1 1 CRIMINAL APPEAL No.8 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 6.12.1988 passed by Sri Ram Kishor Singh, District & Sessions Judge, Katihar in Sessions Case No. 181 of 1986. ----- Surendra Rabidas ---- Appellant Versus The State of Bihar ---- Respondent ----- For the appellant : Mr. Ajay Mishra, Advocate (Amicus Curiae) For the State : Ms.Shashi Bala Verma,Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ------ S.K.Sharma & Akhilesh Chandra,JJ Sole appellant Surendra Rabidas has preferred this appeal against the judgment of conviction under Section 302 of the Indian Penal Code and order of sentence thereunder to undergo rigorous imprisonment for life vide judgment dated 06.12.1988 passed by Sri Ram Kishor Singh, Sessions Judge, Katihar in Sessions Case No. 181 of 1986. 2. The informant of the case is the deceased. Informant Suraj Rabidas had been to see his field at about 8.30 A.M. on 19.5.1985 in his village Kabilpur. Accused Surendra Rabidas came near his field which was situated adjacent to the land of the accused. On the point of cutting the ridge of the field, altercation took place between Suraj Rabidas and Surendra Rabidas. This 2 2 altercation led to fighting in which three companions of accused Surendra Rabidas came and caught hold of the informant. Thereafter accused Surendra Rabidas stabbed the informant towards right side of abdomen with intention to kill him. Informant after sustaining injury fell down on the ground. The witnesses Mangal Rabidas (P.W.4), Kapil (not examined) and Nogen Rabidas (P.W.3) came and witnessed the occurrence. Fardbeyan of Suraj Rabidas resulted in Pranpur P.S. Case No. 24 of 1985 on 19.5.1985 for offences under Sections 342 and 307 of the Indian Penal Code. Informant Suraj Rabidas in course of treatment died on 29.5.1985 and by order dated 15.6.1985, Section 302 of the Indian Penal Code was added. The fardbeyan has no attesting witness. The case was investigated into and after completion of investigation, chargesheet was submitted, cognizance was taken and case was committed to the court of Sessions where charge under Section 302 of the Indian Penal Code was framed against accused Surendra Rabidas for intentionally or knowingly causing death of Suraj Rabidas 3 3 and charge under Section 302/34 of the Indian Penal Code was framed against other two co-accused namely, Kamla Yadav and Ashok Thakur for sharing common intention for committing the murder intentionally or knowingly. Charges were explained to the accused persons who pleaded innocence. So the trial proceeded. 3. The defence of the accused persons was of false implication on account of land dispute. 4. The trial court framed following two points for consideration: (i) Whether the charge under Section 302 of the Indian Penal Code is proved beyond all reasonable doubts against accused Surendra Rabidas ? and (ii) whether the charge under Section 302/34 of the Indian Penal Code is proved against accused Kamla Yadav and Ashok Thakur beyond all reasonable doubts ? 5. After considering the evidence of the witnesses and after perusing the entire materials on record, the trial court came to the conclusion that the charge against the 4 4 appellant Surendra Rabidas has been proved whereas no evidence was found against two other accused who have been acquitted. 6. It has to be seen here as to whether the prosecution has been able to prove the charge against this appellant beyond the shadow of all reasonable doubts. 7. To substantiate its charge the prosecution has examined altogether ten witnesses. They are : Jagdish Yadav P.W.1, Hazari Yadav P.W.2, Nogen Rabidas P.W.3, Mangal Rabidas P.W.4, Dr.M.Shahabuddin P.W.5, Chandar Rabidas P.W.6, Dukhi Devi P.W.7, Nirmal Devi P.W.8, Diwakar Singh P.W.9 and Narayan Singh P.W.10, the Investigating Officer. 8. Out of three eye witnesses named in the fardbeyan, P.W.4 Mangal Rabidas is brother of the deceased whereas P.W.3 Nogen Rabidas has been declared hostile by the prosecution as he has not supported any part of the allegation and the last Fardbeyan named witness Kapil has not been examined. P.W.1 and P.W.2 have been tendered by the prosecution whereas P.W.3 and P.W.4 were 5 5 declared hostile. Therefore, the evidence of P.Ws.1 to 4 are not to worth discussion. 9. P.W.5 is Dr. Md. Shahabuddin who has conducted autopsy over the dead body of the deceased and found Conjunctiva deeply jaundiced (yellow). There was stitched wound on the right chest on lateral side (lower). On dissection, the wound was found to be communicating with chest cavity, causing injury to liver on right side and very little amount of clotted blood in the cavity and sign of sepsis in the liver. According to the opinion of the doctor, the death was caused on account of injury, jaundice and septicemia. The post mortem report has been marked as Ext.1. The fardbeyan and the formal F.I.R. have been marked as Exts. 2 and 3 respectively. 10. Three witnesses brought by the prosecution have supported the prosecution case. They are P.Ws. 6, 7 and 8. Though none of these witnesses are named in the fardbeyan of the deceased but P.W.6 has stated that his son died after eleven days of the occurrence. At the time of occurrence he was having 6 6 dispute with accused Surendra Rabidas on account of water. Appellant Surendra Rabidas is nephew of this witness P.W.6. This witness has stated that after hearing noise he went to the place of occurrence which was at a distance of 10 to 12 yards. When he reached there, he saw his son standing in the filed by catching his stomach and blood was coming from that portion. He has stated that he was the first person who had gone to the place of occurrence. Therefore, this witness has not seen the occurrence, rather he has gone there and he had seen his son in injured condition. 11. P.W.7 is the mother of the deceased and she has stated that her son Suraj Rabidas was having scuffle with this appellant and she has seen this appellant stabbing Suraj Rabidas. Therefore, this witness has supported the prosecution case that the injury was given by this appellant to Suraj Rabdas. P.W.8 is the sister of the deceased who remained in the house of her father though she was married. She has stated that her brother was having some dispute with the appellant on account of fixing of ridge. 7 7 She has stated that her brother was stabbed by this appellant. Therefore, this witness has supported the prosecution case to the extent that one assault was made by this appellant. 12. Investigating Officer of this Case is P.W.10 Narain Singh. He had gone to the place of occurrence and had taken the statements of the witnesses under Section 161 of the Indian Penal Code but he has not found any tampering marks near the place of occurrence. 13. Though the main witness of the case who happens to be the brother of the informant (deceased) has not supported the prosecution version but P.Ws. 6,7 and 8 have supported the prosecution version that one stabbed injury was caused by this appellant and that later on became fetal. There is no vital contradiction in the evidences of P.Ws. 6, 7 and 8. Therefore, they can be relied upon because we find that they have given truthful version that one injury was caused by this appellant. Therefore, to that extent, the case of the prosecution has been 8 8 supported by the doctor also who has stated that one injury was there on the person of the deceased. 14. It appears that the injury was only one and there was no repetition and no effort was made to cause death. Section 302 of the Indian Penal Code provides punishment for murder. Murder is defined under Section 300 of the Indian Penal Code. The culpable homicide is murder, if the act by which the death is caused is done with intention of causing death. Therefore, all the culpable homicides are not murder. Exception 1 to Section 300 prescribes as to which culpable homicide is not murder. The present case is not a case which appears to have been done with intention or knowledge of causing death. If a person is found guilty of culpable homicide not amount to murder, then his sentence differs. 15. As discussed above, the prosecution has not been able to prove beyond the shadow of all reasonable doubt that the act of aggression was done with intention or knowledge of causing death, 9 9 rather the prosecution has been able to prove that the offence at best comes under Section 304 Part II of the Indian Penal Code. Therefore, we come to the opinion that the conviction of the appellant under Section 302 of the Indian Penal Code needs to be altered and it is accordingly altered to Section 304 Part II of the Indian Penal Code. 16. In view of conversion of the offence under Section 302 to Section 304 Part II of the Indian Penal Code, the sentence of the appellant requires modification. It appears from the record that the appellant has remained in custody for about four and half years during trial and appeal as he was taken into custody on 30.9.1985 and granted bail by this Court on 11.8.1989. Therefore the appellant has remained in custody for considerable longer time. In view of the fact that the appellant has spent much time in custody during trial and appeal, his sentence is modified to the period already spent by him inside the jail which shall be sufficient for the ends of justice. 17. In the result, the appeal is 10 10 dismissed with modification in conviction and sentence, as mentioned above. The appellant shall be discharged from the liability of his bail bond. 18. We appreciate the assistance given by Mr.Ajay Mishra, Advocate as Amicus Curiae on behalf of the appellant. 19. Let first page and last page of the judgment be given to Mr. Mishra so that he may get his prescribed fee from High Court Legal Services Committee, Patna. ( Shyam Kishore Sharma, J.) ( Akhilesh Chandra, J.) Patna High Court, Patna The 25th February, 2011 Tahir/-(NAFR).