CRIMINAL APPEAL No.308 OF 2001 (Against the judgment and order of conviction dated 20.6.2001/22.6.2001 passed in Sessions Tr. No. 106/99 by Sri Ram Prabodh Singh, Ist Additional Sessions Judge, Saran) BINOD KUMAR SINGH----------------(Appellant) Versus STATE OF BIHAR------------------Respondents) For the appellant : Mr.Sumant Singh : Mr. Aruni Singh For the state : Mr. Lala Kailash Bihari Pd. Mr.Rajesh Kumar. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA Mridula Mishra & Shailesh Kr.Sinha,JJ.. Sole appellant, Binod Kumar Singh has been convicted u/S 302 of the IPC and sentenced to undergo R.I. for life and also to pay a fine of Rs 3,000/- In default of payment of fine, he has to further undergo R.I. for two years. The appellant has been convicted by the Ist Additional Sessions Judge, Saran in Sessions Trial No. 106/99 by judgment and order dated 20.06.2001/22.6.2001. The prosecution case as disclosed in the Fardbeyan of P.W.3, Birendra Kumar Tewary, is that 2 on 30.6.1995 at 7.45 P.M. he along with his brother , Sanjeev Tewary (Deceased) was sitting on CHOWKI at the outer verandah of his house and the lantern was burning at the verandah. Sanjeev Tewary had put off his banyan and started walking in SAHAN in front of the verandah of his house. Suddenly, Binod Singh (appellant) along with his father, Ramanand Tewary arrived in the SAHAN and Ramanand Tewary ordered his son to kill Sanjeev Tewary. Sanjeev wanted to run towards the verandah but he was restrained by Ramanand Singh. In the meantime, Binod Singh took out a knife from left pocket of his trousers and assaulted at the left side of the abdomen of Sanjeev Tewary who fell down at that place. Sanjeev Tewary screamed while falling down “Binod Singh has stabbed me.” On hearing alarm, the villagers living in the neighbourhood , namely, Prabhu Dayal Tewary, Umesh Tewary and Mani Dayal Tewary came running and saw the incident and also tried to apprehend the assailants who were fleeing away. The assailants hid themselves taking advantage of the darkness. The brother of the informant after few minutes became unconscious as sufficient blood had fallen. The informant along with the help of villagers, was bringing the injured to the Dighwara hospital for his treatment but he died on the way to the hospital. The doctors at hospital declared him dead. The incident took 3 place because of previous land dispute. The Fardbeyan of the informant was recorded by the Sub- Inspector, Sri D.N. Pandey (P.W.4) who inspected the place of occurrence recorded the statement of the witnesses, prepared inquest report and sent the dead body for post-mortem. He was transferred on 22.02.1996 as such, the investigation was handed over to another officer-in-charge, Ramchandra Yadav. This officer seized blood stained cloth including the shirt from the house of the informant , Birendra Kumar Tewary (P.W.3 ) and submitted charge-sheet. Case of the defence is of false implication at the instance of Prabhu Dayal Tewary who used to run flour mill in which Binod Singh (appellant) was working as his employee. There was arrears of wages due to non-payment, which was being demanded repeatedly by Binod Singh. The deceased , Sanjeev Tewary had been given knife blow by some unknown criminals who fled away as the night was dark. Later on, at the behest of Prabhu Dayal Tewary the Fardbeyan was brought into existence implicating the appellant. The prosecution in support of its charges, examined five witnesses; Umesh Singh (P.W.1). His name in the F.I.R. is mentioned as co-villager and neighbour who hearing alarm, came running at the place of occurrence. P.W. 1 has claimed to have 4 seen Binod Singh with CHHURA in his hand and his father , Ramanand having BHALA in his hand. P.W. 1 has claimed to see Sanjeev Tewary lying injured on the ground. This witness claimed to have seen the accused persons at the place of occurrence but has not seen the actual assault made by the appellant on the deceased. P.W. 1 has admitted that he is cousin grandfather of the informant and Prabhu Dayal Tewary (not examined) is cousin of the informant. P.W. 2 , Sushila Devi is mother of the deceased. She has claimed to witness the incident just after actual assault on the deceased. P.W. 2 has stated that it was a dark night. She was sitting at Verandah while Sanjeev was taking walk. She heard alarm and saw Binod Kumar Singh running away with blood stained CHHURA. She has not claimed to have seen actual assault. This witness has admitted her relationship with Prabhu Dayal Tewary . P.W. 3, Birendra Kumar Tewary is the informant, eye witness as well as brother of the deceased. According to this witness, his mother P.W.2 arrived at the place of occurrence after the occurrence. P.W. 4, Dudhnath Pandey is the first investigating office who almost completed the investigation but later on, transferred. P.W. 5 Dr. Shaligram Vishwakarma was the Medical Officer, posted at the relevant time and conducted autopsy on the dead 5 body of Sanjeev Tewary on 01.7.1995. He found one incised wound on the person of the deceased. Counsel appearing for the appellant has assailed the impugned judgment of conviction on several grounds; the first ground is that the learned judge of the trial court has not considered the evidence of the witnesses in the correct perspective. The evidence of the witnesses i.e. P.Ws. 1, 2 and 3 has totally been contradicted by the evidence of investigating officer on several points. So far as the place of occurrence is concerned, it has not been proved by the prosecution evidence. The evidence of P.Ws. 1, 2 and 3 is that Sanjeev Tewary after receiving CHHURA blow fell on the ground. He started bleeding profusely and there was blood fallen on the ground in a large area. This evidence has completely been contradicted by the I.O. who says that no blood was found at the place of occurrence. This contradiction only indicates that the occurrence in fact has not been committed at the place which has been shown as Place of occurrence and an imaginary and concocted story has been fabricated by the prosecution to implicate the appellant and his father. Counsel appearing for the state on the other hand, has submitted that absence of blood at the place of occurrence has not much relevance considering the evidence of I.O. as well as 6 evidence of P.Ws. 2 & 3. These witnesses have deposed that the wound was bandaged and because of the bandage, the blood had not fallen at the place of occurrence. Even if blood was not found at the place of occurrence, it has not any damaging effect on the case of prosecution. The second limb of argument of the appellant is that in the evidence of P.W. 1, P.W. 2 & P.W. 3 it has come that there was darkness at the time of occurrence, as it was 7.30 P.M. P.W. 3 , the informant in his fardbeyan has also stated that a lighted lantern was there at the place of occurrence and the accused persons managed to flee away taking advantage of darkness. P.W. 2 has also stated that it was a dark night. This indicates that prosecution witnesses could identify only because light of lantern was there. During investigation, no lantern was seized by the I.O. as such, there was no means of identification. In the given circumstance, the claim of P.W. 3 that he could identify the assailant and witness the assault as well as claim of P.Ws. 1 and 2 that they identified the appellant fleeing away with blood stained knife from the place of occurrence cannot be believed. On such evidence, it could not have been held by the trial court that the appellant is the main assailant of deceased and the witnesses have identified him either giving CHHURA blow or 7 fleeing away after assault from the place of occurrence. Mr. Lala Kailash Bihari Prasad , learned counsel for the state submitted that first of all, there is no cross-examination by the defence on this point that there was no means of identification , as such, this objection cannot be raised at this stage. The cross-examination of the witnesses was on the point that whether it was a dark night or a moonlit night. P.W. 1 has stated that he cannot remember whether it was a dark or moonlit night. P.W. 2 has stated that it was a dark night and P.W. 3 stated that a lantern was burning. No cross-examination was done by the defence that on the point that there was no lantern, so the evidence of P.W. 3 cannot be disbelieved. It has been submitted by the counsel for the state that admittedly, the members of the prosecution side as well as the accused persons are neighbours and well-known to each other. It is also well decided and well considered aspect that visual capacity of rural people, who are not habituated to florescent light, is much higher than the urban people. They can identify well-known persons even in less lighted place or in absence of the light. It has also come in the evidence that distance in between SAHAN and verandah was ten steps. If the accused persons had capacity to identify its 8 target, then it can be said that witnesses can also very well identify the assailant. It has further been stated that in the fardbeyan as well as in the evidence that Ramanand Singh (father of the present appellant) who is an absconder, hauled and accosted his son to assault. In this circumstance also, there was no reason not to identify the assailants. I find much substance in the submission of the learned counsel for the state. There are houses in the neighbourhood. The informant himself has stated that lantern was burning at Verandah. There is no cross-examination on the point that lantern was not seized from the place of occurrence. Considering the evidence as well as the submission of the parties, I find that the evidence of the prosecution witness cannot be discredited on this ground that there was no means of identification. Counsel for the appellant has further submitted that considering the fardbeyan as well as the evidence of witnesses; P.W. 1 & P.W. 2 are not eye witnesses. In the fardbeyan, it has been stated that after assault, when the alarm was raised, P.W. 1, Umesh Tewary as well as Prabhu Dayal Tewary and Mani Dayal Tewary came at the place of occurrence and saw the assailants fleeing away. So far as P.W. 2 Sushila Devi is concerned, her name has not been mentioned in the fardbeyan to this effect that 9 either she was present or she came at the place of occurrence after the assault. P.W. 2 has been introduced as a witness during trial. P.W. 1 has stated that hearing alarm, he came running at the place of occurrence and saw the deceased lying on the ground with inflicted knife stabbed in his abdomen. This evidence has not been supported by any other witness as well as the I.O. P.W. 2 has claimed that she was sitting at Verandah but specifically admitted that when she came at the Place of occurrence, the deceased had already received knife blow and she could identify the appellant standing with blood stained knife. Even this evidence of the P.W. 2 has been contradicted by the evidence of informant, P.W. 3 as his evidence is that P.W. 2 came after the accused persons have already fled away from the P.O. So at best, there is only one witness P.W. 3 who could have seen the occurrence. Even his evidence could not be believed considering the fact that there was no means of identification. Conviction is based on the sole evidence of P.W. 3 who has admitted his enmity in the fardbeyan itself though this enmity has completely been denied in the deposition. Counsel for the state has submitted that even if, it is considered that P.Ws 1 & 2 are not eye witnesses, their evidence is very much relevant as their evidence has given support to the evidence 10 of P.W. 3 who is an eye witness and seen the actual assault. This much of the evidence of P.Ws. 1 & 2 cannot be disbelieved that they came at the place of occurrence on hearing alarm as it is very much there in the fardbeyan. Counsel for the state has further submitted that fleeing away from the place of occurrence with arm immediately after the occurrence, is sufficient evidence for conviction. In support of his submission, he placed reliance on a decision reported in S.C.C. 2000, Vol.-1 (Cri) page 100( Pal Singh Vs State of Punjab) and S.C.C.2002, Vol.-2 (Cri) page 1600 (Komal & Ors with Meharban & Ors. Vs state of U.P.) I find that the evidence of P.Ws. 1 and 2 corroborating the evidence of eye witness P.W. 3 is sufficient for coming to this conclusion that the knife blow was given to the deceased by the appellant and that is sufficient for the purpose of conviction. Counsel for the appellant has also submitted that the fardbeyan is a concocted and fabricated document. It has been brought into existence at the behest of Prabhu Dayal Tewary who had reason to implicate the appellant and his father falsely. Suggestion was given to the witnesses so far the false implication of the appellant is concerned. In reply to this, counsel for the state has submitted that the occurrence took place at 7.45 in the 11 evening and promptly the injured was taken to Primary Health Centre for his treatment without wasting any time. The prompt action of the prosecution does not leave any scope either for concoction or fabrication as the fardbeyan of the informant was recorded at Primary Health Centre, Dighwara at 9.00 P.M. considering this aspect, it cannot be stated that the real incident was concealed and on the basis of concocted and fabricated story, the prosecution case was initially instituted. It has further been submitted by the counsel for the state that cases are decided on broad probabilities and not on minor probabilities. Minor contradictions cannot affect the result of case. In the present case, the prosecution witnesses have supported and proved the case of prosecution and there is no scope for holding the prosecution case having not been proved beyond all reasonable doubts. Counsel for the appellant has further submitted that in the fardbeyan, the informant (P.W.3) has stated that occurrence took place because of the continuing land dispute. This motive has completely been left and not been proved by the prosecution during trial. The prosecution witnesses have rather denied that there was any enmity or motive for which the appellant and his father came at the place of occurrence and gave a CHHURA blow 12 in the abdomen of the deceased. Such serious action cannot be taken without any reason or motive, since prosecution failed to prove motive, conviction is bad. Counsel for the state in reply to this, has submitted that when there is consistent evidence of the witnesses as well as evidence of eye witness, proving the motive is not so relevant. So far motive is concerned, it is there in the heart of the accused and it is important in a case of circumstantial evidence when there is no direct evidence to prove the prosecution case. In the present case, the occurrence and role played by the appellant has been proved by the evidence of the eye witness. Even if motive is not proved, it cannot have adverse impact on the final result of the case. I find much weight in the submission of the counsel for the state. I also find that there is no major contradiction in the evidence of the witnesses which could have had any effect on the judgment and finding of the trial court. Another limb of argument of the appellant’s counsel is that it is the case in which conviction could not have been u/S 302 of the IPC rather the evidence on record shows that at best conviction should have been u/S 304 part –I of the IPC. The evidence of the witnesses as well as the post- mortem report conducted by P.W. 5 shows that only a 13 single blow was given by the assailant, it was not repeated and the weapon which used was a pen knife which cannot be considered to be a major weapon. So far the motive is concerned, that has also not been proved and it shows that there was no intention on the part of the assailant. The appellant had no criminal antecedent and at the time of conviction, he was only 27 years of age. Considering all these facts, the conviction of the appellant should be modified from 302 of the IPC to 304 (part-I) of the IPC. Counsel for the state on the other hand, has submitted that for considering that whether the case falls under Section 302 of the IPC or Section 304 (Part-I)’ one has to consider whether the evidence on record shows that there are ingredients which covers it fairly u/S 300 of the IPC. This case is not covered under any of the five exceptions u/S 300 of the IPC. For deciding culpability, the court has to see that whether the assault was unintentional or accidental and there is no real attack. In the present case, the father of the appellant hauled to kill and with intention to kill the deceased had given CHHURA blow. The injury was on the vital part of the body, sufficient to cause death. The part of the body on which the blow was given is indicative of the fact that accused intended to cause injury for the purpose of killing. The evidence on record 14 does not show that the blow was not intentional. The veracity of the attacked weapon used and nature of injury is sufficient to prove that blow was given with an intention to kill , as such, there is no scope for bringing this case u/S 304 (part-I) of the IPC. On consideration of the submissions of the parties as well as the evidence on record, the present case cannot be brought within the purview of Section 304(part-I) of the IPC. The submission made by the counsel for the appellant for modification of sentence and conviction cannot be accepted as such, it is rejected. No ground is made out for interfering either with the conviction or sentence by the trial court. This appeal is dismissed. (Mridula Mishra, J.) (Shailesh Kumar Sinha, J.) Patna High Court, The 14th day of May, 2008, NAFR/AKV