CRIMINAL APPEAL No.331 OF 1988 ******* Against the judgment dated 30th April, 1988 passed by Sri S.S.Das,Sessions Judge,Siwan, in Sessions Trial No. 120 of 1987. ******* Dina Nath Prasad------------Appellant Versus The State of Bihar --------Respondent ******* For the Appellant : S/Shri Bamdeo Pandey & Tarkeshwar Pd.Verma For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. There were originally four accused persons named in the first information report. It appears that Ram Nath Prasad, who was jointly alleged with the present appellant to have also assaulted the deceased Sitmi Devi, died during the pendency either of the investigation or the trial and that led to putting three accused persons on trial in Sessions Trial no.120 of 1987 by framing charges against them under Section 302 read with Section 34 of 2 the Indian Penal Code. The learned Sessions Judge, Siwan, who heard the trial himself, delivered the judgment on the 30th April, 1988 and while acquitting the two lady accused Phulmatia and Chatia Devi, held the present appellant, Dinanath Prasad, guilty of committing offence under Section 302/34 of the Indian Penal Code and directed him to suffer rigorous imprisonment for life. The appellant questions his conviction and the sentence passed upon him by the impugned judgment. 2. P.W.6, Hardeo Prasad, the informant of the case, was the younger brother of the husband of the deceased. He stated that his son Biresh, not examined, was attempting to put up some structures for putting vegetable creepers upon it and as such was putting a peg in earth. The appellant objected to and also destroyed the vegetable creepers grown allegedly by the informant. The informant protested upon which the appellant is alleged to have dealt a blow with a bamboo on the left scapula of the informant. By that time deceased Sitmi Devi also came there but was assaulted by the acquitted lady accused with fists and slaps and by the present 3 appellant and deceased accused Ram Nath Prasad with Musal (pestle) and Lathi. Villagers assembled there on hulla and saw the occurrence. The injured Sitmi Devi was brought to Sadar Hospital, Siwan, where the statement of P.W.6, Exhibit-4, was recorded. 3. The Officer-in-charge, Siwan Muffasil Police Station thought it a case of non-cognizable nature and as such made station diary entry no. 302 dated 13th September, 1986 and awaited for the injury report. The deceased died on 13th September, 1986, that is the next day of the occurrence, and as such the first information report under Section 302, etc. of the Penal Code was drawn up against the appellant and others. 4. Investigation was entrusted to P.W.7, S.I Niraj Kumar Sinha, who came to the place of occurrence and after inspecting it recorded the statements of witnesses. He received the inquest report from town Police Station, Siwan and also received the post mortem examination report from the hospital. P.W.7 stated that it had rained in between the date of occurrence and the day he had inspected the place of occurrence and as such he 4 could not find any sign of violence, and specially, the blood mark. On completion of investigation P.W.7 sent the appellant and other accused persons up for trial. 5. The defence of the appellant was that there was no occurrence in the manner as alleged and that the informant had falsely implicated the appellant so as to usurping his land and further that Sitmi Devi was never hurt and did not die on that account. 6. Seven witnesses were examined in support of the charges out of whom P.W.1, Dudhnath Ram, P.W.3, Roshan Bhagat, and the informant, P.W.6, Hardeo Prasad, deposed as eye-witnesses to the occurrence. The husband of the deceased, Sukhdeo Bhagat, was tendered in cross-examination as P.W.5. P.W.2, Dr. Anil Kumar, held post mortem examination on the dead body of Sitmi Devi and prepared the report, Exhibit-1. Other doctor, Dr. Subhash Chandra Rai, P.W.4, had treated the deceased after admitting her in Sadar Hospital, Siwan, and tendered the bed head ticket in respect of the treatment administered to the deceased as Exhibit-2 in evidence of the case. 5 7. We have heard Sri Tarkeshwar Prasad Verma, the learned counsel appearing on behalf of the appellant, who has mainly challenged the veracity of the witnesses as not being eye-witnesses and in that respect has taken us through the evidence of both P.Ws 3 and 6 and further through the evidence of P.W.7, the Investigating Officer of the case, specially, through some specific part of their respective evidences so as to pointing out to us that there can be a probability that the witnesses had not really seen the occurrence. It was further contended that Musal, bears a ring like iron substance at one of its end which has a round-sharp- cutting-edge shall produce the injury spherical in shape and sharp cut margin, but the injury which was found by P.W.2, was a lacerated wound, on the parietal region of scalp measuring 1” x ¼” x ¼” and as such the allegation was not conforming to the medical opinion. Shri Verma was submitting that the land dispute was admitted. P.W.6, who claimed also being assaulted by the appellant, does not appear being examined by any doctor, as such his presence is further made doubtful on this score. 6 8. Sushri Shashi Bala Verma, learned Additional Public Prosecutor appearing on behalf of the State, has resisted submission of the learned counsel for the appellant by submitting that in a melee where there is a mar peet resulting into as many as four injuries it is very difficult for a witness to express the account of each and every blow given by each of the accused persons and the submission requiring blow by blow account by the witnesses must be rejected. It was contended that the proof of charges has to be shown on probability and there is no reason shown by the defence as to why the appellant or other accused persons shall be falsely implicated by informant or other witnesses who did not appear being motivated by any reason. However, Sushri Verma was generous in submitting and rather conceding to the submission of Shri Verma, the learned counsel for the appellant, that it may not be a case under Section 302 of the Indian Penal Code and the conviction may be justifiably modified by convicting and sentencing him accordingly. 9. Sitmi Devi was subjected to assault we 7 cannot doubt it and evidence of P.W.2, Dr. Anil Kumar, who held post mortem examination on her dead body, leaves no manner of doubt on that account. The doctor found the following injuries. (i) Lacerated wound on left forearm, 1” x ¼” ¼”. (ii) Swelling on left palm on dorsal region 2” x 1”. (iii) Swelling on right thigh on the medial Aspect 2” x 1”. (iv) Lacerated wound on the parietal region of scalp 1” x ¼” x ¼”. Besides the above evidence of P.W.2 we have a document in the form of the inquest report, Exhibit-9, which was prepared by an Officer deputed for the purpose in Sadar hospital, Siwan, after Sitmi Devi had succumbed to the injuries. This document also refers to in column no.5 that there were at least two injuries found on head and if we corelate those findings of the Officer preparing Exhibit-9 with that of P.W.2 as regards injury no.4 described by him after dissection in paragraph 2 of his evidence, then we can find that the death was on account of that particular injury on temporal region of scalp which had caused subdural haematoma. The 8 maninges were congested on that account, which could, ultimately, cause the cardiac respiratory failure. 10. Shri Verma was very emphatic in submitting that we are not properly reading the evidence of P.W.2 and that the opinion of the doctor could not be confined to injury no.4. It was contended by Shri Verma that the doctor meant to tell the court that death could be the result of the cumulative effect of all the four injuries. We recorded our inability to concur with the view and the manner of appreciating evidence of P.W.2 as suggested to us by the learned counsel. While considering the evidence of P.W.2 in paragraph 2, we could not go beyond any words than what are stated by the doctor in his evidence in paragraph 2 or in the whole of his deposition. Nowhere the doctor ever whispered that death could have been caused on account of the cumulative effect of all the injuries. While describing the dissection part of injury no.4 he was detailing his findings and in that connection he was pointing out to the trial court and to us also, that that particular injury was caused by hard and blunt substance and that had resulted 9 in whatever damages to the maninges which ultimately caused the death of the deceased. 11. The argument of the counsel that Musal always has an iron ring with sharp round edge at one of its end and when the P.Ws were stating that a blow was given with Musal, it could always connote that a round spherical wound having clearly cut margins could be the result. But, submitted the counsel, P.W.2 did not find any such wound as such the manner of occurrence was not established. We cannot read the evidence again as suggested by the counsel. Musal is acceptedly a hard blunt but heavy object. It might some times have a ring with cutting circular edge, but when it is alleged to be used as a weapon for assault, we have always to assume that it was used to give a blow by its blunt point and the injury, if caused could be one to be caused by a hard blunt object. 12. Evidence of P.W.4, Dr. Subhash Chandra Rai, further indicates that Sitmi Devi, after having received those injuries had been rushed to the hospital and that she was admitted there. A whole line of 10 treatment was prescribed to her and the treatment chart was prepared which has been brought on the record by P.W.4, as Exhibit-2. Many suggestions appear given to P.W.4, the doctor, in his cross examination but we may not be attaching much importance to those suggestions inasmuch as there could not be any doubt in our minds also about the admission of injured Sitmi Devi in hospital and treatment being given to her. There are various reasons for us to take this view and the one such reason is that during the whole of the trial in which as many as three witnesses deposed as eye-witnesses in which, the appellant had the opportunity to lead evidence in defence, not even an iota of it had been produced before the trial court that the informant or any of the witnesses can have such a strong motive or reason for falsely implicating the appellant or any accused persons. There is no record of any animus between the parties. The parties appear neighbors, living side by side, and that particular incident was just an accident happening on the day which ultimately proved fatal to a lady. 13. We have considered the evidence of 11 P.Ws 1, 3 and 4. We do find that there are certain statements by which the defence attempted to put them into the class of not being eye-witnesses to the occurrence. But again the attempts appear half heartedly made. If P.W.6 was cross-examined in paragraph 19 of his evidence about having made a statement before P.W.7 that he, on receiving a blow on his shoulder, rushed inside his house. We can deem it legitimate on the part of the defence to have obtained the situation of the house in which P.W.6 was rushing into. Considering that particular evidence in paragraph 19 in connection with other evidence of P.W.6 what we could think of that the witness might have rushed out of the place of occurrence after receiving a blow on his shoulder but he could very well had seen the occurrence from there also, else how he could say to the Court that he saw Sitmi Devi arriving there and raising protest whereafter she was dealt blows by the present appellant and deceased accused Ram Nath Prasad. We considered the evidence of P.Ws 1, 3 and 6 and we find their evidence bearing a ring of consistency and intrinsic truth. There might be some lapse at the 12 fringes but they appear corroborating each other on the material aspects of the case and as such the trial court placed reliance upon them. We do not see any reason to disturb that finding as regards the competence of the witnesses. 14. From the evidence of the witnesses like P.Ws 1, 3 and 6 and that of P.W.2, we do not have any doubt in our mind that Sitmi Devi was assaulted in the occurrence as was alleged by the prosecution and she succumbed to the injury received by her during that course. 15. This brings us to consider as to whether it can be a case which may fall under Section 302 of the Indian Penal Code or could the facts constitute an offence under Section 304 of the Indian Penal Code either under its Part-I or Part –II. The facts which have been presented through evidence show that it was a quarrel for a very trivial matter. Temper flew high all of a sudden as regards the appellant and the accused persons. Appellants were labouring under an impression as if the prosecution party had tress-passed over its land. 13 The evidence is very unclear as regards the real possession of the parties on the disputed land. It is true that musal could be a weapon which could be very dangerous but there is no definite allegation except in respect of one blow that any vital part of the body was hit by appellant Dina Nath Prasad. The solitary blow was of course assigned to the appellant, but there were other blows also which could be the reason for the lady falling on the ground. We have considered that it can be the blow assigned to the appellant which could have caused the death of the deceased. The evidence on record does not show that the appellant was intending to cause the death of the lady and that he had any animus towards the lady so as to settle it as against her. It appears to us an act at the spur of the moment and done on account of circumstances which suddenly cropped up on the spot. There is evidence that the appellant dealt another blow but the blow fell on no vital part. However, the appellant being a grown up person could be assumed to know as to what could be the consequences of his act of hitting a lady by Musal on her head. He, as such, could safely be 14 said to have the knowledge as to how dangerous his act was and also about its ultimate result. We, as such, find ourselves inclined to hold that it can be a case which may fall under Section 304 Part –II of the Indian Penal code. In our considered opinion the learned trial Judge should have considered that part of the application of the provisions of law and ought to have convicted the appellant under Section 304 Part – II of the Penal Code. We convict him accordingly. 16. The question then is as to what should be the appropriate sentence which should be imposed upon the appellant so as to replacing the rigorous imprisonment for life which was passed against him by the learned trial Judge. After having considered the circumstances of the case and also considering that it was a trivial issue which culminated ultimately into such an unfortunate incident, we find that rigorous imprisonment for a period of seven years shall be sufficient in the ends of justice and we, accordingly, direct the appellant to suffer that period which period shall be subject to set off against the period the appellant might have earlier 15 undergone during trial. The appellant is on bail, his bail bond is cancelled and he is directed to be taken into custody forthwith to serve out the remaining part of sentence with the above modification in finding of conviction and sentence, the appeal is dismissed. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 28th June, 2010. AAhmad/(NAFR).