Supreme Court of IndiaMurari Thakur And Another vs State Of Bihar on 14 December, 2006Equivalent citations: AIR 2007 SUPREME COURT 1129, 2007 AIR SCW 1102, 2007 (2) AIR JHAR R 394, (2007) 1 BANKCAS 171, 2007 (57) ALLCRIC 1062.2, 2006 (14) SCALE 72, (2007) 36 OCR 575, 2009 (16) SCC 256, 2010 (3) SCC (CRI) 249, 2007 (2) SRJ 185, (2007) 51 ALLINDCAS 492 (SC), (2007) 1 CRIMES 395, (2007) 2 EASTCRIC 61, (2007) 2 KER LJ 311, (2007) 2 PAT LJR 3, (2007) 57 ALLCRIC 1062(2), (2007) 1 CAL LJ 181, (2007) 1 CHANDCRIC 283, (2007) 1 ALLCRIR 495, (2006) 14 SCALE 72, (2007) 1 SUPREME 606, (2007) 2 ALLCRILR 566, (2007) 2 JLJR 2, (2007) 3 RECCRIR 870, (2007) 1 CURCRIR 231Author:Markandey KatjuBench:S. B. Sinha,Markandey KatjuCASE NO.:
Appeal (crl.)  985 of 2005

PETITIONER:
Murari Thakur and another

RESPONDENT:
State of Bihar

DATE OF JUDGMENT: 14/12/2006

BENCH:
S. B. Sinha & Markandey Katju

JUDGMENT:J U D G M E N T


MARKANDEY KATJU, J.This appeal has been filed against the judgment and order 
dated 12.1.2005 of the Patna High Court in Criminal Appeal No. 
266 of 2001. By that judgment the conviction of the appellants by 
the trial court underSection 302/34IPC was upheld.Heard learned counsel for the parties and perused the record.The case of the prosecution, in short, is that on 26.8.1998 at 
about 3 p.m., Dhaneshwar Mishra (PW4), elder brother of the first 
informant Bhuneshwar Mishra was going for grazing his buffalo 
when he saw his deceased nephew Bal Krishna Mishra with the 
appellants going across the river in Parti land.  When Dhaneshwar 
Mishra enquired from them where they were going, they all replied 
that they were on a stroll and they went towards east of the river.  
Dhaneshwar Mishra also went across the river with his buffalo.  
After sometime at about 4 p.m., he heard the sound of gasping 
from the other side of a field of sugarcane and leaving his buffalo, 
he went towards the sugarcane field he found that on a ridge under 
the tree of Jamun (rose apple), appellant Murari Thakur had caught 
hold of the legs of deceased, appellant Sudhir Thakur was sitting 
on the back of the deceased holding both his hands, and the third 
accused Sunil Kumar (who is not before us) after pressing the neck 
of the deceased was cutting it with a sharp edged weapon.  
Dhaneshwar Mishra saw this incident from a distance of ten laggis, 
and he ran raising hulla and the appellants and Sunil Kumar fled 
away towards west of the sugarcane field. When Dhaneshwar 
Mishra reached the place, he found that all the three appellants had 
already committed the murder of the deceased by cutting his neck.  
On hulla of Dhaneshwar Mishra, Devendra Singh (PW6), Kishore 
Jha (PW2), Baleshwar Mishra (PW3), Paras Nath Mishra (PW7) 
and a number of other persons came there and they saw the dead 
body of the deceased.  About motive of the occurrence, the case of 
the prosecution is that twelve days before the occurrence, some 
altercation had taken place with appellant Sunil Kumar.   On the 
date of the occurrence at about 8 p.m. when the informant 
Bhuneshwar Mishra (PW8), father of the deceased came to his 
house from Sitamarhi, he came to know that his son had been 
killed and Dhaneshwar Mishra told him about the entire incident.  
On the night between 26.8.1998 and 27.8.1998 about 1.30 hours, 
Fard-e-bayan of the first informant was recorded at the place of the 
occurrence and a case underSection 302/34of Indian Penal Code 
was registered against all the three appellants.  The police, after 
investigation, submitted chargesheet against them under the same 
heading.  Cognizance of the case was taken and the case was 
committed to the Court of Session where after trial, appellants 
were held guilty and were convicted and sentenced, as stated 
above.Against the judgment of the Trial Court, the appellant filed 
an appeal in the High Court, which was dismissed and hence this 
appeal.Learned counsel for the appellant firstly submitted that the 
appellants are entitled to the benefit of theJuvenile Justice (Care 
and Protection of Children) Act2000 as amended by the 
amendment of 2006.  We are of the opinion that this point cannot 
be raised at this stage because neither was it taken before the Trial 
Court nor before the High Court.  Even otherwise we do not find 
any merit in the said contention. The question of age of the 
accused appellants is a question of fact on which evidence, cross-
examination, etc. is required and, therefore, it cannot be allowed to 
be taken up at this late stage.  Hence, we reject this submission of 
the learned counsel for the appellant.Learned counsel for the appellant then submitted that there 
was delay in filing the FIR.  We are of the opinion that there is no 
such delay which can be said to be fatal to the prosecution case.  
The occurrence took place on 26.8.1998 at 4 p.m.  The first 
informant, the father of the deceased, Bhuneshwar Mishra (PW8), 
was at Sitamarhi and returned  home on 8 p.m., when he came to 
know from his brother Dhaneshwar Mishra that his minor son Bal 
Krishna Mishra aged about 14 years had been murdered.  After 
Bhuneshwar Mishra learnt about this from his brother Dhaneshwar 
Mishra (PW4), then he went and lodged the FIR.  R.K. Tiwari 
(PW11), the Investigating Officer, has stated in his evidence that it 
was rainy season and there was flood in the area and he reached 
the place of the occurrence on the night of 26.8.1998/27.8.1998 at 
about 1.30 a.m. and recorded the Fard-e-bayan of the informant.  
In these circumstances, we are of the opinion that there was no 
such fatal delay in lodging the FIR.We agree with the view taken by the High Court and the 
Trial Court that the accused had committed murder of deceased 
Bal Krishna Mishra after overpowering him in furtherance of their 
common intention on 26.8.1998 at 4 p.m.  No doubt it was Sunil 
Thakur, who is not before us, who cut the neck of the deceased but 
the appellants before us (Murali Thakur and Sudhir Thakur) also 
participated in the murder.  Murali Thakur had caught the legs of 
the deceased and Sudhir Thakur sat on the back of the deceased at 
the time of commission of this murder.  HenceSection 34IPC is 
clearly applicable in this case.In these circumstances, we find no merit in this appeal and 
hence it is dismissed.