Maheshwari Mukhiya and Yogendra Mukhiya vs State of Bihar

B.N.P. Singh, J.—After the buffalo of Maheshwari Mukhiya dashed with the buffalo of Tuntun Yadav (P.W. 4), an altercation ensued between them, pursuant to which it is alleged that Yogendra Mukhiya and Suresh Mukhiya came carrying lathi with them and did assault Tuntun Mukhiya. It was alleged that when Kripal Yadav came for rescue of Tuntun Mukhiya and wanted to restrain the assailants, Buttan Mukhiya and Sitaram along with others came and on exhortation made by Maheshwari Mukhiya, Buttan Mukhiya thrust bhala in the abdomen of Kripal Yadav when the intestine bulged out. It was alleged that Kripal Yadav and Tuntun Mukhiya, pursuant to the assault on Kripal by bhala, were also assaulted by hard and blunt substance. Complicity of Ram Mukhiya, Saryug Mukhiya, Kishundeo Mukhiya, Parmeshwari Mukhiya and Lallan Singh were also suggested among the assailants and with these accusations, fardbeyan of Tuntun Yadav was recorded on 19th May, 1987 at 9.45 hrs. at Sadar Hospital, Saharsa and investigation commenced.

During investigation, the Investigating Officer visited the place of occurrence, recorded statement of witnesses, secured post mortem report from the hospital and on conclusion of investigation, charge sheet was laid before the Court against as many as ten persons including the Appellants. The case was committed to the Court of Session when charges were framed against the Appellants and others. Buttan and Maheshwari Mukhiya were charged u/s 302/149 Indian Penal Code (IPC). While Buttan Mukhiya was also tried for offence u/s 302 IPC simpliciter, Maheshwari Mukhiya, Yogendra and Suresh Mukhiya also stood charged u/s 323 IPC. However, the trial court on consideration of evidence on record, while acquitted rest of the accused persons of the charges finding Buttan Mukhiya and Maheshwari Mukhiya guilty u/s 302/34 IPC, sentenced them to suffer rigorous imprisonment for life. Buttan Mukhiya also suffered conviction u/s 302 IPC and was sentenced to suffer imprisonment for life. Maheshwari Mukhiya and Yogendra Mukhiya also suffered conviction u/s 323 IPC and were sentenced to suffer rigorous imprisonment for six months. However, sentences were directed to run concurrently.

Two appeals were preferred challenging the findings recorded by the trial court and while Cr. Appeal No. 142 of 1995 was preferred by Appellant Buttan, Cr. Appeal No. 110 of 1995 was preferred by Appellant Maheshwari and Yogendra Mukhiya. The matter being analogous, both these appeals were heard together and are being disposed of by this common order.

In the eventual trial, the prosecution examined altogether eight witnesses and those examined by the prosecution include Police officer, who conducted investigation of the case, two doctors, one of whom carried out surgical operation on Kripal Yadav and the other who held autopsy over the dead body of the deceased, pursuant to the death of Kripal Yadav who eventually succumbed to the injuries in the hospital. The witnesses examined by the State also include person who set the Police in motion, brother of the deceased and also those who claimed to be ocular witnesses of the incident. When the Appellants were examined by the Court, u/s 313 of the Code of Criminal Procedure, they reiterated their innocence with counter accusation against the prosecution party and as has been urged, the trial court on consideration of evidences placed on record by both the parties, rendered verdict of guilt against the Appellant and sentenced them in the manner stated above.

For appreciation of the findings recorded by the trial court, a brief resume of the narration made by the witnesses is apt to be discussed. Tuntun Prasd Yadav (P.W. 4) was the maker of the fardbeyan and he would reiterate his early version rendered before the Police barring some stray narration which are admittedly not with the tune of his early version but do not befog the real issue. As in the fardbeyan, he reiterated that tragic incident followed after his buffalo dashed with the buffalo of Maheshwari Yadav when the latter abused him and after they came near the house of Buttan, he was assaulted by Maheshwari, Buttan and Yogendra with hard and blunt substance. After Kripal Yadav came for his rescue on exhortation made by Maheshwari Mukhiya, Buttan thrust bhala in the abdomen of Kripal Yadav. He along with Kripal were carried to Sonbarsa Hospital from where they were referred to Saharsa hospital where he rendered his statement before the Police and as Kripal Yadav was in critical condition, despite treatment, he would not survive and succumbed to the injuries sustained by him.

Now adverting to the evidence of Saini Yadav (P.W. 1), one would find him narrating about arrival of Buttan Mukhiya, Maheshwari Mukhiya Yogendra Mukhiya and others when on exhortation made by Lallan Mukhiya, Buttan pierced bhala in the abdomen of Kripal Yadav and pulled it out on pressing his chest with leg, pursuant to which all took to their heels. Similar narrations were made also by Rameshwar Yadav (P.W. 2) about overt act assigned to the Appellants as the witness would state that after the Appellants came along with others, Tuntun was assaulted by all of them and it was only after Kripal Yadav came for his rescue on exhortation made by Lallan Mukhiya, that Buttan thrust bhala in the abdomen of Kripal Yadav and after he pulled out bhala, all took to their heels. The injured were carried to Sonbarsa Hospital and from there they were referred to Saharsa Hospital where Kripal eventually succumbed to the injuries sustained by him. As for genesis of the incident, the witness would state that the incident followed after the buffalo of Maheshwari Mukhiya and Tuntun Yadav dashed with each other. The other witnesses who had been brought on the witness box to lend assurance to the prosecution allegation, happen to be Ram Pukar Yadav (P.W. 3) and similar narration as that of P.Ws. 1 and 2 had*been made by him about arrival of the Appellants along with others at the place of occurrence who began to assault Tuntun Yadav and after Kripal Yadav came for rescue of the former, on persuasion made by Lallan Yadav, Buttan thrust bhala in the abdomen of Kripal Yadav who dropped on the ground. Similar narrations were made by these witnesses about Buttan having pulled out the bhala on pressing the chest of the injured with his leg. Both the injured were carried to Saharsa Hospital where statement of Tuntun Yadav was recorded to which he was also a signatory.

Ram Narain Singh (P.W. 7), a Police Officer stated to have visited the place of occurrence and recorded the statement of witnesses. The Police Officer stated to have not found the blood marks on the place of occurrence. He stated to have secured post mortem report and also the injury report from the doctors, pursuant to which charge sheet was submitted in the court. Dr. R.R Yadav (P.W. 6) stated to have operated Kripal Yadav who was referred by Sonbarsa Hospital for treatment. The doctor stated to have noticed penetrating wound in his abdomen and in the abdominal cavity there was blood and there was cut mark in the spleen and also there was a small hole in the stomach. Such penetrating wound in the estimation of the doctor was possible by sharp edged weapon like bhala. After Kripal succumbed to the injuries sustained by him, autopsy was held by Dr. Sidheshwar Prasad (P.W. 5) who recorded the following findings in respect of the ante mortem injuries noticed on the person of the injured:

(1) Swelling of oval shape of approximately 2" x 1" on right side of skull.

(2) Operated stitched wound, on the abdomen of 5" long. On dissection of skull, there was a small haemotoma beneath site of the injury No. 1.

The death in the opinion of the doctor was due to shock and haemorrhage.

Shyam Kishore (P.W. 8) was a formal witness who brought some documents on record which have been discussed in the judgment of the court below. This is all the evidence that has been adduced on behalf of the State to lend assurance to the prosecution allegation about guilt of the Appellant and others who were put on trial.

The defence too examined formal witnesses and also Dr. Jawahar Singh (D.W. 2) and also brought on record volume of documents ostensibly with an object either to suggest animosity between the parties persisting from before or to suggest the alleged interestedness of the witnesses The defence came with counter accusation against the prosecution alleging that in the same transaction Buttan and Maheshwari

All are discharged from the liability of bail bond. As has been stated, since Buttan Mukhiya was answerable for the fatal injuries sustained by Kripal Yadav, findings recorded by the trial court u/s 302 IPC simpliciter did not call for interference. However, his conviction and sentence recorded by the trial Court in respect of Appellant Buttan Mukhiya u/s 302/34 appears to be superfluous and is set aside. However, the finding recorded by trial court against Maheshwari Mukhiya u/s 302/34 IPC did not require interference.

Both these appeals are accordingly dismissed with modification, as above. Appellant Maheshwari Mukhiya is shown to be on bail. His bail bonds are cancelled and he is directed to surrender forthwith in the court below to serve the sentence. Trial court is also directed to take him into custody forthwith.

R.N. Prasad, J.

I agree.