IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.161 OF 1988 With Criminal Appeal (DB) No. 176 of 1988 = = = = = = Against the judgment and order dated 30.03.1988 passed by learned 2nd Additional Sessions Judge, Patna in S.T. No. 192 of 1981, arising out of Kotwali P.S. case no. 06 of 1973. = = = = = = 1. Ram Bhajan Kahar (since dead) 2. Ram Ishwar Kahar @ Ishwar Kahar, both sons of Kali Kahar, resident of Durga Sthan, Chiraiya Tarh, Police Station Kotwali, District- Patna . . . .Appellants (In Cr. Appeal No. 161 /1988) Ganga Kahar @ Ganga Prasad, son of Gulab Chand Ram, resident of Durga Asthan, Chiraiyatarh, Police Station Kotwali, District- Patna . . . .Appellant (In Cr. Appeal No. 176/1988) Versus The State of Bihar. . . .Respondent (In both the appeals) = = = = = = For the Appellants: M/s Awadhesh Prasad Sinha, Kumar Mritunjay Narain, Advocates. For the State :Ms. Shashi Bala Verma, A.P.P. P r e s e n t THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S. P. Singh, J. The two Cr. Appeals, namely, Cr. Appeal (DB) No. 161 of 1988 and Cr. Appeal (DB) No. 176 of 1988, arise out of a common judgment and order dated 30.03.1988, passed by learned 2nd Additional Sessions Judge, Patna, in S.T. No. 192 of 1981, arising out of Kotwali P.S. 2 case no. 06 of 1973. Cr. Appeal No. 161 of 1988 has been preferred by Ram Bhajan Kahar and Ram Ishwar Kahar @ Ishwar Kahar, whereas Cr. Appeal No. 176 of 1988 is filed by Ganga Kahar @ Ganga Prasad. During hearing of this appeal, Ram Bhajan Kahar (Cr. Appeal No. 161 of 1988) died and his name was expunged from the memo of appeal, by order dated 31.03.2011, with the result that there is one appellant in each of the two appeals. 2. Both the appellants have been convicted under Sections 302/149 of the I.P.C. for being members of unlawful assembly in prosecution of the common object of causing death of one Surendra Kumar Singh @ Munna Jee, the brother of the informant. The appellants have been further convicted under Sections 307/149 of the I.P.C. for being members of unlawful assembly with common object to commit murder of the informant Girish Kumar Sinha, his maternal cousins Ajay Kumar and Suresh Kumar Sinha. Both the appellants have been sentenced to undergo imprisonment for life under sections 302/149 of the I.P.C., and further sentenced to undergo R.I. for five years for offence under sections 307/149 of the I.P.C. However, the sentences were ordered to run concurrently. 3 3. On the basis of Fardbeyan of one Girish Kumar Sinha, son of late Brindavan Bihari Sinha, resident of Mohalla Devi Sthan, Chiraiyatanr, Patna recorded by Shri Balwant Singh, A.S.I. (P.W.15) on 03.02.1973 at 10.00 P.M. in Emergency Ward of P.M.C.H., Kotwali P.S. case no.06 of 1973 under Sections 147, 148, 149, 324 and 307 of the I.P.C. was instituted, to which Section 302 of the I.P.C. was added consequent to death of Surendra Kumar Sinha on 25.02.1973. 4. The prosecution case in short as made out in Fardbeyan of informant Girish Kumar Sinha (P.W.5) is as follows. The informant stated that on 3.2.1973 he had gone to the shop of Buchkan Sao for taking betel. While returning as he came near the tailoring and electric shop of Ganga Kahar, the latter stopped him and made a grievance as to why they restrained his son Nagendra from doing cycling in the Mohalla. The informant feigned ignorance about the whole episode and assured him that he will enquire into the matter. At the relevant time, the informant’s son Ganga Kahar, Jai Govind Kahar aged about 24 years and Bal Govind Kahar aged about 20 years and Ram Bhajan Kahar and his brother were also sitting in the shop. All these persons had covered their bodies with Chadar. The informant identified them as there was sufficient light in the 4 street and in the shop as well. The informant smelt something foul as the accused persons did not bear good character and Ganga Kahar was an accused in a murder case. The informant as such hastened towards his house. Thereupon, Ganga Kahar instigated others to kill the informant, whereupon all the accused persons started chasing him. Ganga Kahar and his son Nagendra were armed with knife, Jai Govind Kahar and other accused were armed with lathi. As soon as the informant reached near the shop of Bachha Sao, Govind Kahar struck him with knife aiming at his neck. As the informant ducked, the blow hit his back. On hearing hulla of the informant, his younger brother Surendra Kumar Sinha @ Munna, Maternal cousin Ajay Kumar Sinha @ Mohanjee and Suresh Kumar Sinha came running, as their houses were situated closed by to the place of occurrence. On seeing his brother and cousins, the accused persons exorted each other to kill them as well. Ganga Kahar assaulted his maternal cousin Ajay Kumar with knife which injured his right chest. Jai Govind Kahar hurled lathi blow on the head of younger brother Surendra Kumar Sinha, who immediately fell unconscious. Surendra Kumar Sinha was also assaulted by Jai Govind and his younger brother Nagendra. Balgovind and others also assaulted his brother Surendra Kumar Sinha 5 who had fallen unconscious on the ground. In the meanwhile, the patrolling party of Kadam Kuan Police Station reached the place of occurrence and carried the injured to the P.M.C.H. In the meantime many people also arrived at the place of occurrence and saw the whole incident in the street light. On reaching hospital, the informant learnt that Nagendra Kahar used to ride cycle carelessly in the Mohalla and he had almost hit his younger brother Surendra Kumar Sinha (the deceased) on one of the occasions. The informant’s younger brother Surendra Kumar Sinha cautioned Nagendra Kumar against such rush driving which led to assault on him, his brother and cousin. The police after investigation submitted charge-sheet under Sections 147, 148, 149, 324 and 302 of the I.P.C. against appellants, Jai Govind @ Balgovind, Ram Ishwar Kahar (dead) and Ram Bhajan Kahar. The learned Magistrate took cognizance of offence and committed the case to the Court of Sessions on 06.04.1981. The charges were framed under Sections 302/149 of the I.P.C. and 307/149 of the I.P.C., to which the accused pleaded not guilty and claimed to be tried. 5. In support of the charge, the prosecution examined 17 witnesses out of which P.W.5 Girish Kumar Sinha, is the informant, 6 P.W.1 Sudhir Kumar Sinha, P.W.2 Anurag Kumar Ambastha, P.W.3 Anjani Kumar Sinha, P.W.4 Ajay Kumar Sinha, P.W.9 Mohan Prasad and P.W.10 Suresh Kumar Sinha, are eye witnesses of the occurrence. Out of the aforesaid six eye witnesses, P.W.1, P.W.4, P.W.9 and P.W.10 are F.I.R. named witnesses. P.W.6 Prem Chandra Yadav is a formal witness, who brought the register from Kurji hospital to P.M.C.H., P.W. 7 is Dr. Ahmad Abdul Hai, who examined all the injured at P.M.C.H. P.W.8 is Dr. H.R.P Verma, who examined Surendra Kumar Sinha (deceased) both at P.M.C.H. and at Kurji hospital. P.W.11 Ram Pravesh Lal is the witness of seizure list. P.W.12 Sudhir Kumar Singh is a formal witness, who assisted in shifting Surendra Kumar Sinha (deceased) to Kurji hospital. P.W.13 is Krishna Bihari Sahay, the incharge patrolling party, who reached the place of occurrence soon after the incident on 03.02.1973 at 8.00 P.M. and carried the injured to P.M.C.H. P.W.14 is Kamla Singh, who brought the dead body from Kurji hospital to P.M.C.H. P.W. 15 Balwant Singh, A.S.I. Kotwali police station, is the investigating officer, who also recorded fardbeyan of the informant (P.W.5). P.W. 16 is Dr. Raj Mani Pandey, who conducted the post-mortem examination on the dead body of the deceased 7 (Ext.8). P.W. 17 is Baikunth Singh, who proved the inquest report (Ext.- 9). 6. The accused did not choose to examine any witness and their defence is total denial of occurrence. According to them, the deceased Surendra Kumar Sinha suffered injuries in road accident and on mere suspicion they have been roped in this case. During the trial, co-accused Nagendra Kahar and Jaigovind Kahar @ Balgovind Kahar were found to be minor and their case was separated for being tried under Children’s Act and the instant trial proceeded against remaining three accused persons, namely Ganga Kahar, Ram Bhajan Kahar and Ram Ishwar Kahar. During the pendency of this appeal, Ram Bhajan Kahar died and his name was expunged from the memo of appeal; and now only two of the accused are appellants before us, namely Ram Ishwar Kahar and Ganga Kahar. Ram Ishwar Kahar is appellant in Cr. Appeal no. 161 of 1988 and Ganga Kahar @ Ganga Prasad is appellant in Cr. Appeal No. 176 of 1988. 7. The trial court on consideration of the materials on record came to the finding that the prosecution succeeded in proving the charge framed against the accused and convicted both the appellants under Sections 302/149 of I.P.C. and 307/149 of I.P.C., and sentenced to undergo 8 rigorous imprisonment for life and five years respectively under each count. 8. The appellants have challenged the judgment and order of conviction on various grounds. 9. But before we deal with the vraious submissions made by the learned counsel for the appellants and State, it would be necessary to examine the depositions of the witnesses in brief. 10. P.W.1 Sudhir Kumar Sinha stated that on the fateful day he was returning home from Bazar at 8.00 P.M. via Chiraiyatand Road. As he reached near Manorama Medical Hall, he heard cries of Girish Kumar Sinha, who was shouting for help. He saw the informant in pool of blood in the street light. He stated that the place of occurrence was a tri-junction in Devi Asthan Mohalla. The accused persons namely Ganga Kahar, Nagendra Kahar, Ram Ishwar Kahar, Jai Govind Kahar and Ram Bhajan had surrounded the informant. Ganga Kahar and Nagendra Kahar were armed with dagger, accused Jaigovind Kahar was armed with Danta. Accused Ram Bhajan and Ram Ishwar were armed with Lathi. Ram Bhajan Kahar, Ram Ishwar Kahar and Jaigovind Kahar were assaulting the informant with Danta. He also deposed that on alarm raised by the 9 informant, Surendra Kumar Sinha @ Munna, Ajay Kumar Sinha and Suresh Kumar Sinha reached the place of occurrence from their respective houses which were close by. On seeing them, the accused Ganga Kahar exhorted other accused persons to assault them. Jaigovind Kahar hurled lathi blow on the head of Surendra Kumar Sinha with force, who fell unconscious and thereupon other accused also assaulted him. In the mean time, Ram Bhajan assaulted Ajay Kumar Sinha with Danta and Ram Ishwar assaualted Ajay Kumar Sinha with Lathi. Ganga Kahar assaulted Ajay Kumar Sinha with knife on right chest. 11. P.W.2 Anurag Kumar Ambastha stated that on the date of occurrence, he reached near the shop of Ganga Kahar at about 8.00 P.M. on his return from Postal Park. He saw Girish Kumar Sinha hurriedly going towards his house, chased by Ganga Kahar, Nagendra Kahar, Ram Ishwar Kahar, and Jaigovind Kahar, all armed with lathi and dagger. All the accused persons were sitting in the shop of Ganga Kahar. There was enough light in the shop of Ganga Kahar as well as in the street. The accused succeeded in apprehending informant in front of Devi Sthan Lane towards east. Ganga Kahar aimed a dagger blow at his neck, which hit his back, as the informant ducked to save himself. On hearing hulla of 10 informant, Ajay Kumar Sinha, Surendra Kumar Sinha and Suresh Kumar Sinha came running from Devi Asthan Lane to the place of assault. On seeing them, the accused persons exhorted each other to assault them as well. Ganga Kahar gave a dagger blow on the right chest of Ajay Kumar Sinha. Accused Ram Ishwar Kahar assaulted Ajay Kumar Sinha with lathi near the ear and right shoulder. Accused Jaigovind assaualted Ajay Kumar Sinha with Lathi. Ram Bhajan assaulted Suresh Kumar Sinha with lathi near his left eye. Accused Jai Govind gave a lathi blow on the head of Surendra Kumar Sinha, due to which he fell unconscious, whereupon other accused persons assaulted him and Ganga Kahar kicked him ruthlessly. In the meantime, the patrolling party arrived at the place of occurrence and carried the injured in to P.M.C.H. The defence has not been able to elicit any material to make his evidence unreliable. 12. P.W. 3 Anjani Kumar Sinha is another eye witness of the occurrence. He stated that on the date of occurrence, he was returning via Chiraiyatand after purchasing vegetables. As he approached near the shop of Ganga Kahar, he saw the latter being involved in an altercation with the informant. Accused Ganga Kahar was protesting as to why the informant and others stopped his son from cycling in the locality. At the relevant 11 time, the accused persons namely Nagendra Kahar, Ram Bhajan Kahar, Ram Ishwar Kahar and Jaigovind were sitting in the shop having covered themselves with a Chadar. After a few minutes he saw informant almost hustling towards his house, followed by the accused persons armed with lathi and dagger. The accused persons surrounded the informant near the shop of Bachcha Sao at the junction of Devi Asthan lane and the main road. The informant was raising halla while fleeing. Accused Ganga Kahar attacked the informant with dagger but as the informant tried to save himself, the dagger hit his back. On hearing hulla, Ajay Kumar Sinha (P.W.4), Suresh Kumar Sinha (P.W.10) and Surendra Kumar Sinha (deceased) came running from Devi Asthan Lane. On seeing them, all the accused shouted to kill them. Ganga Kahar gave a dagger blow on the right side of chest of Ajay Kumar Sinha. Accused Ram Ishwar and Jaigovind assaulted Ajay Kumar with lathi and danta. Accused Ram Bhajan assaulted Suresh Kumar Sinha with lathi. Accused Jaigovind gave a Danta blow on the head of Surendra Kumar Sinha, who fell unconscious, whereupon he was assaulted by other accused. Ganga Kahar kicked him. In the meantime, police patrolling party arrived at the place of occurrence 12 and carried the injured to hospital. We do not find any material contradictions in the depositions of this witness to discredit his evidence. 13. P.W. 4 Ajay Kumar Sinha is too an eye witness of the occurrence and one of the injured. He stated that on hearing hulla of the informant, he rushed towards Devi Asthan Lane followed by Suresh Kumar Sinha and Surendra Kumar Sinha. The accused namely Ganga Kahar, Nagendra Kahar, Rambhajan Kahar, Ram Ishwar Kahar and Balgovind Kahar @ Jai Govind Kahar had surrounded the informant. Ganga Kahar struck informant with Chhura. Ganga Kahar instigated others to assault them. Ganga Kahar struck dagger at him causing injury on his right chest. Bal Govind Kahar hurled a Danda blow on the head of Surendra Kumar Sinha, who fell and became unconscious. Thereupon Nagendra Kahar, Ram Ishwar Kahar assaulted him with lathi. Ganga Kahar kicked Surendra Kumar with leg. He stated that Ram Ishwar Kahar and Ram Bhajan Kahar also assaulted Suresh Kumar Sinha with lathi. 14. P.W. 5 is the informant of the case. In his deposition he supported the prosecution case in toto. He stated that around 8.00 P.M. on 03.02.1973, as he passed by the shop of Ganga Kahar after taking betel from shop of Bachchu Sao, he was stopped by him. At the relevant time 13 other accused persons namely Nagendra Kahar, Rambhajan Kahar, Ram Ishwar Kahar and Balgovind Kahar @ Jai Govind Kahar were sitting in the shop having covered themselves with Chadar. Accused Ganga Kahar complained as to why his son Nagendra Kahar was restrained from cycling in Devi Asthan Lane. The informant feigned ignorance and assured him that he would enquire into the matter. The accused persons, who were armed with lathi and knife came out of the shop and it is the informant, who raised hulla while fleeing. The accused persons succeeded in surrounding him near the shop of Bachcha Sao. Accused Ganga Kahar attacked him with dagger at his neck but as he ducked, the same hit his back. In the meantime, hearing hulla his cousins Ajay Kumar Sinha (P.W.4), Suresh Kumar Sinha (P.W.10) and Surendra Kumar Sinha (deceased) and others came to the place of occurrence. On seeing them accused persons yelled to kill them as well. Accused Ganga Kahar injured right chest of Ajay Kumar Sinha with knife, Balgovind and Ram Ishwar assaulted Suresh Kumar Sinha with lathi. Jaigovind gave a Danta blow on the head of Surendra Kumar Sinha, who fell unconscious. Accused Nagendra Kahar, Balgovind and others also assaulted him with lathi. Ganga Kahar kicked Surendra Kumar Sinha. In the meantime P.W.13 14 came and carried them to hospital. This witness had too remained unruffled in cross-examination. 15. P.W.6 Prem Chandra Yadav is incharge Medical Record of Kurji hospital and he produced Admission and Death register. 16. P.W. 7 is Dr. Ahmad Abdul Hai, who at the relevant time was posted as an Associate professor in the department of surgery at P.M.C.H. He examined all the injured including Surendra Kumar Sinha (deceased). He deposed that in the night of 03.02.1973, the injured was brought to the hospital and at 9.05 P.M. on the same day he examined Surendra Kumar Sinha, who was in unconscious state. He was not responding to painful stimulus. His pulse rate was 54. The corneal reflex was totally absent. He deposed that there was no sign of external wound and the patient suffered severe neurological injury. He proved the injury report of Surendra Kumar Sinha, which has been marked as Ext.2. He also proved injury report of Ajay Kumar Sinha, marked Ext-2/1. He also examined Suresh Kumar Sinha and Girish Kumar Sinha and proved their injury reports, which have been marked Ext.-2/2 and 2/3. 17. P.W. 8 is Dr. H.R.P. Verma, who on the relevant date was posted at P.M.C.H. as Neuro Surgeon. He examined Surendra Kumar 15 Sinha at P.M.C.H. on 06.02.1973 and 09.02.1973. He stated that Surendra Kumar Sinha was obeying simple command and was feeling weakness in the left side of the body. He proved endorsements on the Bed Head Ticket, which has been marked as Ext.3. He examined the patient again on 09.02.1973 and made necessary entries on the bed head ticket, which has been marked as Ext.3/1. On that day i.e. 09.02.1973 itself, he performed operation on the patient at Kurji Hospital and found that patient has suffered subdural haematoma. He conducted another operation on 19.02.1973 and found wide spread brain contusion effecting whole of right hemisphere. In paragraph 4 of his deposition, he stated that the injury sustained by the patient was on head and grievous, caused by lathi and ‘danta’ and fatal to life. He stated that he prepared injury report, which has been marked as Ext. 2/4. The injury report was prepared by carbon process. In cross-examination, he stated that haematoma and contusions on brain are possible with or without an external injury and such injuries are often caused by vehicular accident and fall from height by the application of violence on head. 18. P.W. 10 Suresh Kumar Sinha too supported the prosecution case substantially. He too stated that Ganga Kahar assaulted informant 16 with knife, which injured his back. He stated that on hearing ‘halla’ he along with his cousins Ajay Kumar Sinha and Surendra Kumar Sinha came to the place of occurrence at Devi Asthan Lane. Ganga Kahar struck Ajay Kumar Sinha with knife on his right chest. He stated that Balgovind and Ram Bhajan Kahar assaulted him with lathi. Jaigovind @ Balgovind Kahar assaulted Surendra Kumar Sinha on his head, on account of which, the latter fell unconscious. Thereafter he was assaulted by other accused persons. We find nothing in the evidence of this witness to discredit his evidence. 19. P.W. 11 Ram Pravesh Lal is a seizure list witness. 20. P.W. 12 Sudhir Kumar Singh is brother of Surendra Kumar Sinha and is a formal witness. He shifted the deceased from P.M.C.H. to Kurji hospital. 21. P.W. 13 Krishna Bihari Sahay, was Inspector of Kadam Kuan police station and was on patrolling duty. On 03.02.1973at about 8.00 P.M. as he reached south of Chirayatand bridge he learnt that some altercation has taken place in Devi Asthan. He found some persons in injured condition and carried them to P.M.C.H. for treatment. 17 22. P.W. 14 Kamla Singh is a formal witness. He brought the dead body of the deceased from Kurji hospital to P.M.C.H. 23. P.W.15 Balwant Singh is the investigating officer of the case and he recorded fardbeyan of Girish Kumar Sinha (P.W.5) at P.M.C.H. He proved the F.I.R., which has been marked as Ext.6. 24. P.W. 16 is Dr. Raj Mani Pandey, who conducted post- mortem examination on the dead body of the deceased, marked as Ext.8. He deposed that on 25.02.1973 he examined the dead body of Surendra Kumar Sinha at 4.00 P.M. in P.M.C.H. He found the following ante- mortem injuries present on the person of the deceased: (1) Stitched wound semi-circularly situated on right side of head 10” in length. (2) Stitched wound 2” in length vertically situated on the left side back of head. (3) Stitched would 2 ½” in length on left temporal region vertically placed. (4) Lacerated wound 1” x ½” on right side of head just above the right ear. On dissection, he found that right side of frontal temporal parietal and a portion of occipital bone was clearly cut. Both holes were result of surgical manipulations. He stated that the injuries were not 18 inflicted. He stated that time period passed since death was within 24 hours. He opined that the cause of death was due to the injury on the head, which are sufficient in ordinary course to cause death. In cross- examination, he stated in paragraph 7 that death may also occur due to inept handling of patient during surgical operation. 25. P.W. 17 Baikunth Singh is the last of the witnesses and proved the inquest report, which has been marked as Ext.9. 26. The learned trial court held that the accused persons namely Ganga Kahar, Ram Bhajan Kahar and Ram Ishwar Kahar and others in pursuance of their common object caused death of Surendra Kumar Sinha and injured informant and his cousins and accordingly convicted the appellants both under Sections 302/149 and 307/149 of the I.P.C. 27. Mr. Kanhaiya Prasad Singh, learned Senior Counsel appearing for the appellants has assailed the impugned judgment of the trial court convicting the appellants and sentencing them under Sections 302/149 as well as 307/149 of the I.P.C. He firstly submits that the Medical evidence contradicts and cuts at the root of the prosecution case. There is no positive evidence that death has been caused due to perpetration of assault. Elaborating his point, learned Senior Counsel 19 submits that just within one and half hour of the occurrence, Surendra Kumar Sinha (deceased) was examined by an eminent surgeon Dr. A.A. Hai (P.W.7), an associate professor of Surgery Department in P.M.C.H. at 9.05 P.M. on 3.2.1973. In paragraph 4 of his deposition, he stated that he did not find any external injury on the person of Surendra Kumar Sinha. The eminent surgeon was of the view that the patient was suffering from severe neurological injury. Learned counsel submits that if a person is assaulted with Danda and Lathi on the head, he will definitely suffer atleast lacerated injuries. He submits that it is the prosecution case that Jaigovind Kahar @ Balgovind Kahar struck with Lathi on his head and on account of impact of injury, Surendra Kumar Sinha fell and became unconscious. But curiously enough, the doctor did not find any injury on head of Surendra Kumar Sinha and this belies