Criminal Appeal (SJ) No.335 of 1999 Against the judgment and order of conviction and sentence dated 16. 12. 1999, passed by Shri Rukmini Kant Chaudhary, 9th Additional Sessions Judge, Saran at Chapra, in Sessions Trial No. 3 of 1992. Birbal Choudhary, son of Late Ram Janam Choudhary, Resident of Village- Tarwa Pojhia, P.S. Kopa, District-Saran. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Vishwanath Prasad Sinha, Senior Advocate. Mr. Durgesh Kr. Singh, Advocate. Mr. Sanjay Kumar Singh, Advocate. Mr. Prabhas Ranjan Thakur, Advocate. For the Respondent State : Mr. Sujeet Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 304 Part II of I.P.C. and has been sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged in the Fardbeyan by the informant Chandrakala Devi, wife of the deceased Biswanath Chowdhary, that on 24. 07. 1991 at about 5 P.M. that on hearing hulla she came out from her kitchen and saw four persons Makeshwar Chowdhary, Jitendra Chowdhary, Bhupendra Chowdhary catch hold of 2 her husband and Birbal Chowdhary gave spade blow on the head of the husband and flee away. It is further alleged that there was a guava tree which accused persons wanted to cut on which her husband protested and so the occurrence took place. Her husband fell unconscious she brought her husband to Chapra hospital for his treatment. During treatment her husband died on 02. 08. 1991 at 10.30. 4. The occurrence took place on 24. 07. 1991 and F.I.R. has been lodged on her statement dated 02. 08. 1991 after death of the victim, though, she has stated that she gave her statement before the Officer-in-Charge, Sri Krishnapuri (Patna) on 01. 08. 1991. However, the said statement recorded by the police on the signature of the Chandrakala Devi and witnesses have been proved and marked as Ext. 1 to 1/3. However, on the basis of statement on 02. 08. 1991, F.I.R. lodged. After investigation charge sheet submitted and trial proceeded. 5. During trial 13 witnesses were examined on behalf of the prosecution apart from documentary evidence Ext. 1 to 1/3 signatures of P.W.s 4, 7 and 9 on Fardbeyan dated 01.08.1991 and 02.08. 1991, Station 3 Diary, Ext. 2 and 2/1, Post Mortem Report, Ext. 3 and signature of endorsement by Anchal Amin of Jalalpur on application of P.W. 5 (Ext. 4). The defence has also adduced both oral and documentary evidence as D. W.1 Birendra Singh, D.W. 2, Dr. Sanat Kumar Singh, D.W. 3 Ram Shankar Misir, D.W. 4 Jagdish Kumar. Some documentary evidence have also been adduced by the defence which are Fardbeyan and formal F.I.R. Ext. A and B, injury report of deceased and accused Ext. C and D, report and field book Ext. E and F, Bed Head Ticket Ext, G, endorsement by doctor Ext H to H/2 and Ext. X report of C.O. 6. Witnesses of the prosecution have come to support the prosecution case that they came to guava tree on hearing the hulla, Birbal Chowdhary was taking out earth from the root of the guava tree and was filling nala and on protest of Biswanath Chowdhary, Birbal Chowdhary gave spade blow at the instigation of Makeshwar Chowdhasry, Bhupendra Chowdhary and Nagendra Chowdhary Witnesses P.W. 1, 2, 3, 4 , 5, 7 and 9 supported the prosecution case regarding the occurrence and further fact that after the injury victim was taken to 4 Chapra Hospital from where he was referred to P.M.C.H. and from P.M.C.H. he was taken to the clinic of Dr. Ramesh Chandra for treatment and where he was treated and statement of the wife of the deceased Biswanath Chowdhary recorded on 01. 08. 1991 and 02. 08. 1991. On the basis of which F.I.R. lodged. P.W. 5 has been tendered and P.W. 6 is brother of the deceased, but he does not claim to be eye witness to the occurrence. P.W. 10 is the I.O. However, I.O. did not find any sign of taking out earth from the root of the said guava tree and he did not find any sign of cutting of the tree. 7. P.W. 11 Dr. Sunil Kumar Singh found injury 3/1/2” X 2/1/2” and one liner fracture of 2” of frontal bone was found and extra dural and subdural haemorrhage on the side of the cavity. 8. The case of the defence as apparent from the evidence and suggestion as well as documentary evidence that Biswanath Chowdhary plucking guava from the guava tree of the defence then he catch hold of Biswanath Chowdhary. It is alleged that family inmates of the house brick batted and then Biswanath Chowdhary flee away and thereafter Biswanath Chowdhary took Farsa and gave 5 Farsa blow and deceased got injured and is being treated at Chapra hospital. D.W. 2 has proved the injury on the informant Bhupendra Chowdhary, son of Birbal Chowdhwary. Exhibit. D is the injury report. Exhibit. G and H and H/2 are the Bed Head Ticket entry in Chapra hospital and his treatment. 9. The trial court taking into consideration the evidence that witnesses have supported the prosecution case about assault and P.W. 1, 2, 3, 4, 7, 9 and 13 have deposed in their evidences that Birbal Chowdhary tried to cut earth for filling the lane which was protested by the deceased Biswanath Chowdhary which lead to the verbal altercation and Jitendra, Nagendra and Bhupendra catch hold of Biswanath Chowdhary and Birbal Chowdhary gave spade blow. The trial court further taking into consideration the evidence about the occurrence for plucking of guava by Biswanath Chowdhary for which a case has been lodged and further taking into consideration the evidence of both the parties have received injury which has been examined by the same doctor. The trial court further taking into consideration that prosecution case in this case has developed the story genesis of the 6 occurrence regarding taking out the earth from the root of the guava tree and filling of the nala, but I.O. has not found the genesis to be true as he has neither found filling of the nala nor found earth cut at the root of guava tree. Hence, the trial court taking into consideration the fact that both parties have come in this case about the occurrence and at the time and place of occurrence, though, found that there is delay in lodging the F.I.R. by the prosecution as the occurrence dated 24. 07. 1991 and reported on 2. 08. 1991, after the death of the victim, but having regard to the fact that , though, appellant claims that according to the report of Amin the land and tree belong to him and hence it was deceased who was aggressor and if the injury has been caused by the accused persons as aggressor then in exercise of private defence is available and hence admitted that plea that right of private defence does not explain to it. Hence taking into consideration the fact acquitted the accused Jitendra, Bhupendra and Nagendra. However, held that there was assault and counter assault without pre-meditation from both sides in which the victim assaulted by Birbal Chowdhary on head which ultilately resulted in his death 7 and held that accused Birbal Chowdhary in the fact and circumstance may be held guilty for causing death of the deceased and convicted him Section 304 Part II. 10. Learned counsel for the appellant however contends that witnesses have come to support the prosecution case, but the evidence of witnesses suffer from contradiction the genesis of the occurrence has been developed that occurrence took place on the protest for taking earth from the root of the guava tree and for filling the nala. 11. However, I.O. has not found any sign of taking out earth from the root of the guava tree and cutting guava. Further Ext. E, F and suggestion that guava tree belongs to the defence. It has further been contended that the same doctor has found injury on the person of prosecution as well as on the person of Bhupendra Chowdhary and hence it can be well be held that prosecution has suppressed the actual genesis of the occurrence. Hence it has been contended tht if genesis of the occurrence has not been established and injury on the person of the accused persons has not been established, the prosecution case required to be rejected as the 8 prosecution has not come with clean hand. It has further been contended that prosecution require to stand of his own leg ,unless the case of prosecution can be established by the prosecution, the defence set up by the accused is not required to be looked into. 12. Learned counsel for the State however submitted that from the evidence adduced by the parties, it is apparent that occurrence took place with regard to the guava tree and there was free fight between the parties causing injury of both sides. However, injury of either side Bhupendra Chowdhary is simple caused by hard blunt substance as well as one incised wound, but causing injury does not mention grievous or simple, though, on vital part. 13. However, taking into respective submissions, it is true that prosecution has supported the prosecution case regarding assault by spade, though, in the F.I.R. it has been asserted that injury inflicted by sharp portion of the spade. However, the injury found by the doctor, though, not found sharp edge. However, when both parties is adduced evidence regarding the occurrence, though a counter version about occurrence or different genesis of 9 the occurrence. However, there is two theories, one by the prosecution and the other by the defence , case of both the parties that cause of occurrence is the guava tree. According to the prosecution there is cutting of earth and filling the nala by the appellant whereas genesis of the on the side of the defence that occurrence took place for plucking of guava by the deceased. However, the admitted case of the parties that there was free fight between the parties causing injury to each other. However, injury on the person of the deceased was found to be fatal by spade blow, though, not by sharp portion. However, injury on the person of the appellant found to be simple by sharp cutting weapon, but having regard to the fact that injury was found simple and hence only inference can be drawn that appellant exceeded right of private defence, hence only irresistible conclusion that appellant exceeded the right of private defence. 14. Hence I find and hold that view taken by the trial court convicted the appellant for offence under Section 304 Part II does not suffer any infirmity as the occurrence took place by the sole appellant. 15. So far sentence is concerned, taking into 10 consideration the fact and circumstance of the case that occurrence took place in pick up moment with regard to the petty matters regarding guava tree and the appellant is 65 years old at the date of judgment and the appellant remained in jail after conviction for more than one year and four months. 16. Hence end of justice shall meet by sentencing the appellant for the period already undergone. Hence, the appeal is dismissed with modification of sentence. Patna High Court The 13th December, 2011. NAFR/m.p. ( Gopal Prasad, J.)