Parsuram Roy And Anr vs State Of Bihar
2022 Latest Caselaw 1450 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.259 of 1995
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1. Parsuram Roy, son of Bhagwat Roy and

2. Umesh Roy, son of Jamuna Roy, both residents of village - Chak Pariyag, Police Station : Parbatta, District - Khagaria.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Anukriti Jaipuriyar, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 02-03-2022

In the instant appeal, the appellants Parsuram Roy and

Umesh Roy have challenged the judgment of conviction and

order of sentence dated 22.08.1995 and 24.08.1995 respectively

passed by Shri Diwakar Jha, 2nd Additional Sessions Judge,

Khagaria in Sessions Trial No. 564 of 1989 arising out of

Parbatta P.S. Case No. 26 of 1989.

2. By the aforesaid judgment, appellant no.1 Parsuram

Roy had been convicted for the offence punishable under

Section 302 of the Indian Penal Code and appellant no.2 Umesh

Roy had been convicted for the offence punishable under

Sections 302/114 of the Indian Penal Code. After hearing on the

point of sentence vide consequential order, the trial Court

sentenced the appellants to undergo rigorous imprisonment for

life.

Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

3. It would be proper to mention here that in this case

appellant/accused Parsuram Roy stands charged of the offence

under Section 302 of the Indian Penal Code. Appellant no.2

Umesh Roy stands separately charged for the offence under

Sections 302/114 of the Indian Penal Code. Other accused Wakil

Roy, Bhola Rai, Borhan Roy, Bhumi Roy and Sanjay Roy stand

separately charged for the offence under Sections 302/149 of the

Indian Penal Code. After hearing the parties, the learned trial

Court was pleased to convict appellants by holding that they are

guilty of the offence of commission of murder of the deceased,

namely, Buchi Chaudhary. Rest of the accused persons, namely,

Wakil Roy, Borhan Roy, Bhumi Roy, Bhola Roy and Sanjay

Roy came to be acquitted, hence, this appeal by the appellants.

4. The prosecution case recapitulated as here under is

based on the fardbayan of one Rambaran Chaudhary (PW-8)

dated 03.03.1989 disclosing the fact that at about 1.00 P.M., the

informant had been in his field in Mauja Chakprayag to watch

his Khar stored in the field, 15 days ago the day of report and

found Parsuram Roy, Wakil Roy son of Bhagwat Roy, Umesh

Roy, Yamuna Roy, Pappu Roy son of Umesh Roy, Bhagwat Roy

son of Shiv Charan Roy, Sanjay Roy son of Bhagwat Roy,

lifting bundles of Khar belonging to the informant. It further Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

transpires that the informant made protest against lifting of Khar

whereupon accused above named started abusing the informant.

It further reveals that the informant, but of fear, made as retreat

to his house and disclosed what happened in the field to the

family members. It further transpires that at about 2.30 P.M. the

aforesaid accused reached on the unmetalled road in front of the

house of Ramanand Chaudhary to the west of the Ring Bandh

with Khar laden on two bullock carts. It further reveals that the

informant asked Buchi Chaudhary to stop bullock carts and in

the meantime Parsuram Roy, Pappu Roy and Sanjay Roy

jumped down from bullock carts and ran to their houses and

Parsuram Roy armed with country made gun, Pappu Roy armed

with DBBL gun and Sanjay Roy armed with country made

pistol returned to the place of occurrence. It further transpires

that Bhumi Roy, Bhola Roy, Mantlal Roy armed with lathi

followed the aforesaid three accused persons. It further

transpires that Umesh Roy ordered Parsuram Roy to shoot at

and Parsuram Roy opened fire from his country made gun at

Buchi Chaudhary. It further reveals that Buchi Chaudhary

received injury on his chest at the right side and fell down on

the ground. It further transpires that the informant ran to Buchi

Chaudhary and tried to lift him up but Pappu Roy with the Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

intention to cause murder of the informant, opened fire from

DBBL gun but the informant did not sustain any injury. It

further transpires that villagers Yogeshwar Chaudhary (PW-7),

Sajjan, Ramanand Chaudhary (PW-3), Surendra Chaudhary

(PW-2), Damodar Chaudhary and others assembled at the place

of occurrence on the sound of gun fire. It further reveals that

Buchi Chaudhary succumbed to the injury.

5. The Investigating Officer, Navin Prasad (PW-9)

registered Parvatta P.S. Case No. 26 of 1989 on 03.03.1989

under Sections 147, 148, 149, 379, 307 and 302 of the Indian

Penal Code and Section 27 of the Arms Act against the accused

persons and took up the investigation. After completing the

investigation, chargesheet has been submitted against all the

accused persons after finding the case true against them.

Thereafter, the case was committed to the Court of Sessions for

trial and disposal. The charges were read over and explained to

the accused persons to which they pleaded not guilty and

claimed to be tried. Their defence is that they have been falsely

been implicated in this case due to enmity.

6. To substantiate the charges levelled against the

accused persons, altogether nine witnesses have been examined

on behalf of the prosecution.

Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

7. PW-1 Barun Chaudhary stated in Court that on

03.03.1989 at about 2 and 2.30 P.M, while he was on the way

from Bahiyar after watching the field, he heard hulla and sound

of gun firing and when he arrived at Ring Bandh, he ran to the

road in front of the Darwaja of Ramanand Chaudhary and saw

Umesh Roy (appellant), Parsuram Roy (appellant), Wakil Roy,

Pappu Roy, Mantlal Roy, Borhi Roy, Bhumi Roy and Bholi

Roy standing there. Parsuram Roy was armed with country

made gun, Pappu Roy was armed with DBBL gun, Sanjay Roy

was armed with 303. and others were armed with lathi. The

accused fled away towards south on his arrival at the place of

occurrence. He saw gun shot injury on the right side of the chest

of the deceased Buchi Chaudhary. The blood was oozing out

and he saw blood stains on the grass.

8. PW-2 Surendra Chaudhary has deposed about the

alleged occurrence as stated by the informant, namely, Ram

Baran Chaudhary because of he does not claim to be an eye

witness of the alleged occurrence.

9. PW-3 Ramanand Chaudhary is claimed to be an eye

witness and stated that the alleged occurrence took place

thirteen (13) months ago from the date of deposition in the

Court on Friday at 2.00 and 2.30 P.M. in the day. He also stated Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

that on Hulla, he went out of his Darwaja and went to the place

of occurrence. He also stated that Parsuram Chaudhary fired at

the chest of deceased Buchi Chaudhary on the order of Umesh

Roy.

10. PW-4 Ramdeo Chaudhary also claims to be an eye

witness to the alleged occurrence and asserted about the place of

occurrence and manner of occurrence in his evidence before the

court.

11. PW-5 Ramawtar Chaudhary stated that the alleged

occurrence took place on 03.03.1989 and he was at the place of

occurrence when the police came and seized the blood stained

straw and prepared seizure list which was identified and marked

as Ext-3/1.

12. PW-6 Dr. Awadhesh Kumar Yadav proved the

postmortem report which prepared by him and he found one

circular lacerated wound of 1" diameter with inverted margin

over right second inter coastal space in the right mid clavicular

wound of entrance. Blood was oozing out of the wound

surrounding skin over 2" diameter from the centre of the wound.

He multiple black pin points charred dot. There was no wound

of exit. On dissection, there was extra vasation of blood and

blood clots in the subcutaneous tissues in association with the Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

injury mentioned above. The third right rib in mid clavicular

was found fractured. The pleura under line the wound was

ruptured. The right lobe of the lung was ruptured. Cyllindircal

wad right structure (card board) was found lodged inside the

right lobe of the lung. This was taken out and preserved in a

sealed bottle, and handed over to the constable. The right side of

the thoraxic cavity was full of blood. The heart was empty. The

left lung spleen, kidney, lever were pale. The bladder was

empty. The above mentioned injury were antemortem in a

nature caused by firearm may be a country made firearm such a

gun. Cause of death in his opinion was due to haemorrhage and

shock due to the aforesaid injury. Time elapsed since death was

within 12 to 24 hours of the postmortem examination. This

postmortem report (carbon copy) was identified in my pen and

signature. It has been marked Ext-4.

13. PW-7 Yugesh Chaudhary also stated about the fact

as asserted by the informant to him in respect of the alleged

time of occurrence. He does not claim to be an eye witness.

14. PW-8 Ram Baran Chaudhary, the informant and star

witness of this case, has stated about the place of occurrence,

manner of occurrence and time of occurrence. He deposed that

the alleged occurrence took place about two and half years from Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

the date of deposition in the Court at 2.30 P.M. while this

witness had been to watch his field in Mauja Chakprayag at

about 1.00 P.M. The witness stated that he had stored the

bundles of khar in the field and the khar bundles were being

loaded on the bullock carts by Parsuram and Wakil. The witness

stated that Umesh, Pappu, Sanjay, Borhan, Bhumi were loading

bundles of khar on two bullock carts. He made protest

whereupon the accused got irritated and abused the witness. He

came to his house and told his uncle and Buchi Chaudhary

(deceased), his cousin about the occurrence. Thereafter he

accompanied by Buchi Chaudhary (deceased) came to the place

and saw bullock carts in front of the house of the Ramanand

Chaudhary. He asked for khar bundles. Pappu, Parsuram,

Sanjay were on the bullock cart. Borhi, Umesh, Wakil were with

the bullock carts. Parsuram, Pappu and Sanjay jumped down

from the bullock cart and Pappu and Parsuram armed with gun

and Sanjay armed with 303., Bhola, Bhumi and Mantlal armed

with lathi came and Umesh ordered Parsuram to fire whereupon

Parsuram fired and caused gun shot injury at the side of the

chest of the deceased Buchi Chaudhary fell down. The witness

stated that Pappu fired at the informant as soon as the informant

tried to lift Buchi Chuaudhary. Ramanand and Ramdeo were Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

also there. Surendra, Yugeshwar came there on hulla. The

accused drove bullock carts seeing the witnesses arrive. Bullock

carts reached at the house of Umesh and the alleged occurrence

of gun shot fire took place at 4.00 P.M. The witness stated that

accused Pappu and Mantlal have been held guilty by the court

of Juvenile Justice Court. He made his beyan before the Daroga

Jee.

15. PW-9 Navin Prasad is the Investigating Officer of

this case. He recorded the Beyan of Rambaran Chaudhary (Ext-

6) at 4 P.M. He recorded the statement of Rambaran Chaudhary

and other witnesses. He also stated about the place of

occurrence and its boundary. He found blood stains on the grass

and straw in little quantity in the eastern portion of bathan of

Ramanand Chaudhary. He did not find any bullock cart near the

place of occurrence and did not find any sign of bullock cart

because of dust on the road. There is ditch at a distance of 20

cubits at the place of occurrence where he found blood stained.

The house of deceased Buchi Chaudhary is situated at north-

west of the place of occurrence. Ring Bandh is situated at a

distance of 250 yards from the place of occurrence.

16. Accused on trial has been examined under Section

313 of the Cr.P.C. and the accused pleaded not guilty and denied Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

to have committed any offence. The accused entered into

defence and examined Chaukidar Keso Paswan as Defence

Witness. He saw the dead body of Buchi Chaudhary on a cot on

the date of occurrence and saw a number of female and children

who were weeping and shouting "Ke Dusmanma Mar Dia".

Ram Baran Chaudhary to go to the police station and he himself

remained there to keep watch on the dead body. He further

stated that Darogajee came and sent the dead body to the police

station along with him and two constables. Ram Baran

Chaudhary did not tell the names of assassin to this witness

while he was with him.

17. The learned Amicus Curiae, Mrs. Anukirti Jaipuriar

for the appellants submitted that the trial Court should have

discarded the statement of PWs, 3, 4 and 8 on the ground that

they have either made contradictory statements or they are the

partisan, interested and inimical witnesses.

18. Learned counsel on behalf of the State submits that

Pws. 3, 4 and 8 who claim to be an eye witnesses of the alleged

occurrence supported the prosecution by their consistence

evidence. The doctor also proved the postmortem report and

also supported the prosecution case and the prosecution

evidence is in consonance with the medical evidence. He further Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

submits that there is no force in the contention raised on behalf

of the appellants. The deceased succumbed to injury which shot

fire by the appellant no.1 Parsuram Roy on the order of

appellant no.2 Umesh Roy resultantly the deceased fell down on

the ground after receiving gun shot injury.

19. We have gone through the entire prosecution

evidence, from which it transpires that all prosecution witnesses,

i.e., 1, 2, 3, 4, 7 and 8 have deposed about the prosecution

version. PWs. 3, 4 and 8 claimed to be an eye witnesses of the

occurrence. The evidence of Dr. Awadhesh Kumar Yadav (PW-

6) supported and corroborated the prosecution case and the

doctor found gun shot injury on the person of deceased Buchi

Choudhary and he stated that the injury on the person of the

deceased was sufficient to cause of death. According to the

prosecution evidence, it has been established that the appellant

no.1 shot fire upon the deceased due to which he succumbed.

The time of death given by the doctor also corroborates with the

time of the alleged occurrence. We find, no force on the

submission raised on behalf of the appellants that the ocular

evidence has not corroborated with the medical evidence. The

submission is devoid of merit.

20. In this case, PW-8 is the informant, who is the Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

family members of the deceased. It is well settled principle of

law that the evidence of related witnesses should be scrutinized

with care and caution but that itself will not suffer from any

infirmity. Once that approach is made, the Court is satisfied that

evidence of such witness can be relied upon. In this respect, on

scrutiny of the eye witnesses, it is established that there is

consistency in the evidence of the witnesses with respect to the

place of occurrence, time and manner of occurrence and except

minor contradictions, nothing major surfaced to discard their

evidences. Minor contradictions are natural upon the situation

from where occurrence could be seen by them. Parrot like

version would have made their evidence doubtful.

21. We are of the view that in the light of the discussions

as above, it could be safely be concluded that deceased Buchi

Choudhary succumbed to his injury caused by firearm which is

likely to be possible as the injury has been caused by the firearm

weapon of appellant/convict Parsuram Roy.

22. After scrutinizing the entire evidence adduced by

the prosecution, we affirmed that credibility of testimony of

prosecution witnesses create and inspire confidence in our mind.

These evidences are free from major contradictions and

discrepancies in respect of appellant no.1 Parsuram Roy. It is Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

also candid that the prosecution witnesses PWs. 3, 4 and 8 had

personal knowledge and they were present at the place of

occurrence and their evidences are trustworthy.

23. In view of the evidence as discussed above, we see

no merit in the said appeal in respect of appellant no.1 Parsuram

Roy. Hence, we are able to endorse the conviction of the

appellant no.1 Parsuram Roy for the offence punishable under

Section 302 of the Indian Penal Code as recorded by the learned

trial Court and, therefore, the appeal with respect to appellant

no.1 Parsuram Roy, deserves to be dismissed.

24. So far as appellant no.2 Umesh Roy is concerned,

according to prosecution evidence, he is alleged to be an order

giver to the appellant no.1 Parsuram Roy for shot fire upon the

deceased. We have scrutinized the entire evidence in respect of

complicity of this appellant. This appellant convicted under

Section 302/114 of the Indian Penal Code by the learned trial

Court for abatement of commission of murder of deceased

Buchi Choudhary. For application of Section 114 of the Indian

Penal Code, the following things must exist:-

(a) The nature of the act done must constitute an offence,

(b) The act or offence in consequence of abatement is

committed.

Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

25. For the application of Section 114 of Indian Penal

Code, it is necessary that the person must abate the commission

of the offence some times before at different place and then also

is present when the offence is committed. Thus, it is necessary

first to show the circumstances which constitute abatement.

This section is not applicable to a case where the abatement is

committed at the time when the offence takes place and the

abettor helps in the commission of the offence. The prosecution

case is that on the order of the appellant no.2 Umesh Roy, the

appellant no.1 opened fire upon the deceased Buchi Choudhary.

In this juncture, the evidence of PW-8 who is the informant is

necessitated to come to the complicity of the offence in respect

of appellant no.2. This witness stated that appellant no.1

Parsuram Roy, Pappu and Sanjay jumped from the bullock cart

and Pappu and Parsuram Roy armed with gun and Sanjay armed

with 303., Bhola, Bhumi and Mantlal armed with lathi came and

Umesh Roy ordered to Parsuram to fire whereupon Parsuram

Roy fired and caused gun shot injury at the right side of the

chest of deceased Buchi Choudhary and deceased fell down.

This evidence shows that appellant no.2 Umesh Roy had no

knowledge about the gun which carried by the appellant no.1

Parsuram Roy. There is no prosecution evidence that the Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

appellant no.1 was committed the offence upon the instigation

made by the appellant no.2.

26. PWs.3 and 4 who happened to be eye witnesses

deposed in their evidence that Parsuram, Pappu Roy and Sanjay ran

to the house and they returned armed with gun. So it is apparent that

prior meeting for commission of this murder is not conducted

between appellant no.1 Parsuram Roy and appellant no.2 Umesh

Roy, hence it can be inferred that the commission of murder by shot

fire by appellant no.1 is not followed by the command made by the

appellant no.2 Umesh Roy. Appellant no.1 Parsuram Roy brought

fire arm himself from his house and appellant no.2 Umesh Roy has

no knowledge about this fact. He is not aware at the time of

occurrence about this fact that appellant no.1 Parsuram Roy kept the

firearm for commission of murder of deceased Buchi Choudhary, so

it could not be made inference that appellant no.2 uttered to Parsuram

Roy with an intention to kill the deceased.

27. We have taken note of this fact that at the time of

commission of murder, the appellant no.2 was not armed with any

deadly weapon in his hand and mere an advice or simple suggestion

does not come within the purview of abatement in any manner. A

word uttered in anger or emotion without intending the consequences

to actually follow cannot be said to be instigation.

28. The impugned judgment of conviction and order of

sentence imposed on the appellant no.1 Parsuram Roy, for the Patna High Court CR. APP (DB) No.259 of 1995 dt.02-03-2022

offence punishable under Section 302 of the Indian Penal Code by

the learned trial Court is, hereby, confirmed.

29. The impugned judgment of conviction and order of

sentence imposed on the appellant no.2 Umesh Roy for the offence

punishable under Sections 302/114 of the IPC is, hereby, quashed and

set aside and, accordingly, he is acquitted from the charges levelled

against him.

30. Accordingly, the instant appeal is partly allowed.

31. We record our appreciation for extraneous efforts made

by Mrs. Anukriti Jaipuriyar, the learned Advocate appointed as

Amicus Curiae to represent the appellants at the cost of State in order

to assist this Court for arriving at the correct conclusion in the instant

appeal. We also quantify the fees to be payable to her as Rs.5,000/-

(Five thousand) from the Patna High Court Legal Services

Committee.

(Sunil Kumar Panwar, J)

(A.M. Badar, J)

(A.M. Badar, J)

Brajesh Kumar/-

AFR/NAFR
CAV DATE              22.02.2022
Uploading Date        03.03.20222
Transmission Date