Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.715 of 2005 ------- Against the judgment of conviction dated 16.09.2005 and order of sentence dated 19.09.2005 passed by Sri Vijay Bahadur Mall, Additional Sessions Judge, Fast Track Court No.III, Vaishali at Hajipur in Sessions Trial No. 98 of 1996. ------- ======================================================= 1.Umesh Singh son of Late Jamun Singh 2.Vijay Singh son of Umesh Singh both residents of village Naya Gavan, Bariyarpur, P.S.Desari,District Vaishali .... .... Appellants Versus The State Of Bihar ..... .... Respondent ======================================================= Appearance : For the appellants : Sri Rana Pratap Singh,Sr.Advocate M/s Soni Shrivastava,Amit Prakash and Anjani Kr.Jha, Advocates For the State : Sri Ashwini Kumar Sinha,Addl.P.P. ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ---- S.K.Sharma,J This appeal has been preferred against the judgment of conviction dated 16.09.2005 and order of sentence dated 19.09.2005 passed by Additional Sessions Judge, Fast Track Court No.III, Vaishali at Hajipur in Sessions Trial No. 98 of 1996 convicting the appellants under Section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and a fine of Rs.10,000/- each and in default of payment of Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 2 fine to undergo further imprisonment for six months. 2. Fardbeyan (Ext.1) of Kailash Sharma (deceased) was recorded at Mahnar Primary Health Centre on 17.06.1992 at 5.30 P.M. by R.N.Upadhyay, A.S.I. of Police of Mahnar Police Station. Kailash Sharma who was a teacher in Girls High School, Mahnar in his fardbeyan has stated that while he was teaching his students at about 10.30 A.M. on 17.06.1992, he received information that his brother Kamlesh Kumar Sharma (P.W.4) has been assaulted by his villagers Umesh Singh son of Jamun Singh and Vijay Singh son of Umesh Singh. After school hour, the informant went to his village at about 11.30 A.M. and on query he came to know that the dispute was in connection with cutting of banana‟s plants. The informant pacified his family members and at 4.00 P.M. some villagers advised him to get the matter settled. The informant thereafter along with co-villager Kishori Singh, went to Bathan of Jamun Singh which was situated near the informant‟s Boring. Kishori Singh advised them to get the matter resolved through panchayati. The informant‟s brother complained against some utterances of Jamun Singh. The informant tried to return to his house but in the meantime, Jamun Singh instigated the others to assault Kamlesh Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 3 Kumar Sharma. Thereafter Vijay Singh gave a sword blow upon the informant‟s neck from behind as a result thereof his back portion of neck was cut. He repeated the assault twice causing injuries upon the informant‟s head. In the meantime, Umesh Singh gave a farsa blow causing injury on his right wrist. Thereafter the informant fell down. The well-wishers of the informant bandaged the wounds and brought the informant on the road, from where he was taken to Mahnar Hospital for treatment. The occurrence was witnessed by villagers Kishori Singh (not examined), Suresh Singh (P.W.1), Triveni Singh (P.W.2), Siya Ram Rai (P.W.6) and others who intervened in the matter. The fardbeyan was forwarded by the Officer-in-charge, Mahnar Police Station to Officer-in-charge, Desari Police Station which resulted in Desari P.S.Case No. 79 of 1992 dated 18.06.1992 for offences under Sections 324 and 307 of the Indian Penal Code. After registration of the case, the police reached the Government Hospital, Mahnar, and seized blood stained clothes of the injured. The seizure list was prepared which contains the signatures of witnesses Ram Prasad Sharma and Ram Nath Sharma. The signatures of Ram Prasad Sharma and Ram Nath Sharma have been marked as Exts.2 and 2/1 respectively. The forwarding report of Officer- Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 4 in-charge, Mahnar in the fardbeyan has been marked as Ext.6 and the Entry of the case by the Officer- in-charge, Desari Police Station has been marked as Ext.7. Formal F.I.R. was drawn up and it was sent to Court on 19.06.1992 but it was received there on 22.06.1992. In the meantime, informant Kailash Sharma died and Section 302 of the Indian Penal Code was added. The post mortem report (Ext.5) was received. After completing all paraphernalia namely, inspection of place of occurrence and taking statements of witnesses etc. chargesheet was submitted. Cognizance was taken and as the case was triable by the court of Session, it was committed to the court of sessions, where charge under Section 302/34 of the Indian Penal Code was framed against these two appellants and one Jamun Singh and the same were explained to them, to which they pleaded innocence and preferred to face the trial. Since Jamun Singh died on 13.02.1998, the proceeding against him was dropped on 29.06.1998. 3. The defence of the appellants was of false implication due to enmity because witnesses of the prosecution were having enmity. P.W.2 and P.W.4 were sentenced to life for committing murder of son of Umesh Singh. The land dispute has also been given a reason of false implication. 4. In order to prove its case, the Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 5 prosecution examined ten witnesses. They are: Suresh Singh (P.W.1), Triveni Singh (P.W.2), Yogendra Rai (P.W.3), Kamlesh Kumar Sharma (P.W.4), Ram Nath Sharma (P.W.5), Siya Ram Rai (P.W.6), Shiv Shankar Bharti (P.W.7), Dr.Deepak Ghosh (P.W.8) who at the relevant time was posted at Primary Health Centre, Mahnar as Medical Officer, Dr.Sunil Kumar Singh (P.W.9) who held post mortem over dead body of the deceased and Jagdish Prasad Yadav (P.W.10) the Investigating Officer of the case was at the relevant time was posted as Assistant Sub-Inspector of Police in Desari Police Station. 5. The defence has not examined any witness. 6. The trial court after hearing learned counsel for the parties and considering the entire evidences on record came to the conclusion that the prosecution has been able to prove the charge against the accused persons beyond the shadow of all reasonable doubts and hence convicted and sentenced them, as stated above. 7. This court is required to reappraise the evidences on record and to see as to whether the prosecution was able to prove the charge against the appellants beyond the shadow of all reasonable doubts. 8. In the present case, the informant Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 6 Kailash Sharma has succumbed to the injuries which he had received. Initially the informant was taken to Primary Health Centre, Mahnar where he was treated. On 17.06.1992 the doctor of Mahnar Hospital had found the injuries and accordingly injury report Ext.4 which was proved by Dr. Dipak Ghosh (P.W.8) was prepared. The injuries found on the person of the informant were as follows: (i) Incised 1¼”x1/4“x bone deep on occipital area. (ii) Incised 1½”x1/2“x1¼” on base of back of the neck. (iii) Incised 2½”x1/2”x1/2“ on front part of scalp. (iv) Incised 1½”x1/4”x2” on ext surf of right forearm just above wrist. All the injuries were caused by sharp cutting weapon. The age of the injuries is within six hours. 9. Dr.Sunil Kumar Singh (P.W.9) who was posted in the department of Forensic Medicine in Patna Medical College has conducted post mortem over the dead body of deceased Kailash Sharma on 22.06.1992 at 1.30 P.M and found following ante mortem injuries: Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 7 (i) One stitched wound (muscle deep) 1½” length over back of lower part of left side of neck. (ii) One abrasion 3”x ¼” over left scapula area. (iii) One stitched wound (muscle deep) 1” length over left side of occipital area. (iv) One stitched wound (bone deep) 2” length over right side of forehead 2” above eye brow. (v) One stitched wound (muscle deep) 1 ½” length over ventral aspect of right fore- arm 1½” above wrist. The time elapsed since death is within 24 hours. According to opinion of the doctor, the cause of death is head injury. Injury nos. 2 and 4 were caused by hard and blunt substance whereas injury nos. 1,3 and 5 were caused by sharp cutting weapon. There is no mention in the post mortem report as to whether the injuries were sufficient to cause death. The injury report which has been proved has not been challenged and that is not being questioned here also. The defence being raised by the appellants is of their false implication only. 10. P.W.6 Siya Ram Rai has not given Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 8 specific statement and has given statement that Kamlesh Sharma P.W.4 was assaulted and he received injuries and later on died at Patna. The evidence of this witness is of no use to any one. 11. P.W.1 Suresh Singh is a witness of the occurrence and he has stated that there was a dispute with regard to cutting of banana‟s plants at about 9.00 A.M. on the date of occurrence. The effort to resolve the differences was being made and at that very time Jamun Singh asked his persons to assault Kailash Sharma. Then Kailash Sharma and Panches left the place but at the behest of Jamun Singh, Vijay Singh gave a sword blow to Kailash Sharma which caused injury on the neck and thereafter Umesh Singh gave farsa blow on the right wrist of Kailash Sharma. Second and third attack of Vijay Singh by sword caused injury upon the head of Kailash Sharma. After receiving the injuries he fell down and was taken to Mahnar Hospital where he gave his statement and later on died in P.M.C.H., Patna. This witness has denied the suggestion of defence that the blood was coming from the person of the accused persons. By putting suggestions, the defence has tried to discredit the evidence but this witness has remained consistent so far as the manner of assault on Kailash Sharma by the accused persons is concerned. Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 9 12. P.W.2 Triveni Singh is another witness whose name has been noted in the fardbeyan. He has described the manner of occurrence in the same way as has been described by P.W.1 by saying that at the behest of Jamun Singh, his grand son Vijay Singh gave a sword blow upon Kailash Sharma which caused injury on the back portion of the neck. Thereafter assault was made by Umesh Singh which caused injury in the right wrist of Kailash Sharma. Vijay Singh also gave two more sword blows upon Kailash Sharma. The blood started coming out from the person of Kailash Sharma. The injured was taken to Mahnar Primary Health Centre and from there to Patna. This witness has admitted that he has been convicted in a case of murder of son of Umesh Singh. No doubt, P.W.2 has been convicted and according to defence he has given false evidence but this will not discredit his testimony, if he is otherwise found to be a competent witness to depose. His evidence about description of occurrence is consistent and no inconsistency has come in his deposition so far as the description of either holding of Panchayati or committing assault. Therefore, this witness is fully competent and he can be relied upon. 13. P.W.3 Yogendra Rai is not named as witness in the farbeyan but he has stated that he Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 10 was present in Panchayati which was organized to settle the dispute which had taken place earlier in the day with respect to cutting of banana‟s plants of Kailash Sharma. In course of Panchayati Jamun Singh incited and exhorted his men to assault Kailash Sharma. Thereafter Vijay Singh and Umesh Singh assaulted Kailash Guruji by sword and farsa respectively. This witness had brought injured Kailash Sharma to Mahnar Hospital. He has described the place of occurrence in detail. Though suggestion has been given that he has purchased land from Kailash Sharma, but this itself will not cast any doubt about the credibility of this witness. Therefore, this witness is held to be a competent witness. 14. P.W.4 Kamlesh Kumar Sharma is brother of the deceased Kailash Sharma and his presence at the place of occurrence is natural because in the first part of the occurrence it was he who was at the receiving end of the accused persons. He has stated that at the place of occurrence assault was made and the manner of assault described by him is identical as described by other witnesses. Therefore, reproducing the evidence of this witness is of no use because there is no contradiction in his evidence so far it relates to manner of assault to Kailash Sharma. This witness was Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 11 convicted in connection with killing of son of Umesh Singh but this itself will not make his otherwise intact evidence to be doubtful in view of consistency in his entire evidence. 15. P.W.5 Ram Nath Sharma is a seizure list witness and he has stated that in his presence, the blood stained clothes of injured Kailash Sharma was seized on 18.06.1992 in Government Hospital, Mahnar. 16. P.W.7 is a formal witness as he has proved the writings and signature of Dr.Rajendra Prasad Singh of Mahnar Hospital in a letter dated 11.01.2002 which has been marked as Ext.3. 17. P.W.10 Jagdish Prasad Yadav is the Investigating Officer of the case who was posted as Assistant Sub-Inspector of Police in Desari Police Station on 18.06.1992 and on that day he got fardbeyan of Kailash Sharma. This witness has identified the writings of Sri R.N.Upadhaya, the then Assistant Sub-Inspector of Police who had recoded the fardbeyan (Ext.1) of Kailash Sharma on 17.06.1992 at Primary Health Centre, Mahnar. This witness inspected the place of occurrence which was pointed out by P.W.4. He seized the blood stained soil. There were two places of the occurrence. The first place of occurrence was field of Kailash Sharma where banana‟s plants were found cut and Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 12 second place of occurrence was the Bathan of Jamun Singh where blood stained were present on the way. The seized blood stains soil and clothes were not sent to Forensic Science Laboratory for chemical examination. 18. In the background of the aforesaid discussions, learned counsel for the appellants has argued that, in fact, no assault was made by any of the accused to Kailash Sharma and the persons of the appellants were beaten by Kailash Sharma, Kamlesh Kumar Sharma, Laxaman Singh, Triveni Singh and Suresh Singh on 17.06.1992 which led to registration of Complaint Case No. C 463 of 1992/Trial No. 239 of 1993 for offences under Sections 147, 148, 323 and 447 of the Indian Penal Code. On that date, P.W.4 Kamlesh Kumar Sharma has destroyed the ridge which led to a protest. At about 2.00 P.M. Kailash Sharma armed with bhala, Kamlesh Kumar Sharma carrying iron rod and other accused armed with lathis came to the Bathan of Umesh Singh and started abusing him. Thereafter Kailash Sharma pierced a bhala upon the chest of the complainant Umesh Singh, Kamlesh Kumar Singh assaulted with iron rod on the head of the complainant and their other companions assaulted with lathi and when the complainant‟s son came to rescue him, then he was also assaulted by Kailash Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 13 Sharma. The injured were treated and they returned to their houses on 17.06.1992 and when the complainant was going to lodge the case in Hajipur Police Station on 18.06.1992 he was prevented by the accused persons who are the witnesses in this case, so no case before the police was lodged and thereafter complaint case was lodged on 19.06.1992. 19. The filing of complaint case by appellant Umesh Singh is with regard to an occurrence which has occurred on 17.06.1992 which is the date of occurrence of the present case. The present fardbeyan was recorded on 17.06.1992 and after two days, the said complaint case was lodged by appellant Umesh Singh. This complaint case ended in a acquittal by judgment dated 29.06.1995. The complaint case shows that on the date of occurrence some assault took place. According to complainant, assault was by those persons who are witnesses here but the trial court has disbelieved this version. 20. In the present case, the presence of the accused persons cannot be doubted in view of version of the defence case. The informant who was a teacher in Girls High School had given his statement which described the manner of occurrence in detail. His injury was such which could not be Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 14 cured and he died. Before his death, the statement of the informant (deceased) was taken which described the manner in which he was injured and name of the persons who had inflicted such injuries. The statement made by the deceased which resulted in his death, is a relevant fact for consideration and it cannot be said that such a statement was fabricated or exaggerated. Therefore, the statement describing the manner of assault to the injured/informant cannot be doubted. 21. Learned counsel for the appellants has drawn attention towards the fact that the person who had recorded the fardbeyan has not been examined as a witness, so the alleged fardbeyan cannot be considered, as the correct version of the occurrence by the informant. It is relevant to note that the Investigating Officer has identified the writings of R.N.Upadhaya who had recorded the fardbeyan. R.N.Upadhyaya at the relevant time was posted as Assistant Sub-Inspector of Police and in that capacity he had recorded the fardbeyan of Kailash Sharma. Such recording was done by a Police Officer while he was discharging his official duty. Therefore, it cannot be said that non-examination of R.N.Upadhayay to any extent has damaged the prosecution case. The fardbeyan has been proved beyond the shadow of all reasonable doubts. Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 15 22. Learned counsel for the appellants has also pointed out that the fardbeyan was recorded on 17.06.1992 and formal F.I.R. was registered on the next day but it has been received by the Court on 22.06.1992, so it has been submitted that the F.I.R. was apparently anti-dated and it cannot be relied upon. In this connection, reliance has been placed upon the principle laid down in the case of Meharaj Singh (L/Nk).Vrs. State of U.P. reported in (1994)5 SCC 188 and it has been submitted that the delay in sending the report has been held to be a ground for assuming the F.I.R. to be anti-dated and anti-timed and in fact it was not prepared till the inquest proceeding was over. 23. The fact of the present case is not similar to the case which has been relied upon by learned counsel for the appellants. In the present case, the injured was taken to Primary Health Centre, Mahnar for treatment and injury report was prepared on 17.06.1992. His injury report (Ext.4) mentions the nature of injury which has been received by the informant (deceased). Therefore, in the present case the prosecution has proved that the injured was given initial treatment on 17.06.1992 itself, so process of law was set in prior to receipt of the F.I.R. in the court. Section 156 of the Code of Criminal Procedure Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 16 empowers the Officer-in-charge to investigate the case if the police Officer receives information regarding commission of an offence. The report must be sent without unnecessary delay because the word described in the Code of Criminal Procedure is „forthwith‟. The aim of the section is that the Magistrate must be informed of the investigation of such cognizable offence, so that he may be able to control the investigation and if necessary to give any direction under Section 159 of the Code of Criminal Procedure. If F.I.R. was recorded without delay but it was reported to the court at some interval then it cannot be said that the investigation was tainted because of the existence of the injury report which has come on the record. The seizure list (Ext.8) was prepared on 18.06.1992 at Government Hospital, Mahnar, so it is apparent that investigation with regard to the occurrence had commenced much prior to receiving of the F.I.R. in court. The F.I.R. of this case was dispatched on 19.06.1992 and the process of criminal investigation had already set in by then. The delay in itself cannot be held to be detrimental to dislodge the version of the prosecution and appellants cannot be acquitted on this ground alone. The word „forthwith‟ cannot mean that the prosecution is required to explain every Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 17 hour of the delay. Adverse inference can be taken, if it is shown that no process of investigation was started prior to receiving the delayed report in the court. That is not the case here, so the delay is not a ground which can cast any doubt regarding the existence of the prosecution case. 24. The prosecution witnesses are consistent that on the date and time of occurrence the accused persons have caused overt act which led to death of Kailash Sharma. The manner of assault, time of assault, place of occurrence and other circumstances relating to occurrence have been proved. 25. Learned counsel for the appellants next submitted that there was no intention of the accused persons to cause death because the injury inflicted has not been described to be sufficient in ordinary course, to cause death and when the prosecution failed to prove this, then the accused persons cannot be held to be responsible for offence under Section 302/34 of the Indian Penal Code and they deserve lesser punishment. In this connection, he has relied upon a judgment in the case of Gurmail Singh and Ors.Vrs. State of Punjab reported in 1982 BBCJ 174(SC). 26. In the circumstances of the present case and from the evidences which have been brought on Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 18 record it is apparent that the prosecution has been able to prove that appellant Umesh Singh has given one blow upon the right wrist of Kailash Sharma. After giving blow on the wrist it has not been repeated at any part of the body by this appellant. The assault by him was not on vital part of the body and it cannot be said that he intended to cause death. However, the prosecution has been able to prove that appellant Umesh Singh whose age under Section 313 Cr.P.C. has been assessed to be 60 years in the year 2003 has caused voluntarily hurt by dangerous weapon namely, farsa upon the wrist of the informant. So conviction of Umesh Singh cannot be equated at par with conviction awarded to another accused namely, Vijay Singh. So the conviction of appellant no.1 Umesh Singh under Section 302/34 of the Indian Penal Code is required to be altered and it is accordingly altered to Section 324 of the Indian Penal Code. 27. So far as for proving charge of murder against appellant no.2 Vijay Singh is concerned, the prosecution is required to establish the ingredients laid down in Section 300 of the Indian Penal Code. Section 300 of the Indian Penal Code describes the culpable homicide to be murder, if such act is caused with intention to cause death or it is done with intention to cause such bodily Patna High Court CR. APP (DB) No.715 of 2005 dt.19-09-2011 19 injury as the offender knows which is likely to cause death of a person