IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.209 of 1989. Against the judgment dated 31st March, 1989 passed by 5th Additional District and Sessions Judge, Saran, Chapra in Sessions Case no.174 of 1987. ========================================================== 1. Badsah Sah son of Shri Ram Jiwan Sah. 2. Ram Nirekhan Sah son of Ramautar Sah. 3. Hawaldar Sah son of Ramdeyal Sah. All residents of village Bharwalia, Police Station Manjhi, district- Saran. .... .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== = Appearance : For the Appellants : Mr. Ramakant Sharma, Sr.Adv. Mr. Jitendra Prasad Shaha. Mr. Rajesh Kumar. For the Respondent : Miss. Shashi Bala Verma. ========================================================== = CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The present appeal by the three appellants against the judgment dated 31.3.1989 by which the learned 5th Additional Sessions Judge, Saran at Chapra has convicted them under Section 302 of the Indian Penal Code and Section 302 read with Section 34 of the Indian Penal Code respectively in respect of appellant no.1 and appellant nos. 2 and 3 and sentenced them to life imprisonment. We have heard Mr. Rama Kant Sharma, learned Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 2 Senior counsel at length as well as learned A.P.P. in the case. The prosecution case is based upon the fardbeyan of Harendra Singh (P.W.6), which was recorded at Chapra Sadar Hospital . P.W.6- Harendra Singh happens to be the brother of the deceased Ashok Kumar Singh. The statement was recorded at about 7 P.M.on 2.2.1987 and was witnessed by Purendra Narayan Singh (P.W.1) and Anil Singh ( P.W.5). It is alleged that when the informant and his brother Ashok Kumar Singh were at their motor-parts shop at Daudpur Bazar at about 5 P.M. on 2.2.1987 the three appellants came to the shop demanding donation of Rs. 21/- for Sarswati Puja upon which Ashok Kumar Singh refused to pay the amount. It is alleged that appellant nos. 2 and 3 then caught hold of Ashok Kumar Singh and appellant no.1 Badsah Sah took out a knife from his pocket and stabbed Ashok Kumar Singh on the back of his shoulder. The injured was then carried to Chapra Sadar Hospital where he was declared dead on arrival. The police having recorded the fardbeyan at Chapra Sadar Hospital in emergency ward, forwarded to Daudpur police station where it was received on the next day and the case was registered accordingly. Upon investigation being completed, charge sheet was submitted against the appellants and after taking cognizance the case was committed to the Court of Sessions, charges were framed to which they pleaded not guilty and claimed to be tried and consequently punished. The prosecution in order to establish its case has Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 3 examined eight witnesses. P.W.1- Purendra Narayan Singh has been examined as an eye witness to the occurrence. He is also a witness to the FIR. He is consistent in his evidence that he was watching the occurrence from a near by shop and alleges that on refusal to pay the donation, appellants nos. 2 and 3 caught hold of the deceased and appellant no.1 stabbed him. He then helped in getting the injured carried to Chapra. P.W.2 is Dinesh Singh. He has also been examined as an eye witness. P.W.3- Md. Aslam is a tendered witness. P.W.4-Sarda Nand Singh is also examined as an eye witness. He is distinctly related to the deceased. P.W.5- Anil Singh is also examined as an eye witness. He is also a witness to the FIR and fully supports the prosecution version. P.W.6- Harendra Singh is also examined as an eye witness. He is the brother of the deceased and the informant. P.W.7 is Dr.Krishna Nand, who conducted post mortem examination at Chapra Sadar Hospital and P.W.8- Lalan Prasad Srivastava is the Sub Inspector of Police of Daudpur police station. From the evidence of the eye witnesses of the occurrence it is consistent story which remains unshaken by the defence. Though in the examination under Section 313 Cr.P.C. the accused- appellants do not give out any defence whatsoever .From the trend of suggestion as made what is suggested is that the incident is not correctly reported. In fact, the appellants were taking a statue of Goddess Sarsawati and it was the deceased who insisted that it should be installed at a Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 4 particular place. This dispute and altercation led to Harendra Singh (P.W.6) in taking out a knife and trying to stab Badsah Sah, who managed to escape. For this incident, on 2.2.1987 itself a case was instituted in Daudpur police station at about 5.45 in the evening i.e. 12 hours before the present case was registered. This counter case was registered against, inter alia, the deceased, his brother and several others. Upon the prosecution evidence itself it is clear that the second case which is counter case, as lodged by Badsah Sah, of which police took up investigation , found the same to be false and submitted final form. In our view this counter case, if any, establishes one thing. It establishes that an incident did take place at the time and the place of occurrence, as mentioned in the FIR . Thus, as per the defence case itself the incident did take place though in different manner, as noted above. Upon investigation, the counter case was found to be false. Thus, we have to see the reliability of evidence as led by the prosecution. As noted above, the prosecution has examined five witnesses, who are eye witnesses. They have supported the prosecution case though the investigating officer, who is examined as P.W.8 states that detailed statement was not given by them to him but he admits that they had been interrogated during investigation. The first thing we would find that the investigating officer has made deliberate attempts to scuttle the investigation. It is unbecoming of him. He does not even bother to re-examine the informant. He does not Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 5 bother to examine neighbouring shop keepers. He does not bother to take sample of blood from the place of crime. He proceeded totally in irresponsible manner and if we use the expression deliberately to help the defence but notwithstanding this as we find that the investigating officer is not the last word nor what he says is gospel truth. We find that there is sufficient evidence on record, which is consistent and corroborates the fardbeyan in so far as the conduct of the appellants is concerned to establish the manner and the place of occurrence. Mr. Rama Kant Sharma , learned Senior Counsel for the appellants submits that there is vital contradiction in the statement as recorded by the police and in the deposition. It is stated that stab wound was inflicted by the appellant no.1 on the back of Ashok Kumar Singh- the deceased. This is contradicted by the post mortem report. We have gone through the post mortem report, the deposition of the doctor, who conducted post mortem and the inquest report, which is Ext. 6. We find no such material contradiction in the post mortem report, which is Ext. 2. It is apparent that the injury is on the upper part of right side of the chest, just above the right clavicle. It is neither in front nor in back. It can be said to be on the shoulder .That being the position witness deposing that it was back or other witnesses deposing that it was front makes little difference because of its peculiar position. As noted above the counter case and the fardbeyan , Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 6 which was recorded and marked as Ext. A, clearly admit of an incidence at the place and the time and the use of knife therein. Thus instead of inurning to the benefit of defence it had pin poined the presence of the appellants at the time and the place of occurrence as alleged in the fardbeyan. The three appellants have some very minor simple injuries which, were found and as a consequence of the second case being found to be false in course of investigation, the fact remains that one Ashok Kumar Singh, the brother of the informant died of stab wound. Mr. Rama Kant Sharma, learned counsel for the appellants submits with reference to the case of Lallu Manjhi –v- State of Jharkhand since reported in A.I.R.2003 S.C.854 and in particular what is noticed in paras 12 and 15 thereof, which is quoted hereunder that infirmities in investigation should ennure to the benefit of the appellants: “12. There is another very material aspect of the incident and we cannot resist observing that the investigation in the case has been very defective. The Investigating Officer did not prepare any site plan of the place of occurrence. Samples of blood stained earth were not sent for chemical examination. No effort seems to have been made to recover and seize any weapon of offence. No witness of the locality, who could have been present near the place of occurrence at the time of incident, has been interrogated. It was the cultivation time and agriculturists or labourers busy ploughing the fields must have been present in neighborhood. The witnesses referable to neighbouring piece of land could have deposed to as to the question and nature of possession over the land in dispute: as to whether it was cultivated previously and if so by whom whether the complainant party or the accused persons…” Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 7 He then refers to para 15 of the said judgment, which is quoted hereunder: “15. All these aspects of the case, specially the infirmities in the prosecution evidence and the investigation, have not received the attention of the trial Court as also the High Court. We are very clear in our mind that the state of evidence available the accused persons could not have been held guilty of the offences charged.” In our view , the facts of the present case are totally different. In that case none of the facts, as alleged by the prosecution, were being independently corroborated or established. In the case, at hand, there are five eye witnesses, who have fully supported the case and as noted above, the counter case filed by the defence i.e. by appellant no.1 itself gives credence to the place and the incident having taken place. Nothing about defence is mentioned in the statement of the accused persons under section 313 Cr.P.C.Thus, in our view, on basis of the judgment aforesaid, notwithstanding the infirmity in the investigation, we do not find sufficient ground for acquitting the appellants. Mr. Rama Kant Sharma then refers to the judgment of the Apex Court in the case of Gokul Parashram Patil - Versus– State of Maharashtra since reported in AIR 1981 SC 1441 and in the case of Jagtar Singh-Vrs- State of Punjab since reported in AIR 1983 SC 463 to submit that even accepting the prosecution case what has happened is an altercation leading to single blow with no repetition which incidently resulted in Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 8 the death of Ashok Kumar Singh. We have perused the two judgments. The facts are similar . So far as assault is concerned, the Apex Court has held that where the dispute was spontaneous and only a single blow was given with no attempt to repeat and that too as in the cited case the injury being on the clavicle bone, the Apex Court in both the cases converted conviction under Section 302 IPC to Section 304 Part II IPC. Having considered the matter, in our view, the stand taken on behalf of the appellants in view of the judgment aforesaid has to be accepted. The prosecution evidence , as noted above, clearly indicates that the incident took place at the spur of moment with no repeated blow. We may refer to the case of Jagtar Singh (supra) wherein in para 7 following the earlier case their Lordships have clearly held that though the cause of quarrel was trivival the action was sudden and in this back ground the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. It is because of that we alter the conviction of the appellants to under Section 304 of the Indian Penal Code . So far as appellant no.1 is concerned, in the facts aforesaid he is held guilty under Section 304 Part II of the Indian Penal Code and so far as appellant nos. 2 and 3 are concerned, they are held guilty under Section 304 Part II read with Section 34 of the Indian Penal Code. Patna High Court CR. APP (DB) No.209 of 1989 dt.08-11-2011 9 However, as far as the question of sentence is concerned, we find that the occurrence took place nearly 25 years ago. The appeal itself remained pending adjudication before this court for 22 years. Appellant no.1 has already remained in jail for about three years during investiation, trial and pendency of appeal. Appellant no.2 appears to be aged about 18-19 years when the occurrence took place and theage of appellant no.3 would be about 74 years today.Their conviction under Section 304 Part II of the Indian Penal Code is with aid of Section 34 IPC. They have remained in custody for some time. on the facts and in the circumstances of the case we are of the opinion that interest of justice would be served if we alter the conviction in respect of appellant nos. 1 to that under Section 304 part II and in respect of appellant no.2 and 3 under Section 304 Part II read with Section 34 of the Penal Code and reduce the sentence to the period already undergone by them. With the above modification the appeal is dismissed. Patna High Court, 8th November,2011. N.A.F.R.(S.Singh) ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J)