wife Nadira. Hence, according to the prosecution case, both accused persons, who are brothers, and their father i.e. deceased Md. Azad were having grudge against the prosecuting party and particularly Md. Mintu (since deceased), who was to marry younger daughter of P.W.8 Md. Shamsul.

(d) The incident allegedly took place at about 08.00 P.M. of 06.12.2011. In the evening of that day, on account of Muharram, mourners gathered at the road of the village and P.W.8 Md. Shamsul as well as Md. Mintu (since deceased) were present amongst those mourners. First Informant Md. Nahid (P.W.6) was also present there. At that time, all accused persons came at that place. It is case of the prosecution that then Md. Azad (deceased accused) exhorted and ordered his son accused no.2 Md. Jabbar to accomplish the task. Thereafter, accused no.2 Md. Jabbar pushed Md. Mintu causing his fall. Immediately, thereafter, accused no.1 Md. Sainul, at the instance of his father Md. Azad whipped out a Gupti (sword stick) and gave a blow thereof on left side of chest of Md. Mintu. Then taking that Gupti with them, the accused persons flee from the spot by uttering that their job is over. The murderous assault, according to the prosecution case, was done by the accused persons in order to spoil the intended marriage of Md. Mintu with younger daughter of P.W.8 Md. Shamsul, ex father-in-law of accused no.1 Md. Sainul. Because of this stab wound, Md. Mintu died on the spot itself.

(e) On getting information of the incident, P.W.13