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IN THE HIGH COURT OF JHARKHAND
SHREE CHANDRASHEKHAR, RATNAKER BHENGRA, JJ.
Mathura Bari @ Doctor son of late Sidiu Bari and Ors - Appellant
Versus
The State of Jharkhand - Respondent
Criminal Appeal (D.B.) No. 258, 254 of 2014
Decided On : 07-01-2021
IPC - Murder - 302/34 - Summary of Acts and Sections: The court discussed the application of section 34 of the Indian Penal Code (IPC) which holds individuals liable for acts done in furtherance of common intention. The court also examined section 35 IPC, which holds individuals liable for acts done with criminal knowledge or intention. The judgment highlighted the need for evidence to establish common intention and the distinction between common intention and similar intention. The court also emphasized the importance of motive in criminal trials and the reliance on ocular evidence even without establishing motive for the crime.
Fact of the Case:
The accused were charged under section 302/34 IPC for the murder of Harish Chandra Bari. The prosecution presented evidence from witnesses and medical reports to establish the guilt of the accused. However, some witnesses were declared hostile, and there were inconsistencies in their testimonies. The defense argued that the prosecution failed to establish common intention and motive for the murder.
Finding of the Court:
The court found that the evidence presented was contradictory and inconsistent, especially regarding the role of Namsi Kui. The court held that the prosecution evidence was not sufficient to convict the appellants for murder with the aid of section 34 IPC. The court also noted that the evidence did not establish the accused's knowledge and intention as required under section 35 IPC.
Issues: The key issues revolved around the establishment of common intention, motive, and the reliability of witness testimonies. The court also addressed the conflicting statements of the witnesses and the role of Namsi Kui in the crime.
Ratio Decidendi: The court emphasized the need for consistent and reliable evidence to establish common intention and motive in criminal cases. It also highlighted the importance of distinguishing between common intention and similar intention. The court's decision was based on the lack of conclusive evidence to prove the accused's liability under section 34 and section 35 IPC.
Final Decision: The court set aside the conviction and sentence of Namsi Kui under section 302/34 IPC and convicted the other appellants under section 326/34 IPC, sentencing them to RI for ten years. The court also discharged Namsi Kui from liability of the bail-bonds and ordered the release of Mathura Bari, while the remaining appellants were to serve the remaining sentence, if not already undergone with remission.
JUDGMENT :
SHREE CHANDRASHEKHAR, J.
1. In Sessions Trial Case No. 201 of 2010, Chhota Bari @ Chota ( Dumbi Bari, Mathura Bari @ Doctor, Dilip Tubid, Langra Gope and Jade Gope have faced the trial on the charge under section 302/34 of the Indian Penal Code (in short, IPC). A similar charge was framed against Namsi Kui who is daughter of Mathura Bari in Sessions Trial Case No. 236 or 2011. Both the sessions trials were amalgamated and a combined charge under section 302/34 IPC was framed against the above-named accused persons vide order dated 03.01.2012 for committing murder of Harish Chandra Bari @ Haro Bari in furtherance of common intention. By a common judgment dated 22.03.2014, they were found guilty and convicted under section 302/34 IPC and have suffered sentence of RI for life with a fine of Rs. 20,000/- each vide the order of sentence dated 25.03.2014.
2. Cr. Appeal (DB) No. 258 of 2014 has been filed by Mathura Bari @ Doctor and Cr. Appeal (DB) No. 254 of 2014 is on behalf of the other convicts.
3. Both the criminal appeals have been heard together and by a common judgment are being disposed of.
4. On the basis of the fardbeyan of Rani Devi, wife of Harish Chandra Bari @ Haro Bari, which was recorded on 18.07.2010 at about 05:30 PM near the house of Chhota Bari and Mathura Bari at village Bamebasa, Tonto PS Case No. 08 of 2010 was lodged against Langra Gope, Jade Gope, Dilip Tubid, Chhota Bari @ Chota @ Dumbi Bari and Mathura Bari @ Doctor. Subsequently, on an application by the Investigating Officer, Namsi Kui was also added as an accused in the report. After the investigation a charge-sheet was laid against Chhota Bari @ Chota @ Dumbi Bari, Mathura Bari @ Doctor, Dilip Tubid and Langra Gope and by a supplementary charge-sheet dated 30.01.2011 Tamsi Kui was also sent up for trial, while Jade Gope had remained an absconder. This is of some relevance that the charge-sheet /supplementary charge-sheet was filed against the accused persons under sections 147/148/149/341 and 302 r/w section 34 IPC but a charge was framed against them only under section 302/34 IPC. In the trial, the prosecution has examined twelve witnesses and produced inquest report, seizure memo, fardbeyan, formal FIR, the application dated 26.08.2008 seeking permission for recording the statement of Rani Devi and Shailendra Bari under section 164 CrPC, post-mortem report and statement of the witnesses recorded under section 164 CrPC.
5. Shailendra Bari PW-2 who is son of the deceased and Nagu Gape PW-6 who is his nephew were declared hostile at the instance of the prosecution. PW-3, PW-5 and PW-7 who are the independent witnesses have also not supported the prosecution case in the Court. Manki Bari PW-1 is the village Munda, Niti Bari PW-4 and Chandmuni Bari PW-10 are daughters of the deceased and Rani Devi PW-11 is his wife. The learned Sessions Judge, West Singhbhum at Chaibasa has observed that statement of the informant and other witness were taken by the police in course of investigation and PW-4, PW-10 and PW-11 though related witness have fully supported the prosecution case against the appellants.
6. In paragraph No.25 of the judgment, the learned trial Judge held as under:
7. PW-9, Dr. Nand Kumar Pandey who has conducted the post-mortem examination at 12: 15 PM on 19.07.2010 has found several sharp-cutting injuries, compound fractures and lacerate
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