IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.184 of 1998 Against the judgment of conviction dated 20.04.1998 and order of sentence dated 25.04.1998 passed by 3rd Additional District & Sessions Judge, Motihari in Sessions Trial No. 26/54 of 1984/87. RAJESHWAR SINGH son of Rama Singh, of village- Bhusaulwa, P.S. Kalyanpur, District- East Champaran. .... .... Appellant Versus State Of Bihar .... .... Respondent For the Appellant : Sri Neeraj Kumar @ Sanidh, Amicus Curiae. For the State : Sri. S.A. Ahmad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The solitary appellant was charged by the learned 3rd Additional District & Sessions Judge, East Champaran, Motihari under Sections 304 and 323 IPC for being tried in Sessions Trial No.26 of 1984 and by judgment dated 20.04.1998, the appellant was convicted of the two offences and was directed to suffer rigorous imprisonment for three years and three months respectively on the two above counts. The appellant has preferred the present appeal to challenge his conviction and sentence. 2. The prosecution case is contained in the FIR, Ext-2 lodged by the informant Maghani Devi(P.W.4) at the police station in which she stated that there was 2 a tree just by the side of her house and pegs had been fixed for teethering the buffalo and oxen. At about 5 P.M. on 21.10.1979 the accused, Rajeshwar Singh came and started harassing her buffalo by tethering his own cattle. The lady lodged a protest as to why the appellant had teethered his own ox upon which the appellant is said to have said that the land belonged to him and as such he will tether his ox also. An exchange of word ensued and hearing that the wife of Guraj Pandit(P.W.2) came out of her house with her two year old daughter in her lap on which this appellant is said to have picked up the child to throw it away and thereafter to have run away from the scene of occurrence. The informant and her Gotani, i.e., P.W.3 Sunar Devi shouted at the incident which attracted Suraj Pandit(P.W.1) who also saw the occurrence. 3. It appears that the dead body of the two year old child was sent for autopsy to P.W.5 Dr. Lal Narain Jha, who held postmortem examination on 27.10.1979 and found that the dead body of Ramkesia, a child of two years, was not bearing any external injury and opined that the membrane over the left frontal part was found swelling and blackened. After opening the membrane red blood came out of the brain surface which was found lacerated. It was opined by P.W.5 that the death of the baby had been caused by head injury 3 possibly due to her head striking against the firm ground and within 36 hours of holding the postmortem examination. 4. After close of the investigation, the appellant was sent up for trial and accordingly that ended in the impugned judgment. 5. Sri Nerraj Kumar @ Sanidh appearing on behalf of the appellant submitted that there was variance in the evidence of P.Ws.3 and 4, the two eye witnesses as regards the assault given by the appellant to them. The evidence of P.W.3 Sunar Devi did not show that she was assaulted by lathi or even otherwise and as such was bearing an injury. P.W.4 Mahangi Devi states that P.W.3 was also assaulted with lathi simultaneously with her when they were resisting the acts of the appellant. It was contended that the investigation officer was not examined and as such there is no evidence that indeed there was a tree under which pegs had been fixed for teethering the cattle. Contention, as such, was that the substratum of the prosecution case was not established and that gives a death blow to the proof of the charges. By taking me through the evidence of witnesses, it was contended that P.Ws.1 and 2 could not be said to be an eye witnesses and considering the variance in the evidence of P.Ws.3 and 4 Sunar Devi and Mahangi Devi, their evidence also does not appear 4 inspiring confidence and as such the appellant deserves to be acquitted. 6. The appellant has been convicted under Sections 304 part-II and 323 IPC. It is no where stated in the FIR as to how the two ladies were assaulted. However, during the course of evidence P.W.4 Mahangi Devi, the informant of the case, who was undisputedly, present at the place of occurrence claimed being assaulted by the appellant with lathi simultaneously with P.W.3 Sunar Devi. However, Sunar Devi in her evidence stated that she had not even been slapped or pushed over around the place of occurrence. The other aspect is that if at all P.W.4 or P.W.3 were assaulted by lathi as was claimed by P.W.4, then the ordinary expectation was that they ought to have gone to any doctor for being medically examined, but there is no such evidence. In that case, the conviction of the appellant under Section 323 IPC appears not sustainable in the light of the evidence as just discussed. 7. However, the above discussion does not mean to point out that the two witnesses P.Ws.3 and 4 could not have been present at the place of occurrence. The age of the child was two years as may appear from the evidence of P.W.5 Dr. Lal Narain Jha who held autopsy on the dead body and the evidence of witnesses, like, P.Ws.3 and 4 clearly stated that when P.W.4 was 5 altercating with the present appellant, P.W.3 came out of her house with the deceased in her lap. It appears a natural conduct of P.W.3 as she could not leave the two years old child inside her house specially when P.W.2 her husband Guraj Pandit stated in his evidence that he was ill and was taking some meals as per the advice of the doctor and his wife P.W.3 was present there and after hearing the hullah, she rushed out of the house with her child. The evidence of P.W.4 also is on the same line that P.W.3 rushed out of her house with the child and came to the place of occurrence and when she intervened, and when P.W.4 was being assaulted by appellant Rajeshwar Singh, this appellant picked up the child and threw her on the ground. There is no recorded enmity. However, it has been sated by P.W.3 that there was some dispute for that particular land between the parties. The evidence of doctor complements the evidence of the witnesses that the deceased had struck some hard ground surface head on so as to sustaining injury which ultimately proved fatal. Thus, what I find is that the evidence of witnesses, like, P.Ws.3 and 4 as also that of P.Ws.1 and 2, though they are not eye witnesses, establishes the story that this appellant had picked up the child to throw her on the ground to cause her death. 8. It appears from the evidence that the appellant might not be intending to kill the child and, 6 might be, in rush of anger would have picked up the child to throw it on the ground as a result of the child died. However, the appellant being a prudent person must be knowing the consequence of his act and its seriousness and as such the conviction of the appellant under Section 304 part-II appears fully justified. The appellant was awarded a sentence of rigorous imprisonment for three years, which in my considered view was too lenient to be supported. But, the date of occurrence was 21.10.1979, the judgment in respect of which was delivered on 20.04.1998 and it is 13 years since that this appeal has remained pending in this Court. 9. Considering these aspects and further considering that there was no notice given to the appellant on enhancement, this court leaves the sentence as imposed upon the appellant undisturbed. 10. With the above modification and conviction of the appellant under Section 323 IPC for which he has been convicted, the appeal is dismissed. Patna High Court, Dated, the 25th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)