Neutral Citation No. ( 2025:JHHC:11685-DB ) Criminal Appeal (DB) No. 263 of 1997(P) (Against the judgment and order of conviction and sentence dated 10.06.1997 (sentence passed on 11.06.1997) passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in Sessions Case No. 136 of 1996/98 of 1996.) 1. Basant Yadav, S/o Vuso Yadav. 2. Utam Yadav @ Atma Yadav, S/o Kattu Yadav. 3. Brahmdeo Yadav, S/o Vuso Yadav. 4. Buni Lal Yadav @ Bunil Yadav, S/o Kattu Yadav. 5. Subodh Yadav, S/o Vuso Yadav. All residents of Vill- Charka, P.S.- Pathargama, Dist.- Godda. ... Appellants Versus The State of Bihar (now Jharkhand) … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI ---- For the Appellants : Mr. Ram Prakash Singh, Adv. For the State : Mr. Md. Azeemuddin, A.P.P. ---- Dated : 08/04/2025 Per Rongon Mukhopadhyay, J. : 1. Heard Mr. Ram Prakash Singh, learned counsel for the appellants and Mr. Md. Azeemuddin, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 10.06.1997 (sentence passed on 11.06.1997) passed by Sri Swaroop Lal, learned 1st Additional Sessions Judge, Godda in connection with Sessions Case No. 136 of 96/98 of 96, whereby and whereunder, the appellants have been convicted for the offence punishable under Section 302 IPC and have been sentenced to undergo imprisonment for life. 3. The prosecution case arises out of the fardbeyan of Gauri Shankar Bhagat recorded on 15.02.1996, in which it has been stated that at 5:45P.M. on the same day, he was at his home at village Charka, when he heard a sound of alarm at which, he and the other villagers rushed towards Charka More, where he saw his cousin brother Rajkumar Bhagat lying in an injured condition with blood Neutral Citation No. ( 2025:JHHC:11685-DB ) 2 | P a g e oozing out from his head, nose and mouth. The motorcycle of Rajkumar Bhagat was lying beside him. It has been alleged that Hemant Kumar Bhagat and Tunil Bhagat, who had come there to ease themselves, had disclosed that Basant Yadav, Brahmdeo Yadav, Subodh Yadav, Uttam Yadav and Buni Lal Yadav had assaulted Rajkumar Bhagat and had fled away. It has further been alleged that on the same day at 12:00 noon, the accused persons had come to the house of Rajkumar Bhagat and had threatened him as he had objected to the grazing of his barley crops by the cattle of the accused. The injured was brought to Sadar Hospital, where he breathed his last. Based on the aforesaid allegations, Pathargama P.S. Case No. 17/96 was instituted under Section 302/34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 136 of 96/ 98 of 96. Charge was framed against the accused under Section 302 IPC, which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eleven witnesses in support of its case: P.W.1 Gauri Shankar Bhagat has stated that on 15.02.1996, in the evening, he was at home when he heard a cry of alarm from the northern side and when he rushed to the said place, he found Rajkumar Bhagat lying on the ground in an injured condition. Hemant Kumar Bhagat and Tunil Bhagat were present, who had disclosed the name of the assailants who after committing the assault had fled away. He along with some other persons picked up Rajkumar Bhagat and brought him home and thereafter to Godda where in course of treatment, he died. In the morning Rajkumar Bhagat had slapped a shepherd, who was a boy and who went home crying after which Basant Yadav, Brahmdeo Yadav, Subodh Yadav, Uttam Yadav and Sunil Yadav had entered into the house of Rajkumar Bhagat and had abused him, but the others had managed to pacify the situation. The Neutral Citation No. ( 2025:JHHC:11685-DB ) 3 | P a g e accused person had issued a threat to Rajkumar Bhagat of committing his murder. He has proved the fardbeyan which has been marked as Exhibit-1. In cross-examination, he has deposed that he had gone to the place of occurrence followed by others. He had seen injuries on the head of Rajkumar Bhagat. On examination, on recall, he has proved the signature of Rajesh Kumar Bhagat on the inquest report which has been marked as Exhibit-2/1. P.W.2 Basuki Bhagat has stated that on 15.02.1996 at 5:40PM, he was in his house when he heard a commotion at which he and the others rushed to the said place where he saw Rajkumar Bhagat lying in an injured condition. It was disclosed by Hemant Kumar Bhagat, Sanjeev Kumar Bhagat alias Tunil Kumar Bhagat and Rajesh Prasad Bhagat that the accused persons had committed assault upon Rajkumar Bhagat and had fled away. The injured Rajkumar Bhagat was taken on a jeep to Godda hospital. In cross-examination he has deposed that though the sun had set, but the surroundings were visible. P.W.3 Shivpujan Bhagat has stated that on 15.02.1996 he was in his house when he heard a commotion at which he rushed to the source of commotion and found Rajkumar Bhagat lying in an injured condition unconscious. He came to know that the accused persons, after committing the assault, had fled away. In cross-examination, he has deposed that he is the cousin brother of the deceased. When he had reached the place of occurrence, he had seen Hemant, Gauri Shankar, Rajesh and Tunil picking up the injured Rajkumar Bhagat. P.W.4 Hemant Kumar Bhagat has stated that on 15.02.1996 at around 5:45PM, he was defecating in the south of the road. Rajkumar Bhagat was coming on a Hero Majestic from the north and was going towards the south. The two-wheeler, all of a sudden, stopped near Charka More and there was a sound of lathi being used at which he, Rajesh and Sanjeev went ahead cautiously by putting on Neutral Citation No. ( 2025:JHHC:11685-DB ) 4 | P a g e a torch. They were about 10-15 yards behind the place from where such sound was coming when the persons present asked them to come forward, if death was beckoning them. When they put on the torch, he had seen Basant Yadav, Uttam Sao, Bunil Yadav, Brahmdeo Yadav and Subodh Yadav. All five persons were assaulting Rajkumar Bhagat with lathis. He had fled away from the place of occurrence and while he was going towards his home, he had met Gauri Bhagat and he had disclosed about the assault to him. When the accused persons had seen the villagers approaching, they had made a firing and fled towards the north. Rajkumar Bhagat was taken to the hospital, but he died at midnight. In the morning, Rajkumar Bhagat had scolded the shepherd of the accused persons as the cattle had entered his barley field and on such information all the accused had come to the house of Rajkumar Bhagat and abused and threatened him. In cross-examination, he has deposed that a distance of 50 yards was visible from the place where he was defecating. Sanjeev had come after 10 minutes and he had a torch with him. Sanjeev is also known as Tunil Bhagat. Rajesh was also with him but Rajesh did not have a torch. He had seen the occurrence for about 4-5 minutes. He had seen the assault and on threat, had fled away. He had raised an alarm in the village and immediately returned back to the place of occurrence where he saw Gauri Shankar Bhagat, Basuki Bhagat, Shivpujan Bhagat and Sanjeev present. Rajesh Bhagat was also present. The motorcycle of the deceased was lying at a distance of 4- 5 feet. The two-wheeler was intact. There was a pool of blood at the place of occurrence. His statement was recorded by the Police, but he had not shown the torch to the Police. The deceased was his cousin brother. P.W.5 Sanjeev Kumar Bhagat alias Tunil Bhagat has stated that on 15.02.1996 at around 6:00-6:45PM, he and the others were defecating when a vehicle came and stopped all of a sudden. He was taking water when he heard the sound of raining of lathis and when a torch was put on, he could identify Bunil Yadav, Uttam Yadav, Basant Yadav, Brahm Yadav and Subodh Yadav. All were assaulting Neutral Citation No. ( 2025:JHHC:11685-DB ) 5 | P a g e Rajkumar Bhagat with lathis. When they tried to save Rajkumar Bhagat, they were threatened by the accused persons. They had fled away from the place of occurrence and on the way, met Gauri Shankar Bhagat, Shivpujan Bhagat and Basuki Bhagat and after disclosing the incident to them, they went to the village and informed the villagers at which several persons came to the place of occurrence. Rajkumar Bhagat was thereafter carried and taken to Godda Hospital. He has stated that Rajkumar Bhagat had slapped a shepherd for which the accused persons had abused him and also threatened him of committing his murder. In cross-examination, he has deposed that the incident occurred when it was dark. He had put on the torch light. He was at a distance of 10 yards from the place of occurrence. They were trying to save Rajkumar Bhagat but due to threat he and the others present had fled away. While coming back to the village, he had met Gauri Shankar Bhagat, Shivpujan Bhagat and Basuki Bhagat. After informing the villagers, he had rushed back to the place of occurrence. There was a pool of blood at the place of occurrence. P.W. 6 Yashoda Devi is the wife of the deceased, who has stated that her husband was returning after taking cloths from the tailor. Sanjeev had come to her and revealed that Basant Yadav, Bunil Yadav, Uttam Yadav, Brahmdeo Yadav and Subodh Yadav had assaulted her husband. She had rushed to the place of occurrence where she had seen her husband in an injured condition. Her husband was sent to Godda Hospital where he died. On the date of occurrence at 12:00 noon, the cow of Bhattu Yadav had devoured barley crops and her husband had slapped the shepherd at which the accused persons had come to her house and abused and threatened her husband. In cross-examination, she has deposed that there was a pool of blood at the place of occurrence. When she had reached the place of occurrence, she had found her husband being picked up from the ground by some persons. P.W. 7 Badami Devi has stated that it was evening and the Neutral Citation No. ( 2025:JHHC:11685-DB ) 6 | P a g e surroundings were slightly visible when Tunil alias Sanjeev had come and informed her that her son Rajkumar Bhagat has been assaulted by the accused persons. She had seen her son at the place of occurrence lying in a pool of blood. He was taken to Godda Hospital where he died. On the same day, Bhattu Yadav had fed his cow barley crops belonging to her and despite her objections, he did not relent at which her son had given two slaps to Bhattu Yadav. Thereafter, the accused persons had come and threatened her son. In cross-examination, she has deposed that the accused persons work for the entire Bhagat family. P.W. 8 Dr. Ashok Kumar was posted as a Civil Assistant Surgeon Sadar Hospital, Godda and on 16.02.1996, he had conducted autopsy on the dead body of Rajkumar Bhagat and had found the following: Injury No. (i) lacerated wound on left perieto temporal region of scalp 2” x ¼” x ¼” Injury No. (ii) lacerated wound which was stitched in the lower part of the forehead horizontal in the right side of the forehead 1½ x “ ¼” x ¼”. Injury No. (iii) abrasion 1½” x on the anterior aspect of left knee. Injury No. (iv) Three abrasions ½” x1/6”, ¾” x 1/6”, ½” x 1/6” on anterior aspect of right leg. On dissection— Left parieto temporal bone broken in pieces with hematoma underneath at three places. Frontal bone fractured with hematoma underneath. Tracheal lumen showing blood. Stomach contained about one ounce of blood with partially digested food material. Liver was pale, spleen dark and partially congested. Lungs were partially congested. Kidneys were slightly pale. The cause of death was opined to be due to shock and hemorrhage as a result of the above-mentioned injuries. The post- mortem report has been proved and marked as Exhibit-3. Neutral Citation No. ( 2025:JHHC:11685-DB ) 7 | P a g e In cross-examination, he has deposed that such injuries cannot be caused by motorcycle accident. P.W. 9 Shri Narayan Singh was posted as an Officer-in-Charge of Pathargama P.S. and on 03.03.1996 on account of transfer of Rajendra Singh, he had taken over the investigation of the case. He had received the post-mortem report of Rajkumar Bhagat, recorded the confessional statements of the accused and had submitted charge sheet which has been marked as Exhibit-4. The forwarding report of the fardbeyan has been proved and marked as Exhibit-5. The formal FIR and the inquest report have been proved and marked as Exhibit- 6 and 8 respectively. The summons which he had received has been marked as Exhibit-7. The case diary which was written prior to his taking over the investigation has been marked as Exhibit-9. In cross-examination, he has deposed that neither the fardbeyan was written in his presence, nor the inquest report was prepared in his presence. He had not inspected the place of occurrence. He had also not examined any of the witnesses. P.W. 10 Rajesh Kumar Bhagat has stated that on 15.02.1996, he had gone to defecate with Hemant Kumar Bhagat towards the northern side of the village when a motorcycle which was coming, all of a sudden stopped at a distance of 50 yards from where he was present. He had heard a cracking sound and when he and Hemant reached the said spot, he saw the accused persons committing assault upon Rajkumar Bhagat. He had identified the accused in torchlight from a distance of 15-20 hands. When the accused persons threatened him, he fled towards the village and when Shivpujan, Basuki Bhagat and other villagers appeared, the accused persons fled away. Rajkumar Bhagat was taken to his house and thereafter to the hospital and in the morning, he came to know that Rajkumar Bhagat has died. On the same day in the morning, the cow of the accused was devouring the barley crops in the field of Rajkumar Bhagat at which, the brother of Uttam Yadav was reprimanded, slapped and chased away by Rajkumar Bhagat and this led to a concerted threat by the accused persons when Rajkumar Bhagat was having his meals. Neutral Citation No. ( 2025:JHHC:11685-DB ) 8 | P a g e In cross-examination, he has deposed that he and Hemant had reached his village and returned back to the place of occurrence with the villagers. Both were defecating at a distance of 20 feet from each other and both were slightly visible to each other. P.W.11 Rajendra Singh was posted at Pathargama P.S. and on 15.02.1996, he had received the fardbeyan of Gauri Shankar Bhagat from Godda Town P.S. and consequently, a formal FIR was registered by Officer-in-Charge Narayan Singh. The endorsement on the fardbeyan has been proved and marked as Exhibit-10. The endorsement of the Officer-in-Charge has been proved and marked as Exhibit-10/1. He had been handed over the investigation on 16.02.1996. He had inspected the place of occurrence which is a village road at village Charka going towards Patharcharka village. He had recorded the restatement of the informant and the statements of the witnesses. He had received the post mortem report. He was in charge of the investigation till 29.02.1996. The Officer-in-Charge had submitted the charge sheet. In cross-examination, he has deposed that he had not found any trace of blood from the place of occurrence to the house of the deceased. He had not seized the motorcycle. He had not recorded the statement of any of the villagers of Bisha village. He had not mentioned the condition of the motorcycle in the case diary. 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Rajkumar Bharat. 6. It has been submitted by Mr. Ram Prakash Singh, learned counsel for the appellants that there are major contradictions in the evidence of the witnesses. The identification of the appellants as assailants, as stated by P.W.4, P.W.5, P.W.10 is doubtful, in view of the fact that it was dusk and the light was fading and all these witnesses claimed to have identified the appellants by means of a torchlight, but the said torch light has not been seized by the Investigating Officer. It has been submitted that though it has been alleged that all the appellants had a common intention but charge was Neutral Citation No. ( 2025:JHHC:11685-DB ) 9 | P a g e not framed under Section 34 IPC which has seriously prejudiced the appellants who have been deprived of their right to defend their case by cross-examining the witnesses in its true perspective by eliciting contradiction in their testimony regarding joint liability of all the appellants. The circumstances showing concert and participation in joint criminal action by all the appellants were not put before them while recording their statements under Section 313 Cr.P.C. 7. Mr. Md. Azeemuddin, learned A.P.P. has submitted that there are several eye witnesses who have stated about active participation of the appellants in committing assault upon Rajkumar Bhagat in a concerted fashion with lathis which finds corroboration from the post- mortem report. So far as non-framing of charge under Section 302 IPC with the aid of Section 34 IPC is concerned, it has been submitted that such error, in the facts and circumstances of the case, would not vitiate the findings recorded in the judgment of conviction. 8. We have heard the learned counsel for the respective parties and have also perused the trial court records. 9. The precursor to the incident of assault, as projected by the prosecution, is of the cattle of the accused/appellants entering into the field of the deceased Rajkumar Bhagat and devouring barley crops which led to the shepherd being slapped and chased away by Rajkumar Bhagat and this resulted in a backlash as the accused persons had come to the house of Rajkumar Bhagat and had abused and threatened him of committing his murder. Having not been satisfied by extending threats, the appellants had waylaid Rajkumar Bhagat while he was coming on a motorcycle and rained lathi blows upon him resulting in his death. The informant, in his fardbeyan, has not claimed himself to be an eye witness, but has stated that when he and the villagers had reached the spot, on hearing the cry of alarm, they had seen Rajkumar Bhagat lying on the ground in an injured condition. It was Hemant Kumar Bhagat and Tunil Bhagat, who were the witnesses to the assault, who had named the accused persons who had committed assault upon Rajkumar Bhagat with lathis. Hemant Kumar Bhagat and Tunil Bhagat have been examined as Neutral Citation No. ( 2025:JHHC:11685-DB ) 10 | P a g e P.W.4 and P.W.5 respectively and both have been consistent regarding their presence at the place of occurrence and of having witnessed the assault so committed. P.W.10 was also present at the spot having gone to ease himself and his evidence is almost similar to that of P.W.4 and P.W.5. The incident of assault had taken place when the sun was setting and as per the evidence of the eye witnesses, the surroundings were visible. The flash of the torch further enabled them to identify each of the accused. The defence has failed to make any dent in the evidence of P.W.4, P.W.5 and P.W.10, especially with respect to the manner of assault so depicted and the means of identification of the assailants by these witnesses. 10. So far as the submission of Mr. Singh, learned counsel for the appellants that charge is defective as no charge under Section 302 IPC has been framed with the aid of Section 34 IPC is concerned, we may take recourse to Section 464 Cr.P.C which reads as under: “464. Effect of omission to frame, or absence of, or error in, charge.— (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may— (a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of charge; (b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit.” Neutral Citation No. ( 2025:JHHC:11685-DB ) 11 | P a g e 11. The charge which has been framed against the accused on 31.07.1996 reads as follows: “That you on or about the 15th day of Feb 1996 at near Charka More P.S. Pathargama, Distt.- Godda did commit murder by intentionally causing the death of Raj Kumar Bhagat.” 12. The wordings on the framing of charge indicates a collective assault made by the accused persons causing the death of Rajkumar Bhagat. The defence was aware about the “common intention” and though Section 34 was not incorporated in the charge but the cross- examination of the prosecution witnesses also touch on this aspect of the matter. The omission, error or irregularity in the charge would not make the order of conviction and sentence invalid until a failure of justice has been occasioned. Mr. Singh, learned counsel for the appellants has failed to point out any instance which would lead us to conclude that a failure of justice has occasioned in the omission to frame charge under Section 34 IPC. We are of the opinion that neither any prejudice has been caused to the defence, nor such omission has occasioned a failure of justice. 13. We, therefore, on the basis of what we have discussed above, do not find any reason to interfere with the impugned judgment and order of conviction and sentence and consequently, we dismiss this appeal. 14. Since the appellants are on bail, they are directed to surrender immediately and forthwith to serve out the remaining part of their sentence. 15. Pending I.A.s, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi Dated the 8th Day of April, 2025 Preet/N.A.F.R.